COURT FILE NO.: DR(P) 223/20 DATE: 20200515
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN G. Hendry, for the Crown Respondent
- and -
LAMAR GRANT A. Karapancev, for the Applicant Applicant
HEARD: May 12, 2020, by teleconference
REASONS FOR JUDGMENT – BAIL REVIEW
André J.
[1] Mr. Lamar Grant applies for a bail review pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 (the Code) following his detention on February 4, 2020, on the secondary and tertiary grounds under s. 515(10)(b) and (c) of the Code. His counsel submits that the proposed supervision plan which includes two new sureties and electronic monitoring and the Covid-19 pandemic constitutes a material change in circumstances that justifies Mr. Grant’s release. The Crown opposes the application.
BACKGROUND FACTS
[2] Members of the Peel Regional Police Force conducted a judicially authorized wiretap of Mr. Grant’s cellphones after receiving information from a family member of Mr. Grant. They learnt that Mr. Grant had had a physical altercation with his father, Devon Grant. They also heard a conversation between Mr. Grant’s sister, Shivon Grant, and Mr. Grant’s girlfriend, Monnifa James. Ms. James complained that Mr. Grant had “boxed her”. Ms. Grant stated that she had heard gunshots in the background after which Monnifa had shouted, “gun, gun, gun!” Police officers subsequently arrested Mr. Grant while he was driving a motor vehicle on January 6, 2020. He tried to flee the scene and ended up striking another vehicle. The police located a loaded restricted firearm under the driver’s seat and approximately 22 grams of cocaine and fentanyl in Mr. Grant’s back pocket. They subsequently charged him with nine firearm, drugs and driving related offences.
CRIMINAL RECORD
[3] Mr. Grant has the following convictions on his record:
2016-12-02 Traffic in Schedule I Substance sec 5(1) Controlled Drugs and Substances Act $5 (Credit for the equivalent of 98 days pre-sentence custody) & Mandatory weapons prohibition sec 109 of the Code;
2017-06-29 (1) Robbery sec 344 CC (2) Use of Imitation Firearm sec 85(2) of the Code (1-2) 482 days & probation 2 years (credit for the equivalent of 93 days pre-sentence custody) & mandatory weapons prohibition sec 109 of the Code.
REASONS FOR DETENTION
[4] On February 4, 2020, the presiding Justice of the Peace detained Mr. Grant on the secondary and tertiary grounds based on a) Mr. Grant’s criminal record, b) the inadequacy of the proposed supervision plan and c) the seriousness of the allegations.
SUPERVISION PLAN
[5] Two prospective sureties, Samantha Harrison and Shaundel Ramessar have offered themselves as sureties on Mr. Grant’s behalf. They have pledged $11,000 to secure his release. Both have indicated that they are aware of the responsibilities of acting as a surety and are quite willing to supervise Mr. Grant if he is released. They have also indicated that they would have no hesitation or difficulty in contacting the police if Mr. Grant breached any conditions of his release. They are recommending that the court should release Mr. Grant on conditions that are tantamount to a house arrest situation. They also recommend a condition of release involving electronic monitoring.
ANALYSIS
[6] Section 515(10)(b) provides that the detention of an accused is justified where the detention 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.
[7] In R. v. Morales, at para. 40, the Supreme Court of Canada noted at para. 98 that:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.
See also R v. Antic, 2017 SCC 24.
[8] In R. v. Abdel-Gadir, 2015 ONSC 1163 at para. 32, the court listed the following factors that can be considered under the secondary ground:
a. The nature of the offences; b. The relevant circumstances of the offences; c. The likelihood of a conviction; d. The degree of involvement of the accused; e. The accused’s personal circumstances including his occupation, lifestyle and criminal antecedents; f. The danger which the interim release of the accused represents to the community specifically affected by the matter.
[9] To these factors could be added the nature of the proposed supervision plan, the offences for which he or she has been convicted and the length of sentence, if he is convicted.
Is Mr. Grant’s detention justified on the secondary ground?
[10] The factors in favour of a detention order are as follows:
a. The seriousness of the allegations; b. The apparent strength of the Crown’s case based on a) the wiretap evidence and b) the firearm and drugs recovered; c. Mr. Grant’s criminal record which includes convictions for both drugs and firearms.
[11] Additionally, Mr. Grant was subject to two separate weapons prohibition orders when he was arrested on January 6, 2020.
[12] That said, Mr. Grant, who is 24 years old, is still a youthful offender. He does not have a lengthy criminal record and cannot be described as a career criminal. Furthermore, he has not been convicted of violating court orders.
[13] Additionally, while the firearm charges, in conjunction with Mr. Grant’s record, is a significant factor in the s. 515(10)(b) analysis, they do not amount to a stay-in-jail card that mandates the automatic detention of any accused charged with such offences. It is merely one factor, among others, that must be considered in determining whether Mr. Grant’s detention is justified on the secondary ground. To the extent that persons who were convicted of firearm or even more serious offences can be released on bail, pending an appeal of their conviction and/or their sentence, to the same extent can someone, to whom the presumption of innocence still applies, be released on bail in appropriate circumstances.
SUPERVISION PLAN
Does the offer of two new sureties in this case constitute a material change in circumstances that justifies Mr. Grant’s release?
[14] In R. v. Ferguson, 2020 ONSC 1969, at para. 17, Hill J. noted that shuffling the deck with the offer of new sureties does not necessarily constitute a material change of circumstances and that it was only where the new sureties call into question the continued validity of the original detention order, that a material change in circumstances may justify an applicant’s release: see also R. v. Riaz, 2017 ONSC 3751, para. 16; R. v. Hassan, 2015 ONSC 4535, para. 27; R. v. Aydin Akdemir, 2010 ONSC 6955, para. 68.
Does the offer of two new sureties in this application materially calls into question the continued validity of the February 4, 2020 detention order?
[15] Ms. Harrison lives with her husband, who has had brain and heart issues, and her fifteen-year-old daughter. She suffers from epilepsy but controls her medical condition by taking medication. She receives $1,500 a month from the province and is willing to pledge $1,000 to secure Mr. Grant’s release. She has successfully acted as surety in the past and has supervised an accused person for two years without any problems.
[16] Ms. Ramessar, Mr. Grant’s mother, is also prepared to act as his surety and is willing to pledge $10,000 to secure his release. She has bailed him out on at least two occasions in the past. On one occasion, she contacted the police when Mr. Grant violated his bail. She will not hesitate to do so again if Mr. Grant breaches his bail if released.
[17] Ms. Ramessar testified that Mr. Grant has suffered from asthma and pneumonia since he was a child. He has been in and out of Sick Kid’s Hospital most of his life. He has used puffers and has taken antibiotics to control his medical condition.
[18] Mr. Grant last lived with her three to four years ago. She last saw him with a puffer about two to three years ago.
[19] The proposed sureties appear to be honest individuals who are prepared to pledge significant sums of money to secure Mr. Grant’s release. Neither has a criminal record. They have successfully acted as sureties in the past. The plan involves Mr. Grant residing with Ms. Harrison at 501 Adelaide Street East, Unit 304 in Toronto. Mr. Grant’s mother is willing to supervise Mr. Grant by visiting him regularly. Given Ms. Harrison’s medical condition and the fact that she is home twenty-four hours a day, the plan of supervision calls for virtual round-the-clock supervision of Mr. Grant.
[20] Both sureties are aware of the allegations against Mr. Grant and of his criminal record. Neither is deterred by that knowledge from presenting themselves as sureties on Mr. Grant’s behalf. There is no evidence to suggest that Mr. Grant will not be amenable to their supervision.
[21] In my view, the offer of two sureties in this matter constitutes a material change in circumstances that calls into question the continued validity of the detention order.
ELECTRONIC MONITORING
[22] An order for electronic monitoring, either on its own, or in conjunction with the offer of new sureties, can constitute a material change in circumstances: see R. v. Y.A., 2020 ONSC 2155, at para. 43. As noted by Nordheimer J. (as he was then) in R. v. Doucette, 2016 ONSC 852, at para. 5:
… electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.
[23] While such monitoring will not be able to ascertain who Mr. Grant comes into contact with, it will reveal his whereabouts while he is on bail.
THE COVID-19 PANDEMIC
[24] I am prepared, as a number of courts have done before me, to find that Covid-19 constitutes a material change in circumstances that requires an analysis, under s. 515(10)(c), whether Mr. Grant should be released: see R. v. J.A., 2020 ONSC 2312; R. v. Davison, 2020 ONSC 2481; R. v. P.K., 2020 ONSC 2694, at paras. 37-39.
[25] I am also prepared, given the considerable body of information about the pandemic, and the jurisprudence on the intersection of Covid-19 and bail, to take judicial notice of the following facts:
a) The pandemic has wreaked untold death and destruction worldwide; b) Covid-19 is extremely infectious and can spread rapidly in any location; c) The main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protection equipment (PPEs), and iii) regular testing of the population; d) Persons in confined spaces, such as long-term care facilities, shelters and prisons, given the inability to take mitigatory measures such as social distancing, are particularly vulnerable to the disease; e) Persons who have pre-existing medical problems such as diabetes, high blood pressure and respiratory problems are particularly susceptible to being infected by the virus.
[26] The Crown has filed a letter from the Minister of the Solicitor General, dated May 5, 2020, indicating that a number of policies and procedures have been taken to stop the transmission of the Covid-19 virus in all provincial adult, correctional institutions. It also indicates that:
a) Stocks of critical supplies including PPE and cleaning products are monitored daily and that any shortages are addressed immediately; b) Inmates have access to both formal and informal complaint procedures to both internal and external oversight bodies for a timely resolution of complaints; and c) All screening processes were created in consultation with the Ministry of Health and Public Health Ontario.
[27] The Report also indicates that with the exception of the Ontario Correctional Institute, there have been few, if any cases of infection, as of May 4, 2020, in the vast majority of Ontario Correctional institutions.
MR. GRANT’S AFFIDAVIT
[28] Mr. Grant’s affidavit provides the following information which is relevant to Covid-19:
a) He is very fearful of contracting the virus while in custody; b) He is not given a hand sanitizer in jail neither can he practice social distancing given that he shares a cell with another inmate; c) Inmates are not given masks at the Maplehurst Detention Centre; d) He was diagnosed as a child with acute pneumonia and asthma. He continues to suffer from shortness of breath from time to time.
[29] The Crown has not taken issue with these assertions by Mr. Grant.
ANALYSIS
[30] Section 515(10)(c) of the Code sets out the following factors to determine whether an applicant’s detention is necessary to maintain confidence in the administration of justice:
- The strength of the Crown’s case;
- The seriousness of the offence;
- Whether the applicant faces a significant jail sentence, if convicted; and
- The circumstances of the case including whether the firearm was discharged in a public place.
[31] The presence of these factors does not result in the automatic detention of an applicant for bail: R. v. St-Cloud, 2015 SCC 27, at paras. 68-71.
[32] To consider whether Mr. Grant should be detained on the tertiary ground, I must ascertain whether a reasonable and well-informed member of the public who is conversant with the rule of law, the presumption of innocence, the right, under s. 11(e) of the Charter, not to be denied reasonable bail without just cause, and the circumstances surrounding the allegations would conclude that the detention is necessary to maintain confidence in the administration of justice.
[33] Mr. Grant’s counsel submits that the Crown’s case against his client is weak given a) that the firearm was not in plain view and b) the Peel Regional Police may have violated Mr. Grant’s right to counsel. However, the evidence of Shivon Grant and Ms. James regarding the sound of gun shots and Ms. James’ shouts of “gun”, coupled with the finding of the gun in a car driven by Mr. Grant in which he was the sole occupant, collectively suggest that the Crown’s case is not as weak as suggested by the applicant’s counsel.
[34] Second, the allegations are very serious. Third, Mr. Grant faces a significant jail sentence if convicted. Fourth, the circumstances of the case include a consideration of the altercation between Mr. Grant, his father and Ms. James. He may have discharged the firearm before leaving the scene of the altercation. Furthermore, there was a brief chase and an accident before the police arrested Mr. Grant.
[35] While these preconditions set out in section 515(10)(c), may have been met, I have a residual discretion to decide whether Mr. Grant should be detained on the tertiary ground. I am mindful that the pandemic does not constitute a “get out of jail free card”: see R. v. Rajan, 2020 ONSC 2118, at para. 56; P.K., at para. 67. Indeed, the pandemic does not represent a shift in the analytical paradigm regarding bail. It merely introduces an important factor in the assessment of the factors relevant to the decision in granting bail.
[36] While the evidence the Crown relies on from the Solicitor General indicates that there have been no positive cases of Covid-19 at the Maplehurst Detention Centre, I cannot conclude that the potential for such infection does not exist. There is no evidence regarding the amount of testing of inmates being done in provincial institutions. This is significant given the accepted medical evidence that the virus could be spread by “asymptomatic” persons. In other words, absent widespread testing, it is difficult to conclude that there are no cases of Covid-19 at Maplehurst. Additionally, the Ministry’s approach to dealing with complaints is reactive rather than proactive. Rather than undertaking widespread testing at the institution, they react when they receive a complaint from an inmate. This creates concerns that there could very well be a rapid spread of the virus at that institution.
[37] Finally, Mr. Grant has pre-existing medical problems which make him vulnerable to the virus. The inability for social distancing, the sharing of a cell, the absence of any PPEs and the phenomenon of asymptomatic spreaders collectively create a potentially dangerous situation for an inmate with pre-existing medical problems.
[38] In my view, given Mr. Grant’s short record, the plan of supervision, the offer of two sureties who have proven that they are able to supervise Mr. Grant, and the implications of Covid-19, a reasonably informed person who is aware of the presumption of innocence, Mr. Grant’s right to reasonable bail, Mr. Grant’s youth, his criminal record and the seriousness of the charges would conclude that his detention is not necessary in the public interest.
[39] Accordingly, Mr. Grant is ordered released on the following conditions:
- On a recognizance in the amount of $11,000 with Ms. Samantha Harrison and Ms. Shaundel Ramessar as sureties. Ms. Harrison will put up $1,000 and Ms. Ramessar $10,000 without deposit, to secure Mr. Grant’s release.
- Mr. Grant must reside at the residence municipally known as 501 Adelaide Street East, Unit 304 in Toronto and must remain in his residence at all times except when in the presence of one of his sureties, or his lawyer.
- Mr. Grant must have no weapons in his possession.
- Mr. Grant must have no association or contact, directly or indirectly, with Shivon Grant, Moniffa James, or Devon Grant.
- Mr. Grant must not have any non-medically prescribed drugs in his possession.
- Mr. Grant shall at his own expense, be subject to GPS monitoring by Recovery Science Corporation (RSC) which shall include: a. entering into RSC’s Participant Agreement and complying with its terms; b. wearing a GPS ankle bracelet at all times; c. permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; d. complying with RSC leave notification and battery charging requirements; and e. cooperating fully with RSC staff. The GPS ankle monitor must be installed on Mr. Grant within 24 hours of his release.
- Mr. Grant shall keep the peace and be of good behaviour.
- Mr. Grant must attend court as required.
André J.