Court File and Parties

COURT FILE NO.: BR 9989 DATE: 2020-05-21

ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JASON CESAR Applicant

Counsel: Judy Bielefeld, Counsel for the Crown, Respondent Bruce Sosa, Counsel for the Accused, Applicant

HEARD: May 19, 2020

The HonouRABLe Mr. Justice C. S. glithero

REASONS FOR DECISION

[ 1 ] The applicant seeks a s.520 review of a detention order made on January 16, 2020 by a Justice of the Peace in Kitchener, Ontario, following a show cause hearing that same date.

[ 2 ] On one information Mr. Cesar is charged with three counts of possession of a credit card knowing it to have been obtained by the commission of an offence, contrary to s.342(1)(c) of the Code. Those cards are alleged to belong to three different individuals and all three counts allege an offence date of November 13, 2019.

[ 3 ] On the same information, he is charged with 10 counts of possession of single identity documents relating to seven different individuals, contrary to s.56.1(1), all of which charges allege the same offence date of November 13, 2019.

[ 4 ] On a separate information, he is charged that on or about October 30, 2019, he uttered a counterfeit $50 bill, contrary to s.452 (a) of the Criminal Code.

[ 5 ] In yet another separate information, he is charged with two counts alleging that on December 12, 2019 he possessed methamphetamine for the purpose of trafficking, and in the other count, possessed fentanyl for the purpose of trafficking, both contrary to s.5(2) of the CDSA.

[ 6 ] The detention order was issued on the secondary grounds specified in s.515(10).

[ 7 ] The position of the applicant is that the application should succeed and he should be granted bail on terms that he reside with his daughter at a named address, that he be required to remain in that house at all times other than certain specified exceptions, and that he be required to abide by other conditions as set by the court, and that there be no surety required.

[ 8 ] Ms. Bielefeld of the Public Prosecution Service of Canada also represented the Provincial Crown with respect to the Criminal Code charges. Her position is that the application should be dismissed so as to continue the detention on the basis that if released there was a substantial likelihood he would revert to the commission of crimes.

[ 9 ] The Superior Court of Justice is temporarily closed for in-court hearings because of the current COVID-19 pandemic but is open to hearing urgent matters without an actual attendance in court. Neither counsel wished to call evidence on this review. It was agreed that the matter would proceed by way of a recorded teleconference. Mr. Cesar, currently residing at Maplehurst, did not join in the call, but after we waited for a few minutes his counsel advised that he had instructions that if there were any problems in having Mr. Cesar join into the conference, that the conference was to proceed without him.

[ 10 ] We did so.

Basis for a Review

[ 11 ] In R. v. St-Cloud, 2015 SCC 27, the court directed that a reviewing judge under s.520 does not have an open-ended power to review the detention order and that it will only be appropriate to intervene if the justice erred in law, or if the impugned decision was clearly inappropriate such as if it placed excessive or insufficient weight on a relevant factor, or if there is new evidence tendered demonstrating a material and relevant change in the circumstances of the case. In respect of this last basis for a review, the court held that such new evidence must meet the four prong Palmer test, but that those four criteria must be modified or relaxed so as to be reasonably applied in the context of bail considerations which are often made very early in proceedings.

[ 12 ] Here, the applicant submits that the current COVID-19 pandemic constitutes a material change in circumstances, that there is a material change in terms of new evidence as to a new plan for release, and that the justice did not give sufficient reasons in denying bail for Mr. Cesar.

[ 13 ] At the hearing, Crown counsel conceded that the COVID-19 pandemic constituted a material and relevant change in the circumstances of the case, particularly here where the original show cause hearing occurred in January, well before the extent and impact of the pandemic was understood in this Province.

[ 14 ] In my opinion, the new plan of release involving the residence of the applicant with his daughter, and the proposed term confining him to that residence other than for specific exceptions, qualifies as a material and relevant change in circumstances. As indicated, the Palmer requirements are to be applied but with modified application consistent with the bail circumstances. At the show cause hearing here, the applicant was represented by duty counsel.

[ 15 ] Another change in material circumstance is that on the hearing of this application I was advised that the charge of uttering the counterfeit $50 bill has been, or will be, withdrawn. Accordingly, one of the three informations has disappeared as a consideration. The counterfeiting charge was specifically mentioned in the reasons given by the justice for the detention order.

[ 16 ] With respect, I have some considerable reservations about the adequacy of the reasons given for the detention order. They consist of one paragraph and recite the facts in skeletal fashion and conclude “so he has not met his onus so I agree with the Crown that there are secondary ground issues here so I’m not going to be releasing on these and citing the secondary grounds.” Because of the two drug charges, this indeed was a reverse onus. But to detain on the secondary ground specified in s.515(10), what is required is a finding that it is necessary to detain for the protection or safety of the public, including any substantial likelihood that if released the accused will commit an offence. As it was a reverse onus situation in this case, the onus was on the applicant to show it is not so necessary, and that there is no substantial likelihood of the commission of further offences. In my opinion it is not enough to order detention because “there are secondary ground issues here”.

[ 17 ] In my opinion, the Crown’s concession that the COVID-19 pandemic constitutes a material and relevant change in the circumstances of the case was entirely appropriate. I point to R. v. Morgan, 2020 ONCA 229 where our Court of Appeal took judicial notice of the general health risks, and of the accepted recommended preventative measures, although not in circumstances relating to bail. It seems to me that the current pandemic circumstances are also important as a change in circumstances in another way, in that the current closure of courts for in-court hearings necessarily means a delay in the determination of the applicant’s criminal responsibility. Neither counsel was involved in the show cause hearing and I understand are only involved in this case, at least so far, for purposes of this detention review. Neither could tell me whether the applicant currently has a preliminary hearing scheduled, or has waived it, or what stage the proceedings in his case have reached. It seems clear to me that he will not be able to get a court date as soon as he otherwise would have, by virtue of the delays caused by the COVID-19 situation, as exacerbated by the backlog that has accumulated since the cessation of in-court hearings in mid-March 2020.

[ 18 ] For these reasons, I conclude that I have the authority to conduct a review of the detention order and to interfere with it if satisfied it is appropriate to do so.

Circumstances of the Alleged Offences

[ 19 ] The first alleged offence is the counterfeiting charge arising from allegations on October 30, 2019. As indicated, that charge is now being withdrawn, but a warrant was issued for the applicant’s arrest on that charge and formed part of the basis for that arrest.

[ 20 ] The Crown theorizes that Mr. Cesar was trafficking in crystal meth from the residence in which he then lived, together with several other individuals. The police obtained a search warrant and executed it on November 13, 2019, when Mr. Cesar was not at home. In a bedroom believed to be his, and locked, the identity documents and the credit cards were located.

[ 21 ] Then on December 12, 2019, the applicant was arrested on the two outstanding arrest warrants, one of which was for the charge now withdrawn, or to be withdrawn, and was searched as incident to arrest. The police found 26.79 grams of suspected methamphetamine, and 3.88 grams of suspected fentanyl, a weigh scale and $2,105.00 in Canadian bills.

Circumstances of the Applicant

[ 22 ] He is 47 years of age and has an adult daughter with whom he proposes to reside in Cambridge. She agrees he can do so. At the time of the show cause hearing, he was proposing to return to his former address where he was a border in a rooming house with other tenants. He is a graduate of high school and graduated from an Aircraft Assembly program in a community college.

[ 23 ] In his affidavit filed on this application he expressed his agreement to live with his daughter, to be confined to her residence at all times, other than specified exceptions such as medical appointments or to purchase essentials and agreed to have no contact with other persons involved in his case or to possess any identification documents in anyone else’s name.

[ 24 ] He did not give evidence on the show cause hearing, but it was said on his behalf that he admitted being a user of meth and fentanyl, that he was not working but receiving ODSP on account of various mental health disorders for which he was taking medication and was under the care of a psychiatrist in Brantford. In his affidavit on this application, he professed to be clean and sober for the past five months while in custody, that during that time he had matured and grown and has changed since his arrest. He was not cross-examined on his affidavit.

[ 25 ] Filed before me is a verification report from the Bail Verification & Supervision Program recommending his release and offering to supervise him and recommending that he reside with his daughter at her named Cambridge, Ontario address and that he be under the direction and supervision of their program and be amenable to its rules and regulations.

[ 26 ] In the Crown’s submissions on the show cause hearing, reference was made to the accused’s criminal record, and indeed a copy was filed. While the reasons for issuing the detention order do not specifically refer to the criminal record, reference is made to reliance on the Crown’s submissions, which in turn relied in part on the record.

[ 27 ] In my opinion, the criminal record is not enviable, but it is far from being of major league proportions. In the last 20 years, Mr. Cesar has two convictions, one in March of 2017 when he received a suspended sentence and 12 months probation for simple possession of some drug, plus an October 2017 conviction for breach of recognizance for which he received one day in addition to five days of pre-sentence custody.

[ 28 ] Besides that, there is an obviously dated record involving four thefts, a cause disturbance, and an assault between 1990 and 1996. For all his convictions he has received sentences totalling 1 day in custody and reflecting a total of 5 days credit for pre-trial custody. He has been on probation on 5 occasions and has no record for breaching those orders. In my opinion, such a record does not suggest a commitment to a life of crime such that it can fairly be the basis on which to rest a reasonable belief in a substantial likelihood of committing further crimes if released.

Applicable Principles

[ 29 ] On a bail review, s.520(7)(e) puts the onus on the applicant to show cause why the application should be allowed.

[ 30 ] In several recent cases, the Supreme Court of Canada has emphasized the importance of accused persons receiving bail. In Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 29, the court held that “release is favoured at the earliest reasonable opportunity and … on the least onerous grounds”.

[ 31 ] In St.-Cloud, at para. 25, the Supreme Court held that “in Canadian law, the release of the accused person is the cardinal rule, and detention, the exception”.

[ 32 ] In R. v. Myers, 2019 SCC 18, 2019 S.C.C. 18, the Supreme Court of Canada dealt with the detention review procedures set forth in s.525, rather than the bail review situation that is before me. Nevertheless, principles enunciated in that case are applicable before me. In the first paragraph the court indicated that release at the earliest opportunity and in the least onerous manner was the default presumption in our law and that pretrial detention was the exception, not the rule. At paragraph 50 the court directed that a detention review judge should also consider whether the time already elapsed in custody, or anticipated to elapse while still in custody, before trial, and whether such time is proportionate to the circumstances of the offence, and in the following paragraph went on to require a detention review judge to consider whether the time spent in detention would approximate or even exceed the sentence likely to be imposed upon a conviction.

[ 33 ] These principles have been recognized by the introduction of s. 493.1 which requires a judge to give primary consideration to the early release of the accused on the least onerous conditions which are practically appropriate in the circumstances, including those of the accused.

[ 34 ] Mr. Cesar has been in custody for five months already, which under the principles enunciated in Summers would likely result in credit for pre-sentence custody in the amount of 7.5 months. There might well be other credit relating the conditions of pretrial custody, or as enunciated more recently, a COVID credit. With the delays caused by the closure of in-court hearings, and the accumulation of a backlog as a result of the pandemic, it will likely be some considerable period of time before Mr. Cesar could have his case tried. This raises some concern as to whether the likely period of pre-sentence credit, if remaining in custody, would be proportionate to the circumstances of the offence, particularly if he were to be convicted of possession of the drugs, rather than possession for the purpose of trafficking.

Discussion

[ 35 ] In terms of his criminal record, the breach of recognizance is of concern although his affidavit evidence is that upon learning that he had a breach, he turned himself in, which position was not challenged by way of cross-examination or other evidence. Despite what was alleged to have been a considerable period of police surveillance as to his activities, Mr. Cesar was never arrested for trafficking. I appreciate that danger arises from the trafficking of either of the two drugs charged here, as both are of a serious and destructive nature. Parliament has seen fit, however, in the Criminal Code, to make charges involving possession for the purpose of trafficking in such drugs a reverse onus situation but has not legislated that persons charged with such offences cannot be granted bail.

[ 36 ] He offers to and can be required to reside at his daughter’s residence and to be there at all times other than specified exceptions. The police are apparently accustomed to observing his activities and accordingly a failure to abide by the “house arrest” provision carries a real risk of detection. In my opinion, appropriate conditions to a release order can be formulated such as to sufficiently control his activities upon release.

[ 37 ] At the conclusion of the detention review hearing, I indicated to counsel I would be ordering the release of Mr. Cesar on conditions that I would forward to counsel before the end of the day. I did so and indicated that reasons would follow. These are those reasons.

[ 38 ] The conditions on which I determined Mr. Cesar could be released are as set forth in Schedule A to these reasons.

C.S. Glithero J.

Date: May 21, 2020

Schedule A

R. v. Jason Cesar-------------Conditions of Release on Bail

Mr. Cesar may be released from custody at the Maplehurst Correctional Facility upon entering into a completed Release Order (form 11) with the following terms and conditions:

• his promise to pay the amount of $3000 if he fails to comply with a condition of this release order
• He reports to Youth In Conflict with the Law/Waterloo Region Bail Program (“Bail supervisor”) within 6 hours of his release from custody by telephone to Lorna McBurney or her delegate at 519-745-6591 ext 226, and thereafter as directed, and that he be under the direction and supewrvision of that program, and be amenable to its rules and regulations
• he provides his bail supervisor with a telephone number at which he can be reached
• he is to reside at the home of his daughter, Tamara MacIntyre at 87 Linwood Avenue,Cambridge, Ontario and be at that residence at all times with the following exceptions: a. to attend at and to travel directly to and from any drug treatment or counselling programs recommended by his bail supervisor or delegate; b. to attend at and to travel directly to and from any scheduled medical appointments, and to give his bail supervisor notice in advance of such scheduled appointment; c. for medical emergencies, and he is to report absences for such within 6 hours of being released from the facility attended on for such care; d. between 10 am and noon each Friday and Tuesday in order to obtain necessities.
• Not to move from the above address without the prior approval of the bail supervisor
• not to possess any controlled drugs or substances except as prescribed for him by a physician licenced to practice in Ontario
• not to have any visitors in his daughter’s residence other than family members and with the permission of his daughter
• not to communicate by any means with anyone known by him to have a criminal record
• not to communicate by any means with anyone concerning the purchase, sale or possession of a controlled drug or substance, other than with medical practitioners, or treatment providers or counsellors as recommended by his bail supervisor
• not to possess any identification documents except as are in his own name
• not to have any communication, direct or direct (except through counsel) with any of his former co-habitants at 123 Ferguson Avenue, Cambridge, Ontario, or with any of the alleged victims named in the 2 Informations in which he is charged.

COURT FILE NO.: BR 9989 DATE: 2020-05-21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JASON CESAR Applicant reasons for decision C.S. Glithero J.

Released: May 21, 2020 /lr