Court File and Parties

COURT FILE NO.: CR/20-96-BR DATE: 2020-05-26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent F. McCracken, for the Crown Attorney

- and -

JOSHUA VIRAG Applicant J. Pyzer, for the Applicant

Heard: May 20, 2020

REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - SECTION 520 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 continued pursuant to ss. 517(1) and 520(9) of the Criminal Code. However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings.

A.J. GOODMAN J.

[1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the applicant’s detention order.

[2] The applicant, Joshua Virag (“Virag”) was detained following a bail hearing on April 8, 2020 before Justice of the Peace Child of the Ontario Court of Justice in Hamilton.

[3] The applicant stands charged as a principle in a large identity-theft scheme. Most of the 361 fraud related charges he faces are alleged to have been committed while he was on bail for related charges. The alleged offences arise from discrete events that occurred over the course of several years.

[4] Pursuant to s. 515(10), the justice of the peace ordered the applicant’s detention on the primary and secondary grounds. Virag has remained in custody since his arrest on January 16, 2020.

[5] This hearing proceeded by recorded videoconference wherein the parties presented evidence and made oral submissions. The Crown had the opportunity to cross-examine the applicant and the proposed sureties. Numerous cases and other written materials were filed electronically and referred to during the course of submissions.

Positions of the parties:

[6] The applicant submits that this Court is in a position to review the Justice of the Peace’s decision to fashion a form of release to meet the primary and secondary ground concerns. In support, the applicant says that there are two bases to sustain a material change of circumstances warranting a hearing de novo. First the COVID-19 pandemic with the recent outbreak at the Hamilton Wentworth Detention Centre (“HWDC”) along with the applicant’s current predicament while incarcerated. Second, a renewed and solid plan of supervision. The government has announced an Electronic Supervision Program through the Ontario Monitoring Centre that the applicant hopes to participate in along with two additional sureties available to assist in supervising him.

[7] The applicant also submits that the Justice of the Peace erred in his assessment of the evidence and his conclusion regarding the secondary ground concerns.

[8] The applicant emphasizes that consideration ought to be given to decisions from this court; including my recent decision in R. v. King, 2020 ONSC 1935 amongst other cases, as they pertain to a material change in circumstances arising from the ubiquitous pandemic situation in Ontario and its potential impact on inmates in custodial institutions.

[9] The applicant submits that he has met his onus and is proposing a strong, enhanced and highly-restrictive plan of supervision. The applicant submits that these sureties - in tandem – along with 24/7 electronic monitoring are able to provide comprehensive supervision in order to address the primary and secondary ground concerns.

[10] 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. Further, the Crown acknowledges there may be circumstances where COVID-19 can affect the analysis for a material change of circumstances. However, the Crown disagrees that there is a material change in circumstances in this case or a hearing de novo. The Crown submits that this court ought to take a different approach to the assessment of the threshold issue.

[11] The Crown says that the issue is whether the material change in circumstance would have impacted the original jurist’s decision. The Justice of the Peace at the original bail hearing fully considered the COVID-19 pandemic in his reasons. The evidence provided by the Crown demonstrates that the institution is taking all necessary precautions in dealing with the pandemic.

[12] Alternatively, even if the application does constitute a material change in circumstances, the Crown submits that there is a substantial risk that the applicant would continue to commit offences if released on bail. Notwithstanding that the allegation do not involve violence, the Crown says that the strength of the Crown’s case with Virag’s conduct while on other forms of release and wanton disregard for abiding by bail conditions - including committing offense while on release - has not changed the concerns over the applicant’s inability to follow court orders. The only real change in the plan is the additional of electronic monitoring. The Crown asserts that none of the factors elicited by the applicant adequately address the primary or secondary ground concerns.

Summary of the Evidence:

[13] A lengthy summary of the evidence and allegations before Justice of the Peace Child is reflected at pp. 12 - 39 of the transcripts. Having reviewed this information in the context of the issues in this bail review, along with counsels’ materials, I need not recite them here.

Legal Principles:

[14] It is settled that the approach to a review under s. 520 or 521 of the Criminal Code has been altered since the release of the Supreme Court of Canada’s seminal decision in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[15] At para. 120 of St-Cloud, the Supreme Court stated that a judge can review a Justice's decision with respect to the detention or the interim release of an accused where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case.

[16] In St-Cloud, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) "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"; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.

[17] The fundamental rights require that the justice ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case.

[18] In St-Cloud, the court held that in order for new evidence to be admissible at the bail hearing, four criteria must be met. The criteria are from the court’s prior decision concerning the admissibility of new evidence on appeal in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. The Palmer criteria were modified to suit the bail review context in St-Cloud. When new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker. The four Palmer criteria and the modifications in the bail context are as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.

[19] The reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable (para. 132).

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

[20] In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review (para. 135).

3. The evidence must be credible in the sense that it is reasonably capable of belief.

[21] This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage (para. 136).

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[22] This last, albeit important factor, stipulates that the fresh evidence on review must be “significant” in the sense that it must be reasonable that it could have impacted the balancing exercise undertaken by the justice (para. 137).

[23] Given the generally expeditious nature of the interim release process Wagner J. (as he then was) states at para. 129 of St-Cloud:

In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C.

[24] At para. 131, Wagner J. wrote that "[a] generous and liberal interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court". At para. 130, Wagner J. notes "that the pre-trial detention of accused persons -- like their release -- is by its nature very often interim and not final”: See also R. v. A.A.C, 2015 ONCA 483, [2015] O.J. No. 3450, at para. 52.

[25] In addressing the primary ground, detention of the accused is justified where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.

[26] In accordance with the secondary ground, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. 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: R. v. Morales, [1992] 3 S.C.R. 711 at p. 32.

[27] Bail 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. Moreover, detention is justified only when it is “necessary” for public safety. 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. If 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.

Analysis:

Material Change in Circumstances – Application of the Legal Principles:

[28] The “material change of circumstances” threshold to invoke this de novo hearing, is referenced in St-Cloud at para.138:

If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.

[29] First, I will deal with the applicant’s assertion of an error in law or excessive weight placed on various factors related to the secondary ground committed by the justice of the peace. I observe that, while advanced as a consideration for review, Mr. Pyzer merely alluded to it briefly in oral argument.

[30] Justice of the Peace Child’s extensive analysis and reasons are detailed in 20 pages of transcript. At pp. 126 -131 of the transcripts, the jurist addressed the secondary ground.

[31] Having reviewed the transcripts, in my opinion, Justice of the Peace Child provided thorough, comprehensive, clear, and thoughtful examination of the relevant issues. The justice of the peace considered all of the evidence before him, the submissions of counsel and applied the relevant legal principles. He arrived at a well-thought out conclusion in the exercise of his discretion to address both the primary and secondary ground concerns. There is no error or deficiency whatsoever on the face of the record and counsel was hard-pressed to find one. In my opinion, Justice of the Peace Child’s analysis in this case is the gold standard for reasons at a bail hearing.

[32] Turning to the applicant’s primary focus for this review, Mr. Pyzer submits that with the current pandemic, the preponderance of recent jurisprudence from the Superior Court opens the door to a threshold consideration of a material change in circumstances and a hearing de novo. This material change of circumstances goes beyond just the threshold issue to invoke a hearing de novo. In effect, the grounds for review with the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10) of the Code.

[33] Without comingling the material tests under St-Cloud, the applicant’s assertions are relevant both to the threshold issue and to an assessment of whether the court would permit a plan of release.

[34] As I have already made findings in support of a material change of circumstances linked to the recent pandemic, my conclusion in King and in more recent cases such as R. v. J.A., 2020 ONSC 2312, R. v. Dawson, 2020 ONSC 2481, R. v. Foster, 2020 ONSC 2880 and R. v. P.K., 2020 ONSC 2694 could be considered dispositive of this threshold issue.

[35] Indeed, my approach to this question is similar to the inventory of decisions arising from other cases from the Ontario Superior Court: R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, R. v. J.S., 2020 ONSC 1710. R. v. Budlakoti, 2020 ONSC 1352 (S.C.), R. v. Cain, 2020 ONSC 2018.

[36] However, all of these prior cases dealt with an original show cause hearing occurring prior to March 16, 2020 or before the Province announced its emergency pandemic measures. This case is situated differently from all of the other matters considered by me and many of my colleagues. The applicant’s bail hearing was conducted on April 8, 2020, at the height of the COVID-19 pandemic.

[37] Justice of the Peace Child averted to the very issue at pp. 129 - 131 of the transcripts. His Worship stated, inter alia:

In regard to the submissions in regard to COVID19, I completely agree as I had indicated during the hearing that it is a factor to be taken in account in a bail hearing. Certainly individuals in custody and although there are jurists, at least one jurist, that disagrees with this what I am about to say, that people in custody are not able to have the type of self-isolation that you can have when one is at home…

…and of course in this case there is no actual evidence from the detention centre of what their procedures are and what is the accommodations for Mr. Virag; how many share a cell, and of course, the evidence that I had heard is that there are no cases of the virus at the detention centre at this stage, and I am quite mindful that this virus and what we know about it appears to be a very moving target. Things change everyday. But at this stage, I can only base my decision in regard to this case on evidence that I know is a fact. As I say, it is a factor. I do rely on the fact that there cannot be a kind of selfisolation (sic) you have at home. There is no evidence of any underlying issues of health in regard to Mr. Virag. So to sum up in regard to the virus, I do consider it one of the factors that I must take into account. In spite of the lack of specific evidence, but again, it is only one of those factors which has to be balanced with all of the other factors in regard to the primary and the secondary ground. I have also in regard to the COVID 19 pandemic take into account, I believe it is Exhibit 7 and 8, held by Mr. McCracken and Ms. McCourt. The procedures that are being taken in regard to the virus and what the medical community believe in regard to housing individuals in confinement. I certainly have no desire to put Mr. Virag in a position where he will be more likely to contract the disease.

[38] The applicant further argues that while the COVID-19 issue was reviewed during the bail hearing, there is a material change of circumstances based on the recent outbreak at HWDC that was not considered by the justice of the peace. Further, the evidence provided by the applicant as to triple bunking and being subjected to isolation and other concerns opens the door to this review.

[39] The applicant did raise certain concerns about the conditions in the jail:

As of todays’s date, (sic), April 29, 2020, I am still being triple bunked. The size of our cell makes staying six feet apart from one another at all times impossible. There are currently 28 people being housed on my range, 5C Right, with 10 cells…

Since my arrival at the detention centre, my access to a telephone has been limited… Our detention conditions have deteriorated. Our time outside has decreased, our access to the telephone and counsel have decreased. Access to programming has decreased and is currently non-existent.

As of April 29, 2020, there are twenty-eight inmates on my range sharing a two phones, although one of the two phones stopped working two-days ago. The phones are not cleaned between each inmates use and we are not provided with wipes or materials to clean the phones ourselves. It is my understanding these shared phones are cleaned only once a day...

I am very fearful for my health and safety. I am concerned about the impact the Corona virus will have on me if I were to contract it while in custody at the Hamilton Wentworth Detention Centre.

While many of the guards, food service workers and health care workers have been wearing masks in recent days, many are not which concerns me. Also of concern is the fact that I have not been provided or offered a mask for my own protection. While detained at Hamilton Wentworth Detention Centre, I have not seen a single inmate be provided with a mask...

[40] In support of its position, the Crown provided an affidavit from Sergeant Angela Abrams of the Hamilton Police Service. The affidavit included numerous exhibits including an April 6, 2020 report from the Ministry of Community Safety and Correctional Services (“the Ministry”). [^1] The extensive information in this 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 6.148 (5,707) inmates in custody across all 25 institutions. This is a 26% (32%) reduction since March 16, 2020. Inmate Testing: Inmates tested as of April 3, 2020: Total tested for COVID-19: 77 (392), total negative results: 51 (176), total pending results: 92 (17), total positive results:4 (67), results unknown: 4 (57)…

As of April 3, 2020, 2 staff and 1 third party contract worker have tested positive for COVID-19. Proper protocol was undertaken immediately by health care staff working collaboratively with the Medical Officer of Health to contain the exposure. (Toronto South Detention Centre, Hamilton Wentworth Detention Centre and South West Detention Centre). (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. For health and safety reasons, inmates are not provided with hand sanitizer, but may have supervised access in some cases. Information has been posted in inmate areas…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

[41] As mentioned, on April 24, 2020, a COVID-19 outbreak was declared at HWDC. A letter dated April 28, 2020 was provided from Tom Dykstra, Superintendent of the Hamilton-Wentworth Detention Centre. Some of the information therein included:

On Friday April 24th, 2020, Hamilton-Wentworth Detention Centre was made aware that an inmate housed in our isolation unit had tested positive for COVID-19. Hamilton Public Health declared this positive test an outbreak as the source of the virus could not be traced.

Since the outset of this COVID-19 pandemic, HWDC undertook extensive procedures as outlined in our “Isolation Unit Practices” document, in order to prevent the spread of this virus. I have attached Appendix A which is the HWDC Isolation Unit Practices.

Very little has changed at the HWDC since Public Health has declared an outbreak as the HWDC was already leading the province in its practices and procedures. The HWDC is not in lockdown.

The inmate who contracted COVID-19 was already housed in a single cell in isolation and did not have any contact with any other inmates.

The Correctional Staff who dealt with the infected inmate were a limited number of dedicated staff. They all wore complete Personal Protective Equipment [PPE] and continue to do so. All Correctional Staff who had contact with the inmate are identified, currently in isolation and are being tested.

[42] Included with the letter was Appendix “A” entitled “HWDC Isolation Unit Practices”, which provides extensive details on this topic. (See Exhibit 6).

[43] While it is true that the justice of the peace recognized that he did not have direct evidence from the authorities at HWDC as to the procedures to address the pandemic, at the same time he acknowledged that he did not have any evidence that the applicant had any underlying health issues.

[44] As discussed in recent cases, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him. 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 with limited ability to self-isolate from contracting the virus.

[45] In this hearing, the applicant has provided no evidence and has not raised a specific health concern regarding any pre-existing medical condition that would make him more susceptible to the virus. Any effect upon him is speculative at best: R. v. Nelson, 2020 ONSC 1728, [2020] O.J. No. 1279.

[46] I agree with the applicant that triple bunking in a cell designed for two inmates is generally not an acceptable practice. It is an unfortunate situation but it appears to be a necessary precaution as HWDC deals with the current pandemic and the need to vacate space for those who require isolation from the general inmate population.

[47] However, I am persuaded that the applicant tends to overstate his observations or concerns about cleaning, lockdowns, correctional officers and other related issues at HWDC. He makes various bald assertions intermixed with some conjecture.

[48] The Crown argues that the institution is taking all necessary steps to contain this limited outbreak. I agree. The outbreak at HWDC in April 2020 was related to one incident, approximately one month ago, with no additional occurrences since that time. I accept Superintendent Dykstra’s letter and the information filed by the Crown as to the steps being taken by the Ministry and HWDC in relation to inmates’ safety and COVID-19. The evidence reveals that the jail is taking all reasonable precautions with established protocols. At this juncture, institutional staff are adopting significant formal measures to deal with the pandemic.

[49] More importantly on the threshold issue, from my perspective, with the justice of the peace addressing the COVID-19 issue, even with the updated information presented in this review, as well as with all of the all of evidence adduced in this hearing, the applicant has not met his onus to show a material change in circumstances on this basis.

[50] The second material change is premised on the electronic monitoring proposal with the additional sureties. Does the proposed plan, in conjunction with the pandemic invoke a material change of circumstances?

[51] Turning to the plan itself, the applicant proposes enhanced supervision, albeit somewhat similar to that presented at the initial show cause hearing. In their respective affidavits, the sureties advise that the recognize the expectations of their responsibilities. The plan includes strict house arrest terms, primary supervision from Mr. Sardella and Mr. Dickenson, who lives elsewhere, with the anticipation of a GPS electronic ankle monitor. For this threshold question, I need not address the suitability of the sureties.

[52] In 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. C.J. was a young adult with no criminal record. Conlan J. held that the addition of electronic monitoring to the release plan coupled with COVID-19, constituted a material change in circumstances. The case is distinguishable on its facts, and the accused’s background and circumstances.

[53] In Cain, the accused was facing several serious and violent charges. Cain was initially released on these charges but is alleged to have breached his release order. He was detained on secondary ground concerns. The court determined that the existence of COVID-19 constituted a material change of circumstances. The judge accepted Cain’s testimony that as a result of a liver injury, he was prone to infections. The court was satisfied that Cain’s three months incarceration during a pandemic had a salutary effect on his willingness to follow court orders. The facts in Cain are distinguishable.

[54] In R. v. Rajan, 2020 ONSC 2118, [2020] O.J. No. 1437, the accused was charged with domestic violence offences involving a firearm. The court accepted that there has been a change of circumstances based both on the strength of the Crown’s case and the COVID-19 crisis. Rajan advanced the same release plan; however, notably, with the exclusion of the firearm in a pre-trial motion, the Crown’s case had substantially diminished, with a corresponding weakening of the propensity inference against the accused.

[55] In the case of R. v. T.L., 2020 ONSC 1885, [2020] O.J. No. 1371, the accused was charged with multiple firearm offences and being an accessory after the fact to attempted murder. T.L. had a related record and was detained on secondary and tertiary ground concerns. Molloy J. concluded that a review of his detention was justified for two reasons. First, the new plan was markedly different from the previous plan including electronic monitoring. The initial surety is the same individual being proposed. Second, in T.L., Malloy J. found that there was a misapprehension of the evidence that affected the result of the initial bail hearing. Such is not the case here.

[56] Finally, in 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 judge agreed that the COVID-19 virus was a material change in circumstances warranting a de novo bail hearing and that the heightened risk posed to detained inmates is a factor when assessing the grounds for detention. The judge also accepted the accused’s testimony that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor and his fear of the virus was motivation to comply with 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.

[57] As mentioned, the proposed plan in this case invokes electronic monitoring. Electronic monitoring can certainly enhance a release plan and in some cases, tip the scale to allow for a material change in circumstances.

[58] This type of electronic monitoring system has been addressed by several jurists. In USA v. Pannell, 2005 ONCA 22, [2004] O.J. No. 5715 (S.C.J.), an extradition case, Nordheimer J. (as he then was), stated that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. Jesso, 2020 ONCA 280, at paras. 24-27.

[59] Electronic 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.

[60] It provides some increased level of certainty some breaches will be detected relatively rapidly but does not prevent such non-compliance. While electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it: Pannell, at para. 23. Indeed, 24/7 electronic monitoring does not replace the need for good, effective and reliable sureties.

[61] I have consistently held that there is an important distinction to be considered when addressing a release plan under s. 515(10) of the Criminal Code during the auspicious of the pandemic for non-violent offenders as opposed to those who are deemed violent. The case at bar involves offences of a non-violent nature and the applicant has no crimes of violence on his record.

[62] However, as pointed out by the Crown attorney, the applicant’s conduct along with the numerous alleged offences are nonetheless very serious and involve hundreds of victims. See R. v. Omitiran, 2020 ONCA 261 at para. 23.

[63] Further, proffering what is essentially the same plan of supervision but with one different surety does not amount to a material change in circumstance. The principal surety is the same person presented at the bail hearing. As Hill J. stated in R. v. Ferguson at para. 17:

…Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[64] In my opinion, Ferguson is still good law in Ontario. As a general proposition, a change of sureties, or advancing an increased number of sureties per se, does not amount to a material change of circumstances, without something more or addressing the Palmer criteria. While I may be jumping ahead of the analysis, even with the infusion of 24/7 electronic monitoring proposed in this case, the law is clear that the sureties must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137.

[65] I have considered Mr. McCracken’s able comments regarding the applicant’s background leading up to and including the current offences. This comprises Virag’s failing to attend court in various jurisdictions and his wanton disregard for court orders. This also includes his conduct while on previous forms of release as well as his continued - apparently unabated - involvement with his enterprise of fraudulent activities while on bail for other charges. It is through this lens that one must assess whether or not the COVID-19 crisis, the electronic monitoring and updated proposed plan for release separately or cumulatively truly alters the threshold question. Notwithstanding that there may ultimately be concerns on both the primary and secondary grounds, the current analysis relates to whether the applicant has met his onus with the Palmer test and has demonstrated a material change in circumstances. In my view, he has not.

[66] That being said, and merely for the sake of completeness, the applicant’s proposed plan of release with the addition of electronic monitoring falls well short of addressing the primary and secondary ground concerns as determined by the learned justice of the peace at the show cause hearing.

[67] In summary, this case is distinguishable from all of my previous rulings related to the threshold issue of whether there is a material change in circumstances as a result of COVID-19. The original show cause hearing was conducted during the period of the current pandemic. The learned justice of the peace considered and addressed all of the relevant issues, including COVID-19 and custodial institutions. The fact of an unrelated “outbreak” at HWDC or the applicant’s evidence about his current situation does not alter the analysis. Nor has anything else presented in this application.

Disposition:

[68] The applicant has not satisfied his onus to demonstrate a material change in circumstances or the criteria as outlined in St.-Cloud and its progeny. Suffice it to state, that I need not go further and conduct a hearing de novo.

[69] The bail review application is dismissed and the applicant’s continued detention is ordered.

A.J. GOODMAN J.

Date: May 26, 2020

COURT FILE NO.: CR/20-96 BR DATE: 2020-05-26 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – JOSHUA VIRAG.

REASONS FOR RULING ON APPLICATION FOR BAIL REVIEW - SECTION 520 OF THE CRIMINAL CODE

A.J. Goodman J. Released: May 26, 2020

[^1]: From my most recent bail review cases, I am aware that there is an updated report available. The most current information is shown in brackets.