Court File and Parties
COURT FILE NO: CR-20-6000015200-BR DATE: 20200513 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – S.B. Defendant/ Applicant
Counsel: J. Canton, for the Crown/Respondent A. Morphew, for the Defendant/Applicant
HEARD BY TELECONFERENCE: May 11, 2020
Restriction on Publication
An order has been made pursuant to s. 517(1) of the Criminal Code that the evidence taken, information given, or representations made, as well as any reasons given, shall not be published in any document or broadcast or transmitted in any way before the trial is ended. Counsel are permitted to circulate this judgment to other counsel for use in court.
REasons on s. 525 bail review application
H. mcarthur J.:
Introduction
[ 1 ] S.B. is facing two counts of attempt murder, two counts of discharge firearm with intent, one count of possession of a loaded restricted firearm (and numerous other related gun offences) and one count of failing to comply with a probation order. The charges all arise from an incident on October 31, 2018, where the Crown alleges S.B. and another man fired 21 shots towards an SUV with two people inside. S.B. was arrested a few days after the incident and has remained in custody since that time. He has never had a bail hearing. His jury trial is scheduled to start on October 13, 2020.
[ 2 ] S.B. now seeks a review of his detention pursuant to s. 525 the Criminal Code, a proceeding often referred to as a 90-day bail review. [1]
[ 3 ] The defence argues that the plan being proposed, which includes a residential surety who is willing to supervise S.B. “at all times”, a back-up surety, and electronic monitoring, will address any risk that S.B. will commit crimes if released. Fear of contracting Covid-19 will also help ensure that S.B. stays inside and out of trouble. The defence also argues that given the significant risks to S.B. from Covid-19 while in jail, and the inevitable delay of his trial, his detention is not necessary to maintain confidence in the administration of justice.
[ 4 ] The Crown counters that S.B. has a significant criminal record, which includes crimes of violence and 14 breach-type offences. While the Crown submits that the sureties are well-meaning, he says they will not be able to control S.B., even with the assistance of electronic monitoring. The Covid-19 pandemic and the increased risk to inmates, he says, does not change the ultimate conclusion with respect to S.B.: there is a substantial likelihood that S.B. would commit crimes if released and the public confidence in the administration of justice would be undermined if S.B. was released on bail.
[ 5 ] For the reasons set out below, I have determined that S.B.’s detention is necessary. The proposed plan is insufficient to address the risks posed by S.B. if released. Even with electronic monitoring, I am satisfied that there is a substantial likelihood that S.B. would commit offences if released. I am further satisfied that, having regard to all of the circumstances, S.B.’s detention is necessary to maintain confidence in the administration of justice.
The Allegations
[ 6 ] The Crown alleges that on October 31, 2018, at about 3:20 in the afternoon, S.B. and another man drove into a parking lot in an Infinity car and drove towards an SUV. The two men then opened fire at the SUV, shooting over 21 rounds. A surveillance camera captured the incident and showed two guns being fired from the Infinity.
[ 7 ] The occupants of the SUV then fired shots at the Infinity as the occupants of the Infinity tried to drive away. The driver of the Infinity lost control. As the driver of the Infinity tried to regain control, the SUV rammed purposely into it. The two occupants of the Infinity, one of whom was S.B., got out and ran.
[ 8 ] The occupants of the SUV got out and gave chase. One of the occupants of the SUV caught up to S.B. The two men fought. S.B. did not fare well. S.B. wound up unconscious and prone on the ground. Police found him there and he was taken to the hospital, where he was in a coma for about a week. He was arrested on November 6, 2018.
[ 9 ] The entire incident (including the shooting, the car crash and the fight that left S.B. incapacitated) was captured by various surveillance cameras.
[ 10 ] The police found one firearm in the car S.B. had been in. The police also found another firearm near the scene of the collision and the path along which three of the men, including S.B., had fled. Police confirmed that these two firearms were involved in the shooting. A third firearm was also used. When police searched S.B., they found a loaded handgun magazine. Moreover, S.B.’s fingerprint was located on one of the collected ammunition magazines.
[ 11 ] There is no dispute that the case against S.B. is very strong.
S.B.’s Background
[ 12 ] S.B. is 29 years old. He was born in Scarborough and had a difficult childhood. He was in the care of the Children’s Aid Society for most of his childhood. He has some family relationships, including a sister and a niece who are willing to act as his sureties. I will say more about them when I discuss the proposed plan.
[ 13 ] S.B. has a significant criminal record. His first conviction was in 2007, when he was found guilty of possession of property obtained by crime and fail to comply with recognizance. He has amassed numerous convictions since that time, including weapons offences and crimes of violence. He has 14 breach-type offences; one fail to attend court, three fail to abide by a youth court justice sentence, two fail to comply with a probation order and eight counts of fail to comply with a recognizance. Among other convictions, in 2012 he was convicted of unauthorized possession of a firearm and robbery from a separate incident. In 2015, he was found guilty of assault.
[ 14 ] In 2017, S.B. was convicted of manslaughter. [2] Coroza J., as he then was, sentenced S.B. to 12-months of custody, on top of the equivalent of 6-years and 6-months of pre-sentence custody. Coroza J. noted that S.B. said that he wanted to turn his life around. S.B. told Coroza J. that he was prepared to change. He wanted to move to Montreal, where he would not be around those who might lead him astray. He wanted to start a new chapter in his life.
[ 15 ] The incident leading to the current charges happened approximately seven months after S.B. was released from serving his manslaughter sentence.
[ 16 ] S.B. suffered serious injuries when he was beaten following the shooting. This includes an injury to his back. S.B. has continuing pain and periods of numbness. While Dr. Finkelstein of the Spine Clinic at Sunnybrook Hospital recommended that S.B. be referred to a “local physical medicine/rehab specialist, Rheumatologist, Neurologist or Pain Clinic”, this has not happened. S.B. also has asthma.
[ 17 ] During his pre-sentence custody on this matter thus far, S.B. has completed multiple programs, including “Anti-Criminal Thinking” and “Recognizing Healthy Relationships”. He is also enrolled to start school.
The Proposed Plan of Release
[ 18 ] Neshia Richards is S.B.’s sister and she is willing to act as a surety and have S.B. live with her and her family in their home in Montreal. Ms. Richards testified that she is able to pledge $6,000 as a surety. This represents a lot of money to her.
[ 19 ] Ms. Richards and S.B. did not know of each other until 2009. Since that time, they have tried to develop a relationship. They have had frequent phone contact. S.B. has been in custody for much of the time Ms. Richards has known him, but whether in or out of custody, they usually speak on the phone about twice a week. Ms. Richards testified that one of the reasons she wanted to have S.B. live with her is so that the two of them can get to know each other better.
[ 20 ] Ms. Richards lives in a three-bedroom apartment in Montreal with her husband and five children, ranging in age from one to 16. The baby sleeps in the room Ms. Richards shares with her husband. Her two daughters share another bedroom. Ms. Richards testified that S.B. would sleep in the third room with her two sons, ages six and 13.
[ 21 ] As a result of Covid-19, Ms. Richards was recently laid off from her job at the airport where she had worked for about a month. Because she is not working, she said she would be able to look after S.B. “at all times”. She agreed with the Crown, however, that she will go back to work as soon as she can. She is getting $1,000 every two weeks from unemployment insurance. While her husband makes about $3,000 a month from construction, Ms. Richards said if her current job does not come back quickly enough, she will look for another job. Once she has a job, Ms. Richards said she can continue to supervise S.B. by calling the landline to ensure that he is home.
[ 22 ] Ms. Richards said she would monitor S.B.’s phone use and internet use. They do not have a computer in their house, rather, her children all have tablets. She said she would instruct her children not to let S.B. use their tablets. Ms. Richards said that S.B. would not be allowed to have any weapons or drugs in the house. He would not be allowed any contact with any criminal peers. S.B. has told her he wants to change, and she thinks he should have that chance. Ms. Richards does have some concerns that S.B. may tell her one thing and then not follow through, but she notes that S.B. had a hard life without any family there for him. Now, by living with her and her family in Montreal, away from his criminal friends, he can have a fresh start.
[ 23 ] Ms. Richards said that she could drive S.B. to Toronto when he needed to be there for court or to see his lawyer. If she was not able to drive S.B., for example because she had to work, then the other proposed surety, Moteb Tomlinson (who goes by the name Corlette Williams) could come to Montreal to pick him up and drive him to Toronto. S.B. would also stay with Ms. Tomlinson when he comes to Toronto, and Ms. Tomlinson would enforce the same rules. Ms. Richards said she would not allow S.B. to come to Toronto to be on his own, as she is “scared” he will go back to his “old habits” if left alone in Toronto.
[ 24 ] Ms. Tomlinson is S.B.’s niece. When S.B. is required to be in Toronto for court or to meet his lawyer, Ms. Tomlinson is willing to have him live with her and she is willing to supervise him to ensure that he is complying with the terms of his bail.
[ 25 ] Ms. Tomlinson is about five years older than S.B. and said she has known him for his whole life; she tried to maintain a relationship with him even when he was in the care of the C.A.S. Ms. Tomlinson said that she was in frequent telephone contact with S.B. when he was in custody, and that she saw him from time to time in the seven months between his release on the manslaughter conviction and the present charges. She would give him money and talk to him about changing his life for the better. S.B. told her that he would stay out of trouble.
[ 26 ] Ms. Tomlinson has eight children, ranging in age from one to 17. Ms. Tomlinson left her last job in October 2019 because of problems with her knee according to her affidavit or, according to her testimony, because she was laid off. She gets $930 a month from social assistance and $4,078 a month from Canada Child Care benefits. Ms. Tomlinson said she wants to get another job once she can, but given the current situation with the pandemic, she must care for her children. Ms. Tomlinson is acting as as a surety for one of her sons in the amount of $1,000.
[ 27 ] When asked if she had any concerns that S.B. would listen to her, Ms. Tomlinson said that she is “hoping” now that because he is older, he has changed. She said that when she speaks to him from jail he sounds more “mature”, which gives her hope.
[ 28 ] Ms. Tomlinson was a witness in S.B.’s trial for murder, which ended in his manslaughter conviction. She could not recall what she was called to testify about, or whether she was called by the Crown or defence.
[ 29 ] It is also proposed that S.B. be subject to electronic monitoring provided by Recovery Science Corporation, using GPS technology. Since he will be living in Montreal, the electronic monitoring would not be covered by the Ontario Government. The cost is $500 a month. Ms. Richards said that she would be able to cover part of the cost by putting it on her credit card and anticipated that Ms. Tomlinson would also pay some of the cost. When it was pointed out to Ms. Richards that it was a monthly fee and that the trial was still five months away, she said that she could cover the cost, and that S.B. would be applying for social assistance, which, when he finally secures such assistance, would help with the cost. In her testimony, Ms. Tomlinson at first seemed unaware that she might have to pay for part of the monitoring, but then said that she was willing to do so.
Analysis
[ 30 ] Section 11(e) of the Canadian Charter of Rights and Freedoms provides that no one should be denied reasonable bail without just cause. The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. As noted recently in R. v. Myers, 2019 SCC 18, at para. 1, in Canada, pre-trial detention is the exception, not the rule. Release, at the earliest opportunity, and in the least onerous manner, is the default presumption in our criminal justice system.
[ 31 ] S.B. seeks bail pursuant to s. 525 of the Criminal Code. Unlike a review conducted pursuant to ss. 520 or 521, this is not a review of any prior judicial order but, rather, a review of the detention itself. The question that must be considered is whether S.B.’s continued detention is necessary on the primary, secondary or tertiary grounds as set out in s. 515(10) of the Criminal Code: Myers, at paras. 45-47. [3]
[ 32 ] Given that the fundamental purpose of s. 525 is to afford the accused an opportunity to have a judge scrutinize the detention itself, an individual such as S.B., who has never had a bail hearing, but who has been in custody for more than 90 days, is entitled to a hearing under s. 525.
[ 33 ] The Crown did not raise any concerns with respect to the primary grounds and instead focused his argument on the secondary and tertiary grounds. As a result, I will restrict my analysis to these two grounds.
The Secondary Ground - Section 515(10)(b)
[ 34 ] Section 515(10) (b) of the Criminal Code provides that detention is justified where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” Substantial likelihood means significantly likely: R. v. Manasseri, 2017 ONCA 226, at para. 87; leave to appeal dismissed 37322 (April 13, 2017). The secondary ground in s. 515(10) (b) focuses on and seeks to ensure against recidivistic conduct on release: Manasseri, at para. 84.
[ 35 ] I am satisfied based on all the evidence before me that if released, S.B. will reoffend. He has a track record for breaching court orders, amassing 14 breach-type offences. He has been involved with guns, more than once. He has spent much of the last 10 years in custody. S.B. had only been out of jail, after serving his sentence on the manslaughter offence, for about seven months before being arrested for this extremely serious matter, involving allegations that he repeatedly fired a gun, in broad daylight, in a public area, at two other people. The programming S.B. has taken while in pre-sentence custody, while commendable, does not give me any confidence that if released, he would abide by the terms of his bail.
[ 36 ] Of course, a criminal record, even one that is related, does not automatically mean that an accused must be detained to protect the public - if there is a strong plan of supervision that sufficiently addresses the threat to public safety: R. v. T.L., 2020 ONSC 1885, at para. 18. But the plan that is being suggested in S.B.’s case does nothing to allay my concerns that S.B. will reoffend if released. Ms. Richards is well-meaning, but she is a busy mother of five children, and she hopes to be back at work at the earliest opportunity. Her plan to call home to see if S.B. is there when she is at work is clearly not the level of supervision required for an individual such as S.B., who has demonstrated such a blatant disregard for court orders in the past.
[ 37 ] Moreover, while they are siblings, Ms. Richards and S.B. have only known about each other for 10 years, and much of their relationship has been phone calls while S.B. has been in custody. They do not have a long-standing relationship of trust and respect. There is no reason to believe that S.B. would listen to Ms. Richards or follow her instructions and rules. Ms. Richards has concerns about whether S.B. would listen to her, but at the end of the day testified, rather plaintively, that she wants to get to know her brother better. While I commend her for that, it does nothing to give me any confidence in her ability to supervise him.
[ 38 ] The addition of Ms. Tomlinson does little to assist the plan. Ms. Tomlinson is a busy mother of eight children, all of whom are out of school because of the pandemic. She is also already acting as a surety for her son. While acting as a surety for another person does not mean that Ms. Tomlinson could not supervise S.B., it is a circumstance to consider when determining if overall Ms. Tomlinson could properly supervise S.B. And I have concerns that she could not.
[ 39 ] Listening to Ms. Tomlinson testify, I had the distinct impression that she did not truly understand what was being proposed or what would be required of her. For example, when asked about who would pay for the electronic monitoring, her evidence was confusing and unclear. Her final position, that she would help pay for it, was hesitant and unsure. I was also somewhat concerned that she claimed that she could not remember why she was called to testify at S.B.’s murder trial, or what she testified about, or even whether she was called by the Crown or defence. It seems quite odd and unbelievable that she would not remember these details, which makes me feel less confident that she is an appropriate surety for S.B.
[ 40 ] The addition of electronic monitoring to the plan also does not allay the concerns that I have that it is significantly likely that S.B. will reoffend if released. I accept that electronic monitoring can strengthen the overall plan of release: it can provide specific supervision of an accused with respect to house arrest or curfew conditions. But, as noted recently by Molloy J. in R. v. D.D., 2020 ONSC 2791, at para. 19, even a plan of release “accompanied by the highest level of house arrest and electronic monitoring, is dependent to some degree upon the accused being compliant and the sureties being able to control his behaviour”. In this case, I have no confidence in either S.B.’s ability to be compliant or the sureties’ ability to control his behaviour.
[ 41 ] Finally, I accept that Covid-19 is relevant to an assessment of the secondary grounds. It is clearly a circumstance to consider. And, for some accused, the specter of returning to jail during a pandemic can have a significant deterrent effect: R. v. Cain, 2020 ONSC 2018, at paras. 10-17. But in the present case, I am not satisfied that S.B. is so afraid of returning to jail during a pandemic that he will suddenly start to follow the rules: D.D., at para. 27.
[ 42 ] Looking at all of the circumstances, I am satisfied that the continued detention of S.B. is justified pursuant to s. 515(10) (b) of the Criminal Code, as there is a substantial likelihood that he will commit a criminal offence if released from custody.
The Tertiary Ground - Section 515(10) (c)
[ 43 ] Section 515(10) (c) of the Criminal Code provides that the accused’s detention will be justified if it is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:
i. the apparent strength of the prosecution’s case, ii. the gravity of the offence, iii. the circumstances surrounding the commission of the offence, including whether a firearm was used, and iv. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years or more.
[ 44 ] There is no dispute that all four enumerated factors pull towards detention. The case against S.B. seems to be overwhelming. The video evidence, along with the fact that S.B. was rendered unconscious near the scene and found there by the police, seems to leave little doubt that he was one of the two men in the Infinity, from which 21 shots were fired. Attempt murder is a grave offence, punishable by life. The entire context of the alleged offence is extremely serious. Not only were firearms involved, but 21 shots were fired at an SUV with passengers inside, in the afternoon, in a public parking lot. Discharge firearm with intent is punishable by a mandatory minimum that exceeds three years. And even without a mandatory minimum, S.B., if convicted, will face a lengthy term of imprisonment.
[ 45 ] That said, even when the four statutory factors favour detention, that does not end the inquiry. The court must go on to consider all the circumstances.
[ 46 ] One relevant circumstance is the plan of release. A strong plan of release might allay any concerns that the public might have with a specific offender’s release. But here, for the reasons set out above, I am not satisfied that the proposed plan would address the substantial risk that S.B. would offend if released. Thus, the plan of release in the current matter does nothing to help maintain public confidence in the administration of justice. Rather, the plan of release is so frail and fraught with potential difficulty that S.B.’s release would undermine public confidence in the administration of justice.
[ 47 ] Another relevant circumstance is the impact of Covid-19 on an assessment of the tertiary grounds. But ultimately, I have determined that the pandemic does not change the conclusion that S.B.’s detention is necessary to maintain public confidence in the administration of justice.
[ 48 ] In reaching this conclusion, I accept the affidavit evidence of Dr. Aaron Orkin that inmates in institutions such as the Toronto South Detention Centre, where S.B. is housed, are at a higher risk of contracting Covid-19. It is difficult, if not impossible, to social distance while incarcerated. Jails are dangerous places to be during a pandemic.
[ 49 ] I also accept that there is a benefit to the public health system in reducing the prison population, as it has been recognized that an outbreak in an institution can turn into wider community spread and put greater pressure on our scarce medical resources: R. v. Kazman, 2020 ONCA 251, at para. 18; R. v. J.R., 2020 ONSC 1938, at paras. 45-46.
[ 50 ] Further, although I do not have specific evidence before me, I will assume for the sake of the analysis that S.B. has asthma and that asthma leaves S.B. more susceptible to severe negative outcomes if he contracts the virus. Finally, for the sake of my analysis, I will assume as true S.B.’s evidence that soap and disinfectant are not always provided to inmates, that he is still on a full range and social distancing is impossible, and that some guards do not wear masks or do not wear them properly, all of which leaves S.B. at greater risk of contracting a potentially life-threatening virus.
[ 51 ] Even taking all of the Covid-19 arguments at their highest, and despite the risks posed to S.B., given the seriousness of the offences he is facing, the overwhelming case against him, the lengthy potential sentence faced by S.B., S.B.’s habitual failure to comply with court orders, his history of violence, and the poor plan of supervision being offered, in my view public confidence in the administration of justice would be undermined by his release.
[ 52 ] Finally, defence counsel argues that given Covid-19, there is no guarantee that S.B.’s trial will proceed as scheduled. She argues that there is a backlog of cases and the potential for a second wave of Covid-19, both of which will delay S.B.’s scheduled trial.
[ 53 ] It is clear that the anticipated amount of time required to get to the end of trial is a relevant circumstance: Myers, at para. 50. But none of us has a crystal ball. And at this stage, S.B.’s case is still set to go ahead. That said, defence counsel may prove to be right. S.B.’s case may be delayed. However, even assuming that S.B.’s trial is adjourned past October 2020 for some time, I am still satisfied that his release would undermine confidence in the administration of justice.
[ 54 ] Considering all of the circumstances, I am satisfied that S.B.’s detention is necessary to maintain confidence in the administration of justice.
Conclusion
[ 55 ] Looking at all of the circumstances, I am satisfied that the continued detention of S.B. is justified pursuant to s. 515(10) (b) of the Criminal Code, as there is a substantial likelihood that he will commit a criminal offence if released from custody.
[ 56 ] Further, pursuant to s. 515(10) (c) of the Criminal Code, I am satisfied that S.B.’s continued detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances.
Justice Heather McArthur
Released: May 13, 2020
Footnotes
[1] With the consent of all parties, the hearing proceeded by way of teleconference.
[2] S.B. was acquitted by a jury on the charge of first degree murder and found guilty of manslaughter. S.B. is appealing his conviction on the grounds of inconsistent and unreasonable verdict. I take the appeal into consideration when factoring how much weight to put on this conviction in my analysis as to whether S.B. is releasable.
[3] Counsel disagree over the onus on a s. 525 hearing. The Crown argues that since S.B. would have faced a reverse onus at a bail hearing at the Ontario Court of Justice, the same onus should apply here: see R. v. Denesevich, 2019 ONSC 3823, at para. 50. The defence, however, relying on comments by Coroza J. (as he then was) in the recent decision of R. v. Pescon, unreported, March 16, 2020, at para. 5, argues that S.B. does not have the onus. Instead, she argues that neither party has an onus; rather, the issue is whether the court is satisfied that S.B.’s continued detention is required. While the applicable onus is an interesting legal issue, in my view it is not one that needs to be addressed in these reasons: even if the Crown bore the onus, I am satisfied that S.B. is not releasable.