Court File and Parties
COURT FILE NO.: CR-20-0000159-00BR DATE: 20200527 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – H.K.
Counsel: Sonya Andersen and Maeve Mungovan, for the Crown Susannah Chung-Alvares, for H.K.
HEARD: May 14 & 20, 2020
DECISION ON DETENTION REVIEW
P. J. Monahan J.
[1] HK and a co-accused, MAH, were arrested on August 10, 2019, at which time HK was charged with various firearms-related offenses as well as breach of a court order. Following a two-day bail hearing, HK was ordered detained by Mulligan J. on October 9, 2019. He seeks a review of the detention order pursuant to s. 520 of the Criminal Code [1].
[2] The detention review hearing proceeded by audio conference due to the COVID-19 pandemic. HK participated from the Toronto South Detention Centre (“Toronto South”), where he is currently being held.
[3] HK does not allege that Mulligan J. made any error in law, nor does he allege her decision was “clearly inappropriate”. Instead, he argues that he should be released given three material changes in circumstance: (i) risk of harm given the onset of Covid 19; (ii) reduced privileges in custody; and (iii) the adjournment of his preliminary hearing that had been scheduled for April 2020.
[4] It is agreed that the onus is on the Crown to show why HK’s continued detention in custody is justified, in accordance with s. 515 (10) of the Criminal Code. The Crown’s position is that there has been no material change since the original detention order and, even on a de novo analysis, HK’s continued detention is warranted on both the secondary and tertiary grounds in s. 515 (10).
[5] I find that the Covid 19 pandemic constitutes a material change which requires a fresh consideration of whether HK’s detention is justified.
[6] With respect to the secondary ground, and particularly whether there is a substantial likelihood that HK would commit further criminal offences if released, I find that the secondary ground concerns identified by the Crown could be addressed by an appropriate plan of release. However, consistent with Mulligan J.’s conclusion at the original bail hearing, I find that his father, IK, continues to be unsuitable as a surety. Given the absence of an appropriate surety or plan of release which would adequately address the risk of HK reoffending, I see no alternative other than to detain HK on the secondary ground.
[7] With respect to the tertiary ground, I find that HK has a pre-existing medical condition which places him at an increased risk if he were to contract Covid 19. Yet in the absence of a suitable plan of release, the public would be rightly concerned over the risk to public safety posed by HK’s release. Thus, given the record before me, I find that HK’s continued detention is also necessary to maintain public confidence in the administration of justice.
Background
[8] Based on surveillance of HK and his co-accused MAH, police concluded that they were members of the Thorncliffe Park Kings street gang, also known as the “TPK”. Police had focused upon the TPK and its activities given the increased levels of gun violence in the Thorncliffe Park area. Police believed HK and MAH to be members of the TPK given numerous sightings of them associating with known gang members over a period of approximately two years.
[9] In the late evening of August 10, 2019 police observed a group of young men gathering in a park in the Thorncliffe Park area. There were a number of open bottles of alcohol on the ground and a number of cars parked nearby were found to have various connections with certain crimes. Police approached from the south end of the park. HK and MAH moved swiftly in the opposite direction. However, two other officers were waiting for them at the north end of the park.
[10] When police emerged and identified themselves, MAH discarded a satchel he was carrying and both co-accused began to run away. The officers heard the satchel make a heavy metallic noise when it hit the ground and, when assessed in the context of the other circumstance at play, believed it to contain a firearm. The officers therefore yelled to both accused that they were under arrest and directed them to stop. MAH immediately went to the ground and surrendered. It is alleged that HK continued to run and was only apprehended after a short foot pursuit.
[11] HK was searched incident to arrest. Police located a loaded prohibited firearm, a .25 calibre Browning handgun, in his right pant pocket. The handgun contained a chambered round of ammunition in addition to 10 rounds in the attached magazine. The handgun was not registered in any Canadian database nor did HK have any registration certificate in his name. Police further located $2400 rolled into $100 bills in HK’s left pant pocket.
[12] The satchel that had been discarded by MAH was found to contain a loaded 9mm Smith & Wesson handgun. A subsequent search of the area found a third handgun, a Taurus .40 calibre, containing 10 rounds of ammunition. MAH was also found to be in possession of keys to a car that is alleged to have contained a substantial quantity of drugs.
[13] At the time of his arrest, HK was bound by a probation order dated March 25, 2019 stemming from a conviction for failing to attend court, with the statutory term that he keep the peace and be of good behaviour. He has no other prior criminal record.
September 2019 Bail Hearing
[14] At the September 2019 bail hearing, the plan of release that was proposed was that HK would reside with his family at their home in Mississauga and that his father, IK, would serve as his surety. IK’s supervision of HK was to be augmented by the presence of HK’s mother, his older brother and his younger sister, all of whom resided at the family home in Mississauga.
[15] IK testified that he worked as an academic tutor. Most of his work was done at home but he was required to meet his clients at other locations approximately 20 to 25 percent of the time. When he was outside the home, IK intended to rely on his wife and the other two adult children who were residing in the family home to provide supervision of HK. IK had also worked in the past as a tutor on contract in Saudi Arabia but, if approved as a surety, stated that he would not accept any such overseas contracts until HK’s charges were dealt with.
[16] In August 2018, HK had been diagnosed with Hodgkin’s lymphoma. He underwent chemotherapy and radiation and, by the time of the September 2019 bail hearing, was in remission. He has regular checkups with an oncologist to ensure that there is no recurrence of the cancer.
[17] The Crown was seeking HK’s detention on the primary, secondary and tertiary grounds in s. 515 (10). Mulligan J. concluded that, given the circumstances of the alleged offence and the evidence of HK’s past behaviour while living with his family, it would only be appropriate to release him if there was a suitable surety to ensure compliance with his release conditions.
[18] Mulligan J. found that IK was not a suitable surety, for a variety of reasons.
[19] First, Mulligan J. found that IK had not been forthright in his evidence and, in fact, had misled the court on numerous occasions. For example, IK initially testified that he had only been a surety in the past for HK. However, under cross-examination, he conceded that he had been a surety for HK’s younger brother with respect to robbery charges and, further, that he had failed to properly supervise the younger brother while the latter was on bail. IK also claimed in his initial testimony that at the time of the bail hearing, all four of his children were living with him. However, under cross-examination, he was forced to admit that his youngest son was in jail on murder charges involving a shooting.
[20] The various contradictions, inconsistencies and untruths in IK’s testimony were sufficiently serious that Mulligan J. concluded that she “cannot be certain of anything that he [IK] claimed when he testified in court.”
[21] Mulligan J. also found that, based on IK’s evidence, he would have very little ability to control HK’s behaviour. HK had been arrested in 2017 on a charge of attempted murder. However, IK indicated that he had not discussed this charge with HK because he was too embarrassed to do so. IK also acknowledged that he had concerns at various points in the past over whether HK was involved in drug trafficking. IK had not discussed these suspicions with HK preferring, instead, to wait until his son approached him about the matter.
[22] Mulligan J. concluded that she was unable to put any stock in IK’s claim that he would honour his obligations as a surety. She further found that HK appeared to have very little respect for his father’s and family’s wishes in the past and that it was unlikely that HK would be amenable to his father’s supervision.
[23] In light of the fact that IK was not an appropriate surety, and there was no other suitable surety available, Mulligan J. concluded that she had no alternative other than to order HK’s detention on the primary, secondary and tertiary grounds in s. 515 (10).
Proposed Release Plan
[24] The current plan of release is essentially identical to that put forward at the initial bail hearing. It is proposed that HK will reside at the family home in Mississauga and that IK will serve as his surety. The only change in the plan is that, due to the Covid 19 pandemic, IK’s work is a tutor has been severely reduced. He now works approximately five hours per week, entirely from home. It is proposed that HK will only be allowed out of the family home if he is accompanied by IK. IK is prepared to pledge $5000 in support of the proposed release.
[25] In his affidavit, IK states that he will make sure that HK observes all of the conditions of his bail. IK indicates that he has supervised HK on bail before and he knows that HK respects him and will follow his instructions. IK indicates that he will ensure that HK does not have any non-prescribed drugs on his person or in his room and he will also check regularly to ensure that there are no weapons in HK’s room or in the house. If he does find any drugs, weapons or any contraband, he will call the police immediately.
[26] IK acknowledges that when he served as a surety for his youngest son on a prior occasion, he delayed in contacting the police even though the son failed to return home. IK also accepted a contract overseas and left the country for a number of months when he was supposed to be supervising his youngest son. IK believes that as a result of these mistakes, he was not approved as a surety at HK’s original bail hearing. IK indicates that he has “learned the hard way” and he is confident in his ability to supervise HK.
[27] IK testified and was cross-examined. He stated that he is very close to his son HK and that HK always listens to him. However, he also acknowledged that he does not know any of HK’s friends and he does not know what HK does in his spare time. IK indicated that he is aware that HK should not return to the Thorncliffe Park area because of concerns over violence and criminal activity in that area. IK was unclear as to whether he had ever had a conversation with HK about not returning to the Thorncliffe Park area, although he thought such a conversation had occurred and that HK has agreed to stay away from Thorncliffe Park. IK does not know whether HK followed his advice to stay away from Thorncliffe Park.
[28] IK was asked whether he was aware of the circumstances surrounding a charge of attempted murder that was laid against HK in March 2016. [2] IK indicated that he does not know anything about the matter. The family, including HK, had moved to Mississauga from Thorncliffe Park in February 2016. HK suddenly disappeared in the middle of March and IK did not know where he was or whether anything might have happened to him. IK and his wife later learned from media reports that HK was wanted on a charge of attempted murder as a result of a March 14, 2016 shooting incident in Thorncliffe Park, and that HK has been wounded in the incident. IK indicated that he had no contact of any kind with HK from March 2016 until June 2017 when HK was arrested on the attempted murder charge and so he knew nothing about the matter.
[29] IK was also asked whether he was aware of the circumstances surrounding separate charges that had been laid against HK in Peel Region in September 2016. (At that time, HK was released on his own recognizance after providing the police with a false name.) IK indicated that he was unaware of anything to do with these charges since he had had no contact with HK since March 2016 and did not subsequently speak to him until after his arrest in June 2017. IK was also unaware of the fact that HK had promised to appear in court on the Peel Region charges in September 2016 but had failed to do so.
[30] IK was asked whether he has ever spoken to HK about the March 2016 attempt murder charge or the September 2016 charges in Peel Region after HK was arrested in June 2017. IK indicated that he has never spoken about any of these matters to HK because he does not want to recall them or to “scab the wound”.
[31] HK also filed an affidavit in support of his release. HK indicates that he understands that his father will be responsible for supervising him and that HK must follow his father’s rules as well as those set forth by the court. He indicates that he will not do anything to jeopardize his father’s trust in him or the $5000 that his father is pledging in support of his release.
[32] HK indicates that in August 2018 he was diagnosed with Hodgkin’s lymphoma, following which he underwent chemotherapy and radiation. He is currently in remission and sees an oncologist every few months. Until recently, he had been receiving medication twice a day, but the medication has recently ceased.
[33] HK is concerned about Covid 19. He shares a small cell as well as showers, telephones and common areas on his range. He recently learned of a Covid 19 outbreak at the Ontario Correctional Institute (OCI) and he understands that multiple infected inmates were transferred to Toronto. As a result, he has anxiety about contracting the virus. In addition, Toronto South is often on lockdown and he cannot have any personal visits.
[34] HK testified and was cross-examined. He indicated that the medication he had been receiving was related in some way to his Hodgkin’s lymphoma. He could not remember the last time he received medication and he was not clear as to why he was no longer receiving it. He has spoken to a few nurses about it and they told him that it may be because his prescription has expired.
[35] HK indicated that he had had an appointment on May 11, 2020 with an oncologist at Credit Valley Hospital for a checkup to ensure that his cancer has not recurred. However, this appointment was cancelled. He was told by correctional staff that the appointment was cancelled because no inmates are being taken out of the institution. He has not made any inquiries with medical staff over this cancelled appointment because he believes it would be pointless to do so.
Evidence Regarding Covid 19
[36] In support of his concerns over the impact of Covid 19, HK tendered an April 7, 2020 affidavit from Dr. Aaron Orkin, a professor and epidemiologist at the University of Toronto, as well as an April 6, 2020 Open Letter from a large number of medical professionals (the “Open Letter”), expressing concerns about the impact of Covid 19 on persons in prisons and jails.
[37] Dr. Orkin has specific expertise on the COVID-19 epidemic. He is the Medical Director of the St. Joseph’s Health Center COVID-19 Assessment Centre. Additionally, as the Population Medicine Lead for Inner City Health Associates, he has a central role in planning and implementing a strategy to respond to COVID-19 among Toronto’s homeless population.
[38] Dr. Orkin’s affidavit outlines the particular risks from COVID-19 for those experiencing incarceration. Dr. Orkin points out that it is extremely difficult, if not impossible, to implement social distancing in a “congregate living facility” – settings where people live together – such as long-term care facilities, homeless shelters and correctional facilities.
[39] Dr. Orkin relied upon an April 3, 2020 analysis by the Government of Ontario (the “April 3, 2020 Modelling”) which projected the likely number of cases and deaths in Ontario from Covid 19, as well as the capacity of Ontario’s health care system to cope with the outbreak. Based on the April 3, 2020 Modelling, Dr. Orkin predicted that COVID-19 would sweep through nearly every correctional facility in Canada, “with basic instructions from public health to cohort the sick together and transfer people who are deteriorating rapidly to hospital.” Dr. Orkin also predicted that almost all inmates in these settings will be exposed in one way or another to the virus and that deaths among inmates and corrections workers were likely. Dr. Orkin was also extremely critical of measures taken by the Ministry of Solicitor General to limit the spread of the virus, concluding that “the idea that we can keep it [Covid 19] out of [prisons] is fantasy.”
[40] The Open Letter urges provincial and federal governments to act swiftly to protect persons in correctional institutions from the impact of Covid 19. The Open Letter notes that people in prisons are already medically vulnerable and are especially likely to have infectious diseases such as Hepatitis C and HIV. The prison environment heightens the risk of transmission for both prisoners and staff since conditions are crowded and prisoners lack the ability to practice social distancing. This is especially true for prisoners who share cells and use common spaces such as dining halls or bathrooms.
[41] Overcrowding in prisons, combined with the health profile of prisoners, create the “perfect storm” for Covid 19 transmission, illness and death. The Open letter states that the window to prevent the spread of Covid 19 in correctional facilities is closing. It calls upon governments to release as many people as possible using all available mechanisms to do so.
Responding Crown Evidence
a. Ministry Response to Covid 19
[42] The Crown tendered a May 12, 2020 Information Note from the Ministry of Solicitor General (the “May 12, 2020 Information Note”), which provided an overview of the current status of the Ministry’s response to Covid 19 across the province’s 25 correctional institutions. The Crown also provided a May 13, 2020 letter from the Superintendent of Toronto South (the “May 13, 2020 Superintendent’s Letter”), setting out additional information relating to the specific circumstances at Toronto South.
[43] According to the May 12, 2020 Information Note, the Ministry has taken a number of initiatives to aggressively reduce the inmate population in provincial institutions. As a result, over the past two months the inmate population in Ontario has been reduced by approximately 32%, and now stands at its lowest level since 1986. [3]
[44] There was a significant outbreak of COVID-19 at the OCI on April 17, 2020, resulting in the temporary closure of the OCI and the transfer of all 112 inmates to Toronto South. The transferred OCI inmates were placed in medical isolation in a separate part of Toronto South so as to reduce any potential spread of COVID-19. The May 13, 2020 Superintendent’s Letter indicates that on May 12, 2020, the OCI outbreak was deemed resolved by Toronto Public Health, with no institutional transmission of cases inside Toronto South.
[45] Apart from the situation at the OCI, the Ministry appears to have been relatively successful thus far in limiting the spread of COVID-19 amongst inmates and staff at the province’s correctional institutions. As of May 11, 2020, there were five positive cases amongst inmates at Toronto South and one positive case at Hamilton – Wentworth Detention Centre. A handful of other positive cases have been resolved, either because the individual is no longer considered positive or has been released from custody. The May 13, 2020 Superintendent’s Letter indicates that thus far there has been no incidence of internal transmission of Covid 19, either from officer to inmate or from inmate to inmate, within Toronto South.
b. Affidavit of Danuta Rasiewicz
[46] The Crown provided an affidavit from Danuta Rasiewicz, the Clinical Manager of the Toronto South Health Care Department. Ms. Rasiewicz is a registered nurse who oversees the healthcare clinics that are run within Toronto South.
[47] Ms. Rasiewicz indicates that Toronto South Healthcare Services have staff on duty 7 days a week, 24 hours a day. Physician clinics are held 6 days a week, during which time physicians see patients for scheduled appointments and will also deal with any urgent medical needs that arise while they are there. In addition to nursing staff, Toronto South has a doctor on call 7 days a week to address medical needs that are not met by the regular physician clinics. Toronto South also has a laboratory clinic where bloodwork and ECGs can be conducted.
[48] Toronto South does not have oncologists within the institution, but Healthcare Services makes appointments for inmate patients to see external service providers as required. If treatment were needed for cancer, the institution would transport the inmate patient to the facility where the treatment could take place.
[49] Ms. Rasiewicz indicates that inmates receive all medicine that has been prescribed for them. Ms. Rasiewicz is unaware of any inmate who has not received prescribed medicine for a week or more while at the institution.
[50] With HK’s consent, Ms. Rasiewicz testified as to her records regarding HK’s current health status. Ms. Rasiewicz indicated that HK had been receiving a number of medications earlier this year but that his prescriptions expired in late March 2020 and have not been renewed. The last date upon which HK received medication was March 27, 2020. Ms. Rasiewicz has no indication that HK has not been provided with all medicine prescribed for him.
[51] Ms. Rasiewicz reported that a checkup for HK with an oncologist at Credit Valley Hospital that had been scheduled for May 11, 2020 has been rescheduled for another date in the near future.
Positions of the Parties
a. Defence
[52] HK argues that there has been a material change in circumstances due to the Covid 19 pandemic. HK has underlying medical issues and faces a significant risk of harm from Covid 19. The pandemic has also resulted in his limited privileges in custody having been taken away, while his preliminary hearing has been adjourned and he is facing a far greater time in pretrial custody.
[53] Turning to the three grounds for detention set out in s. 515 (10), HK argues that there are no significant primary ground concerns since there is only a single incident (in September 2016) in which he failed to attend court as required.
[54] With respect to the secondary ground, HK notes that he has no criminal record. While acknowledging that he was charged with attempted murder in March 2016, HK argues that any evidence relating to that charge is inadmissible since the Crown ultimately withdrew the charge.
[55] Mulligan J. identified a number of shortcomings with respect to IK’s suitability to serve as a surety. However, IK has acknowledged those shortcomings. IK is motivated to supervise HK given the significant sum that he has pledged. In addition, HK is motivated to comply with the conditions of his release because of his fear of contracting Covid 19 if he were returned to the institution.
[56] With respect to the tertiary ground, HK notes that although the charge is a serious one involving a firearm, the firearm was not brandished or used. There are potential Charter arguments that may result in the exclusion of the evidence relating to the firearm that was found in HK’s pants pocket, while the other firearm that was located nearby has no connection to HK.
[57] HK has now been detained for approximately nine months and his preliminary hearing scheduled for April 2020 has been postponed. HK will receive significantly enhanced credit for pretrial custody as a result of difficult conditions in the institution. Thus, HK may soon be approaching a situation where, even if found guilty, he would be sentenced to no more than time served.
[58] HK has a pre-existing medical condition which could compromise his immune system and increase the threat posed to him by Covid 19. His most recent appointment with the oncologist was rescheduled and thus it is impossible to know whether his cancer has recurred. Numerous decisions of this court have recognized that Covid 19 is a significant factor in the analysis under the tertiary ground. Given HK’s pre-existing medical condition, public confidence in the administration of justice would not be undermined if he were to be released.
b. Crown
[59] The Crown argues that there has been no material change in circumstances since the initial bail hearing. The plan of release that is currently proposed is identical to that considered and rejected by Mulligan J. Covid 19 does not call into question the continued validity of Mulligan J’s detention order.
[60] In the event that the court were to find a material change on the basis of Covid 19 and conduct a fresh analysis of HK’s detention, the Crown maintains that his continued detention is justified on both the secondary and tertiary grounds in s. 515 (10).
[61] With respect to the secondary ground, the Crown maintains that there is a substantial likelihood that HK would reoffend if he were released. The Crown argues that the evidence relating to HK’s March 2016 attempted murder charge is admissible and is probative of the likelihood of HK reoffending. These concerns are heightened by the evidence of HK’s gang affiliation and concerns over HK’s involvement in drug trafficking.
[62] IK continues to be an unsuitable surety. IK failed to appreciate or acknowledge that he had deliberately misled the court in his evidence at the original bail hearing. His evidence, both at the original bail hearing and in the course of this bail review, makes it clear that IK has no influence over HK and has no ability to properly supervise him. Nor is there any credible evidence indicating that IK is now capable of serving as a suitable surety as a result of Covid 19.
[63] With respect to the tertiary ground, the Crown argues that all four factors identified in s. 515 (10) (c) tend to favour the continued detention of HK. The Crown acknowledges that HK’s preliminary inquiry, originally scheduled for April 2020, has been postponed due to the Covid 19 pandemic. However, this will not necessarily increase the time to trial. HK’s co-accused has indicated an intention to resolve his charges, with the result that it will be easier to find a mutually agreeable future preliminary hearing date. HK also has the option of proceeding directly to a trial in the Superior Court. The Crown also advises that it has approval to proceed by direct indictment if necessary. In any event, decreasing a trial to a single accused matter will decrease the time required for trial.
[64] Even with enhanced credit for pretrial custody, the Crown maintains that HK is not yet approaching a scenario in which he would be sentenced to time served if found guilty.
[65] Although Covid 19 is a relevant factor in relation to the tertiary ground, it cannot overwhelm the analysis. If HK were released on such a manifestly inadequate plan, public confidence in the administration of justice would be undermined.
Applicable Legal Principles
a. Basic Principles
[66] As Chief Justice Wagner observed in R. v. Antic, 2017 SCC 27 at para 1, the right not to be denied reasonable bail without just cause is an essential element of our criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons. [4]
[67] The right to reasonable bail has two aspects. First, a person charged with an offence cannot be denied bail without “just cause”, such that the denial is necessary to promote the proper functioning of the bail system. Second, any conditions upon release must be imposed in accordance with the “ladder principle”, which favours release at the earliest reasonable opportunity and on the least onerous grounds. Further, a recognizance with sureties is one of the most onerous forms of release and should not be imposed unless all less onerous forms of been considered and rejected as inappropriate. [5]
[68] It is further acknowledged that, in this case, the burden is on the Crown to justify the continued detention of HK, in accordance with the relevant provisions of the Criminal Code, as interpreted in Antic.
b. Secondary and Tertiary Grounds for Detention
[69] Although the Crown notes that there are concerns under the primary ground, the Crown relies upon the secondary ground and tertiary ground in s. 515 (10) as justifying the continued detention of HK.
[70] An analysis of the secondary ground requires the court to undertake a risk assessment to determine whether, having regard to all the circumstances, it is necessary to continue the detention of the accused for the protection or safety of the public. This risk assessment must include a consideration of whether it is substantially likely that the accused will, if released, commit a criminal offence or interfere with the administration of justice. A “substantial likelihood” requires a probability of certain conduct, not a mere possibility, and the probability must be substantial, in other words, significantly likely. [6] It is relevant to consider the nature of the alleged offences, the circumstances surrounding their alleged commission, the likelihood of conviction, and the danger that the release of the accused would pose to the community.
[71] In assessing the tertiary ground, whether an accused’s detention is necessary to maintain confidence in the administration of justice, section 515 (10) (c) requires the court to have regard to four circumstances in particular:
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.
[72] The leading case on the application of the tertiary ground for detention is R. v. St. Cloud, 2015 SCC 27, where Wagner J. (as he then was) held that even if all four of these enumerated circumstances support a detention order, detention of the accused should not automatically follow. The four listed circumstances are simply the “main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country.” [8] Other circumstances which Wagner J. identified as being relevant include the personal circumstances of the accused, including his age, criminal record, and physical or mental condition.
[73] No single circumstance is determinative. The justice must consider the combined effect of all of the circumstances relevant to each particular case in determining whether detention is justified in order to maintain public confidence in the administration of justice. [9]
c. Admissibility of Prior Unproven Charges
[74] As noted above, the Crown sought to admit evidence of circumstances relating to a charge of attempted murder laid against HK as a result of a shooting incident in March 2016. That charge was withdrawn by the Crown when the complainant was not available to testify at trial. Defence counsel takes the position that since the charge was withdrawn, any evidence relating to that charge is inadmissible since it would be contrary to the presumption of innocence.
[75] As the Supreme Court of Canada observed in Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 at para 28, there are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of an accused in custody is justified. [10] Section 518 (1) (e) of the Criminal Code provides that the justice at a bail hearing may receive and base a detention decision upon evidence considered “credible or trustworthy.” In Toronto Star, the Supreme Court held that this could include, amongst other things, evidence of a confession that had not been tested for voluntariness, evidence of bad character, ambiguous post-offence conduct, untested similar facts and untried charges. [11]
[76] Of course, any such evidence, including of untried charges, is only admissible if relevant to the particular issues arising at the detention hearing. Moreover, the weight to be attached to any such evidence will depend upon a variety of factors, including the extent to which there is an opportunity to assess its reliability. [12]
[77] As discussed below, given the credible Crown case in relation to the March 2016 attempted murder charge, it is probative of the likelihood of his reoffending if released. But it is merely one circumstance amongst many relevant to the secondary ground for detention. I further find that any concerns arising under the secondary ground could be adequately addressed with an appropriate plan of release.
Analysis
a. Material Change in Circumstances
[78] There are numerous decisions of this court holding that Covid 19 constitutes a material change in circumstance justifying a de novo analysis of whether the continued detention of an accused is justified. [13] The existence of a global pandemic and its associated health risks, particularly for those incarcerated and with pre-existing medical conditions, was not something that could have been considered at the original bail hearing, and it might well have affected the outcome.
[79] Accordingly, despite the objections made by the Crown, I conclude that Covid 19 satisfies the criteria for a material change in circumstance as described by the Supreme Court of Canada in St. Cloud. It is therefore necessary to consider afresh whether HK’s continued detention is justified in accordance with s. 515 (10).
b. The Secondary Ground
[80] I accept the Crown’s position that there are significant concerns relating to whether HK would reoffend if he were released.
[81] I note that the Crown’s case in relation to HK is a strong one. A loaded firearm was found in his right pants pocket. Although counsel for HK suggests that there are possible Charter arguments which could result in the exclusion of evidence of the firearm, no such Charter application has been made and thus it is impossible to assess its likely success. At this stage, the Crown case remains strong. This is a serious offence involving a significant risk to public safety.
[82] Although HK has no criminal record, he was charged in March 2016 with attempted murder involving the use of a firearm. HK was able to avoid arrest in connection with that incident for over a year. While he was at large, in September 2016 he was arrested in Peel region on unrelated charges. He secured his release by providing police with a false name and then failed to appear in court as required. As a result, he was not arrested on the attempt murder charge until June 2017. There is also credible evidence that HK is associated with the TPK.
[83] I recognize that the March 2016 attempt murder charge was withdrawn when the complainant was unavailable to testify. The Crown had a credible case had the attempt murder charge proceeded to a trial. HK’s current serious charges, considered in the context of his entire prior conduct, including the March 2016 incident, suggests that there are significant concerns over HK reoffending if he were to be released.
[84] This does not necessarily mean that HK should be detained. In my view, the secondary ground concerns identified by the Crown, while significant, could be properly addressed through an appropriate release plan and conditions. I further find, consistent with the conclusions of Mulligan J. at the original bail hearing, that HK is releasable only if a suitable surety is available to supervise him and ensure his compliance with the conditions of his release. I note that counsel for HK does not appear to take issue with the requirement of a surety release, since IK is proposed as surety.
[85] The question, then, is whether IK is suitable to serve as HK’s surety.
[86] At the original bail hearing, IK gave evidence that was contradictory, misleading, and untruthful. These concerns over IK’s credibility were not adequately addressed on this bail review. IK suggested that the reason he was found unsuitable as a surety at the original bail hearing was merely because he had failed to properly supervise his youngest son when the latter was on bail. This mischaracterized and minimized the significant credibility concerns identified by Mulligan J.
[87] IK’s evidence at this bail review was also inconsistent with certain aspects of his evidence at the original bail hearing. At the September 2019 bail hearing, IK testified that when HK was charged in Peel region in September 2016, he had spoken with HK about the matter and HK had assured him that he would attend court as required. However, in his May 14, 2020 testimony on the bail review, IK indicated that he never spoke with HK about the Peel region charges – and, in fact, IK was unaware of the charges at the time – since HK had disappeared months before.
[88] Moreover, despite IK’s claim of a close relationship with HK, it is evident that he has little knowledge of HK’s activities and has little influence over him. For example, when police were attempting to locate HK in connection with the March 2016 attempt murder charges, HK disappeared and had no contact with IK for well over a year. Not only has IK never spoken with HK about the March 2016 incident, he has never raised any concerns over the fact that HK disappeared for such an extended period of time without contacting the family.
[89] I therefore find that IK is not in a position to properly supervise HK and is unsuitable as a surety.
[90] This conclusion is not affected by the existence of the Covid 19 pandemic. If released, HK would certainly want to avoid being returned to a correctional institution. But the deterrent effect of incarceration on HK’s behaviour will depend upon whether HK is being properly supervised. In the absence of such proper supervision, I find there will be a substantial risk of HK reoffending, with significant consequences for public safety, regardless of Covid 19. Because IK is not in a position to provide such proper supervision, and there is no other suitable surety available, I find no alternative other than to order the continued detention of HK.
[91] I therefore find that the Crown has met its burden under the secondary ground and shown that HK’s continued detention is necessary for the protection and safety of the public.
c. The Tertiary Ground
[92] This conclusion on the secondary ground is sufficient to dispose of this application. Nevertheless, because the issue was fully argued, I consider whether HK’s continued detention is also justified on the tertiary ground.
[93] The circumstances which resulted in HK’s detention on the tertiary ground at the original bail hearing remain relevant. In particular, the Crown has a strong case, the offences with which HK is charged are serious crimes involving firearms, and he is likely facing a substantial jail term if convicted.
[94] The fact that HK’s preliminary inquiry has been postponed is a matter of concern. Even if HK’s co-accused simplifies matters by resolving his charges, it will likely be some months before HK’s trial can take place. Nevertheless, as things stand currently, HK is not yet approaching a position where, on a finding of guilt, he would receive a sentence approximating his time served.
[95] This leaves for consideration the impact of Covid 19 on the tertiary grounds for detention.
[96] With respect to the expert evidence adduced by HK discussed above, I note that both the affidavit from Dr. Orkin as well as the Open Letter were prepared in the initial stages of the pandemic. As such, the facts and assumptions upon which they were prepared have changed significantly. I would further observe that Dr. Orkin’s predictions as to the manner in which the virus would sweep through the province’s correctional institutions have not been borne out by subsequent events. Thus far at least, the precautions and protocols put in place by the Ministry have being fairly successful in limiting and containing the spread of Covid 19 within Ontario jails.
[97] That said, I accept the conclusion advanced by Dr. Orkin as well as by the authors of the Open Letter that there is a significantly enhanced risk of contracting Covid 19 in the province’s correctional institutions. I agree that it is desirable to use all available mechanisms to reduce the inmate population so as to minimize the spread of the virus amongst both inmates and staff.
[98] I further accept that HK faces a heightened medical risk if he were to contract the virus. The fact that he continues to see an oncologist on a regular basis indicates that, while he is currently in remission, his cancer could return at any time. I am satisfied, based on the evidence of Ms. Rasiewicz, that Toronto South is providing appropriate medical care to HK, including providing all prescribed medication and ensuring he is able to access his appointments with the oncologist to ensure his cancer has not returned. Nevertheless, I am concerned that if his cancer were to reoccur, any cancer treatment that he might require could well impair his immune system, which could increase the risks associated with Covid 19.
[99] These are significant considerations in assessing whether HK’s continued detention is justified on the tertiary grounds. Nevertheless, for reasons described above, HK has failed to put forward a suitable plan of release. While informed members of the public would be concerned over HK’s continued detention in the context of a pandemic, they would also be troubled by the prospect of HK committing further offences and endangering public safety if he were released.
[100] I therefore find, considering all the relevant circumstances, that HK’s detention remains necessary in order to maintain confidence in the administration of justice.
Conclusion
[101] HK’s application under s. 520 of the Criminal Code is dismissed.
P. J. Monahan J.
Released: May 27, 2020