COURT FILE NO.: 1151-20-BR DATE: 2020-05-21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Stephanie Baker, Counsel for the Crown

• and -

JOHN LEACH Accused Denis Michel, Counsel for the Accused

HEARD: May 15, 2020

VARPIO J.

REASONS ON BAIL REVIEW

[1] The accused comes before the court as a 44-year-old man with no criminal record. He is in custody as a result of being detained on December 23, 2019. He is accused of over 20 offences including domestic-type offences, offences that occurred as a result of a “human trafficking”-type allegations and weapons offences. The accused’s Notice of Application did not specify whether this was a bail review or a detention review (governed by ss. 520 and 525 of the Criminal Code of Canada, respectively). In submissions, the Crown conceded that the COVID-19 pandemic coupled with the accused’s new plan of care constitutes a material change in circumstance such that, as a bail review, a bail hearing de novo was to be heard under s. 520 of the Criminal Code of Canada. Defence agreed and this matter proceeded under s. 520 of the Criminal Code.

[2] Having entertained the bail hearing de novo as per s. 520, I find the accused must be detained on the secondary and tertiary grounds as per s. 515(10)(b) and 515(10)(c) of the Criminal Code.

FACTS

The First Allegations

[3] The accused has been in a relationship with a woman, A.P., for the entirety of the time period covered by the allegations. Prior to May of 2018, the accused had a verbal confrontation with A.P.’s sister, T.P.

[4] As a result of the verbal confrontation, the accused allegedly had animus towards T.P. T.P. worked at Health Sciences North in Sudbury. Between May and July of 2018, it is alleged that the accused vandalized T.P.’s automobile while she was working. He was allegedly captured by CCTV cameras slashing her tires, putting substances into her gas tank and, on one occasion, the accused smashed T.P.’s rear window.

[5] On July 28, 2018, a package was dropped off at T.P.’s house that contained a letter disparaging her character and threatening to take grievances to her workplace. The letter indicated that T.P. should contact a phone number associated with the accused.

[6] Ultimately, T.P. left her job as a result of the alleged harassment. It is unclear when she went to the police, but the accused was ultimately arrested on these charges and released from custody with his ex-partner, C.W., as a surety. The accused and C.W. share a child.

[7] C.W. filed an affidavit in the instant hearing wherein she deposed that she revoked her suretyship after one day in September 2019 because the nature of the charges are such that the CAS would not allow C.W. to act as a surety and have custody of her child.

The Second Set of Allegations

[8] It is alleged that the second complainant, J.H., is a young adult indigenous woman who lived at an aftercare facility in Little Current. It is alleged that the accused met J.H. on a website, “Plenty O’ Fish” and began an online relationship with her. He gave her a false name, his cell number, and offered her jobs to work in the bush making a lot of money. He indicated that she could live with him.

[9] On September 25, 2019, the accused called J.H. and picked her up from the treatment centre. The staff at the facility tried to discourage J.H. from leaving, but she left with the accused in any event. He drove her to the accused’s rural property in Chelmsford, Ontario. The accused’s girlfriend, A.P. was at the property. J.H. began feeling uncomfortable and wanted to leave. She attempted to get taxis and/or uber rides but was unable to get them. The accused talked to J.H. about wanting to have sex and he pulled out a big black gun with a laser sight. The gun was pointed at/near her. He asked J.H. to have a threesome with A.P. and himself. It is unclear if the gun was put away at that time. The accused told J.H. that he would attend pow-wows looking for indigenous women with whom to have sexual relations.

[10] Ultimately, J.H. had sexual relations with the accused (which were presumably consensual as the evidence was not clear on this point). The accused indicated that he wished to have four children with J.H. and that she would be his possession. He began drinking wine and then went into his bedroom. J.H. left the residence at this point in her bare feet.

[11] The police were called, although it was not clear who called the police. They attended at the residence where the accused refused to exit his house. A stand-off ensued. The police obtained a warrant and the accused was arrested and brought to the station. He was belligerent at the station.

[12] The police searched the residence and found 12 firearms, including a loaded prohibited weapon and pistols.

THE ORIGINAL BAIL HEARING

[13] Mr. S.F. testified at the original bail hearing. He indicated that he has known the accused for 30 years and that he would offer himself as a non-residential surety. He had flexible work hours and could keep watch on the accused.

[14] The presiding Justice of the Peace detained the accused on the secondary and tertiary grounds on December 23, 2019 indicating that “the plan falls short of addressing my concerns for the safety of the public and that a well-informed public knowing the circumstances surrounding these allegations would lose confidence in the administration of justice should I release Mr. [J.L.] on the plan being proposed”.

THE NEW PLAN

[15] Mr. W.H. filed an affidavit in this hearing and was cross-examined by Crown counsel. He indicated that he is 73 years old and resides with his wife. He is retired from A&P/Metro and lives in Azilda. The accused is his nephew and he would be prepared to have the accused reside in the accused’s trailer which could be parked on W.H.’s property due to COVID-19 concerns. After a period of quarantine, the accused could reside in W.H.’s home. The plan is for the accused to go to his “farm” and work between 6:00 a.m. and 2:00 p.m. every day and to otherwise engage in house arrest. W.H. indicated in cross-examination that he has not spoken with the accused for a couple of years.

[16] S.F. also filed an affidavit indicating that he would be willing to continue to present himself as a surety.

ANALYSIS

[17] The accused is neither under a prohibition order as per s. 84(1) of the Criminal Code nor is he charged under s. 145 of the Criminal Code. Accordingly, the Crown bears the onus as per s. 515(6) of the Criminal Code.

Primary Ground

[18] On the primary ground, I have no concerns. The accused has no criminal record and there is no suggestion that he would fail to attend for a court date and/or abscond the jurisdiction. Accordingly, he is not detained on the primary ground.

Secondary Ground

[19] On the secondary ground, I am mindful of the accused’s criminal record and his age. This augers strongly in favour of the notion that he would not commit further offences if released from custody.

[20] On the other hand, the plan is not strong. W.H. presented as an elderly person who would not be able to provide much direct contact with the accused due to W.H.’s concerns regarding COVID-19. Further, it does not appear that W.H. has a strong relationship with the accused whereby the accused would likely listen to W.H.’s rules. The accused would be alone for some significant periods of time and thus the plan is ultimately dependent upon the accused’s willingness to abide by the terms of said plan.

[21] This phenomenon becomes even more important when I consider the nature of the allegations being leveled as against the accused. The stalking behaviour described in the first set of charges coupled with the allegations of neo-human trafficking in the second set of allegations causes me some concern.

[22] It is important to remember that the accused remains innocent until proven guilty and there are undoubtedly going to be credibility issues in both sets of trials. In the first set of charges, the quality of the video will go a long way towards establishing the strength of the Crown’s case as per R. v. Nikolovski, [1996] 3 S.C.R. 1197. The video was not filed so I cannot make any findings in this regard. The package containing the letter provides some evidence that the accused committed the stalking offences but again, the specifics of the letter were not admitted into evidence. I do not know whether, for example, the letter contained general threats, or allegations that only the accused would know thereby establishing the identification of the stalker. As such, the strength of these initial allegations appears to be a neutral factor in this instance.

[23] With respect to the second set of allegations, the strength of the forcible confinement and other charges related to the accused’s interaction with J.H. also appears to be neutral. First, much of this case would appear to depend upon findings of credibility which, by definition, are difficult for me to assess at this stage. Second, the case also had some unusual features which cause some confusion. For example, it was unclear how police were contacted when the stand-off was precipitated. Therefore, the strength of these charges are also a neutral factor.

[24] My colleague Goodman J. recently dealt with how a court ought to examine the charges before the court as they pertain to the secondary grounds. In R. v. J.A., 2020 ONSC 1659, he cited the leading case in this area and stated as follows at paras. 116 and 117:

However, the judgment of the Quebec Court of Appeal in R. v. Rondeau (1996), 108 C.C.C. (3d) 474 (QC CA), is instructive for the way in which index offence features are factored into the assessment of risk on the secondary ground. Writing for the Court, Proulx J.A. addressed the factors involved in dangerousness assessments. At p. 478, Proulx J.A. said:

In my view, several factors must be taken into account in deciding this question, including (1) the nature of the offence, (2) the relevant circumstances of the offence, which may put in issue events prior to and subsequent to the offence, (3) the likelihood of a conviction, (4) the degree of participation of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused, i.e., his occupation, his lifestyle, his criminal record, his family situation, his mental state, (7) his conduct prior to the commission of the alleged offence, (8) the danger which the interim release of the accused represents for the community specifically affected by the matter.

Rondeau links the nature of the offence and the strength of the prosecution's case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person's future dangerousness. The strength of the Crown's case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.

[25] Accordingly, even when I apply the analysis in R. v. Rondeau regarding the ability to use the gravity, circumstances and strength of the index offences to predict the likelihood of reoffending, I cannot use the “stalking” and “neo-human trafficking” charges as an accurate gauge of the likelihood of reoffence since the evidence is not sufficiently clear so as to make a compelling case.

[26] The allegations regarding the firearms, however, provide strong insight into the accused’s potential to offend if released. On September 25, 2019, the accused had been released from custody on the stalking charges and was nonetheless living in his residence where several firearms were found including a sawed-off shotgun (either loaded or with ammunition readily available) and pistols.

[27] The accused lives in rural Northern Ontario where firearms and hunting form part of the cultural norm. In fact, I have evidence from the sureties that the accused is a hunter. Accordingly, I will not succumb to hysteria regarding the possession of hunting weapons absent other considerations. Nonetheless, the accused’s illegal possession of hunting rifles and other sporting weapons on September 25, 2019 is concerning given the fact that he was facing criminal charges at the time (where restrictions on his ability to use the weapons would undoubtedly have been imposed by the presiding justice of the peace on his initial release).

[28] Of far more concern is the fact that the accused engaged in a standoff with police on September 25, 2019 and that sawed-off shotguns and pistols were found in his residence. These weapons are not used to hunt animals. They are intended to intimidate or kill people. As such, the accused’s possession of these non-hunting firearms after having been released from custody displays a serious disregard for the safety of society. As to the strength of the firearms offences, they appear to be quite strong given the information available to the police when they obtained the warrant (i.e. firearms in the house, etc.). Accordingly, as per R. v. Rondeau, it is clear to me that the strength and gravity of the case as regards the firearms offences demand that the accused is of a mindset that he does not take society’s need for safety seriously. There is thus a substantial likelihood that he will engage in further criminal conduct if he is released from custody as per both R. v. Rondeau and R. v. Morales, [1992] 3 S.C.R. 711.

[29] I must also examine the effect that COVID-19 has on this analysis. It is my belief, as I stated in R. v. Cunningham, 2020 ONSC 2724, that the COVID-19 pandemic affects the analysis on the secondary ground. As I stated at pars. 17 to 19, and 22:

Therefore, it is clear to me that a cautious use of judicial notice is appropriate in the circumstances as per para 48 of R. v. Find, 2001 SCC 32. An aggressive or overly-flexible approach to judicial notice would lead to circumstances whereby the courts fail to adhere to the two-part test in Find, namely that facts may only be noticed judicially when they are either:

1. So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
2. Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.

Much of the readily-available information regarding COVID-19 fails both prongs of the Find analysis. Because further analysis is not relevant to my decision, I need not go through a comprehensive review of same. Nonetheless, it is clear to me from all the various sources of information currently available that the following meets the Find test:

1. COVID-19 is spread by person-to-person contact either directly or via indirect transmission;
2. Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic;
3. The virus can be lethal;
4. The rates of mortality appear to be pronounced among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and
5. Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection.

To go beyond the above-referenced five points would, to my mind, be an aggressive use of judicial notice that would not adhere to the Find analysis. The acceptance of other facts related to COVID-19 requires expert evidence given the fluidity of the science involved.

A balanced, nuanced approach to ss. 520/1 and s. 525 reviews thus requires the presiding justice to engage in the normal detention review analysis described in St.-Cloud and Myers while factoring in the possibility of heightened COVID-19 infection rates among inmates in custodial facilities (without overstating the issue by using an aggressive approach to judicial notice) while being mindful about the release of dangerous individuals who, but for COVID-19, would be incarcerated pending trial.

[30] In this instance, the COVID-19 pandemic does not play a substantial role in my analysis. There are currently no reported cases of COVID-19 in the Sudbury jail and the accused is neither elderly nor does he have underlying health conditions that make his potential exposure to COVID-19 of pronounced concern. Accordingly, while there could be an outbreak in the jail at some point, the COVID-19 analysis does not affect my decision-making on the secondary ground.

[31] Therefore, when I examine the overall strength of the Crown’s case as against the accused as per Rondeau and use it to assess the likelihood that the accused will commit further offences if released upon this plan, I am satisfied that there is a strong likelihood that the accused will in fact commit further offences if released from custody. His possession of non-hunting firearms, when coupled with the serious allegations of stalking and human trafficking behaviour, demand as much. I can conceive of no plan as per R. v. Antic, [2017] 1 S.C.R. 509 that would assuage this concern.

[32] Accordingly, the Crown has met its onus and the accused’s detention is necessary on the secondary ground.

Tertiary Ground

[33] With respect to the tertiary ground, an examination of R. v. St-Cloud, [2015] 2 S.C.R. 328 and s. 515(10)(c) of the Criminal Code makes clear that the accused’s detention is also necessary.

[34] The strength of the Crown’s case as regards the first set of allegations and the allegations dealing with J.H. are not sufficiently strong to ground a detention on the tertiary grounds. Therefore, these allegations do not factor into my decision.

[35] The firearms charges, however, demand that the accused remain in custody pending his trial.

[36] First, as noted above, COVID-19 is a consideration in my decision-making but, given the accused’s personal situation and the situation at the Sudbury jail, this factor is afforded little weight.

[37] Section 515(10)(c) of the Criminal Code of Canada states:

Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) 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.

[38] With respect to possession of the firearms, it is clear that the Crown has a strong case. The police procured a warrant from a justice prior to entering the residence and it would seem that the police, given the prior judicial authorization, have strong prima facie grounds to justify their entrance. Equally, I would think it would be difficult for the trier of fact to find that the accused was unaware of the firearms in his residence given the number of guns and the amount of ammunition seized.

[39] As discussed in paragraph 28 above, the gravity of the offence is clear. The accused faces a heightened likelihood for a potentially lengthy term of imprisonment as a result. Again, this was not a situation where a hunting rifle was taken from a residence. This is instead a situation where 12 firearms, including a sawed-off shotgun and pistols, were seized from the residence after a stand-off. A cursory review of the caselaw makes clear that, even though minimum sentences have been struck down in such cases, meaningful penitentiary terms are still the norm especially given the number of guns seized.

[40] Finally, the circumstances surrounding the possession of the firearms, including the allegations of quasi-human trafficking and offences alleged to have been committed against J.H., are quite serious. Also, as noted above, the plan presented is not particularly strong.

[41] Therefore, when I consider all the factors described in s. 515(10)(c) as well as R. v. Antic and R. v. St-Cloud, the accused’s detention is necessary in the circumstances since confidence in the administration of justice would be undermined by the accused’s release. The Crown has met its onus and the accused’s detention is necessary on the tertiary ground.

CONCLUSION

[42] The accused’s application is dismissed.

Varpio J.

Released: May 21, 2020

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOHN LEACH REASONS ON DETENTION REVIEW Varpio J. Released: May 21, 2020