COURT FILE NO. 20-0000138-00BR DATE: 20200520 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Michael Townsend, for the Crown Respondent

• and -

E.M. Kabir Sharma, for the Defendant/Applicant Defendant/Applicant

HEARD: By Teleconference May 8, 2020 Michael G. Quigley J. Amended Reasons for Decision Re: Bail Review under s. 520 of the Criminal Code

Overview

[1] The Applicant, E.M., is charged with 31 firearms related offences, some on her own, and some jointly with her co-accused common law spouse, M.W. She is in her early thirties and is the mother of four young children, all below the age of 11. She has been in custody since her arrest on March 27, 2019. She has no criminal record, or past criminal antecedents.

[2] E.M. was previously detained by order of Justice of the Peace Fantino on April 15, 2019. On that reverse onus bail hearing, [1] Fantino J.P. found that she had met her onus under the primary and the secondary grounds. However, he was not persuaded that the Applicant had discharged her onus on the tertiary ground.

[3] Madam Justice Roberts of this Court heard an application for review of that detention order on September 3, 2019. Justice Roberts commented that given the Applicant’s absence of criminal antecedents and the strong release plan, she was a potentially strong candidate for release. [2] However, she found no material change of circumstances at that time and dismissed the application. Importantly, in her analysis of the tertiary ground at that time, Roberts J. stated that even if there were a material change in circumstances, she agreed with Fantino J.P.’s finding that E.M. had not discharged her onus to show that her continuing detention was not required on that ground.

[4] The Applicant now brings this fresh bail review application under s. 520 of the Criminal Code (the “Code”) on the basis that the COVID-19 global pandemic amounts to a material change in circumstances. Because of the pandemic, I heard this application remotely by teleconference. Both parties submitted unchallenged documentary evidence electronically, and counsel made helpful and detailed submissions on the core issues.

[5] In R. v. J.R., 2020 ONSC 1938, [3] heard in mid-April, Schreck J. noted that over 150,000 people around the world had died and observed that we have all been affected by the pandemic and the steps that have been taken to control it. In the three weeks that have since passed, based on United Nations data, I note that the number has doubled to 300,000 deaths.

[6] Consistent with other recent case law, [4] Crown counsel concedes the existence of that material change, and I take judicial notice of the numerous decisions of judges of this court, myself included, that definitively find that the existence of the COVID-19 virus does constitute a material change of circumstances that permits a reviewing judge to conduct a de novo hearing under s. 520 of the Code: R. v. St-Cloud, 2015 SCC 27. [5]

[7] Here, as in J.R., the only live question is whether E.M. has discharged her onus under the tertiary ground and ought to be released pending her trial. The principal argument made in this application relates to the global COVID-19 pandemic. A second argument made to support her release is the passage of time since her arrest and the inevitable material delay that will exist going forward. Crown counsel continues to oppose the Applicant’s release, primarily on the tertiary ground, arguing that E.M. has not discharged her onus and that her detention ought to be continued.

[8] For the reasons that follow, I have found that the Applicant has met the onus on her to satisfy me that her continuing detention is not required on the tertiary ground. She will be released on the Plan of Release described at the conclusion of these reasons.

Summary of Facts

[9] The parties agree that the bail decisions of both Fantino J.P. and Roberts J. contain detailed outlines of the facts. I do not intend to repeat those facts in the detail that my colleagues did. For present purposes, a brief summary will suffice.

[10] In March 2019, based on information provided by tested and credible confidential informants about her common law husband and co-accused, M.W., police commenced an investigation of him and later the Applicant as well. M.W. has a significant record for firearms offences. He was believed to be actively engaging in the trafficking of firearms. Search warrants were granted for the address where M.W. resided. The Toronto Police Service Emergency Task Force executed the warrants on March 27, 2019, at approximately 10:46 pm.

[11] Five adults including M.W. and E.M., as well as her four young children under the age of 10, were located inside the residence. At one point, as the search was being conducted, M.W. became assaultive, punching, kicking, biting, and spitting at the officers as they tried to and ultimately did regain control of him. This incident occurred within ten feet of the children.

[12] A search of the residence yielded four handguns, two loaded, and one now known to be a replica. Two of the firearms had their serial numbers filed off. Police also located a quantity of .357 caliber ammunition, a large press machine, used to press and manufacture ammunition, and a further 478 rounds of ammunition for use in 10 different types of firearms. As well, they found and seized a large quantity of materials which are typically used to manufacture ammunition, including gun powder, empty shell casings, projectile bullets, and tools used in the melting and molding of metal.

[13] It appears E.M. was co-operative upon her arrest. She provided a statement to D.C. Clarke of the Toronto Police Service. She did not disclose the location of all the firearms that are legally registered to her, but she did tell D.C. Clarke that there were additional firearms in a storage locker at the residence of her mother-in-law (M.W.’s mother) and provided an address. Two further warrants were obtained and executed at that address the next day.

[14] The search of the mother-in-law’s residential unit did not produce any contraband, but in storage room 3 spot #10 associated with her unit, police located a number of firearms and ammunition stored in an improper manner, including a loaded .22 caliber rifle with altered serial number, a loaded 9 mm handgun, #E03006, and a Winchester long gun, #G1818564, both legally registered to E.M. Police also located an assault-style rifle with a loaded overcapacity ammunition magazine, and another 500 rounds of various caliber ammunition and ammunition manufacturing materials and equipment.

[15] E.M. is the registered owner of five firearms, but to date, only two of the firearms registered to her have been located. There may be as many as three firearms registered to E.M. that cannot be located. Police cannot be certain because due to the removal of various serial numbers on three of the seized firearms, those firearms cannot be matched to registry records. To date, E.M. has not provided any information on the location of any of the missing firearms legally registered in her name.

[16] A Preliminary Inquiry was scheduled to take place on May 25-28 and June 3, 2020. Those dates have been vacated until further notice as a result of the COVID-19 pandemic. Consequently, as of today’s date, May 20, 2020, the Applicant has spent 419 real days in custody, which is the equivalent of 628 days, or about 21 months, of incarceration since her arrest.

The plan of release

[17] Initially, the Applicant proposed three sureties: her mother A.R.M., her stepfather, V.E.R., and her maternal grandmother, A.V.L. These three sureties proposed an aggregate amount of $35,000 in order to secure the release of the Applicant on a proposed plan of “24/7” house arrest and supervision. The same sureties are proposed before me and the plan is the same, except the surety pledge has been increased threefold to $100,000 based on the equity of her mother’s house. The proposed conditions are as follows:

(i) That she be released to 3 sureties: A.R.M., V.E.R., and A.V.L.; (ii) That she reside with her sureties at their residence; (iii) That she is to remain in this residence at all times, except when with a surety; (iv) That she have no weapons; (v) That she not have any contact with M.W.; and (vi) Any other conditions that this Court sees fit to impose.

[18] Justice of the Peace Fantino had no issues with the credibility and reliability of the sureties or any concern that they would not honour their commitments. Crown counsel expressed concern that the sureties had not previously known of E.M.’s alleged involvement with firearms, but that does not surprise me. Neither, in my view, does it undermine the direct and unequivocal promises made by all three sureties to this court to call police first and ask questions later at any indication of a potential breach of bail conditions by E.M. Justice of the Peace Fantino makes the point in his finding that the sureties are:

…good, decent, hardworking people who spoke with sincerity and now undoubtedly have a more complete understanding of [E.M.]’s predicament, the seriousness of the charges, strength of the prosecution's case and the importance of the solemn duty and responsibility to discharge the obligations and fulfill the role of [E.M.]’s civilian jailer in the community.

[19] Justice Roberts shared the J.P.’s confidence in the plan and the reliability of the sureties. Were it not for the tertiary ground concerns, she regarded the Applicant as a good candidate for release. I agree with the assessment of both judicial colleagues of the quality of the plan and the sureties themselves.

Analysis

[20] R. v. St-Cloud, 2015 SCC 27 [6] instructs that this court is entitled to intervene and alter an earlier bail decision if it can be established that the Justice erred in law or gave excessive weight to one relevant factor and not another, or, as is the case here, that there is a material change in circumstances. There is no allegation of an error of law or unbalanced analysis in this case. This review application focuses exclusively on the material change of circumstances caused by the COVID-19 pandemic, as conceded by the Crown, and found to be the case in the overwhelming majority of COVID-19 bail review cases heard over the past six or more weeks.

[21] As such, I must engage in a fresh tertiary ground analysis to determine whether E.M. has met her burden to show that her continued detention is not justified under the tertiary ground.

[22] Crown counsel claimed in written materials filed on this hearing de novo that she has not discharged her onus on the secondary ground or the tertiary ground. He positioned his argument before me somewhat differently. He indicated he would rely on those written submissions, but conceded that he was not specifically requesting that the application be dismissed because of secondary ground concerns alone. Instead, he argued I need to consider secondary ground issues, such as the strength of the plan, in considering whether the Applicant’s detention continues to be required under the tertiary ground.

[23] Put simply, Crown counsel submits that the public would lose confidence in the administration of justice if the Applicant were released on this plan of bail. To the contrary, defence counsel argues that, in all the present circumstances, the public would lose confidence in the administration of justice if the Applicant continues to be detained.

[24] It falls to me to determine whether E.M. must continue to be detained or can be released in light of the factors that will be outlined below. However, in light of the tenor of Crown counsel’s submissions, I will commence by looking at the Crown’s secondary ground concerns before proceeding to the more complex tertiary ground analysis.

Secondary Ground Issues

[25] The secondary ground for detaining an accused person is set out in s. 515(10)(b) of the Code, which states 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.”

[26] Crown counsel accepts that E.M. presents herself with no prior criminal record, no findings of guilt, and save the offences before the Court, no outstanding charges. She has no history of non-compliance with Court orders, and there are no allegations that she has engaged in any criminal activity while in custody at Vanier, nor been subject to disciplinary proceedings. Nevertheless, he argues that I ought to still have concerns on the secondary as well as the tertiary grounds, even though the proposed plan for release may be strong, and the sureties more than adequate.

[27] Certainly these allegations and the seeming circumstances are very disconcerting. Stated succinctly, it cannot be other than alarming to have the quantity of firearms, ammunition, and equipment and supplies for producing ammunition, some out in the open, found in the home shared by E.M. and M.W., and E.M.’s four very young children, or in the storage locker at M.W.’s mother’s residence. Nothing was stored properly, and several of the firearms were loaded. The whereabouts of at least three of the firearms registered to E.M. is unknown, and the remaining two have had their serial numbers erased to prevent tracing.

[28] Crown counsel reminded me of language I used in a somewhat similar situation in R. v. Abdullahi, 2013 ONSC 4873. [7] In that case, the accused was involved in a criminal organization, and was in possession of five firearms. He was charged with numerous offences, including participation in a criminal organization, trafficking in weapons, trafficking in drugs, conspiracy to traffic in weapons, five firearms possession charges, and possession of property obtained by crime. The accused was arrested along with a number of other individuals in a Guns and Gangs Taskforce project. It was alleged that he facilitated and participated in the trafficking of guns and drugs for a gang.

[29] As in this case, the accused there had no criminal record and no outstanding charges. A plan of 24-hour supervision was proposed with the accused's sister and mother acting as sureties. The Justice of the Peace found deficiencies in the strength of the evidence put before her by the Crown. She found it was not appropriate to detain the accused on either the secondary ground or the tertiary ground and released the accused.

[30] On a Crown application to revoke that release order, it was claimed the J.P. erred in numerous ways, not only by misdirecting herself and completely disregarding evidence that was relevant to the secondary and tertiary grounds for detention, but also by failing to applying the four specific factors set out in s. 515(10)(c) of the Code in her very brief consideration of the tertiary ground of detention.

[31] First, I found it was open to the Justice, considering the whole of the evidence, to conclude that Mr. Abdullahi’s clean background and absence of criminal antecedents, combined with a 24-hour plan of supervision that she found to be acceptable, should inure to his benefit on that question. Similarly in this case, I find that there is no basis to detain E.M. on the secondary ground. There is a strong plan put forward by earnest sureties who, I am satisfied, will have the ability to exercise control over the applicant, and if not, will not hesitate to call police rather than lose the $100,000 equity in their home that they have pledged. In contrast, in Abdullahi at para. 44, I summarized:

While the learned Justice may have been satisfied that the plan of supervision they put forward was adequate to ensure that the purposes of bail would be met, I am less confident of the prospect of that result. It was clear to me that the sureties were not aware of the activities that Mr. Abdullahi has been involved in. Moreover, we are not dealing here with simply one firearm, or two, but rather five. That bespeaks a level of involvement in the ongoing criminal activities of the organization with which he is associated that raises the prospect that it will be difficult, if not impossible, for him to disassociate himself from that criminal organization if he is not detained in custody. Equally, and of greater concern in the context of a proposal for such an accused person to be released on bail, is the absence of confidence that I have in the ability of the sureties to prevent the accused from associating with his former criminal colleagues and to effectively monitor and maintain the 24-hours a day, seven days a week, forced incarceration at his home that is inherent in the plan that was put forward, notwithstanding what I believe would have been their best efforts. [My emphasis]

[32] In the result, I granted the Crown’s application and ordered Mr. Abdullahi detained. However, the obvious seriousness of the allegations in this case does not, in and of itself, require that E.M. must be detained, having regard to all the circumstances including, on the secondary ground, any substantial likelihood that she will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[33] In this case, there is no claim that the accused was involved in a criminal organization. E.M. is a licence holder for firearms but several of those are missing and some had serial numbers erased. Unlike in Abdullahi, there is no gang connection that is alleged here, no allegation of participation in a criminal organization, no allegation of drug trafficking, no allegation of conspiracy to traffic in weapons, and no allegation of possession of property obtained by crime. Unlike in this case, where the target of the investigations and warrants was initially M.W. and only later came to include E.M., the accused in Abdullahi was arrested along with a number of other individuals identified in a Guns and Gangs Taskforce project. It was alleged that he facilitated and participated in the trafficking of guns and drugs for the gang.

[34] In my view, it is possible that the Crown’s case may not prove to be as strong as it might appear at first blush, at least relative to this co-accused. Certainly, the case is generally strong, and there are numerous strong and cogent allegations made by the Crown against E.M. alone relative to her obligations as a licenced firearms holder. But the evidence relative to E.M. on the other trafficking and related charges is largely circumstantial. It remains to be seen at the preliminary inquiry and at trial whether the inferences the Crown will ask to be drawn about E.M. involvement, as distinct from M.W.’s involvement, will be the only reasonable available inferences.

[35] M.W. has a record for firearms and he has a very bad criminal record. He is jointly charged for the possession of almost all of the firearms that E.M. is charged with, but he was the target of the investigation as a whole. The evidence may well show different levels of moral culpability here. It is suggested M.W. may have been the more active participant, between the two co-accused. While that remains to be seen, I agree it would have an effect on the tertiary ground with respect to the circumstances of the commission of the offence if there is a so-called mastermind and a lesser participant, who may in fact be the victim of manipulation. We cannot know whether that is the case right now, but neither will we have any insight into comparative culpability until a preliminary inquiry is held, and that will be many months away. There is a real possibility of differing culpability that cannot be overlooked at this stage.

[36] Crown counsel asserts that the circumstantial evidence acquired through the investigation leads to the clear inference that both M.W. and E.M. were at the very least involved in the manufacture of ammunition, and at the most in the trafficking of firearms and ammunition. However, at this stage it appears to me that there are a number of available inferences relative to who the participants were in this illegal activity. It could be: (i) one of them, (ii) the other, (iii) the two of them jointly, or (iv), one of them as principal and the other in a lesser mode of participation. Someone appears to have been involved in the manufacture of ammunition, and possibly the trafficking of firearms, but whether it is M.W., E.M., or the two of them acting jointly, remains to be seen.

[37] Further, if two of the handguns registered to the Applicant have had their serial numbers removed, it does not necessarily follow that it was E.M. who removed those serial numbers, thereby making the firearms untraceable. The inference is equally available that it was M.W. Again, the degree of culpability of the participants will depend on a determination of their roles, their knowledge, and their intent, based on the evidence as it emerges.

[38] Crown counsel submits that even though the sureties may be adequate, and the plan of supervision strong, the Applicant has not discharged her onus on the secondary ground. I disagree. While E.M. faces certain charges in her own right, it is far from clear to me at this juncture what exact role E.M. played in the perpetration of the offences alleged here. That will be determined as the matter moves forward, but only when it can move forward.

[39] What I am satisfied of for now, however, is that the proposed plan of release will prevent E.M. from having any communication with M.W. In all the circumstances, there does not appear to me to be any cogent evidential foundation for concern of a substantial likelihood that E.M. will commit a criminal offence or interfere with the administration of justice if released from custody into the surety plan of house arrest that is proposed.

Tertiary Ground Issues

[40] The tertiary ground for detaining an accused person is set out in s. 515(10)(c), which provides that detention is justified if it is necessary to “maintain confidence in the administration of justice, having regard to all the circumstances.”

[41] The focus of the tertiary ground is on whether members of the community would be satisfied that the denial or revocation of bail is necessary to maintain confidence in the administration of justice. Of equal importance when considering the application of that ground, however, is to remember that the person whose viewpoint we must consider is a reasonable member of the community, not someone who is overly excitable, or hysterical or clamorous. [8]

[42] Instead, as McEachern C.J.B.C. observed in R. v. Nguyen, 1997 BCCA 10835, [9] the law presumes that the reasonable person who is making that assessment is a person who is properly informed, not only about the philosophy of the legislative provisions relative to bail, but also Charter values, and the actual circumstances of the case. Put differently, as Nolan J. did in R. v. Byrd, 2009 ONSC 4000, [10] the fundamental rights to the presumption of innocence and the right to bail that are enshrined in our Charter are not to be undermined and eroded by our fear.

[43] It does not automatically become “necessary” for accused persons to be detained on the tertiary grounds in all cases in which firearms are involved. The test does not take into account the perceptions of those prone to emotional reactions, those who do not have knowledge of the circumstances of the case or who disagree with society's fundamental values. [11]

[44] Justice Schreck notes in J.R. that the tertiary ground is conceptually distinct from the primary and secondary grounds. The primary and secondary grounds relate to probabilities of conduct: that the accused either will fail to attend court or is substantially likely to commit further offences. The tertiary ground is not concerned with conduct: its focus is public perceptions and confidence in the administration of justice. In some cases, public confidence in the administration of justice may be enhanced by tertiary ground detention but it may also be undermined where the accused is detained without adequate justification. [12]

[45] In determining whether an accused should be detained or released on the tertiary ground, the four core circumstances described in ss. 515(10)(c)(i)-(iv) must be considered. Those factors are the strength of the Crown’s case, the seriousness of the offence, the circumstances of the offence and whether firearms were used, and the likelihood of a significant term of imprisonment if convicted. However, St-Cloud shows that list is not exhaustive.

[46] Looking at the first of the four factors, I have observed that the Crown’s case in some of the charges is strong, but may not be so strong in some other charges. Overall, the defence properly concedes that the facts are unquestionably bad, and suggestive of significant potential criminal wrongdoing. However, while the Crown’s case in the careless storage charges may be strong, for other charges the strength is not presently overwhelming and there are clearly triable issues. In the case of some charges, the defence claims that the elements of the offences are simply not present, at least relative to this accused. The strength of all of those matters remains to be determined, as disclosure continues, and more importantly, at the preliminary inquiry and beyond.

[47] It seems plain, however, subject to the foregoing uncertainties, that the remaining factors set out in s. 515(10)(c) would all otherwise favour detention: the offences are certainly very serious, the circumstances involve the use of firearms and endangerment of the public, and if convicted, depending on what offences, E.M. could face a lengthy penitentiary sentence potentially involving mandatory minimum sentences.

[48] I remain as concerned today as I was in Abdullahi [13] about the seriousness of standalone firearms offences, but as I have noted, there were several specific points in that case that caused me to detain the accused, circumstances that differ from this case.

[49] One obvious difference between Abdullahi and this case relative to the tertiary ground is that in Abdullahi I found the omission of the J.P. to specifically address all four of the factors set out in s. 515(10)(c), or show that she had considered them, required that I intervene because I was unable to discern from her reasons how a consideration of those factors caused her to conclude as she did. Her reasons did not permit me to understand how she reached her conclusion, and thus did not permit meaningful review. [14] It will remain for others to determine if these reasons overcome that deficiency. The other differences have been noted above in connection with the secondary ground.

[50] The fact remains these are very serious allegations. Firearms are a scourge, not only on the City of Toronto, but across the entire country, as the recent mass shooting in Nova Scotia sadly makes abundantly clear. The proliferation of firearms is certainly what has recently led the Federal Government to call for a ban on assault-type rifles, similar to one of the weapons found in the storage locker. As others have before, Roberts J. pointed out on page 15 of her judgment that “…gun violence in Toronto and the need to hold not only those who pull the trigger responsible, but those who facilitate gun offences, is an important circumstance in this case.”

[51] Beyond the four statutory factors however, in this case, as in most of the bail review cases being advanced at this time, there are two further circumstances that the defence argues are decisive in the balance in favour of release. Those are the COVID-19 pandemic, and the passage of time. There is also one other factor at play here: it is compassion in the unusual circumstances of this case.

(i) COVID-19

[52] The COVID-19 global pandemic has seriously impacted daily life in Canada, in ways that many individuals have never experienced before. The declaration of a state of emergency by provincial authorities in Ontario has caused the closure of businesses, travel, social gatherings and the Courts.

[53] We all know that this pandemic is grave. Journalists and news broadcasters tell us every day, and throughout the day, how many more people have been infected in our countries, provinces and cities over the past 24 hours, how many more have died, how many remain in intensive care for very long periods fighting this voracious illness, and how many front line workers are jeopardized by the care they so unselfishly provide at great personal risk to themselves. We also know that the virus has made its way into Canadian federal and provincial detention facilities. The corrections officials acknowledge it.

[54] We have all come to know the mantras for preserving our safety and avoiding infection: principally, hand washing, physical distancing, and minimizing contact with others. We are urged by all levels of government to adhere to these rules, and we are subject to many orders that limit our freedom to go where we want, when we want. This is all in the interests of achieving greater public health safety goals for all of us, principally by slowing so-called “community spread”, and thereby “flattening the curve” to ensure that our health care resources are not overwhelmed.

[55] Much about the virus is unknown, but we do know that it spreads easily and has affected most of the world's population in some way or other. We also know it is presently uncontainable, and that there will be no vaccines to prevent the spread of the virus for many months to come, if not a year or more, if ever. We know and are told daily that this pandemic will change many aspects of the way we live our lives, alone and together, in the immediate future and possibly permanently.

[56] Returning to this application, it is remarkable that as of May 5, 2020, 10 days ago, there were some thirty-three decisions published by members of this court relative to applications for bail review since March 23, all COVID-19 related. I am certain there have probably been more than a handful issued since then, up to todays date, and I am certain, there will be many more applications to come in the weeks and months ahead.

[57] Looking back at the rapidly growing collection of bail review decisions issued by colleagues in matters similar to this one, one cannot help but be struck by a number of common elements, by facts that have been judicially noted, and by the growing body of evidence that has been created, focused solely on the COVID-19 virus as a material and game-changing factor relative to tertiary ground bail reviews. For example, I note the following:

(i) The virus started to escalate geometrically in Canada in late February, appears to have peaked in the second half of April, and is now starting to decline significantly. As of yesterday, May 19, the Government of Canada recorded 79,000 cases, up 10,000, and 5,900 deaths, up 1,000 since May 5, two weeks ago. Happily, about 49,000 Canadians have recovered from the disease. There are over 22,000 cases and there have been just over 1,900 deaths in Ontario. The curve may now be flattening out, as we are told it is, but public health authorities warn us that the price of safety is continued vigilance and distancing that will not soon disappear, even if the economy is gradually re-opened. (ii) There is COVID-19 present to varying degrees in various federal and provincial correctional facilities. (iii) On April 6, one hundred and thirteen doctors, nurses and other front-line health care providers signed an open letter to Canadian Federal, Provincial and Territorial Governments, expressing “deep concern about the impact of the COVID-19 pandemic on people in prisons and jails.” They urged the authorities, including the courts, to stop detaining persons in jails and prisons wherever possible, and to release as many prisoners as possible. (iv) A number of experts in the field of infectious diseases and other physicians have provided detailed expert evidence in a number of cases relative to the risks posed by so-called “congregate living” for not only the populations of provincial detention facilities are exposed, but also the staff. These experts warn that staff are themselves capable of unwittingly causing community transmission out into the broader community, simply by going to their own homes every night after work: see for example the evidence of Dr. A. Orkin referenced in R. v. J.R., 2020 ONSC 1938 at paras. 20-31, and Dr. Orkin’s affidavit filed in this case. (v) The province has now issued several “Response to COVID-19 Information Notes” dated April 6, April 20, April 28 and now, most recently, May 5, 2020. These Information Notes have been prepared by two named Strategic Advisors in the Institutional Services Division, Assistant Deputy Minister’s Office, Ministry of the Solicitor General of Ontario. These Information Notes provide ongoing statistics with respect to the number of COVID-19 cases at various correctional institutions across Ontario. They detail the very extensive efforts being undertaken by staff to keep inmates safe, and healthy. Nevertheless, there are stand-alone instances of infections in facilities around the province, and there has been one significant outbreak at the Ontario Correctional Institute, as a result of which the Institute has been shut down and its inmates transferred to Toronto South Detention Centre. E.M. is in custody at the Vanier Centre for Women in Milton, Ontario, where, as of April 27, 2020 there has been one positive COVID-19 case reported, which is stated to now be resolved. There have been no reports of any staff member at that institution testing positive. Nevertheless, there are cases at Maplehurst, located in the same complex as Vanier. [15]

[58] Corrections authorities are doubling down in their efforts to ensure the environments in the correctional facilities they administer are safe and clean. The Information Notes, if accurate, show the extent of their efforts and that diligence to ensure a safe environment has increased geometrically as the infections have spread. The fact remains, however, as the science shows, that they cannot be certain that infections will not spread further in Ontario correctional facilities.

[59] In several of these bail review decisions, as the court observes in J.R., some courts have found comfort in the assurances provided by corrections officials in these Information Notes. However, Schreck J. noted in that case that none of those earlier cases [16] had the benefit of Dr. Orkin's evidence, or Dr. Orkin’s affidavit, which was also in evidence in this case.

[60] I accept the view expressed in Dr. Orkin's affidavit that the degree of physical distancing required to reduce COVID-19 transmission is simply not possible in a correctional institution because of the space constraints. Despite the best strategic and policy directions being pursued within the Solicitor General’s office, as Dr. Orkin puts it, simply and elegantly, “This is a geometry problem, not a policy or strategy problem.” As a result, “it is extremely likely that a COVID-19 outbreak will occur in correctional facilities”, which would put the health of inmates, the staff and the public at risk. Dr. Orkin acknowledges that in considering whether an individual should be released, the law imposes certain considerations, but he emphasizes that from a public health perspective:

... [e]very person who is discharged from a correctional facility to a private residence is an opportunity to flatten the curve and improve health for the individual involved, other inmates in the facility in question, staff at the facility in question, and the public.

[61] There have plainly been differences of opinion amongst members of the judiciary relative to the impact the virus should have on an assessment of the tertiary ground, but I find myself in agreement with the reasons given by D.E. Harris J. of this court in R. v. Rajan, 2020 ONSC 2118, [17] explaining the seminal importance and relevance of the COVID-19 pandemic to the tertiary ground analysis. Justice Harris acknowledges that while the traditional basis for application of the tertiary ground will continue to favour detention, [18] the threat of the virus pulls strongly towards release, and that this reality would be well understood by reasonable members of the public:

The Canadian public understands the momentous nature of this crisis and would be greatly concerned for the health of inmates and staff in institutional settings. In the public's mind, the real and tangible threat of contracting the virus may well supplant the otherwise negative reaction to the release of an accused person. The public is not shortsighted, but would look at the long-term reputation of the administration of justice. In the face of the pandemic, bail release, in the absence of primary or secondary ground concerns, may well not shake the confidence of the public. See also R. v. J.S., 2020 ONSC 1710, at para. 18-19; R. v. Cain, 2020 ONSC 2018 at para. 25; R. v. T.L., 2020 ONSC 1885 at paras. 35-36; R. v. King, 2020 ONSC 1935 at paras. 60-61; R. v. C.J., 2020 ONSC 1933 at para. 8.

[62] Crown counsel argues that E.M. is healthy, and housed in an institution which is free of infection, at least at the present time. As such, he argues there is no risk involved in keeping her detained, and the tertiary ground analysis remains as it was before COVID-19.

[63] However, as the scientific evidence shows, it is not just a question of the particular inmate: reducing the prison population benefits not only inmates, but equally importantly, correctional staff and the public as a whole.

[64] In J.R. [19], above, Schreck J. In puts it this way at para. 18:

Everyone must play a part if attempts to control this pandemic are to be effective. This includes the courts. In my view, during this pandemic, reasonable members of the public would expect the courts to give significant weight to the public health implications of incarcerating individuals. Obviously, there will be some people who cannot be released notwithstanding the pandemic. However, in my view, while this pandemic is ongoing, where a person's detention is not required on the primary or secondary ground, detention on the tertiary ground alone will rarely be justified. [My emphasis]

[65] In a recent motion for bail pending appeal, R. v. Kazman, 2020 ONCA 251, [20] Harvison Young J.A. acknowledges and confirms that the COVID-19 factor will occupy a unique position in the tertiary ground analysis for so long as the pandemic persists.

[66] This, of course does not end the analysis. The pandemic must be balanced with all other circumstances. There are some recidivist criminal individuals, who are so prone to commit serious crime that they fall into the category of persons that cannot be released into the community no matter the supervision. I find that E.M. is not one of those individuals.

[67] However, the message is clear. COVID-19 is not, as has been suggested, a “Get Out of Jail Free” card. Persons who remain a significant flight risk will remain in detention. Persons who present a substantial likelihood of endangering the public by committing offences or interfering with the administration of justice will remain in detention. Accused persons who were previously un-releasable remain un-releasable. However, the appellate authority is clear and unequivocal. As long as this pandemic persists with no vaccines or other strategies to truly control it, detention on the tertiary ground alone will rarely be justified absent primary or secondary ground concerns. In my view, continued detention is not justified in this case.

(ii) Delay and compassion

[68] There are further two considerations beyond the four core factors in s. 515(10)(c) and COVID-19 that I find weigh in favour of release in this case: (i) the passage of time and (ii) compassionate considerations.

[69] In R. v. Myers, 2019 SCC 18, [21] the Supreme Court held that a more nuanced accounting for the elapsed or anticipated passage of time may be required when considering the three grounds of detention. In St-Cloud, [22] Wagner C.J. made the point that a lengthy delay between the hearing and an eventual trial is a factor that the Court may consider in determining whether the detention of the accused is necessary to maintain confidence in the administration of justice. In Myers, the court continues:

…the analysis is not only retrospective, but also forward-looking. For example, let us consider a scenario in which an individual is detained on the basis of s. 515(10)(c), and at the time of the first detention order his trial is only two months away. If the trial date is then rescheduled for a date two years later and remains many months away at the time of a s. 525 hearing, the continued detention of the accused may no longer be proportionate, or necessary, for the purposes of this third ground: see also R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305 (Ont. C.A.), at paras. 39-43; Piazza, 2011 ONCA 609, at paras. 71-81. In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person's loss of liberty or of a loss of public confidence in the administration of justice. [23]

[70] Given the current state of the Court’s operations and the cancellation of all preliminary inquiries and trials, including the dates that were scheduled this month and in June for E.M.’s and M.W.’s preliminary inquiry, it is obvious that there will be a significant delay before this matter proceeds.

[71] In R. v. T.L., 2020 ONSC 1885, [24] the court found that the additional time that accused individuals must wait in custody as a result of the COVID-19 is also itself a factor to be taken into account when considering the tertiary ground. Justice Molloy makes the point at para. 34:

At the current time, all courts are effectively closed except for emergency applications. All matters scheduled for trial in the Superior Court of Justice from mid-March through to the end of May have been adjourned to June. Even assuming the courts are open for business as usual at that point, a significant backlog will have been created. It is very difficult to predict when Mr. L.'s trial will be reached, but we can expect it will be many months from now, probably longer. The additional time that Mr. L. will be in custody pending his trial is a factor to take into account on the tertiary ground.

[72] The backlog and indeterminate delay in the Courts created by COVID-19 is a further concern, beyond the threat of the virus itself, that the Court must weigh in favour of the Applicant’s release. There are several reasons I find this concern to be especially applicable in the circumstances of this case.

[73] That delay means it will be a long time until the initial evidence is presented and the preliminary inquiry judge is able to reach committal decisions relative to E.M. and M.W., individually and collectively, and even more time before the matter can ultimately come to trial.

[74] I accept the Crown’s observation that the same delay is going to be present for all accused due to COVID-19, but the significance of that delay is different here, in my view, because of the circumstantial nature of the evidence relating to the most serious charges.

[75] The difference relates to the length of time before an initial assessment can be made of the relative culpability of the co-accused, E.M., as compared to M.W. It derives from the uncertainties I referred to above, not about the strength of the Crown’s case as a whole, but rather what may be determined to be different modes of participation of the co-accused. In his submissions, defence counsel suggested that E.M. may have been discharged at a preliminary inquiry on some of the charges, but is now unable to advance those arguments due to the preliminary inquiry date having been vacated. It is not just a case of releasing the person because of the health risks associated with COVID-19. It is equally the case that there may be damage to the public’s confidence in the administration of justice because of these delays.

[76] The Applicant is proposing the strictest form of bail possible with three sureties and a very significant sum of money. The plan of bail has now been found to be at least adequate to protect the public by three judicial officers. That strict plan is something that must also be considered under the tertiary ground. The public’s confidence in the administration of justice may be enhanced by the knowledge that E.M. is not being released freely into the community, but rather into house arrest to look after her children under the supervision of three strong, high-quantum sureties. [25]

[77] Finally, I find that there are also compassionate grounds that must be weighed here. The Applicant is a mother to 4 children. They are all young children. She does not have a criminal record or any criminal antecedents. She is presumed to be innocent under our law. The longer her pre-trial detention, the longer she remains removed from her children.

[78] At present, all professional and personal visits have been suspended across correctional institutions in the province due to the COVID-19 pandemic. Access to phones and movement of inmates within the institutions has also made it increasingly difficult for the Applicant to communicate with her family or children. That, of course, is true for all detained accused persons, and E.M. is no different from others in that regard.

[79] What is different is that there are presently no opportunities for any clarification of possible relative culpability of the co-accused, and, or for any resolution or forward movement. Nevertheless, it is plain, as Crown counsel observes, that if E.M. is found guilty of any or all of these alleged crimes, she will likely face a significant custodial sentence, regardless of an absence of criminal antecedents.

[80] Justice Goldstein was faced with similar circumstances in R. v. Iglesias, 2020 ONSC 169. [26] In that case, the 27-year-old accused female was charged with first-degree murder. She applied for bail. She and her co-accused, one Castro, burst into the victim's apartment. Mr. Castro fired at least two shots. On the balcony, either the accused or Mr. Castro stabbed the victim, who bled to death. At the preliminary inquiry, Ms. Iglesias was identified as the person who stabbed the victim, but she disclaimed any responsibility.

[81] Ms. Iglesias had a six-year-old daughter who was in her mother's custody. Like the Applicant in this case, she had no previous record. There was a strong plan of bail put forward that included house arrest at her mother's home, electronic monitoring and the entire equity of the parent’s home. The mother was prepared to take a leave of absence from work to be home with the accused.

[82] Justice Goldstein granted her release, finding that primary and secondary ground concerns were addressed adequately in the release conditions, and that the plan for release was reasonable and strong. Although he found the Crown's case was very strong and the defence evidence was weak, and despite the obvious seriousness of the charge, he concluded that maintaining public confidence in the administration of justice did not require that the accused be detained. Faced with a parent who was facing the possibility of having this one last chance to spend time with her children for many years, he concludes as follows:

I also find that this is very likely to be the last time Ms. Lopez Iglesias can spend real time out of custody with her daughter for many years. In my respectful view, public confidence in the administration of justice does not require that Ms. Lopez Iglesias be deprived of that opportunity. There is room for compassion.

[83] I agree with those conclusions in the similar circumstances of this case. There must always be room for humanity and compassion.

Conclusion

[84] Crown Counsel argues that this is that rare case where incarceration is required, despite all the factors that appear to weigh in the other direction. I disagree. Yes, the alleged offences are very serious, but there is no issue with either the primary or the secondary ground. Neither requires detention. The plan of release is comprehensive and will be administered by trustworthy and reliable sureties who plainly understand their role, their obligation to the court, and the risks they face if E.M. were to breach the bail terms.

[85] I find that E.M.’s continued detention is not necessary to maintain confidence in the justice system from the perspective of the public – a public that is aware of our justice system and its current (in)ability to move matters forward in any substantive manner, the presumption of innocence, and other related Charter provisions. I reach this conclusion at the end of my tertiary ground analysis and the balancing exercise I am required to undertake, and when considering all of the circumstances as I have outlined them in these reasons.

[86] E.M. will be released upon the following terms:

• Recognizance with 3 sureties in the following amounts:
  • A.R.M. – $50,000
  • V.E.R. – $50,000
  • A.V.L. – $1000
• The following terms attached to that Recognizance:
  1. Reside with your sureties at their residence and be amenable to the routine and discipline of that residence;
  2. Remain in your residence at all times, except: a. When in the direct and continuous company of one or more of your sureties; b. For medical emergencies for you, your sureties, or your children;
  3. Do not have any contact or communication directly or indirectly with M.W., except through counsel for the purposes of preparing a defence;
  4. Do not possess any weapons as defined by the Criminal Code;
  5. Do not apply for an FAC or Firearms Certificate;
  6. You shall participate and abide by the requirements of the ESP as noted below and as required by the court, the Ministry of the Solicitor General and its employees and authorized agents, for the purpose of monitoring your house arrest, curfew, residence restriction, etc.;
  7. You or your surety must complete and sign the forms noted below in order for a Technological Report to be completed to determine eligibility for the program; a. Client Agreement Form b. Residence Agreement c. Client Residing alone Questionnaire
  8. Upon release from the institution you must return directly to your approved residence and remain there for up to 48 hours or until installation/activation of ESP equipment is completed. You will make yourself available at your residence as directed. Installation appointments will be conducted within 48 hours of receiving your enrolment information from the Ontario Monitoring Centre;
  9. You shall be placed on Electronic Supervision for the entire length of your Bail Release Order;
  10. You shall permit Ministry staff and/or persons who are authorized by the Ministry associated with the Electronic Supervision Program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the ESP equipment;
  11. You shall make yourself available either by phone or in person as may be required at any time during house arrest/curfew and in particular: a. You shall answer the phone at any time during house arrest/curfew; and b. Present yourself to Ministry staff, Police Services and/or persons who are authorized by the Ministry associated with the Electronic Supervision Program at the door of your residence at any time during house arrest/curfew for the purpose of confirming your presence and compliance;
  12. You shall reside at the sureties’ residence and not change your address without prior permission of the courts;
  13. You shall permit Ministry staff and Police Services in your residence during the investigation of any alerts generated while on the Electronic Supervision Program;
  14. You are only to be in possession of a cellphone or device capable of accessing the internet when in the direct and continuous supervision of your surety;
  15. You are to keep a copy of this recognizance on your person at all times when outside your residence.

[87] Before concluding, I note that in response to the Crown’s observations about electronic monitoring, and my specific inquiry about it, Counsel advised that the Applicant and her sureties are willing to have E.M. be electronically supervised under the Province of Ontario funded Electronic Supervision Program (“ESP”). Participation would require that I order that she apply for coverage and a report be prepared indicating that ESP can be operated in the sureties’ home where E.M. would be under house arrest. This term as well will be included in this order, as noted in the preceding terms.

Michael G. Quigley J. Released: May 20, 2020

COURT FILE NO.: 20-0000138-00BR DATE: 20200520 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – E.M. Defendant/Applicant REASONS FOR DECISION Michael G. Quigley J. Released: May 20, 2020

[1] Criminal Code, R.S.C. 1985, c. C-46, ss. 515(6)(vi).

[2] Transcript of Bail Review Ruling, September 13, 2019, Roberts J. (S.C.J.), at pages 12-16.

[3] R. v. J.R., 2020 ONSC 1938 (“J.R.”).

[4] R. v. Jeyakanthan, 2020 ONSC 1984 at para 27; R. v. Neto, 2020 ONSC 2063 at para 8; R. v. Cain, 2020 ONSC 2018 at paras 8 and 13; R. v. Nelson, 2020 ONSC 1728 at para 2; and R. v. Paramsothy, 2020 ONSC 2314 at para. 57.

[5] R. v. St-Cloud, 2015 SCC 27.

[6] R. v. St-Cloud, 2015 SCC 27.

[7] R. v. Abdullahi, 2013 ONSC 4873.

[8] R. v. A.B., 2006 ONSC 2765, [2006] O.J. No. 394 (S.C.J.) per T. Ducharme J., at para. 18 and cases and texts referred to there.

[9] R. v. Nguyen, 1997 BCCA 10835, [1997] B.C.J. No. 2121 (C.A.).

[10] R. v. Byrd, 2009 ONSC 4000, [2009] O.J. No. 3092 (S.C.J.).

[11] St-Cloud at paras. 75-80.

[12] St-Cloud at para. 86.

[13] Abdullahi, above, at paras. 38-40.

[14] R. v. Sheppard, 2002 SCC 26 at para. 28.

[15] In Ontario institutions, very few inmates have tested positive, but there are cases, some resolved, and some unresolved across the seven institutions listed in the Note, all stand-alone, apart from the OCI outbreak in Brampton, involving 76 inmates and 24 members of staff.

[16] R. v. Jeyakanthan, 2020 ONSC 1984 at para. 31; R. v. Budlakoti, 2020 ONSC 1352, [2020] O.J. No. 1352 (S.C.J.) at para. 14; R. v. Phuntsok, 2020 ONSC 2158 at paras. 26, 29.

[17] R. v. Rajan, 2020 ONSC 2118 at paras. 69-70.

[18] St-Cloud, above; R. v. Hall, 2002 SCC 64; R. v. Mordue, 2006 ONCA 31720 (2006), 223 C.C.C. (3d) 407 (Ont. C.A.).

[19] R. v. J.R., 2020 ONSC 1938, above.

[20] R. v. Kazman, 2020 ONCA 251.

[21] R. v. Myers, 2019 SCC 18.

[22] R v. St-Cloud, above, at para. 71.

[23] Myers, above, at para. 53. Also R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305 (Ont. C.A.), at paras. 39-43; Piazza, 2011 ONCA 609, at paras. 71-81.

[24] R. v. T.L., 2020 ONSC 1885 at para. 34; foll’d R. v. J.R., 2020 ONSC 1938 at para. 52.

[25] R. v. Dang, 2015 ONSC 4254 at para. 53.

[26] R. v. Iglesias, 2020 ONSC 169 at para. 67.