Court File and Parties

COURT FILE NO.: CR-19-005876-00BR DATE: 20200514 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Rashon Mair

BEFORE: Justice M.L. Edwards

COUNSEL: Michelle Rumble, Counsel, for the Crown Tobias Okada-Phillips, Counsel, for the Applicant

HEARD: May 12, 2020, by teleconference

Endorsement – Bail Review

Overview

[1] This is a bail review application brought subsequent to a contested bail hearing on July 4, 2019, when Mr. Mair was detained by order of Justice of the Peace Levita. Counsel for Mr. Mair argues that there has been a material change in circumstance due to a combination of:

(a) Mr. Mair having completed his sentence on aggravated assault charges;

(b) The discharge at his preliminary hearing of the more serious charges involving robbery with a firearm allegations; and

(c) The COVID-19 epidemic, which potentially endangers Mr. Mair’s health and will likely make a timely trial impractical.

The Facts

[2] Mr. Mair was born on September 23, 1995, and as such is approximately 24 years of age. Mr. Mair was charged with a number of offences arising out of an altercation which occurred in 2018. Ultimately, Mr. Mair pleaded guilty to one count of aggravated assault and one count of assault causing bodily harm. Mr. Mair received a sentence of 343 days plus 2 years probation in connection with the aggravated assault charge, and six months consecutive and a mandatory weapons prohibition in connection with the assault causing bodily harm charge. The convictions were registered on September 25, 2019. I will refer to these charges as the 2018 charges. But for the fact that Mr. Mair was arrested on June 27, 2019 and charged with very serious offences involving a firearm, he otherwise would have been released on May 11, 2020.

[3] Mr. Mair was initially released on bail in connection with the 2018 charges. He was released into a form of house arrest with each of his grandmothers acting as sureties, pledging a total of $20,000. The terms of his house arrest were eventually amended to allow him to work with a curfew between 9:00 p.m. and 6:00 a.m.

[4] Despite assurances to both sureties and to his mother and father, there is considerable evidence to suggest that when Mr. Mair was arrested on June 27, 2019, that he was in breach of the aforesaid curfew conditions and therefore in breach of his recognizance. That, of course, is an issue that will ultimately have to be determined at his trial.

The Allegations

[5] Mr. Mair, together with three other co-accused, are alleged to have been involved in the robbery of another person while using a firearm. These charges proceeded through a preliminary hearing and Mr. Mair has been discharged on all charges, with the exception of occupying a motor vehicle knowing that there was a firearm and failing to comply with his recognizance for breaching curfew. I will refer to the charges on which Mr. Mair has been committed to trial as the remaining charges.

[6] As a result of the closure of this court due to the COVID-19 pandemic, Mr. Mair has not appeared in this court for the purposes of fixing a trial date. A judicial pre-trial was, however, conducted before Regional Senior Justice Fuerst on April 8, 2020, with a further judicial pre-trial anticipated to be held in June 2020. If Mr. Mair ultimately elects trial with a jury, it is beyond doubt that a trial date will not likely occur until some time well after September 2020.

[7] Mr. Mair is presently detained at the Central East Correctional Institution (“CECI”). It is conceded that there has been one confirmed case of COVID-19 at the CECI. In the notice of application, it is suggested that Mr. Mair has asthma and that his health and well-being - together with overcrowding at the CECI, should be relevant factors that this court should consider in determining whether he should be released to his two residential sureties.

The Plan of Release

[8] The proposed plan of release involves two residential sureties, specifically his mother Judith DaCosta and his father Edward Mair (I will refer to Edward Mair as Mr. Mair Sr.). Ms. DaCosta and Mr. Mair Sr. are separated. Ms. DaCosta is a personal support worker who is proposing a monetary pledge as a residential surety in the amount of $14,000. Ms. DaCosta had pledged $5,000 before Justice of the Peace Levita. Mr. Mair Sr. is prepared to pledge $500. The plan of release contemplates house arrest.

Reasons for Detention of the Justice of the Peace

[9] While Justice of the Peace Levita considered both Ms. DaCosta and Mr. Mair Sr. honest and sincere in their intentions to supervise and help their son, nonetheless Justice of the Peace Levita concluded that the plan of release proposed by Mr. Mair did not address the secondary ground concerns. In that regard, in his Reasons he stated:

There is a substantial likelihood the defendant will not follow the terms of the bail. It is strongly alleged that he broke his promise to his Mom and Dad regarding him following the conditions of his bail, and there is no evidence to support that anything has changed. The release will essentially be the same as the $20,000 release he is alleged to have breached but in the amount of approximately $5,000.

Position of the Defence

[10] Counsel for Mr. Mair argues that given that Mr. Mair has now completed his sentence with respect to the 2018 charges, that this constitutes a material change of circumstance. In his Reasons, Justice of the Peace Levita stated:

It is also important to note that the defendant (Mr. Mair) allegedly breached his bail less than a month and a half from the time that he plead guilty to two very serious charges, the same time at which his bail was varied. This court considers this fact when predicting future behaviour of the defendant.

[11] In relation to the aforesaid reasoning of the justice of the peace, counsel for Mr. Mair argues that this was an inappropriate overreliance on the allegation of a breach of a curfew condition to detain the applicant. In that regard, counsel for Mr. Mair argues that the presumption of innocence still applied to Mr. Mair who was, at that time, a young person with no prior criminal record. Regardless, it is now argued that these issues have been superseded given that Mr. Mair plead guilty and has served his sentence.

[12] It is also argued on behalf of Mr. Mair that given that he has been discharged on all of the charges arising out of his arrest in June 2019 (with the exception of the remaining charges), that this also constitutes a significant material change in circumstance. At the time of Mr. Mair’s initial bail application before the justice of the peace he was facing many more serious charges, none of which, it is argued, are relevant to this bail review.

[13] It is also argued that the COVID-19 pandemic is a material change in circumstance that favours Mr. Mair’s release, given that he suffers from asthma and is confined in an institution where there has been a confirmed case of COVID-19.

[14] It is argued on behalf of Mr. Mair that the justice of the peace relied upon a premise that Mr. Mair was simply unreleasable because of the allegation of a curfew breach. It is argued that the reliance on such a curfew breach should not support automatic detention, particularly at a point in time when Mr. Mair did not have an actual criminal record.

[15] Counsel for Mr. Mair argues now that reasonable bail favours the release of Mr. Mair into the supervision of his mother and father under house arrest conditions.

Position of the Crown

[16] Ms. Rumble repeats the concerns that were raised before the justice of the peace, that given the overwhelming evidence that Mr. Mair was in breach of his recognizance in connection with the 2018 charges, he has demonstrated that any promise that he made to his grandmothers and to his parents was a hollow promise that he had no intention of keeping.

[17] While Ms. Rumble concedes that there has been a material change in circumstance and therefore this is, in effect, a de novo hearing, her primary concern remains the secondary ground. No argument was made with respect to either the primary ground nor the tertiary ground for detention.

[18] As it relates to the suitability of the proposed sureties, Ms. Rumble argues that this court should have concerns with respect to both Ms. DaCosta and Mr. Mair Sr. As it relates to Ms. DaCosta, Ms. Rumble expressed concerns with respect to Ms. DaCosta’s honesty, referencing her evidence with respect to her ability to pledge $14,000. Furthermore, the fact that Ms. DaCosta admitted to a criminal record involving shoplifting most recently in 2015, should raise concerns with respect to her honesty and therefore her ability to act as a surety.

[19] As it relates to Mr. Mair Sr., Ms. Rumble argues that this court should have concerns with respect to Mr. Mair Sr.’s credibility, given his significant hesitation in responding to questions from the Crown in cross-examination as it relates to information about what his son may have said to him subsequent to his arrest.

[20] Finally, in her submissions Ms. Rumble argues that the strength of the plan of release begins and ends with an accused, and that in this case because of Mr. Mair’s blatant breach of his recognizance in connection with the charges presently before the court, that this court can have no assurance that he will not breach the terms of house arrest contemplated by the plan of release.

Analysis

[21] I accept the submissions made by both counsel that there has been a material change in circumstances since the decision of the justice of the peace detaining Mr. Mair. The change in circumstances is established with respect to the discharge of Mr. Mair of all charges, with the exception of the remaining charges. Furthermore, the COVID-19 pandemic has been well accepted in the jurisprudence as a factor constituting a material change in circumstance as it relates to both the secondary and tertiary ground for detention: see R. v. A.F., 2020 ONSC 2880, at para. 60, per Goodman J.

[22] As it relates to the COVID-19 pandemic being an important consideration with respect to any plan of release on the secondary ground, I entirely agree with the comments of Goodman J. in A.F., at para. 79, where he observes:

[ T]here is an important distinction to be considered when addressing a release plan for non-violent offenders as opposed to those who are violent.

[23] The facts related to the convictions registered as a result of Mr. Mair’s plea of guilty to the charges relating to the stabbing in 2018, amply demonstrate that Mr. Mair has a propensity for violence.

[24] Accepting that the COVID-19 pandemic is relevant to the secondary ground, the release plan must still address the reasons for detention which were ordered by the justice of the peace if this court, in this review, is to alter the decision to order detention.

[25] Fundamentally, this court has to be concerned with whether or not the so-called new plan for release addresses the concerns which were raised by the justice of the peace. Framed in a different way, this court has to ask the question as to whether or not the plan for release eliminates or reduces the concerns about public safety and the protection of the public that might be presented if Mr. Mair was released on bail.

[26] Prior to 2018, Mr. Mair does not appear to have run afoul of the criminal justice system. Unfortunately, the facts now amply demonstrate that Mr. Mair has a propensity for violence. The evidence would also seem to strongly suggest that despite promises that he made to his grandmothers and parents, that he is prepared to violate those promises and breach the terms of his recognizance.

[27] The COVID-19 pandemic is having a number of significant impacts on our judicial system. It impacts on the ability of an incarcerated person to adequately practice social distancing, with the possible increase in the risk of contracting COVID-19. The COVID-19 pandemic also has, and will continue to have an impact on the ability of the court to fix a trial date. If Mr. Mair remains in custody that unknown delay is, in my view, a not insignificant factor that this court must consider in this review.

[28] In coming to the decision that I do, this court is required to balance all of the factors that are in play. I have referenced some of those factors. Ultimately, s. 515(10)(b) of the Criminal Code requires me to consider whether or not the detention of Mr. Mair is necessary for the protection and safety of the public. I am not satisfied that the plan of release addresses the current concerns of the justice of the peace, which remain the same concerns of this court despite the acknowledged change in circumstances. The plan of release, in my view, is very little more than a reshuffling of the deck.

[29] If there was a plan of release with a strong surety in place, the concerns of the court might be addressed. I am not satisfied, given Mr. Mair’s hollow promises that he made to his grandmothers, his parents and to the court, that the plan would provide the necessary measure of assurance that he would not constitute a threat to society. In my view, there is a substantial risk that Mr. Mair would commit other offences or interfere with the administration of justice and, as such, he has not met his onus on the secondary ground.

[30] I want to make it clear, however, from these Reasons, that I am not suggesting that with a more robust plan of release with stronger sureties, perhaps augmented with electronic monitoring, that Mr. Mair is not someone who could be released. In that regard, the implications of Mr. Mair’s continued incarceration and how the COVID-19 pandemic could impact on him disproportionately, together with the fact that a trial date will also be impacted by COVID-19, are relevant considerations if a more robust plan for release is submitted to the court. As it presently stands, however, on the evidence presented the application is dismissed. The dismissal of this application is without prejudice to a further application being made with a different plan of release. Leave is granted to bring such application in less than the 30 days which are otherwise prescribed in s. 520(8) of the Code.

Justice M.L. Edwards Date: May 14, 2020