COURT FILE NO.: 400-19 DATE: 2020-10-05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown – and – ALBERT ZAMORA-DOXTATOR Applicant
Counsel: Mark Czerkawski, for the Crown Aaron Prevost and Jenny Prosser, for the Applicant
HEARD: October 2, 2020
thomas, rsj. :
The Application
[1] The Applicant entered a guilty plea to the offence of manslaughter on the day of this interim release hearing. As a result, this proceeding has transitioned from a s. 522 hearing to a request for release pursuant to s. 518(2). The importance of that distinction will be touched on below:
Release pending sentence
518(2) Where, before or at any time during the course of any proceedings under section 515, the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the release of the accused until the accused is sentenced.
[2] Counsel relied upon the oral evidence heard by Garson J. in a s. 522 hearing in December 2019. At the end of the argument, I dismissed the application with brief oral reasons with written reasons to follow. These are those reasons.
Background
[3] On June 18, 2019 the Applicant met Steven Burgess, the deceased, in a public park in London. The meeting somehow related to a Fentanyl drug transaction between the two. The Applicant was with his partner and child. The deceased was with his mother.
[4] A physical altercation took place. The record before me indicates that the deceased brought a knife and stabbed the Applicant in the left armpit. The Applicant came into possession of the knife and stabbed the deceased twice in the chest, puncturing his heart.
[5] On June 18, 2019, the Applicant was arrested and charged with aggravated assault. On June 20, 2019, the Applicant was released on a recognizance with a residential surety, Dakota John, following a contested bail hearing. On June 24, 2019, the Applicant was arrested for second-degree murder, after the victim passed away.
[6] The Applicant brought an application for judicial interim release heard on December 11, 12, 13, 16 and 20, 2019 before Garson J. At the conclusion of that application, bail was denied.
[7] Garson J. provided lengthy and detailed reasons for detaining the applicant on the secondary and tertiary grounds. I have reproduced below paras. 96-99 of his reasons dated December 20, 2019 (R. v. Zamora-Doxtator, 2019 ONSC 7436), which provide a summary of his findings:
[96] Notwithstanding, the very able submissions of applicant’s counsel and a rather robust plan, I remain troubled by the following: (i) the applicant’s lengthy and related criminal record, both with respect to violent crimes and wilful and repeated non-compliance with court orders; (ii) this is not the first time that Aboriginal culture or culturally relevant programs have been part of a release plan. In the past, such a plan has been followed by further criminal offences and further wilful breaches of court orders. The 2015 convictions and the applicant’s record since then stand as prime examples. This is also not the first time that Dakota John, Susan Doxtator, or Kevin Paul Doxtator have attempted to influence the applicant not to commit criminal offences or monitor or supervise his behaviour. This is also not the first incident of Mike Hopkins, Rebecca White, or Tracey Gough providing programming or counselling to the applicant; and (iii) the offence is one of extreme and significant violence. As stated earlier, even in the context of a manslaughter, the applicant’s criminal record may well tip the scale in favour of a lengthy jail sentence if convicted. In light of available defences, this remains a strong case for manslaughter.
[97] Notwithstanding the strong cultural and familial incentives to comply, I remain troubled at the substantial risk of further criminal behaviour. Even a strict supervision plan with almost constant supervision can be an inadequate and insufficient alternative to incarceration in certain circumstances.
[98] Notwithstanding a release plan that falls just short of house arrest and incorporates many culturally relevant components, I must ask myself what the reasonable and informed person would think if I were to release the applicant. Put another way, in light of the reverse onus, the lengthy and related record, the nature of the allegations, and the recent convictions while the offender was not using controlled substances, would public confidence in the administration of justice be undermined if he were to be released? In my view, a reasonable and informed member of the public, fully apprised of the circumstances of this case and aware of the presumption of innocence, the right to liberty, the right to reasonable bail, and the available defences, would lose confidence in the administration of justice if I were to order the applicant released. Release is not justified in these circumstances.
[99] There is no doubt that bail courts must do more to ensure release of Aboriginal persons where detention is not justified. Release must remain the general rule and detention the exception. This is one of those exceptional cases. Applying the Gladue factors and the Bill C-75 amendments, I nonetheless reach the inescapable conclusion that detention is justified on both the secondary and the tertiary grounds.
[8] As a guilty plea has now been entered, it is unnecessary for the Applicant to establish a material change in circumstances to allow for release. I am able to freshly consider the s. 515 grounds and the plan, both old and new, and determine if detention is really necessary.
[9] The Applicant has a constitutional right to bail unless there is just cause to deny it, as guaranteed by s. 11(e) of the Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, and subject to the onus set out in s. 522(2) of the Criminal Code of Canada. The Supreme Court of Canada has held that the detention pending trial should not ever become the norm: see R. v. Antic, 2007 SCC 27, [2017] 1 S.C.R. 509, and R. v. Myers, 2019 SCC 18, 438 D.L.R. (4th) 60. As Wagner J. (as he then was) stated in St-Cloud, 2015 SCC 27, at para. 70, with respect to a person charged with a crime, even very serious crimes, it is important “not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”. The exception being where his detention is justified on one of the grounds set out in s. 515(10) of the Criminal Code; St-Cloud at para. 113.
[10] The Applicant proposes release on a personal recognizance with three sureties and to reside in the City of London with his partner, Dakota John, and their three-year-old child. The other two proposed sureties are his mother, Suzanne Doxtator, and his uncle, Paul Doxtator. Both these relatives live close together on the Oneida of the Thames First Nation outside of London. The sureties propose to collectively pledge $3,000. The most significant terms proposed include remaining in the residence with a surety, wearing a GPS electronic ankle bracelet provided by Recovery Science Corporation (RSC), and entering into a monitoring agreement with that firm.
[11] The Applicant has, as well, provided confirmation of his contact with three separate counselling services: (N’Amerind (London) Friendship Centre; John Howard Society; Rebecca White from First Nations and Inuit Health Branch of Health Canada). All agree to assist the Applicant with addiction and mental health concerns.
[12] Although, as mentioned, it is not necessary for me to consider material change from the plan of release proposed to Garson J., there are differences here. The COVID-19 pandemic is a factor I must consider. The Applicant proposes electronic monitoring through a GPS electronic ankle bracelet provided by RSC. This proposal was not before Garson J., and finally the Applicant proposes alternative residential sureties in his mother and uncle.
[13] I found, despite the comprehensive plan prepared, that I could not release the Applicant because detention continues to be justified on the secondary and tertiary grounds.
[14] Ms. Prosser, counsel for the Applicant, provided a compelling argument advocating for release, in part, because the Applicant had community and cultural supports in place. Ms. Prosser drew my attention to the Gladue principles and their impact on bail (R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688), to the reaffirmation and urgency expressed by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, and to the content of the Report of the Truth and Reconciliation Commission, (Truth and Reconciliation Commission of Canada. Canada's Residential Schools: The Legacy: The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5. McGill-Queen's University Press, 2015), where it considered “the over representation of Aboriginal people in prison”.
[15] All of the sources of important cultural information were canvassed by Garson J., (R. v. Zamora-Doxtator, 2019 ONSC 7436, paras. 84-89), in the context of the proposed release of the Applicant.
[16] I have considered the direction given by ss. 493.1 and 493.2 of the Criminal Code:
Principle of restraint 493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
Aboriginal accused or vulnerable populations 493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (a) Aboriginal accused; and (b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[17] I have reflected on the recent comments of the Supreme Court of Canada in R. v. Zora, 2020 SCC 14, [2020] S.C.J. 14 at para 79, set out below:
[79] A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations (CCLA Report at pp. 72-79). Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide (see, e.g., Schab, 2016 YKTC 69, at paras. 24-5; Omeasoo, 2013 ABPC 328, at paras. 33 and 37; R. v. Coombs, 2004 ABQB 621, 369 A.R. 215, at para. 8; M. B. Rankin, “Using Court Orders to Manage, Supervise and Control Mentally Disordered Offenders: A Rights-Based Approach” (2018), 65 C.L.Q. 280). Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges (see, e.g., R. v. Murphy, 2017 YKSC 34, at paras. 31-34; Omeasoo, at para. 44; CCLA Report, at pp. 75-79; J. Rogin, “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada” (2017), 95 Can. Bar. Rev. 325; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 57-60; also s. 493.2, as of December 18, 2019). The oft-cited CCLA Report provides the following trenchant summary:
Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfews that interfere with employment and daily life. Numerous and restrictive conditions, imposed for considerable periods of time, are setting people up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime. [p. 1]
[18] Having considered all of the factors, as I must, when deciding bail for an Aboriginal offender, I must also caution myself as Nakatsuru J. did in R. v. Sledz, 2017 ONSC 1290 at para 20: “So when I look at your case and ask myself whether detention is the only answer, I must be mindful that I do not want to become part of the problem.”
[19] I do, however, endorse the conclusions of Garson J. at para. 96 (ii) and 99 of his reasons in R. v. Zamora-Doxtator, 2019 ONSC 7436:
[96] Notwithstanding, the very able submissions of applicant’s counsel and a rather robust plan, I remain troubled by the following: (ii) this is not the first time that Aboriginal culture or culturally relevant programs have been part of a release plan. In the past, such a plan has been followed by further criminal offences and further wilful breaches of court orders. The 2015 convictions and the applicant’s record since then stand as prime examples. This is also not the first time that Dakota John, Susan Doxtator, or Kevin Paul Doxtator have attempted to influence the applicant not to commit criminal offences or monitor or supervise his behaviour. This is also not the first incident of Mike Hopkins, Rebecca White, or Tracey Gough providing programming or counselling to the applicant; and …
[99] There is no doubt that bail courts must do more to ensure release of Aboriginal persons where detention is not justified. Release must remain the general rule and detention the exception. This is one of those exceptional cases. Applying the Gladue factors and the Bill C-75 amendments, I nonetheless reach the inescapable conclusion that detention is justified on both the secondary and the tertiary grounds
The Secondary Ground (Public Safety)
[20] Garson J., in R. v. Zamora-Doxtator, 2019 ONSC 7436, summarized the long criminal record of the Applicant at para. 76 (i) of his reasons:
[76] I have the following concerns with the proposed plan and its ability to ensure that there is not a substantial likelihood of the commission of further criminal offences or interference with the administration of justice: (i) the applicant has a lengthy criminal record which reveals no less than eight previous convictions for failure to comply with court-ordered recognizances, eight prior convictions for failing to comply with terms of a probation order, and six prior convictions for drive while disqualified. Additionally, there are numerous convictions for crimes of violence. Since 2015, the applicant has been convicted of possessing a weapon, drive disqualified (times two), failing to appear, failing to comply with a probation order, resist arrest, assault peace officer, and other property offences. His criminal record demonstrates a consistent and clear pattern of violence and disregard for court orders. Put another way, he is a repeat violent offender who is recognized by Probation and Parole Services in the October 23, 2018 report as an Intensive Supervision offender.
[21] Dakota John is proposed as the primary residence surety for the applicant. It is suggested this residence would make the Applicant more accessible to counselling. They are partners and have a young daughter. There have been problems within the relationship in 2015, 2016 and 2018, but that is not what concerns me most. At the time of the offence before this Court, Ms. John was with the Applicant, together with their young daughter, in a park in London. I do not know what she knew about the proposed meeting between the Applicant and Steven Burgess. There is, however, no doubt based on the Agreed Statement of Facts provided to support the manslaughter conviction, that the Applicant and the deceased were meeting over a botched drug transaction, and that the Applicant had been trafficking in Fentanyl, and would be in the future.
[22] It is important to me, that while the Applicant had successfully completed his 60-day conditional sentence for assaulting a peace officer, without being breached, he was on a period of probation at the time of the offence. Despite the positive comments of his probation officer, he was involved in the trafficking of a dangerous drug throughout the time period of his sentence.
[23] I recognize there are other proposed residential sureties. Despite that, I have no confidence that the Applicant can be effectively supervised with this plan.
[24] As to the added layer of supervision to be provided by electronic monitoring, I endorse the comments of Brown J.A. in R. v. Jesso, 2020 ONCA 280 at paras. 26-28:
[26] In R. v. Fleming, 2015 ONSC 4380, Trotter J. (as he then was), pointed out at para. 18 that GPS monitoring only reveals where a person is, not what he is doing. As observed by Hourigan J. (as he then was) in R. v. Palijan, 2012 ONSC 6549, at para. 25, a company such as RCS focuses on gathering evidence of compliance, not preventing non-compliance.
[27] The weight to be given to an applicant’s willingness to enter into a GPS monitoring program with a company such as RCS will depend on the specific circumstances of a case: R. v. Sotomayor, 2014 ONSC 500, at para. 41, fn. 1. In the present case, I am not persuaded that the proposed GPS monitoring program significantly reduces the likelihood of the applicant committing an offence that will endanger the safety of the public. While a GPS monitor can record the presence of the applicant at a specific location, such as the one where the events of November 28, 2019 are alleged to have occurred, it cannot provide a quick response that would prevent such events. As well, the applicant does not have an unblemished record of complying with court orders.
[28] Taking the evidence as a whole, I am not satisfied that the applicant has established that his release plan would reduce the risk of him re-offending. On the contrary, I conclude that the evidence demonstrates that a substantial risk exists that the applicant would commit a criminal offence that endangers public safety if released pending his appeal. I conclude that the public safety considerations are sufficient to warrant the continued detention of the applicant in the public interest.
COVID-19
[25] In R. v. Morgan, 2020 ONCA 279, the Court of Appeal took judicial notice of the pandemic at para 8:
[8] In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.
[26] The Applicant has been incarcerated at Elgin-Middlesex Detention Centre, (EDMC), since June 24, 2019. His affidavit filed describes certain medical conditions that he believes put him at a greater risk, should he contract this potentially deadly infection. The Crown has provided a “Response to COVID-19 Information Note” dated September 28, 2020. There are no present positive cases of COVID-19 at EMDC, with inmates or staff.
[27] The Applicant applies for release at this time after his guilty plea to “put his affairs in order” and to spend time with his family. In addition, it is proposed that he will attend for culturally appropriate counselling.
[28] A date has been set of December 3, 2020 for his sentencing on this manslaughter offence. It may very well be that he is more exposed to the potential of contracting the virus by his release and re-incarceration than he would be otherwise.
[29] In R. v. Stone, 2020 ONCA 448, paras. 17-18, Juriansz J.A., in the context of an application for bail, pending appeal, said the following:
[17] The fact is that the applicant has been sentenced to six years in custody in a federal penitentiary. Being on release for a few months now will not change the fact he must serve his sentence and may be serving it during the second wave of COVID-19 that Dr. Orkin foresees, should it occur.
[18] In this case, the applicant is in custody at Bath Institution where no inmate has tested positive to date. …
[30] In this matter, the Applicant will be sentenced several months from now to a further period of incarceration for manslaughter. It is, in these circumstances, difficult to see the presence of the pandemic as a factor suggesting release pending sentence.
[31] Considering the criminal record of the Applicant and the nature of that record, including his response to community supervision in the past, I find that there is a substantial likelihood the Applicant will commit a further offence if released, and so the safety of the public demands his continued incarceration.
Tertiary Ground
[32] On the tertiary ground, while the Applicant is no longer facing a murder charge, he has lost the presumption of innocence. He has now been convicted of manslaughter, which brings with it the potential of a lengthy term of imprisonment. The conviction, the offence and the potential sentence are factors to be considered under s. 515(10)(c)(i)-(iv) of the Criminal Code as it discusses the tertiary ground.
[33] To release the Applicant while awaiting sentence, even taking into account the comprehensive plan offered would, in my view, negatively impact the public’s confidence in the administration of justice.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas Released: October 5, 2020.
COURT FILE NO.: 400-19 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALBERT ZAMORA-DOXTATOR REASONS FOR JUDGMENT THOMAS, RSJ. Released: October 5, 2020.