Court File and Parties

COURT FILE NO.: CR-9988 DATE: 2020-05-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent B. Thomas, for the Crown Attorney

- and -

MOWAFAG SABOON. Accused S. Proudlove, for the Accused

Heard: May 11, 12 and 13, 2020

RULING ON BAIL HEARING - SECTION 522 OF THE CRIMINAL CODE

This proceeding was brought and determined during the COVID-19 pandemic, after the Chief Justice of the Ontario Superior Court of Justice suspended regular court operations.

A Publication Ban is imposed pursuant to ss. 517(1) of the Criminal Code. However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings, with the appropriate redactions.

A.J. GOODMAN J.

1This judgment relates to a bail hearing held pursuant to s. 522 of the Criminal Code, R.S.C. 1985, c. C-46.

2The accused, Mowafag Saboon (“Saboon”) is charged with first degree murder alleged to have occurred on July 8, 2018 in Kitchener. From events arising upon his arrest on October 24, 2018, Saboon is also charged with possessing a firearm, carrying a concealed weapon, careless transportation of a firearm, occupying a motor vehicle with a firearm, possessing a loaded prohibited firearm, possessing a prohibited flick knife, possessing cocaine and possessing oxycodone both for the purpose of trafficking, all contrary to their respective provisions in the Criminal Code or the Controlled Drugs and Substances Act.

3The accused sought to have all of his outstanding matters heard by this court pursuant to s. 522(6) of the Criminal Code. Saboon has remained in custody since the date of his arrest. The preliminary inquiry has been completed.

4The show cause hearing proceeded by recorded Zoom videoconference wherein the accused participated by audio. The parties presented viva voce evidence and the accused and the Crown had the opportunity to question the various witnesses, the proposed sureties and the accused. Numerous cases and other written materials were filed electronically on consent and referred to during the course of submissions.

Positions of the parties:

5On the basis of the evidence presented, the accused submits that he has met his onus to fashion a form of release to meet the secondary and tertiary ground concerns. The accused proposes his father and sister as sureties along with strict terms including electronic monitoring. He is fully intending to comply with whatever terms the court demands.

6The accused argues that the Crown’s case is strong with respect to the firearms and drug charges. However, the Crown does not have a strong case as there are triable issues regarding identity of the perpetrators and the level of culpability implicated with the alleged murder.

7The accused says that his personal circumstances and the risks of contracting COVID-19 at the jail, puts him at an even greater risk and clearly does not allow for any form of meaningful social distancing. Moreover, the accused has now spent over 18 months at the Maplehurst Detention Centre (“Maplehurst”). Having not previously spent any time in an adult custodial facility, it is submitted that this time – while significantly less than the length of time he faces if convicted and sentenced – has nonetheless had an important deterrent effect. This ought to be considered when assessing the relevant tests under the tertiary grounds.

8The accused submits that with respect to the proposed release, he is proposing a strong and restrictive plan of supervision. The accused submits that these sureties - in tandem – including his mother, and in conjunction with electronic monitoring are able to provide comprehensive supervision in order to address any concerns on the secondary and tertiary grounds.

9In response, the Crown submits that the accused has not shown cause why he should be released. The Crown accepts the general notion that inmates face an elevated risk of contracting the virus as a result of their inability to self isolate. Based on some of the recent jurisprudence, the Crown acknowledges there may be circumstances where COVID-19 is a factor for consideration under the secondary or tertiary ground.

10However, the Crown says that there is no evidence that Saboon has pre-existing medical conditions that place him at a higher risk to contract COVID-19 or which suggest he will suffer more serious effects. The evidence provided by the prosecution demonstrates that Maplehurst is taking all necessary and reasonable precautions in dealing with the pandemic.

11Alternatively, the plan still relies heavily on the sureties’ ability to control him. Those persons are wholly inadequate. The Crown submits that the strength of its case, the violence alleged in the murder, with the accused’s conduct post-offence while residing with his family has not changed any concerns over his ability to follow rules or be effectively monitored. There is a substantial risk that, if released, the accused would reoffend and jeopardize the safety of the public. The public’s confidence in the administration of justice would be defeated by this plan of release and warrants the accused’s continued detention on the tertiary ground.

Summary of the Evidence:

12A summary of the evidence was provided by the Officer-in-Charge, Constable Alan Diement, as well as the information from the preliminary inquiry. Briefly, the evidence in support of the allegations includes:

Shaun Yorke (“Shaun”) was 45 years old at the time of his death. He lived at 150 Elm Ridge Drive, Kitchener with his then 15year-old son, Jacob Yorke (“Jacob”). In July 2018, Jacob’s friend, Sammie Sananikone (“Sammie”), was also staying at the residence. Shaun sold marihuana in order to supplement his disability income.

On the evening of July 7, 2018, Bradley Sinson (“Bradley”), Karl Jurdens (“Karl”), Kenny Morrison (“Morrison”) and Saboon were all at 19 Albion Street in Kitchener, the home of Morrison. At the time, his girlfriend, Chrystal Sinson (“Chrystal”) also lived at this address. Chrystal is Bradley’s older sister. The four men made a plan to steal cash and drugs from the Yorke home as this was well-known by many people including Jacob’s friends and acquaintances.

Just after 1 a.m. on July 8th, 2018, the four men arrived at the Elm Ridge neighbourhood in a silver Chevrolet Cruze. They parked a short distance away from the Yorke residence. The four were able to gain entry to the building and were standing in the lobby of the building outside the Yorke front door. At approximately 1:15 am, Jacob and Sammie arrived at the rear sliding door of the residence. They were unaware of the presence of the group of four men. The back door was locked, so Sammie took the keys around to the front door while Jacob waited at the back.

When Sammie arrived at the front door, he encountered the group of men. Sammie recognized Bradley and Karl and he did not recognize the other two males, described one as being white (Morrison) and the other one as black (Saboon). The white male’s face was covered, but the black male’s face was not.

Morrison was armed with a sawed-off shotgun or rifle and Saboon was armed with a handgun. Sammie was ordered to unlock the door at gunpoint and then forced to lead all four males through the residence in search of drugs and cash. At the preliminary inquiry, Sammie testified that when they noticed the key to the door in his hand, the black male pulled a black steel pistol from his waistband and pointed it at him. Sammie was then forced upstairs by Saboon and Morrison while Bradley and Karl continued to search downstairs. Sammie was ordered to open the door of Shaun’s bedroom where Shaun was located. Morrison and Saboon both pointed their guns at Shaun. Shaun then got up and tackled the white male into the railing of the landing just outside his bedroom door. The black male was standing at the top of the staircase when this occurred. Sammie heard a gunshot at this point. Shaun was shot one time by either Morrison or Saboon.

All four members of the group fled the scene right after the shot. In the meantime, Jacob went around to the front door to see what was going on. Shaun was on the floor in the upstairs hallway and quickly passed away. He died as a result of a single gunshot wound. A .22 caliber bullet entered his chest on the left side, went through his left lung, his heart, and his right lung. A .22 caliber cartridge was later found by police near the body. Dr. Chaisson testified that he noted gunpowder stippling on the body. Based on this stippling he estimated that the muzzle range when Shaun Yorke was shot was somewhere in the vicinity of one to three feet or if a rifle was used, it would be a distance of between one to six feet.

Neither firearm was recovered. Both Bradley and Karl gave multiple statements to police. In these statements they spoke to the involvement of Morrison and Saboon. Bradley referred to Saboon as “Fuji” and “Fugi” during his statements and claimed not to know his real name. Karl referred to him as “Fugi”. Since the offence, both youth accused, Karl and Bradley, have pled guilty to manslaughter. Chrystal also gave statements to police regarding events at 19 Albion Street before and after the homicide. She claimed to only know the black male (Saboon) as “Fufu”.

In his statement to police, Saboon indicated that he is known as “Master Fuji” and “Fufu”. Multiple phones were seized from Saboon upon his arrest. These phones were analyzed, and in one phone, it was discovered that Saboon referred to himself in text messages as “Fufu”, “Fuji”, and “Fugi”.

In the summer of 2018, while Saboon was a suspect in the homicide, cell phones belonging to other suspects were analyzed. The content included a variety of communications suggesting Saboon and his brother, Musab Khamis SABOON were trafficking drugs. Surveillance was conducted on their residence of 91 Dinison Crescent in the City of Kitchener, Ontario. The officers on surveillance observed behaviour consistent with the sale of drugs. On October 23, 2018, search warrants were authorized to search the Saboon family residence.

On October 24, 2018, Saboon was arrested upon exiting a Tim Hortons located in Kitchener. In a search incident to arrest, officers located a firearm identified as a Jimenez Arms JA 380 .38 caliber semi-automatic handgun. It was loaded with 6 rounds of ammunition. Officers also seized a quantity of cocaine, 19 oxycodone pills, drug packaging, a scale, $520.10 in Canadian currency, and two Blackberry cell phones.

In a search of Saboon’s bedroom at 91 Dinison Crescent, officers located a Ziploc baggy with white residue suspected to be drugs. 34 rounds of .38 caliber ammunition, a flick knife, three more Blackberry phones, two cannisters of pepper spray, a machete and documents in Saboon’s name. The cocaine weighed 46.63 grams. The estimated total value of the seized drugs is $4,787.00. In his statement to police, Saboon admitted that he had the firearm because he sold drugs.

Legal Principles:

13The fundamental rights of any accused require that interim detention is truly justified having regard to all of the relevant circumstances of the case. Section 515(10)(b) of the Criminal Code requires a justice to consider whether detention is necessary for the protection or safety of the public. It has been settled that in dealing with the secondary ground, the danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Appellate courts have held that, in general, society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. The denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any extraneous purpose.

14Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial risk” of committing an offence or interfering with the administration of justice, and only where this substantial likelihood endangers “the protection or safety of the public”. It is not justified where detention would merely be convenient or advantageous. It is also well established that jurists must consider the approach directed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.

15If there is a substantial likelihood that the accused will not comply or cooperate with the terms of the bail, he or she is likely to be denied bail on the principles and objectives of the bail provisions of the Code.

16The tertiary ground provides that the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove that the detention of the accused is justified to maintain confidence in the administration of justice.

The Plan for Release:

17The accused proposes that he be released on a $15,000 bond, without deposit but with three sureties, namely; his father and two sisters. He suggest that the release plan include a set of strict conditions including real time GPS electronic monitoring. The main features of the proposed plan is to subject Saboon to house arrest in his parents' home with 24/7 supervision. He would not be able to leave his parent’s home except in the company of a surety and his contacts with persons outside of the family will be controlled.

18The three sureties deposed and testified that that they not only appreciate the seriousness of the accused’s charges but also recognize the expectations of their responsibilities. The accused’s father, mother and sisters are prepared to supervise him and monitor his behaviour at all times.

19Steven Tan, Director of Operations for Recovery Science Corporation, provided detailed information and confirmed in a letter the availability and suitability of electronic monitoring in this case. He advised that such monitoring can be implemented at either residence being proposed.

Analysis: Secondary Ground:

20Where a person is charged with first degree murder, they are automatically detained in custody and no bail hearing is held unless he applies to a judge of the Superior Court for a release order pursuant to s. 469 of the Criminal Code. The onus is on the person charged on a balance of probabilities to establish that the release order is appropriate having regard to the grounds for detention in s. 515 of the Criminal Code.

21Saboon faces a count of first degree murder amongst other offences. Despite the seriousness of the charges, there is no presumption that he should be denied bail. He is entitled to an equal consideration for bail as with anyone else subject to criminal charges. Similarly, he enjoys the rights enshrined in s. 11 of the Charter just as any other accused person. The principles set out s. 515(10) of the Criminal Code apply to him with as they would to any other accused who seeks judicial interim release.

22The jurisprudence has clearly established that the strength of the Crown's case is applicable to the three grounds enumerated in s. 515. The Supreme Court’s decision in St. Cloud makes it clear that in considering whether or not a person's release is justified"the justice must determine the apparent strength of the prosecution's case: at para. 58. The court noted that "the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise". At para. 59, the court stated: that if the accused raises a defence, the justice must take this into account in analyzing the apparent strength of the prosecution's case.

23As the Supreme Court of Canada cautioned in St. Cloud"the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing" (at para. 58).

24In R. v. Wiltshire, 2015 ONSC 3371, Trotter J. as he then was, opined that "gauging the strength of the Crown's case at this stage can sometimes be precarious”. Indeed, courts have cautioned that the assessment of the strength of the case against an accused person before the investigation is complete, before a preliminary hearing has been held and before the accused has presented his defence can be a difficult and uncertain task. However, in this case, the preliminary inquiry has been held and is complete.

25In the case of R. v. Rondeau (1996), 108 C.C.C. (3d) 474, the Quebec Court of Appeal opined that one could look at the nature of the evidence and of the offence and conclude there is a substantial likelihood of conviction. In Rondeau, Proulx, J.A., for the court stated that:

It appears to me that the more serious the crime, the more the perpetrator's participation is characterized by planning and the commission of the most violent acts, the greater the risk for society... It is not a question of frustrating the presumption of innocence and starting the sentence by ordering his immediate detention, but rather to apply the rule of the burden of proof which requires the accused to show cause why his detention is not necessary for the protection or safety of the public.

26In addressing the specific concerns raised by the accused in respect of COVID-19 and its impact on him and the custodial institution, I refer to the recent case of R. v. J.S., 2020 ONSC 1710. While in J.S., Copeland J. was tasked to consider a bail review premised on the tertiary ground soon after the pandemic emergency in Ontario was declared, at para. 18, she states:

In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.

27Moreover, Copeland J.’s comments at para. 19 of J.S. regarding the impact of COVID-19 as it applies to the detention centres are instructive:

I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.

28As I held in R. v. King, 2020 ONSC 1935, at para. 60, the jeopardy and risk posed to inmates from COVID-19 while incarcerated in detention centres awaiting trials (that are currently suspended) is not only a consideration on the tertiary ground but also a valid factor when considering the secondary ground for detention; in particular for non-violent offenders on a bail review.

29The accused filed an affidavit with a whole host of concerns about the conditions at Maplehurst. These include but are not limited to the following:

Many lockdowns lasted for 48 hours and some for days on end; during lockdowns it is common that I am not granted access to a shower; I was not granted access to telephones which prevented me from calling my family and friends… the lockdowns create a tense atmosphere among inmates; I worry that if I was attacked, I would defend myself and potentially harm someone in the process;… the lockdowns were very stressful and caused me to worry about my safety and the safety of those around me; … the clothing that I received and I am required to wear at Maplehurst Correctional Complex has oftentimes been stained; my cell has been infested with spiders, silverfish and ants; I have not been provided hand sanitizer on my range; I have been told to wash my hands but soap is only sporadically available and not available at all times of the day; I have not been provided with gloves or other personal protective equipment that may prevent the spread of the virus. I have never been provided with a mask; day rooms are irregularly cleaned. The inmates are provided with a water-based solution, which requires hand-mixing, and is then dispensed from one spray bottle per range. The inmates clean with mops and brushes which are rarely cleaned. Often there is not enough disinfectant to go around on all contact surfaces on the range and in my cell. I fear the surfaces of my living quarters are not properly disinfected increasing my risk of contracting COVID-19; Correctional Officers do not always change their gloves between interactions despite the COVID-19 crisis. Gloves they use to open doors and handle inmates are generally the same gloves that are used when handling meals… Meals are provided in a paper bag; the food is handled by Correctional Officers often wearing those same gloves, as is provided to the inmate in a hand-to-hand exchange; the cutlery provided during the COVID-19 situation at times does not appear to be properly cleaned or maintained and it appears there is a risk of contamination from prior users; …I am currently fasting for Ramadan, which brings its own set of concerns because food is usually brought later. If an inmate on a range indicates symptoms or even verbally advises the staff of symptoms. The entire range will be placed on lockdown for 7-14 days… I am worried I could be isolated in “the hole”. These cells are notoriously unclean and void of any sanitation products. These cells are often covered in feces and other bodily substances. This situation has led to inmates refusing to admit to symptoms for fear of being locked down, which amplifies the risk to my safety. I fear that once symptoms are reported, the Correctional Officers will begin to leave work citing unsafe work conditions. A shortage of staff means that the institution goes into lockdown…

30In response, the Crown filed various materials including an updated April 21, 2020 document from Correctional Services entitled “COVID-19 Plans and Preparedness”, “COVID-19 Update for Inmates”, dated April 6, 2020, and a detailed “Response to COVID-19 Information note”, dated May 5, 2020 from the Solicitor General. The extensive information in this latter report includes, but is not limited to:

Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. Through the combined actions of the Ministry of the Solicitor General and the Ministry of the Attorney General, the population in Ontario’s adult correctional institutions has been reduced significantly.

Quick Facts: As of April 6, 2020, there are 5,694 inmates in custody across all 25 institutions. This is a 32% reduction since March 16, 2020. Inmate Testing: One inmate tested positive at Maplehurst and was resolved.

On April 17, 2020, an outbreak was declared by Peel Public Health at the Ontario Correctional Institute (OCI). The ministry temporarily closed the facility on April 21, 2020 after transferring all inmates to the Toronto South Detention Centre (TSDC). All inmates who have been transferred from OCI have been placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates. OCI inmates have been placed in a separate part of TSDC…

Facilities are inspected and thoroughly cleaned regularly and/or as required…In the case of a confirmed positive case of COVID-19, an outside vendor will come in to complete a deep cleaning in the areas where the employee was working and/or travel pattern within the facility… Inmates are provided with cleaning supplies and direction on the proper cleaning protocols, as well as appropriate PPE where necessary…Proper handwashing and cough/sneezing protocol has also been communicated to inmates… Staff have access to PPE including face masks, eye protection, gloves and gowns, and are instructed to wear it when appropriate according to Guidelines developed by the Ministry of Health…Inmates also have access to PPE including face masks and are instructed to wear it when appropriate according to guidelines developed by the Ministry of Health…If an outbreak of a reportable communicable disease occurs or is suspected, institution officials take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and SolGen provincial health professionals. Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health to manage the situation, including containment strategies such as medical isolation.

31The Crown called Deputy Superintendent Garbacz (“Garbacz”) of Maplehurst who provided additional informational and reports. In a thorough and comprehensive response, Garbacz explained all of the processes and procedures at Maplehurst. He addressed all of the concerns raised by the accused in his affidavit. For example, the number of lockdowns and that since March 17, 2020, Saboon was subjected to lockdown on two occasions; Maplehurst is running at a reduced capacity of 620 inmates from the usual 1200; there were no reports of infestations; liquid and bar soap is provided to inmates each morning; spray cleaning solution (Oxivir) and PerDiem & Germ-Destroyer cleaner are provided to living units each morning; mops and brushes are replaced as required; inmates may be isolated or placed in quarantine as required for containment purposes and isolation and are thoroughly cleaned. Many of the accused’s other concerns were contradicted or claimed to be unsubstantiated. (See Exhibit 6.)

32In addressing some of the jurisprudence related to COVID-19 and custodial institutions, in R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, the accused was charged with a series of firearm offences and possession of MDMA. In her analysis, McWatt J. rejected the notion that inmates face an increased risk of contracting COVID-19. McWatt J. held that J.S. and cases that follow that line of reasoning were based on speculation and not evidence. She affirmed Edwards J.’s finding in R. v. Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279, that medical evidence should be submitted by an accused to show that he has underlying health issues that make them more susceptible to contracting the virus. Detention was ordered as there was no evidence that COVID-19 was present at the jail, or that the accused was more susceptible to the virus than other inmates; and even with electronic monitoring, the sureties would not be able to successfully supervise the accused.

33In R. v. Budlakoti, 2020 ONSC 1900, [2020] O.J. No. 1352 (S.C.), the accused was initially detained on firearm offences. The court took judicial notice of the risks associated to the COVID-19 health crisis and the increased risk for inmates confined in detention centers. The accused argued that since he suffers from gastroesophageal reflux disease, celiac disease, and mental health issues, he is subject to increased susceptibility and/or heightened symptomology from COVID-19 as compared to other inmates. However, without “proper” medical evidence, Laliberte J. found Budlakoti’s argument to be a mere possibility. The court concluded that the steps taken by the jail authorities to manage the harms associated to COVID-19 lowered the risk for the accused in that case and he was detained.

34In R. v. C.J., 2020 ONSC 1933, [2020] O.J. No. 1312, the accused was detained on drug and firearm offences. He applied for a review of his detention order which was rooted in concerns under the tertiary ground. Conlan J. expressly rejected the submission that courts need evidence that a particular accused is more at risk of contracting COVID-19: at para. 9.

35As mentioned, in review of the recent jurisprudence, including my recent decisions on this very issue, I have taken judicial notice of the COVID-19 pandemic as it can adversely affect inmates housed in correctional institutions. While I have held that this is an important factor amongst others in addressing the secondary (and tertiary) ground, it is not determinative and must be balanced with other considerations. As I stated in King, R. v. J.A., 2020 ONSC 2312, and R. v. Dawson, 2020 ONSC 2481, amongst other cases, while the pandemic is daunting and challenging, I am reminded that the court must be mindful of the risks of releasing violent offenders back into the community for the sake of reducing the population in detention centres.

36Again, it bears repeating that any decision along this analysis is not intended to send out a message that due to the pandemic there exists a revolving door policy for offenders, and in particular, violent offenders to commit crime with the expectation of release or that offenders can now benefit with a “get out of jail free” card. As I held in King at paras. 68 and 69:

Indeed, there is a delicate balance that need be put into play. However, drawing from St-Cloud, in my opinion, a reasonable and well-informed member of the public, about whose confidence in the administration of justice is concerned; being familiar with the basics of the rule of law and the fundamental values of criminal law, in conjunction with the ubiquitous nature of the current pandemic and a reasonable plan to address the release of non-violent offenders, would not lose confidence in the criminal justice system.

All this is not to suggest that violent offenders or those who commit crimes of violence could never be released on a bail review. However, notwithstanding the current pandemic, this can only occur if and when the well-established principles from the jurisprudence are satisfactorily addressed and not merely regurgitating a plan of release that was rejected at first instance.

37Thus, recognizing the COVID-19 pandemic in institutions as an important factor in any plan of release on the secondary ground, I have opined that there is an important distinction to be considered when addressing a release plan for non-violent offenders as opposed to those who are violent. I apply all of these principles in this case.

38I follow the predominant line of authorities to the effect that there is no obligation on the accused to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus.

39However, in this case, the accused has presented no medical evidence or raised any specific health concerns regarding any pre-existing medical conditions that place him at a higher risk to contract COVID-19 or would make him more susceptible to more severe consequences from an infection.

40Notwithstanding the COVID-19 situation, the question remains whether the plan addresses the secondary ground concerns, whether the accused will abide by the rules and whether that is enough to meet his onus for release.

41In my opinion, the Crown’s case is fortified by eye witnesses and other forensic evidence linking the accused to the crime of both murder and the firearm and illicit drug possession. The evidence provides for motive and opportunity. Notwithstanding the able submissions of defence counsel, in my view, the Crown has a strong case for the murder count. The Crown also has an exceptionally strong case with regards to the seizure of prohibited weapons, a firearm and illicit drugs.

42As mentioned, these allegations involve violence, a factor that can be relied upon as a significant reason for detention on the secondary ground. In R. v. H.(R.), 2006 ONCJ 116, 38 C.R. (6th) 291, Trotter J. (as he then was) highlighted that the level of violence attaching to an alleged offence is relevant to assessing the potential risk to the public; in part because of the danger serious violent offences pose to the community. See also R. v. Heang, 2011 ONSC 2037 and R. v. Croteau, 2016 ONSC 1515.

43In R. v. Aden, 2019 ONSC 2043, 2019 O.J. No. 2439, Dawe J. had occasion to address a bail review of a violent offender and noted at para. 24:

The critical question, in my view, is whether the accused’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Accused’s release on bail…

44It is true that Saboon has no prior adult or youth record and there are no breaches of any court orders. He was arrested months later in possession of a loaded firearm and drugs. He admitted carrying a weapon for his drug trade. Of some limited weight to the analysis, there is some evidence of misconducts while in jail, including assaultive behaviour. I have considered Saboon’s conduct as his continued - apparently unabated - involvement with restricted or prohibited firearms. The allegations arising from this home invasion robbery are also disturbing.

45It is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the secondary ground.

46Returning back to the proposed plan: There are some valid criticisms levelled by the Crown that the accused’s father does not know his son and cannot control him. While I recognize that many 20 some-year-old sons or daughter don’t share their day to day activities with parents, here I am looking at the pattern of behaviour and the totality of the circumstances.

47Saboon’s father, Khamis Saboon (“Khamis”) testified. I take no comfort in his ability to supervise or monitor anyone. This includes his dearth of knowing his son’s associates, his activities or comings and goings. Prohibited weapons and cocaine were seized from his son’s bedroom in his home. Khamis has three sons, Saboon, who is facing a first degree murder charge and other offences, his brother, Musab, who has a lengthy criminal record with crimes of violence accumulated over many years and is also facing an unrelated first degree murder charge. Khamis provided scant details about his prior suretyship for Musab and one or more breaches of bail terms that arose under his watch. His other son, a young person, is also facing numerous criminal charges. All of his sons appear to have committed their respective crimes while primarily living under the same roof as their father. It is obvious to me that Khamis has neglected or otherwise failed to direct, guide or otherwise deter all of his sons from their path of criminality.

48The accused’s sister, Asmahan Saboon was articulate, well-meaning, albeit much younger than the accused. She has no history of ever being in a position of authority over the accused and, in my view, will not be able to supervise her older brother on her own or with any other family member.

49The other proposed surety, the accused’s sister, Rayan Saboon testified. She had absolutely no clue as to her role as a surety. Her testimony in-chief provided scant details of any plan and she presented as lackadaisical, nonplussed with a total lack of any awareness of her responsibility in addressing a reasonable plan of supervision. In other words, her approach was to “make it up as we go along”.

50Saboon says that he has changed while in jail. That statement is self-serving and not supported by his conduct while incarcerated. His various misconducts in jail include assaultive behaviour. I note that one of the assaults was against the brother of the Crown’s principal witness. Indeed, the repeated incidents at Maplehurst do not speak well for this individual’s approach to authority and rules. I am persuaded that this is Saboon’s true attitude and behaviour towards authority; and by extension, to his father.

51Turning back to the proposal of GPS monitoring, this type of monitoring system has been addressed by several jurists. As expressed by Nordheimer J. (as he then was), in USA v. Pannell, [2004] O.J. No. 5715 (S.C.J.), an extradition case, the system does not restrict the subject from breaching, it merely alerts the service provider of a breach.

52I have no doubt that electronic monitoring can certainly enhance a release plan. Electronic monitoring provides 24/7 monitoring. Electronic monitoring provides some increased level of certainty some breaches will be detected relatively rapidly. However Electronic monitoring does not replace the need for good, effective and reliable sureties. The monitoring company is not acting as a surety and does not have any obligations to the court.

53Electronic monitoring is not infallible and its introduction to a release plan where there is a personal stake lacking by the accused (and notionally, concerns about his abiding by release terms), do not remedy the reality that “the real ‘pull of bail’ is still missing: United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at paras. 11-12. [1] While electronic monitoring may help the sureties supervise, a plan of supervision is only as good as the sureties who monitor it: Pannell, at para. 23.

54As I implied in King, this Court must assess the entire circumstances from both the spread of a highly contagious disease and whether the plan of release addresses all of the concerns on the relevant grounds. I also must undertake the balancing exercise engaged in this review that is influenced by the specific precautions taken at Maplehurst with the dearth of medical evidence to suggest that Saboon is at higher risk than other inmates.

55I prefer and accept the evidence of Garbacz, especially where it conflicts with that of Saboon. In my view, Saboon is overstating his concerns or complaints as presented in his affidavit. I am persuaded that all of his assertions have been reasonable addressed and that the jail has established protocols and is fully engaged in taking all necessary precautions.

56Overall, when I consider the current state of affairs at Maplehurst with due consideration to the efforts being made at the institution in relation to the COVID-19 pandemic, I am compelled to conclude that in this case, the accused’s risk of contracting COVID-19 is present, but to a reasonable extent, is under some degree of control. Even if I am in error, the pandemic, in and of itself, does not advance the reasonableness of the plan to remedy the accused’s continued detention on the secondary ground.

57Fundamentally, I have some serious significant concerns about the adequacy of the supervision plan. The sureties’ ability to supervise is entirely wanting. It was abundantly clear to me that his father has no degree of control over his son, (and all sons, for that matter). I am not persuaded that he will abide by any directions despite his claims to the contrary. In any event, while Saboon was committing crimes living under the same roof as his father and sisters does not give this court any comfort that he will abide by conditions, even strict ones under quarantine. Electronic monitoring does little to enhance the plan of any supervision in the circumstances of this case.

58The caution that I implied in King when referencing the pandemic as potentially influencing a plan of release for violent offenders in custodial institutions on either the secondary or tertiary grounds is relevant in this case. Indeed, firearms and violence is no stranger to this young person. I am persuaded that he is a violent offender and does not present a low risk to re-offend.

59My assessment of the evidence leads me to conclude that the accused appears to be ungovernable, at least at this stage. Nothing in the evidence convinces me otherwise.

60The accused has not shown cause why he should be released. I conclude that there is a substantial risk that Saboon will commit other offences or interfere with the administration of justice.

Analysis: Tertiary Ground:

61In addressing the issue, Mr. Proudlove referred to recent decisions involving the COVID-19 pandemic and the evidence adduced at this hearing and suggests that this can displace any of the concerns on the tertiary ground.

62In St.-Cloud, the Supreme Court of Canada provided fresh insights respecting the tertiary ground for detention. The application of this ground of detention is not limited to exceptional circumstances, to unexplainable crimes or to certain classes of crimes. There is no requirement that the provision is to be interpreted narrowly or sparingly applied. To answer this question, a court must adopt 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 person versed in law or the subtleties of the various defences that are available to the accused.

63As mentioned, “public" means in this context consists of someone who is thoughtful, informed of the philosophy of the legislation and Charter values and the circumstances of the case, someone who is not prone to emotional reactions. This person ought to be aware of the importance of the presumption of innocence and the right to liberty unless just cause be shown for detention. 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.

64The court also pointed out that public fear and concern about safety, although relevant, are not the exclusive considerations in assessing the public's confidence in the administration of justice: St.-Cloud, at para. 73.

65With respect to the tertiary ground, the four circumstances outlined in s. 515(10)(c) are: Detention is justified where it is necessary to maintain [public] confidence in the administration of justice, having regard to all of the circumstances, including: The apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

66The four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive. A court must not order detention even in situations where the four listed circumstances support this result. Rather, the court must instead consider the totality of the circumstances of each case, paying particular attention to the four listed circumstances to determine whether detention is justified. St-Cloud, paras. 68 and 69.

Apparent Strength of the Prosecution's Case:

67With respect, I must disagree with Mr. Proudlove’s able submissions. In my view the prosecution has a very robust case to present. While the defence suggests only the firearms and drug offences are strong, I am satisfied that based on the eye-witness and forensic evidence, murder can be made out as either a principal or party to the offence. Whether at the end of the day it is ultimately first or second degree murder is a valid point, but is of little consequence to my overall determination under this factor.

The Gravity of the Offence and the Possibility of a Lengthy Prison Sentence:

68The loss of life due to any criminal act is extremely serious. Upon a finding of guilt, this offence is punishable by life imprisonment with no chance of parole for at least 25 years. Saboon would certainly face a life sentence for first degree murder if convicted. The firearms offences may also invoke a significant penitentiary term.

The Circumstances Surrounding the Offence:

69On the facts as alleged by the prosecution, there is evidence which, if accepted, points to constructive first degree murder by virtue of the confinement and murder of the deceased. Even with a finding of second degree murder, the level of violence is extremely high in this home invasion robbery resulting in the death of a vulnerable victim. A loaded prohibited firearm in the accused’s possession upon arrest is indicative of violence.

70The heightened risk posed by COVID-19 to incarcerated individuals is echoed in the affidavit of physician and epidemiologist, Dr. Aaron Orkin. As noted by Dr. Orkin at para. 27: “The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities. This is a geometry problem, not a policy or a strategy problem. There simply is not enough space to create the distance required between people in Ontario corrections facilities.”

71I am cognizant that Dr. Orkin is an epidemiologist focussed squarely on the public health implications of continued incarceration. He said as much at para. 37: “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”. The qualification of being “subject to other considerations” is important.

72The community’s best interest with respect to managing the COVID-19 pandemic is a relevant consideration with respect to the tertiary ground. But on the tertiary ground, the question of detention or release is focused on the public’s perception of the administration of justice. This is broader than the community’s best interest in the management of the pandemic. In addressing what is ultimately at stake, in St.-Cloud, Wagner C.J. quoted from R. v. Collins, [1987] 1 S.C.R. 264 at p. 282. “Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” “The reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable.”

73The issue raised by Dr. Orkin is whether administration of justice would be brought into disrepute by continued detention, given the health risks to inmates and correctional staff. But his analysis, at the epidemiological level, is not granular enough for our current purposes. At the end of the day, after balancing all of the relevant considerations, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice. This balancing exercising requires examination of all the relevant factors as they relate to this accused and whether his detention or release would bring the justice system into disrepute. In other words, if an accused is released, the accused person's release plan must be relevant to whether public confidence in the administration of justice is capable of being maintained: R. v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.), at p. 501.

74A brief review of some of the current caselaw on the tertiary ground demonstrates the multiplicity of considerations in determining this issue.

75In R. v. M.K., 2020 ONSC 2266, the accused had demonstrated a significant health concern that made him particularly susceptible to the virus. At para. 58, London-Weinstein stated:

I regard the Covid-19 virus threat as one factor which must be balanced with all of the relevant factors to determine whether the tertiary ground concerns can be met in this case. I would not have released MK if Covid-19 had not posed such a fundamental threat to the health of MK, who has a previously collapsed lung and the risk of reoccurrence of this condition.

76In R. v. Fraser, 2020 ONSC 2045, the accused unsuccessfully sought release from detention, arguing a material change in circumstances based on a new release plan and 2) the COVID-19 pandemic. He argued that the virus posed a potential health and safety risk to inmates in general, and to the accused in particular, because he was being housed with 12 other inmates and he was in remission from leukemia. The application judge agreed that COVID-19 posed a heightened risk to inmates and was a factor when assessing the grounds for detention. The judge also accepted the accused’s testimony, the recommendations of health experts and that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor which put him at increased risk; and his fear of the virus was motivation to comply with his release terms. Nevertheless, the judge denied the application because, weighed against the accused’s long history of disobeying court orders and unsatisfactory bail plan, the risk he posed to public safety could not be managed in the community.

77Again, it is through this lens that one must assess whether or not the COVID-19 crisis truly alters the balance under the tertiary ground. How would a thoughtful person, who is reasonable and well informed, react to the release of Saboon given the circumstances of this case and the pandemic? Even within the context of COVID-19, there must be a plan that materially addresses the tertiary ground concerns. In MK, it tipped the scales in favour of release. In Fraser, it did not.

78Again, there is no obligation on the accused to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting from contracting the virus.

79In other cases, where the accused has an established health concern in light of the ongoing pandemic, this consideration may play a prominent role under the balancing exercise engaged in respect of the tertiary ground. As stated, in this case, the accused has presented no medical evidence or raised any specific health concerns regarding any pre-existing medical conditions that place him at a higher risk to contract COVID-19 or would make him more susceptible to severe consequences from an infection.

80I am mindful that Saboon is presumed to be innocent, regardless of the gravity of the offence, the strength of the case or the possibility of a lengthy term of imprisonment. Saboon is charged with a most serious crime. The Crown has a strong case on all counts. The allegations against the accused are also extremely violent, a home invasion robbery of a vulnerable man resulting in death. Saboon is potentially facing a significant penitentiary term. “Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability”: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13.

81I note that in R. v. Baidwan, 2020 ONSC 2349, Skarica J. offers an interesting point to the tertiary ground and the public confidence in the administration of justice, at para. 82:

The last thing that the Canadian public needs right now is a third wave of fear arising from an emptying out of the jails of persons charged with serious and violent crimes who have been legitimately detained after being afforded due process and after having been provided the full panoply of legal rights provided by the Charter of Rights and Freedoms and the Canadian judicial system. The wholesale release of dangerous persons who would otherwise be detained but for the COVID-19 pandemic would seriously undermine the confidence of the public in the administration of justice.

82In summary, the touchstone of the tertiary ground is the need to maintain public confidence in the administration of justice. Ever mindful of the direction in Antic, I conclude that that the accused’s detention is warranted, that is, to maintain confidence in the administration of justice. While not intending to overemphasize the evidence, in my opinion, a reasonably thoughtful and well informed person would view Saboon’s release with great shock and indignation. Such a person would lose confidence in the administration of justice that a court would release an individual alleged to have committed first degree murder in these circumstances, under a plan in which the sureties’ ability to adequately supervise and effectively manage the accused in the community is practically non-existent.

83Accordingly, in adding the COVID-19 pandemic into the proposed release plan’s “mix”, I am not persuaded that the accused has met his onus to attenuate all of the concerns on the tertiary ground.

Disposition:

84For all of these reasons, the accused has not shown cause and the application for judicial interim release is dismissed. Saboon’s detention is ordered on both the secondary and tertiary grounds. Section 522(2.1) of the Criminal Code applies.

A.J. GOODMAN J.

Released: May 19, 2020

COURT FILE NO.: CR-9988 DATE: 2020-05-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – MOWAFAG SABOON

REASONS FOR RULING ON BAIL HEARING - SECTION 522 OF THE CRIMINAL CODE

A.J. Goodman J.

Released: May 19, 2020

1Although Khamis testified that he has significant equity in the family home; when cross-examined by the Crown as to the amount of the bond he is willing to pledge in support of the plan, Khamis’ response was to raise the proposed bond by a nominal amount.