Court File and Parties
Court File No.: CR-20-47-BR Date: 2020-05-19 Superior Court of Justice - Ontario
Re: R. v. Andrew Walmsley
Before: Justice J. Fregeau
Counsel: Mr. Acosta, Counsel, for the Crown Mr. Amy, Counsel, for the Accused
Heard: May 5, 2020 by Teleconference
Endorsement on Bail Review
Introduction
[1] The accused applies, pursuant to s. 520 of the Criminal Code, for a review of the December 18, 2019, detention order made by Her Worship Justice of the Peace S. Scribner. The Justice of the Peace detained the accused on the primary, secondary and tertiary grounds.
[2] The accused submits that the Justice of the Peace erred in law in regard to the primary and tertiary grounds and that the COVID-19 crisis amounts to a change in circumstances which has occurred since the date of the detention order.
[3] The accused proposes that he be released on a recognizance with strict conditions, without surety or deposit. The proposed conditions include that he reside with his mother in Dryden and be subject to “house arrest” but for limited exceptions and that he report to both the Indigenous Bail Verification and Supervision Program, Grand Council Treaty 3, Kaakewaaseya Justice Service, Dryden, Ontario (the “IBVSP”) and the Dryden Police Service.
[4] The Crown submits that the Justice of the Peace did not err in law in detaining the accused. The Crown also contends that there has not been a material change in circumstances since the date of the detention order. The Crown opposes the release of the accused on the terms and conditions proposed.
Background
[5] The accused was born in Dryden, Ontario on January 17, 1983 and is 37 years of age. He is a member of the Wabigoon First Nation. The accused was raised primarily by his mother, who suffered from addiction issues during his formative years, resulting in frequent residential relocations within the Dryden/Wabigoon areas.
[6] The accused’s mother currently resides in Dryden and suffers from “borderline dementia”. As noted, the accused intends to reside with his mother if released. The accused’s mother did not provide evidence at the bail hearing, has not provided evidence on this bail review and is not being proposed as a surety for the accused if he is released.
[7] The accused has a Grade 11 education. He has worked at various jobs over the years, including at a tree nursery, carpentry and logging. The accused deposes that he intends to work for Roland McGunn if released.
[8] Mr. McGunn has provided a letter to the court which is attached as an exhibit to the accused’s affidavit. Mr. McGunn owns a construction/renovation company carrying on business in and around Dryden. Mr. McGunn advises the court that the accused, if released, will initially be hired in a part-time capacity and elevated to full time status when the economy re-opens and sufficient work is available.
[9] The accused has accumulated a serious criminal record, beginning in 2002, with a 10-year gap between 2009 and 2019 and with his most recent conviction being on October 31, 2019. This record does not include any crimes of violence. However, germane to this bail review, the accused’s criminal record includes two convictions for fail to comply with the conditions of an undertaking/recognizance, four convictions for fail to comply with the terms of a probation order, two convictions for possession of substances prohibited by the Controlled Drugs and Substances Act in April 2019 and two convictions for possession of controlled substances for the purpose of trafficking.
[10] The most recent of the latter two convictions was on October 31, 2019, involved approximately 7 ounces of cocaine and resulted in a 15-month custodial sentence. I am advised that this sentence was satisfied by “time served”. I therefore assume that the accused was released from custody on or shortly after October 31, 2019.
[11] The accused is currently charged with the following offences, the first 10 allegedly occurring in Dryden on November 7, 2019 and the 11th allegedly occurring at the Kenora District Jail on November 10, 2019:
On or about the 7th day of November in the year 2019 at the City of Dryden in the said region, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: methamphetamine, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: oxycodone, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, did have in his possession proceeds of property, money, of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1)(a) of the Criminal Code.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, did unlawfully possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: hydromorphone, contrary to Section 4(1) of the said Act, thereby committing an offence under Section 4(3) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, unlawfully did possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: heroin, contrary to Section 4(1) of the said Act, thereby committing an offence under Section 4(3) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: fentanyl, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, unlawfully did, for the purpose of trafficking, possess a substance included in Schedule 1 of the Controlled Drugs and Substances Act, to wit: morphine, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, did, while being bound by a probation order made by Ontario Court of Justice on October 31st, 2019, fail without reasonable excuse to comply with such order, to wit do not buy, possess or consume alcohol or other intoxicating substances for the first 4 months of this order contrary to Section 733.1(1) of the Criminal Code.
That Andrew Wayne Walmsley on or about the 7th day of November in the year 2019 at the City of Dryden in the said Region, did, while being bound by a probation order made by Ontario Court of Justice on October 31st, 2019, fail without reasonable excuse to comply with such order, to wit keep the peace and be of good behavior contrary to Section 733.1(1) of the Criminal Code.
On or about the 10th day of November in the year 2019 at the City of Kenora in the said region, did possess a substance included in Schedule 1 to wit: 14.2g of Methamphetamine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.
[12] Noteworthy, in my opinion, is that these 11 charges include allegations of possession for the purpose of trafficking of various substances including methamphetamine, oxycodone, cocaine, fentanyl and morphine.
[13] The most recent charge is an allegation that the accused possessed approximately ½ ounce of methamphetamine for the purpose of trafficking while in custody at the Kenora District Jail after being arrested on the other 10 charges three days earlier.
[14] The accused deposes that he currently shares a cell with one other inmate at the Kenora District Jail and that, as of the middle of March 2020, inmates are allowed out of their cells between 7:30 a.m. and 9:00 p.m. The accused discloses no current health issues, other than “anxiety” and the fact that he is a heavy smoker.
[15] The accused has been accepted into the IBVSP if released. An email from Ms. Kelly Derosier of this program to the accused’s counsel is appended to the accused’s affidavit.
[16] Ms. Derosier indicates that the IBVSP would facilitate and endorse the following as terms of a release plan for the accused:
Daily check ins Monday to Friday, from 9 am to 4:30 pm, either by phone, facebook messenger, video chat or a wave in public, six feet apart and that he lives at his mom’s trailer at 140 third street … Dryden, Ontario. Andrew’s mom … is presently experiencing some mental health issues [and] … is vulnerable on her own in Dryden … a curfew should also be in place from 8 pm to 8 am…
[17] The accused deposes that he would be prepared to comply with a “house arrest” condition as a term of release, with exceptions for medical emergencies, employment and grocery shopping. He also deposes that he would be prepared to report to the Dryden Police Services in addition to reporting to the IBVSP. The complete bail plan proposed by the accused is as follows:
a) That I reside at trailer #8, 140 Third Street, Dryden, Ontario; b) Not move unless this Court first gives me permission; c) Report to the Indigenous bail verification & supervision program as often as directed and, in a manner, as directed; d) Report to the Dryden Police Service, as often as directed and in the manner directed; e) An absolute curfew with exceptions for medical emergencies for me or my immediate family, while at work or travel directly to and from work and for groceries. f) Complete all applications for treatment as directed by the bail verification program and attend residential treatment as soon as I am accepted, and a bed is available; g) I will comply with any other conditions this Honourable Court may impose.
The Position of the Accused
[18] The accused submits that the Justice of the Peace erred in law in finding that the accused had not shown cause why his detention in custody was not justified on the primary and tertiary grounds. The accused also submits that Ontario Superior Court of Justice jurisprudence establishes that the risk posed to inmates in correctional institutions by the COVID-19 pandemic is a change in circumstances providing jurisdiction for a s. 520 bail review.
[19] The accused submits that there was no evidence before the Justice of the Peace allowing her to conclude that he is a flight risk. The accused contends that his detention in custody was not and is not necessary to ensure his attendance in court.
[20] The accused acknowledges that his criminal record dates back to 2002 and includes multiple convictions over the last 18 years. However, the accused notes that he does not have a single conviction for failing to appear for a court appearance during that period of time.
[21] The accused submits that his proposed bail plan, including supervision by the IBVSP and reporting to the Dryden Police Services, addresses any primary ground concerns.
[22] The accused submits that his detention is not necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that he will, if released, reoffend.
[23] The accused submits that the comprehensive and restrictive bail plan being proposed addresses any concerns on the secondary ground. According to the accused, he would have a fixed, local place of residence with confirmed employment, initially on a part time basis and hopefully on a full-time basis some time down the road. Further, the suggested supervision by the IBVSP and the required reporting to the Dryden Police Services would keep him on a “short leash”.
[24] The accused submits that detention pursuant to the tertiary ground should be used sparingly. The accused notes that a consideration of whether detention is necessary to maintain confidence in the administration of justice has to be undertaken from the perspective of a fully informed member of the public, cognizant of the presumption of innocence, the heightened risk to inmates as a result of the COVID-19 pandemic, significant future delays for trials and the strength – or lack thereof - of the Crown’s case.
[25] The accused submits that the Crown’s case against him, in regard to both the Dryden offences and the offence allegedly committed while he was incarcerated at the Kenora district Jail, is not strong. At this point in time, and prior to disclosure of the information to obtain in support of the search warrant executed in Dryden, the accused submits that there are “triable issues” in regard to all charges.
[26] As to the Dryden charges, the accused submits that he was merely an invitee and not an owner or a tenant of the residence where the drugs were found. No drugs or significant amounts of cash were found on his person and no statements implicating him have been obtained. The onus is on the Crown to establish knowledge and control on the part of the accused, both of which are denied by him. The accused submits that the case against him is entirely circumstantial and that the Crown will necessarily being relying on inferences only at trial.
[27] As to the Kenora District Jail charge, the accused submits that the drugs found in his cell were contained in an envelope with a third party’s name on it. Even if the Crown is able to establish willful blindness on his part, this supports a conviction for simple possession only and not possession for the purpose of trafficking, according to the accused.
[28] The accused concedes that the offences charged, given the substances involved, are serious and that, if convicted, he is liable to a lengthy period of incarceration.
[29] In all the circumstances, the accused submits that he has shown cause why his detention is not necessary on the primary, secondary or tertiary grounds.
The Position of the Crown
[30] The Crown submits that Justice of the Peace Scribner did not err in law in detaining the accused, that her decision to do so was not “clearly inappropriate” and that the COVID-19 crisis is not, in and of itself, a material and relevant change in the circumstances of the case. The Crown submits that it is therefore not appropriate for this court, on a s. 520 bail review, to intervene and reconsider the issue of the accused’s detention.
[31] The Crown acknowledges that the accused’s criminal record, while lengthy, does not include any convictions for failing to attend court. However, the Crown contends that there was other evidence before the Justice of the Peace, which was considered and weighed by her in her analysis, allowing her to conclude that the accused was a potential flight risk. Such other evidence included six convictions for breach of court orders, the accused’s admission that he had previously failed to attend court on a date when he was required to do so, the seriousness of the charges and the possibility of a lengthy period of incarceration.
[32] The Crown submits that Justice of the Peace Scribner’s decision to detain the accused was not clearly inappropriate because there was ample evidence favouring detention on the primary, secondary and tertiary grounds. All relevant evidence was considered and weighed by the Justice of the Peace and the applicable law discussed and applied, according to the Crown. The Crown notes that a reviewing judge does not have the jurisdiction to intervene on a s. 520 review simply because he or she would have weighed the relevant factors differently.
[33] The Crown submits that recent Ontario Superior Court of Justice cases establish that the COVID-19 crisis may be a material and relevant change in circumstances, depending on the particular facts in each individual case.
[34] The Crown submits that the Ministry of the Solicitor General Response to COVID-19 Information Note, dated April 28, 2020, filed on this bail review, establishes that there has been a 32% reduction in inmate population in Ontario institutions since March 16, 2020, that all Ontario institutions are working within operation capacity and that there have been no reported cases of COVID-19 at the Kenora District Jail.
[35] The Crown submits that there is no medical evidence whatsoever before this court to suggest that the accused is at an increased risk of suffering complications and/or requiring hospitalization should he contract COVID-19. In the absence of such evidence, the Crown submits that the COVID-19 crisis is not, in the particular circumstances of this case, a material and relevant change in circumstances allowing for a variation of the decision of the Justice of the Peace to detain the accused.
Discussion
[36] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 120, the Supreme Court of Canada made it clear that s. 520 of the Criminal Code does not “confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise the power of review.”
[37] St. Cloud, at para. 21, also provided clear guidance on when it will be appropriate for a reviewing judge to intervene:
[121] It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[38] In my opinion, Justice of the Peace Scribner did not err in law in detaining the accused in custody.
[39] Justice of the Peace Scriber correctly, pursuant to s. 515(6)(d) of the Code, placed the onus on the accused to show cause why his continued detention in custody was not justified pursuant to the primary, secondary and tertiary grounds.
[40] On the primary ground, the Justice of the Peace considered the accused’s criminal record and expressly noted the absence of any convictions for fail to attend court. The Justice of the Peace also made note of the accused’s repeated failure to abide by previous court orders (undertakings, recognizances, probation orders), lack of (then) employment and increased risk of flight due to the seriousness of the charges.
[41] The Justice of the Peace concluded that the accused’s proposed bail plan, which included a surety and the IBVSP, did not adequately address the primary ground concerns. Given the evidence before her, the Justice of the Peace’s conclusion in this regard was not inappropriate.
[42] As to the secondary ground, the Justice of the Peace expressly considered whether the detention of the accused was necessary to protect the public and whether there was, on the evidence before her, a “substantial likelihood” that the accused would re-offend if released.
[43] In her consideration of the secondary ground, the Justice of the Peace considered the strength of the Crown’s case, including the fact that the seized substances had been analyzed and confirmed to be the substances for which the accused was charged.
[44] The Justice of the Peace also reviewed the accused’s criminal record, in particular the fact that he had been placed on a “drug rehabilitation focused” probation order only one week prior to being charged with the Dryden charges before this court. As I noted previously, it appears that the accused was charged with these offences only one week after being released from custody after having completed a 15-month custodial (time served) sentence for possession of cocaine for the purpose of trafficking.
[45] The accused’s record and the proximity in time between his being placed on probation and having been charged again were “a very serious concern for the” Justice of the Peace – “past behaviour is an extremely good predictor of future behaviour”. In her analysis on the secondary ground, the Justice of the Peace expressly, and correctly in my opinion, engaged in “risk assessment” due to the seriousness of the charges and the accused’s “repeated violation of previous release orders.”
[46] In my opinion, the Justice of the Peace committed no error in law in her analysis of the secondary ground and her conclusion that the accused had failed to discharge his onus was not clearly inappropriate.
[47] With respect to the tertiary ground, the Justice of the Peace correctly considered s. 515(10)(c)(i)(ii) and (iv) of the Code. The Justice of the Peace was left with “no doubt” that a “well-informed member of the public … properly informed about the philosophy of [the applicable] legislative provisions, Charter values and the actual circumstances of the case … would be strongly opposed to [the accused’s] release back into the community.”
[48] In my opinion, the Justice of the Peace did not commit an error of law in her analysis and conclusion on the tertiary ground, nor was her decision to detain the accused on the tertiary ground clearly inappropriate.
[49] In summary, I find no error in the Justice of the Peace’s conclusion that the accused had not met his onus on the primary, secondary and tertiary grounds, even with the “surety release plan” that was before her. Arguably, the release plan being proposed before me – a “non-surety house arrest” plan - is weaker, even with the addition of employment prospects.
[50] However, in my opinion, recent Ontario jurisprudence establishes that the COVID-19 crisis and the current global pandemic is a relevant and material change in circumstances potentially allowing for a variation of the initial decision to detain the accused in custody. The COVID-19 crisis is a factor or circumstance which must be considered under the tertiary ground.
[51] In R. v. J.S., 2020 ONSC 1710 (March 20, 2020), Copeland J. found “the new situation in relation to the Coronavirus which has developed in the past couple of weeks” to be a material change in circumstances on a s. 520 review and a factor that must be considered and balanced with other tertiary ground factors.
[52] In J.S., the 20-year old accused was charged with trafficking in street level amounts. He had no criminal record and proposed his parents and godfather as sureties as part of a “house arrest bail” plan. The accused was released on strict terms.
[53] In R. v. C.J., 2020 ONSC 1933 (March 27, 2020), the 33-year old accused, without a criminal record, was charged with numerous trafficking and firearm offences. Conlan J. found that the decision on the s. 520 review before him turned exclusively on a consideration of the tertiary ground and that the combination of proposed electronic ankle bracelet monitoring combined with the COVID-19 crisis constituted a material change in circumstances.
[54] In C.J., Conlan J. took judicial notice of the fact that the accused was at higher risk of contracting COVID-19 while in jail due to the inability of inmates to effectively engage in social distancing. The accused was ordered released on stringent bail plan with two residential sureties plus electronic monitoring.
[55] In R. v. Budlakoti, [2020] OJ No. 1352 (March 27, 2020), Laliberte J. held that the COVID-19 crisis represented a material change in circumstances which warranted a s. 520 review. In this case, the only change in circumstances was the COVID-19 crisis – the proposed bail plan had not changed. The Court declined to take judicial notice of the accused being at higher risk of contracting COVID-19 while incarcerated because the Local Administrative triage Justice had expressly required medical evidence in support of this proposition. Such evidence was not forthcoming on the s. 520 review and it was dismissed.
[56] In R. v. Jeyakanthan, 2020 ONSC 1984 (March 31, 2020), the Crown conceded, and the Court accepted, that COVID-19 was a material change in circumstances. Once again, the Court declined to take judicial notice of a suggested increased risk to the accused of contracting COVID-19 while incarcerated.
[57] McWatt J. held that there was no evidence before him of COVID-19 at the institution where the accused was being held on remand and no evidence that the accused had any underlying or pre-existing conditions that would make him “particularly susceptible to the virus.” The s. 520 review was dismissed.
[58] On this s. 520 review application, the only relevant material change in circumstance is the COVID-19 crisis and that fact is only one of many factors to be considered in the analysis of the tertiary ground. Absent the COVID-19 crisis, there would be no merit to the suggestion that this accused should be released from custody pending trial, particularly on a release plan that does not include solid, reliable surety supervision.
[59] The accused submits that the Crown’s case on the Dryden charges is not strong and that there are “triable issues”. The accused submits the same for the Kenora charge and that he may be liable for conviction only for simple possession on this charge. The Crown submits that the term “triable issues” is simply an alternate manner of suggesting that the Crown bears the burden of proof on all charges.
[60] On the evidence before me it is very difficult to assess the strength of the Crown’s case on these charges. The oral evidence of all witnesses, together with an assessment of their credibility and reliability, will be crucial at trial. I do note that the accused, who has a significant record for drug possession and trafficking, was in the residence of an active local drug dealer and that the substances seized were confirmed to be controlled substances.
[61] I further accept the submission of the accused that there will be a significant delay in scheduling a trial on these charges as a result of the COVID-19 crisis and the suspension of operations in both the Ontario Court of Justice and the Superior Court of Justice. The accused is presumed innocent of all charges until his guilt is proved beyond a reasonable doubt. A trial on these charges cannot and will not take place in the foreseeable future.
[62] The offences charged are very serious. The Dryden charges include possession of cocaine, heroin and fentanyl for the purpose of trafficking. The Kenora charge is an allegation of possession for the purpose of trafficking within the Kenora District Jail. It is not seriously in dispute that the accused, given his record and the nature and seriousness of the offences, is liable for a potentially lengthy term of imprisonment if convicted.
[63] The accused has provided no evidence to suggest that he is at increased risk of contracting COVID-19 or of suffering from significant related complications if he does contract the disease. The material filed by the Crown confirms that the inmate population in Ontario institutions has been decreased significantly over the last two months and that there have been no reported cases of COVID-19 at the Kenora District Jail.
[64] I find that the accused has not shown cause that his detention is not justified on the tertiary ground. In consideration of all of the tertiary ground factors together with a consideration of the impact of the COVID-19 crisis on this accused in the Kenora District Jail, I am satisfied that reasonable members of the community, fully informed of all facts and dispassionate, would conclude that the detention of the accused in custody pending trial is necessary to maintain confidence in the administration of justice.
[65] The accused’s application is dismissed.
Justice J. Fregeau Date: May 19, 2020