OSHAWA COURT FILE NO.: CR-20-15411 DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTIAN MASCI Applicant

G. Black, for the Crown C. Zeeh and F. McNestry, for the Applicant

HEARD: May 13, 2020 by teleconference

REASONS FOR RULING ON DETENTION REVIEW

J. Speyer J.

A. Introduction

[1] Mr. Masci is charged with obstruct justice, forcible confinement, point firearm (x2), assault, assault with a weapon, sexual assault, utter threats (x2), administer a noxious substance with intent, careless use of a firearm (x2), possession of a non-restricted firearm without a license (x2), possession of a non-restricted firearm knowingly without a licence (x2), carrying a concealed weapon, possession of a weapon for a dangerous purpose, and possession of a firearm with the serial number removed. The charges relate to events alleged to have occurred on four days: July 29, August 6, August 10, and August 22, 2019.

[2] Mr. Masci was detained, following a bail hearing before Justice of the Peace Allison, on the tertiary ground.

[3] Mr. Masci, now detained at the Central East Correctional Centre, applies pursuant to s. 520 of the Criminal Code for a review of the order for his detention pending his trial. Mr. Masci bears the onus on this review to establish that his detention in custody pending trial is not required. He argues that the Justice of the Peace made errors of law. He also contends that circumstances have materially changed such that his detention is custody pending trial is no longer required. The applicant presents a release plan he asserts is different from that previously presented and argues that he is especially vulnerable in prison to the COVID-19 illness.

[4] The Crown takes the position that the reasons of the Justice of the Peace, read in their totality, do not disclose an error of law, and that any changes in circumstances are not material changes.

[5] With the consent of all parties, and to enable the hearing of this application, it was conducted by means of a teleconference call that was recorded by a court reporter. Counsel for the Crown and for Mr. Masci examined Stephen Tan, the Director of Operations of Recovery Science Corporation, by means of the teleconference facility. Counsel made submissions. Mr. Masci did not participate in the call from the jail, with the consent of the Crown and his counsel. At the conclusion of the hearing, I reserved my decision.

B. The allegations

[6] Sometime prior to July 29, 2019, the complainant, J.B., was detained in custody at the Central East Correctional Centre. A man he knew as “T” approached him and told him that he had people who could bail J.B. out of jail. With J.B.’s agreement, “T” arranged for that to happen.

[7] On July 29, 2019, the applicant is alleged to have attended at the Oshawa courthouse to propose himself as a surety for J.B. They had never met before. During the bail hearing, Mr. Masci stated that he and J.B. were close friends, that he lived at 214 Derrydown Road, North York, and if released, J.B. would reside with him there. J.B. was granted bail. It is alleged that J.B. was driven to a different residence in North York by Mr. Masci, who smoked crystal meth as he drove. The applicant is charged with attempting to obstruct justice as a result of his actions in securing J.B.’s release from custody.

[8] J.B., his girlfriend, Ms. Silva, and Mr. Masci and stayed at an apartment for several days, smoking marijuana and crystal meth. It is alleged that on August 6, 2019, J.B. was told by Ms. Silva and Mr. Masci that he would have to smuggle tobacco and cannabis into the Central East Detention Centre. He refused, and Ms. Silva and Mr. Masci threatened to kill J.B., gang-rape his girlfriend, and kill his mother if he did not participate in their plan. When he continued to refuse, Mr. Masci is alleged to have punched him in the face, and pressed a shotgun against his face, while threatening to kill him. Mr. Masci is alleged to have struck J.B. with the butt of the shotgun in the head. J.B. agreed to do as Mr. Masci and Ms. Silva demanded. He swallowed three packages. He was unable to insert the contraband in his rectum, and it is alleged that he was stripped naked, ordered to get into the bathtub, and drugged. He awoke to find Mr. Masci concealing contraband in his rectum. J.B. was ordered to walk around to ensure he could do so comfortably. The applicant is charged with unlawful confinement, point a firearm, assault, assault with a weapon, threatening death, administering a noxious substance, and sexual assault [1] in relation to these events.

[9] The next day, on August 7, 2019, the applicant and Ms. Silva took J.B. to the Oshawa courthouse, where they surrendered him into custody and revoked their sureties in furtherance of the plan to smuggle contraband into the jail. J.B. was taken into custody and transported to a division of the Durham Regional Police Service for processing. There, he told police about the items concealed on his person. The items were retrieved by the police and found to be compressed tobacco and marijuana.

[10] On August 10, 2019, J.B., who was released from custody, attended at an apartment in Oshawa. It is alleged that the applicant was there, waiting for him, and pointed a short-barrelled shotgun at J.B. He fled, and the applicant followed him down the hallway, pointing the shotgun at J.B. It is alleged that Mr. Masci confronted J.B. in the hallway and demanded $800 from him. Mr. Masci told J.B. that he owed him this money because he did not smuggle the contraband into the jail. Mr. Masci is alleged to have told J.B. that he should be dead. This incident was recorded on surveillance cameras located in the apartment building. The applicant is charged with careless use of a firearm, point a firearm, other offences related to his possession of the shotgun, and threatening death in relation to these events.

[11] The applicant was arrested on August 22, 2019. When he was arrested, he was carrying the shotgun concealed down the leg of his pants as he walked in a public area. The serial number had been filed off. It contained four rounds of ammunition. Mr. Masci did not possess a valid firearms licence. The applicant is charged with possession of a pump shotgun without a licence, possession of a non-restricted firearm while knowingly not having a licence, carrying a concealed weapon, possession of a weapon for a dangerous purpose, and possession of a firearm with the serial number removed in relation to these events.

C. The antecedents of Mr. Masci

[12] Mr. Masci is a Canadian citizen. He has no criminal record.

[13] Mr. Masci is 31 years old. Before his arrest, he lived with his grandparents in North York. He has lived with them since he was 19 years old. Before that, he lived with his mother. Mr. Masci’s parents are divorced, and his father lives in Winnipeg. He does not have a relationship with his father.

[14] Mr. Masci is an electrician and has worked in that capacity for about eight years. Before his arrest, he was working on the construction of the new Vaughan hospital in a unionized position earning a good wage.

[15] Mr. Masci struggles with substance use and addiction issues. He has taken methadone in an effort to address his addiction, but he has continued to use drugs. He says in his affidavit that he has not used drugs since his arrest, and he professes to have gained insight into the effects of his drug use on himself and on others. He says he is committed to staying clean.

D. The proposed plan of release and the sureties

[16] The defence proposes that Mr. Masci be released upon his entering into a recognizance in a substantial amount, subject to house arrest under the supervision of his mother and grandmother. Mr. Masci is also willing to undergo electronic monitoring.

[17] Mr. Masci’s mother and grandmother have offered to be sureties for him. They are willing to have him live with his mother, and to supervise him round the clock. They have expressed their confidence that he would listen to them and follow their rules. They do not have any understanding of the nature and extent of his drug use or addiction. They appear to have been entirely unaware of his actions during the almost month-long period when the allegations arose.

[18] Mrs. Sandra Nicoletti is 56 years old. She lives alone in Innisfil in a home that she owns. She works at a funeral home. She has three adult children: two daughters and the applicant. She saw her son regularly before his arrest. She is willing to pledge up to $500,000 to secure her son’s release. She is willing to have him live with her while he awaits his trial.

[19] Mrs. Maria Nicoletti is 76 years old. She lives with her husband of 56 years in a house they own and have lived in for 38 years. She works on a part-time basis. She is willing to pledge up to $800,000. She is willing to attend at her daughter’s house to supervise the applicant when her daughter is at work. Her husband and the applicant have had issues that necessitated police attendance at the Nicoletti home. The nature of those altercations is unclear to me.

[20] If the ability of the proposed sureties to exercise influence and supervision over the applicant was misunderstood by the Justice of the Peace, or had improved since the bail hearing, they could have filed affidavits in support of the application. They did not do so. The applicant chose to rely on their evidence at the bail hearing.

[21] Mr. Masci says in his affidavit that he is willing to live in his mother’s home, and to abide by house arrest conditions, remaining in the home unless he is with one of his sureties. He is willing to be electronically monitored.

[22] Recovery Science Corporation is willing to provide an electronic monitoring services to Mr. Masci. The monitoring would be achieved by requiring the applicant to wear a GPS tracking device around his ankle.

[23] The limits of electronic monitoring are well-known and are candidly acknowledged by Recovery Science Corporation. GPS monitoring only reveals where a person is, not what he is doing. It gathers evidence of compliance, and reports non-compliance, but does not prevent non-compliance. See: R. v. Fleming, [2015] O.J. No. 4380 (S.C.J.), at para. 18; R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), at para. 25; R. v. Jesso, 2020 ONCA 280, at paras. 24-27.

E. Analysis

(a) The scope of this review

[24] The scope of this review is defined by the decision of the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27, at paras. 6 and 121. The power of a judge hearing an application under s. 520 is not open-ended, and the reviewing judge may intervene in only three situations:

(1) Where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; (2) Where the impugned decision contains an error of law; or, (3) Where the decision is clearly inappropriate.

[25] The applicant argues that the Justice of the Peace made errors of law, and that material and relevant changes have occurred. If the applicant is right on either count, I can proceed to determine whether he has shown cause for his release by applying the criteria in s. 515(10).

(b) Did the justice of the peace make an error of law?

[26] The applicant argues that the justice of the peace errored in law in making inconsistent findings when she found that the sureties were suitable for the purpose of the secondary ground but were deficient in relation to the tertiary ground. In relation to the tertiary ground, the defence says that the Justice of the Peace misapprehended the evidence of Maria Nicoletti about times when police were called to her house, and that the Justice of the Peace misapprehended the thoroughness of the supervision to which the applicant would be subject, and in particular whether that supervision would be provided round-the-clock.

[27] The Justice of the Peace did not make an error of law.

[28] In relation to the tertiary grounds, the Justice of the Peace applied the proper standard. She assessed whether the applicant’s detention was necessary to maintain confidence in the administration of justice from the perspective of a reasonable and dispassionate person who is properly informed about the philosophy of the legislative provisions and of Charter values and the actual circumstances of the case. She articulated the proper test for detention on the tertiary ground as explained by the Supreme Court of Canada in St. Cloud.

[29] The Justice of the Peace described the deficiencies in the release plan in the course of explaining why the applicant’s detention in custody was required on the tertiary grounds. She was concerned that the applicant’s grandmother was reluctant to admit that the police had been called to her home by her husband in relation to altercations between her husband and the applicant. The Justice of the Peace was also concerned that the proposed electronic monitoring would not prevent the applicant from leaving the house because the system could be disabled by disconnecting the device that connected to the house landline from line. The Justice of the Peace expressed concern that it would take the applicant’s mother an hour or more to return to the house from work if anything happened.

[30] The Justice of the Peace was entitled to find deficiencies in the release plan on the evidence before her. That she did not rely on those deficiencies in her consideration of the secondary ground inured to the benefit of the applicant. While she identified those deficiencies in the course of explaining why she was detaining the applicant on the tertiary grounds, the Justice of Peace does not appear to have relied on those deficiencies to reach her conclusion that detention was warranted on the tertiary ground. Her decision to detain on the tertiary ground was based on her consideration of the four statutory factors, and she made no error of law in her consideration of those factors.

(c) Has there been a material and relevant change in the circumstances of the case?

[31] The applicant argues that while the plan for 24/7 surety supervision is the same now as it was at the bail hearing, the electronic monitoring system now proposed is better than the system proposed at the bail hearing. The monitoring system now proposed is said to be more precise and intensive, thereby strengthening the release plan. The Crown responds that the system now proposed is no different from that originally proposed.

[32] The applicant also asserts that the existence of the COVID-19 pandemic, its impact on persons detained in jails, and the delay of the applicant’s trial that may result from the present court closures, amount to material and relevant changes in circumstances. The Crown takes the position that in this case, where the applicant has presented no evidence of any pre-existing health condition or other vulnerability to an adverse outcome should he contract COVID-19, the existence of the pandemic does not amount to a material and relevant change in circumstances. The Crown agrees that having regard to the uncertainty that presently exists as to how cases will be scheduled when the trial courts resume their work, the dates presently scheduled for the applicant’s trial in August and September 2020 are potentially in jeopardy.

[33] It is my view that there have been material and relevant changes in the circumstances of this case. First, I am satisfied by the evidence of Stephen Tan of Recovery Science Corporation that the proposed monitoring system is materially different from that proposed at the bail hearing using a different service provider. It is GPS based and the subject’s location is always monitored where access to a GPS signal exists. The system also permits voice-identification-based and video-enabled monitoring of trips outside a prescribed residence in the company of a surety. The system proposed at the bail hearing only monitored whether the subject was at a prescribed location, or not. Second, the existence of the COVID-19 pandemic has a material bearing on the risks presented by pre-trial custody, and the potential duration of pre-trial custody. I will therefore proceed to apply the criteria in s. 515(10) of the Criminal Code to determine whether the applicant has shown cause for his release from custody.

(d) The starting point

[34] Mr. Masci is presumed innocent until proven guilty. The Charter, in s. 11(d), guarantees Mr. Masci the right to bail on conditions that are no more onerous than what is necessary in the circumstances, and not to be denied bail without just cause.

[35] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 70, Wagner J. (as he then was) explained why detention is exceptional:

...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...This entitlement rests...on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter...These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]

However, pre-trial detention is sometimes necessary and appropriate.

See also: R. v. Antic, 2017 SCC 27, [2017] 1 SCR 509, at para. 50; R. v. Myers, 2019 SCC 18, at para. 25.

[36] In this case, the Crown bore the onus at the bail hearing before Justice of the Peace Allison to demonstrate that Mr. Masci’s detention in custody was required. On this review pursuant to s. 520 of the Criminal Code, Mr. Masci bears the burden to show cause for his release. The Crown concedes that there are no concerns that Mr. Masci will fail to appear for court as required. The Crown argues that he has not established that his detention in custody pending his trial is not necessary on both the secondary and tertiary grounds.

(e) The secondary ground

[37] The Justice of the Peace concluded that Mr. Masci’s detention in custody was not required on the secondary ground. The Crown maintains the position it advanced before the Justice of the Peace that the secondary ground requires Mr. Masci’s detention.

[38] Section 515(10)(b) of the Criminal Code states that the detention of an accused in custody is justified where it is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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. Bail will be denied on the secondary ground where the accused poses a substantial likelihood of committing an offence that endangers the protection or safety of the public while on bail. See: R. v. Manaseri, 2017 ONCA 226, at paras. 84-88.

[39] The Crown submits that the accused’s risk to re-offend is high, and that the risk cannot be adequately managed by the proposed plan of release. The evidence does not support this position. Mr. Masci has no criminal record. He has never been convicted on breaching a court order. He has a history of stable employment. While the circumstances of the alleged offences reveal that there is a side to Mr. Masci, apparently related to his drug addiction, that involves violent and manipulative behaviour, the fact remains that he has never been convicted of a criminal offence. The proposed plan of release will remove him from the communities and people associated with the alleged offences.

[40] I find that if Mr. Masci is released on very restrictive conditions subject to supervision by his sureties and electronic monitoring that he does not pose a substantial likelihood of committing an offence that endangers the protection or safety of the public while on bail. He has met his onus to establish that his detention in custody is not required on the secondary grounds.

(f) Is the applicant’s detention necessary on the tertiary ground?

[41] Section 515(10)(c) of the Criminal Code provides that detention of an accused in custody is justified if it is necessary to maintain confidence in the administration of justice. The Supreme Court of Canada summarized the essential principles that govern the application of s. 515(10)(c) in R. v. St-Cloud, at para. 87, as follows:

• Section 515(10)(c) of the Criminal Code does not create a residual ground for detention that applies only where the first two grounds for detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) of the Criminal Code must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[42] The four factors listed in s. 515(10)(c) that must be considered weigh heavily in favour of detention in this case. The Crown’s case, particularly as to the attempt to obstruct justice and the charges relating to possession and use of the shotgun, is very strong. It appears that there may be triable issues in relation to those offences the proof of which will turn on the credibility of J.B., but based on the record before me, the Crown has a generally very strong case. The offences are very serious and endangered the safety of the community. I have previously reviewed the circumstances of the offences in detail and will not repeat them. A firearm is alleged to have been used to threaten and assault J.B. The evidence about the second time that is alleged to have occurred as Mr. Masci chased J.B. down the hallway of an apartment building is overwhelming. The evidence that Mr. Masci carried that firearm concealed on his person in a public place prior to his arrest is overwhelming. Mr. Masci is liable to a lengthy term of imprisonment. The offences alleged to have been committed by the applicant strike at the heart of the administration of justice. The integrity of the bail system depends on well-meaning and responsible sureties to honestly disclose to courts their relationship to and influence on accused persons, and to assume the role of civilian jailors. Those who would abuse and manipulate that system for the purpose of smuggling contraband into jails can expect to receive exemplary sentences that emphasize general deterrence.

[43] The factors listed in s. 515(10)(c) are not exhaustive, and everything that bears on public confidence in the administration of justice must be considered.

[44] Counsel for Mr. Masci argues that the COVID-19 pandemic and its impact on those detained in jails is relevant to consideration of the tertiary ground. I agree, though the weight to be given to this factor must be assessed on an individualized basis. Recent decisions of this court have reached this conclusion. They have been conveniently summarized by Edwards, J. in R. v. Greaves, 2020 ONSC 2361. The risks posed by the pandemic to those in detention facilities were explained by Molloy J. in R. v. T.L., 2020 ONSC 1885, at para. 35:

Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).

[45] In R. v. Stojanovski, 2020 ONCA 285, at para. 35, Brown J. observed that:

The current COVID-19 outbreak in Ontario is a factor that can be taken into account in considering the public interest criterion: R. v. Omitiran, 2020 ONCA 261, at para. 26. The weight played by that factor depends upon the particular circumstances of each case. For example, it might play a role where an applicant's known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v. Kazman, 2020 ONCA 251, at para. 17. Other examples can be found in some of the cases helpfully summarized and reviewed in R. v. Paramsothy, 2020 ONSC 2314, at paras. 45-60.

[46] In R. v. Kazman, 2020 ONCA 251, in the context of an application for bail pending the accused’s appeal to the Supreme Court of Canada, Harvison-Young J.A. observed that being in jail makes it difficult, if not impossible, to practice the social distancing necessary to prevent the spread of the novel coronavirus. Harvison-Young J.A. explained:

[18] As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[47] Harvison-Young J.A. also noted that the impact of the COVID-19 pandemic, while a relevant factor to be considered on an application for judicial release, is not determinative:

[20] I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the Applicant’s risk of reoffending and the inadequacy of his sureties to supervise against further offending.

[48] The defence has filed an affidavit from Dr. Orkin, sworn April 7, 2020. Dr. Orkin is a physician and epidemiologist, and Assistant Professor in the Department of Family and Community Medicine at the University of Toronto. He is a doctoral candidate in Clinical Epidemiology and Health Care Research at the Institute of Health Policy, Management and Evaluation at the University of Toronto. He is the Medical Director of the St. Joseph’s Health Centre COVID-19 Assessment Centre, and as Population Medicine Lead for Inner City Health Associates, he plays a central role in planning and implementing a strategy to respond to COVID-19 among people experiencing homelessness in Toronto.

[49] Dr. Orkin states that preventing outbreaks in congregate living facilities is a top priority for a flatten-the-curve strategy, for four reasons.

(1) First, outbreaks in tight spaces happen extremely quickly and are near impossible to control once they occur. Global experiences with cruise ships are a case-in-point. (2) Second, people living in congregate living facilities tend to have underlying comorbidities that make them more prone to serious adverse outcomes (ICU admission or death) from COVID-19. This is true in long-term care facilities, homeless shelters, and prisons. (3) Third, outbreaks in congregate living facilities can overwhelm health care systems, meaning that scarce resources are consumed by local congregate living outbreaks before the epidemic takes hold in the general population. (4) Fourth, outbreaks in congregate living facilities serve as tinder for the fire in more generalized outbreaks. Unlike cruise ships, people in congregate living settings including the staff who work there transfer disease into the general population.

Therefore, preventing disease in congregate living facilities is critical for flattening the curve across the entire population. All this means that protecting congregate living settings and preventing outbreaks there is about protecting the health of the entire population.

[50] Dr. Orkin’s opinions reflect a public health perspective, and he is aware of the limits of his expertise:

It goes without saying that a judicial official deciding whether or not to detain somebody will inevitably take other considerations into account, and will have to balance various factors in determining what is in the community’s best interest. My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19.

[51] On occasion, Dr. Orkin makes statements that appear to over-step his expertise. For example, in his commentary about information statements prepared by the “Institutional Services Division, Assistant Deputy Minister’s Office” he states: “In my medical and population health opinion, there is no minimum grouping of people in correctional facilities that serves the public interest in the face of COVID-19.” Given that Dr. Orkin clearly qualifies the opinions provided in his affidavit by his express recognition that the community’s best interest on a detention review inevitably involves considerations other than the public health perspective, I consider his opinions about the public interest to be limited to his particular, albeit it important, area of expertise. Where he does not expressly so limit his remarks, I consider them to be limited to that perspective. Dr. Orkin himself gives express recognition to the complex nature of the issues to be considered by the court on a detention review as follows:

My position is rooted in my knowledge of public health and COVID-19 only, and I do not purport to weigh or balance the risks of COVID-19 on an individual or population level against the public safety issues associated with the release of individual inmates from custody. I realize fully that some inmates are violent, some are dangerous, and therefore some cannot be safely released into the community. Nevertheless, my opinion is that the collective and congregate gathering of a group of people in correctional facilities together is very dangerous right now. As a society, during these extraordinary circumstances, it is essential that we accurately assess the nature of these safety risks, so that they can be appropriately weighed against one another.

[52] It is always essential that courts accurately assess the nature of the safety risks arising from the situation presented by any alleged offender. The risks posed by the COVID-19 pandemic undoubtedly factor into that assessment. Dr. Orkin’s affidavit provides reliable evidence about that public health risk, and I have taken his evidence into account. In short, the impact of the pandemic, and the risks it poses to those in detention facilities, must be considered on an application for judicial release. The vulnerability of the inmate population generally to COVID-19 is relevant to my analysis of the tertiary ground.

[53] The record before me convinces me that, like any other person presently incarcerated in a provincial detention centre, Mr. Masci is at an increased risk of contracting COVID-19 relative to the risk he would be exposed to in the community under house arrest. The vulnerability of the inmate population generally to COVID-19 is relevant to my analysis of the tertiary ground.

[54] There is no evidence before me that Mr. Masci has any particular susceptibility to COVID-19. The evidentiary record in this case does not permit me to conclude that Mr. Masci is particularly vulnerable to an adverse outcome should he contract COVID-19.

[55] The Crown relies on an information note prepared by Erynne Riedstra and Michael Walker, both Strategic Advisors in the Institutional Services Division, Assistant Deputy Minister’s Office of the Ministry of the Solicitor General on May 5, 2020. The information note describes the significant strategies that Ontario has implemented to limit the effects of COVID-19 on inmate populations and correctional staff. The information note describes steps taken, and notes that one case of COVID-19 has been identified at the CECC. However, the number of inmates tested is extremely limited, and there is no way to predict what the future holds.

[56] Taking into account all of the circumstances, I conclude that a reasonable person would believe that the detention of the accused in custody is not necessary to maintain confidence in the administration of justice. A reasonable person would consider the gravity of the charges against Mr. Masci, and the allegations regarding his disdain for the bail system demonstrated by his deceitful and manipulative abuse of that system. A reasonable person would consider the strong case for the Crown. A reasonable person would consider the fact that Mr. Masci is alleged to have armed himself with a shotgun with a defaced serial number and that those allegations are particularly strong, having been captured on video as he pursued and threatened the complainant, and by surveillance and search at the time of his arrest. A reasonable person would consider the lengthy period of imprisonment that Mr. Masci faces. These factors weigh in favour of detention.

[57] On the other hand, the proposed release plan would inform the reasonable person’s assessment of whether the accused’s detention in custody is necessary to maintain confidence in the administration of justice. The reasonable person would know that if Mr. Masci is released on a substantial recognizance, with very restrictive conditions subject to supervision by his sureties and electronic monitoring, that he does not pose a substantial likelihood of committing an offence that endangers the protection or safety of the public while on bail. A reasonable person would consider the vulnerability of the inmate population generally to COVID-19, and the uncertainty that presently exists regarding when trial will proceed. A reasonable person would know that if Mr. Masci is convicted of the charges he faces that an appropriate sentence will be imposed.

[58] This case is a close call, but on balance I find that Mr. Masci’s detention in custody is not necessary to maintain confidence in the administration of justice.

[59] The application is allowed, and it is ordered that Mr. Masci be released from custody on a recognizance in the amount of $75,000, with two sureties, being Sandra Nicoletti and Maria Nicoletti, who will be jointly and severally responsible, together with Mr. Masci, for $75,000.00 in the event that Mr. Masci does not comply with the conditions of my order, on the following conditions:

1. He is to reside with Sandra Nicoletti at 1174 Booth Avenue, Innisfil, Ontario.
2. He is to remain in that residence at all times, subject to the following exceptions: a. When he is in the company of Sandra Nicoletti; b. To obtain treatment for medical emergencies; c. During pre-arranged medical, counselling or treatment appointments; d. To travel directly to and from his lawyer’s office; e. To travel directly to and from required court appearances.
3. He is to report weekly, by telephone, to the Officer in Charge, or their designate every Wednesday between 9:00 a.m. and 9:00 p.m.
4. He is to be subject to GPS monitoring by Recovery Science Corporation (“RSC”), at his own expense, which shall include: i. Entering RSC’s Participant Agreement and complying with its terms; ii. Wearing a GPS ankle bracelet at all times; iii. Permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; iv. Complying with RSC leave notification and battery charging requirements; and, v. Cooperating fully with RSC staff.
5. He is to remain in the Province of Ontario.
6. He is not to communicate directly or indirectly with any person named in this Order, except with his co-accused, through counsel, for the purpose of preparing a defence.
7. He is not to attend any place he knows any person named in this Order to be.
8. He is to take any treatment or counselling for substance use as recommended for him by his doctor of surety, and to sign any and all releases to allow his surety to monitor his progress and compliance with this condition of his release.
9. He is not to possess firearms, or any other weapon as described by the Criminal Code.
10. He is not to possess any scheduled substance except in accordance with a medical prescription.

[60] In order to finally determine the conditions of release, I will need to hear the submissions of counsel, particularly as to the names of any persons with whom Mr. Masci should not communicate while on release, and any geographic restrictions necessary to prevent his contact with those persons. Therefore, counsel are directed to contact the trial coordinator forthwith upon receipt of this order to arrange a further teleconference that is to be scheduled as soon as possible.

The Honourable Justice J. Speyer

Released: May 19, 2020

OSHAWA COURT FILE NO.: CR-20-15411 DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – CHRISTOPHER MASCI Applicant REASONS FOR ruling on DETENTION review Justice J. Speyer

Released: May 19, 2020

[1] The information alleges that the sexual assault occurred on August 10, 2019. Based on the factual allegations, this is likely a typographical error, as the allegations relating to the sexual assault describe events alleged to have occurred on August 6, 2019.