Court File and Parties

Court File No.: 351/20 BR Date: 2020-05-29 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown/Respondent – and – David Firth, Accused/Applicant

Counsel: D. Polgar, for the Crown L. Gensey, for the Accused

Heard: May 12-13, 2020

Reasons for Decision on Bail Review Application

The Honourable Justice J. R. Henderson

Introduction

[1] In this bail review application, the accused, David Firth (“Firth”), requests that he be released from custody pending the trial of these charges. I provided my final decision in this application by way of a brief Endorsement dated May 15, 2020, with written reasons to follow. These are those written reasons.

[2] As a result of COVID-19, the regular operations of the Superior Court of Justice are suspended at this time. Therefore, in accordance with the Notices to the Profession, materials were filed by the parties and forwarded to me electronically, and this hearing was conducted by way of a telephone conference call.

[3] Firth is charged with a total of 10 criminal offences, including possession of fentanyl, cocaine, and crystal methamphetamine for the purpose of trafficking; possession of prohibited weapons, to wit, a taser, throwing knives, and a throwing star; breach of a weapons prohibition order; possession of property derived from the commission of a criminal offence; breach of a release order; and breach of probation.

[4] After his initial arrest on January 29, 2020, Firth was released on a recognizance with a surety with conditions. On February 15, 2020, police officers received information that Firth had breached a condition of his release. Firth was therefore re-arrested and taken into custody.

[5] Firth then had a bail hearing before Justice of the Peace Phillips on February 27, 2020, after which he was detained in custody on the primary, secondary, and tertiary grounds. Firth now brings this application for a bail review.

Positions of the Parties

[6] Counsel for the defence submits that the Justice of the Peace erred in his decision because he failed to conduct a meaningful analysis of the primary and secondary grounds, and because he failed to adequately consider Firth’s Aboriginal heritage.

[7] In addition, the defence submits that there have been two material changes in circumstances since the bail hearing. It is submitted, first, that there is currently a COVID-19 pandemic that has adversely affected the welfare of all accused persons in detention, and second, that Firth is now proposing a plan for his release that is superior to the plan that was proposed at the bail hearing.

[8] Therefore, counsel for Firth takes the position that this court should conduct a hearing de novo, reconsider Firth’s request for release pending trial, and order that Firth be released on a recognizance with a surety, Clarisa Thorpe, with conditions.

[9] It is the Crown's position that the Justice of the Peace did not make any errors in his decision to detain Firth in custody pending trial. The Crown acknowledges that there have been some changes since the bail hearing, but submits that the changes are not sufficient to form the foundation for a bail review. The Crown specifically submits that I should not conduct a hearing de novo.

[10] In the alternative, if I embark upon a bail review, the Crown submits that, based on all of the evidence, Firth should continue to be detained in custody pending trial on all three grounds.

The Proposed Plan of Release

[11] Defence counsel proposes that Firth be released on a recognizance with Ms. Thorpe as his surety; that Firth be required to reside with Ms. Thorpe at her residence in Owen Sound; and that he comply with a form of house arrest. Specifically, it is proposed that Firth would not be permitted to leave the residence except in the presence of his surety or for medical emergencies.

[12] In addition, defence counsel proposes that the release order include terms that Firth not consume any non-prescription drugs, that Firth not possess any weapons, that Firth attend counselling or treatment as directed by his surety, including counselling at the Native Centre, and that Firth report weekly to the Ontario Provincial Police station in Owen Sound.

Background

[13] The events that initiated these court proceedings started in January of this year when members of the Niagara Regional Police Service (“NRPS”) were investigating the sale of methamphetamine, cocaine, and fentanyl by Firth from a residence at 38 Richmond Street in St. Catharines.

[14] During the investigation, police conducted multiple days of covert surveillance of Firth. They observed him frequenting the Richmond Street residence and engaging in what appeared to be 10 separate drug transactions. Therefore, NRPS officers applied for, and were granted, a warrant to search the residence.

[15] On January 29, 2020, police officers arrested the accused in the driveway of the Richmond Street residence. A search incident to arrest revealed that Firth was in possession of $470 in Canadian currency, which the police officers believed to be proceeds of drug trafficking.

[16] Upon executing the search warrant, police officers found the co-accused, April Pare, inside the residence. The search revealed a safe which was secured to a wall in the staircase that led down to the basement. The safe contained 9.3 grams of fentanyl, and $1,580 in Canadian currency.

[17] As the search continued, the police officers located another 2.5 grams of fentanyl, 97.2 grams of methamphetamine, and 6.3 grams of cocaine in the kitchen. Police officers also found a taser, throwing knives, and a metal throwing star in the residence.

[18] Firth was then charged with the abovementioned drug, weapons, and property charges, and Ms. Pare was charged as a co-accused.

[19] On February 10, 2020, Firth was released on a recognizance with a surety, Melissa Lantagne. The recognizance included a term that Firth was to live with the surety at her residence and that he was not to leave the residence except in the presence of the surety.

[20] On February 15, 2020, Ms. Lantagne, the surety, contacted police and advised that Firth had left the residence without her and that he was not complying with the terms of his release order. Officers charged Firth with breaching a term of his release order. Firth subsequently turned himself in to police and he was detained in custody.

[21] It was also determined that Firth had been the subject of a probation order at the relevant time as a result of a conviction in Toronto in March 2019. He was accordingly charged with breaching that probation order.

[22] At the bail hearing before Justice of the Peace Phillips, on February 27, 2020, Firth’s counsel proposed that Firth be released with two sureties, Robert Aubertin and William Hardman. In his reasons, Justice of the Peace Phillips made a clear finding that neither of these two sureties were acceptable under the circumstances. In particular, he found that neither of the sureties knew Firth well, and neither had spent much time with him.

[23] In his reasons, the Justice of the Peace reviewed Firth’s lengthy criminal record, Firth’s Aboriginal heritage, and the strengths of the Crown’s case. Ultimately, Justice of the Peace Phillips concluded that Firth was unable to meet his onus, and he ordered that Firth be detained on all three grounds.

General Principles

[24] In making my decision today, I must be cognizant of certain general principles of law that apply to any bail hearing or bail review.

[25] The first general principle is that, pursuant to s. 493.1 of the Criminal Code, a judge who conducts a bail hearing is required to give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.

[26] As stated by the Supreme Court of Canada in R. v. Myers, 2019 SCC 18, 438 D.L.R. (4th) 60, at para. 1:

The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release -- at the earliest opportunity and in the least onerous manner -- is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.

[27] The next general principle is that at this point in the proceedings the accused, Firth, is presumed to be an innocent person. In that respect the Canadian Charter of Rights and Freedoms provides certain guarantees to accused persons. Specifically, s. 11 of the Charter states that:

Any person charged with an offence has the right ... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause.

[28] Further, the Criminal Code provides that the detention of any accused pending trial is justified only by one or more of the three grounds set out in s. 515(10), which we refer to as the primary, secondary, and tertiary grounds. In this case, the Crown relies on all three of these grounds to support its position that Firth should be detained in custody pending trial.

[29] Next, pursuant to s. 515(6) of the Criminal Code, because of the alleged breach of a release order, Firth’s request for judicial interim release is a reverse onus application. That is, the onus is on Firth to prove on a balance of probabilities that he should not be detained in custody pending trial.

[30] The final general principle relates to Firth’s Aboriginal heritage. Firth has provided evidence of the way in which his Aboriginal ancestry, through his father, has affected his life. Pursuant to s. 493.2 of the Criminal Code, a judge who makes a decision on a bail hearing is required to give particular attention to the circumstances of an Aboriginal accused.

Standard of Review

[31] It is important to recognize that an accused does not have an unfettered right to a bail review. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada considered the test for a bail review under s. 520 or s. 521 of the Criminal Code.

[32] At para. 6, Wagner J. wrote:

Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

[33] I interpret this statement to mean that an accused is only entitled to a bail review if the accused can prove one or more of the three factors mentioned in St-Cloud. In the present case, the defence relies upon the first two factors.

[34] Further, regarding the first St-Cloud factor, the applicant must provide admissible new evidence that demonstrates a material change of circumstances. The Court in St-Cloud held, at para. 128, that the reviewing court should only receive new evidence if that evidence meets a four-part test, modified for bail reviews, based on the Court’s previous decision in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, namely:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at the initial hearing;
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at the hearing;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. The evidence if believed, when taken with the other evidence adduced at the hearing, could reasonably be expected to have affected the result.

[35] Finally, the Court in St-Cloud found, at para. 138, that if the reviewing judge finds that there have been material changes in circumstances, or that errors were made at the bail hearing, the reviewing court may consider the matter afresh, and conduct a hearing de novo.

[36] In the present case, for reasons that are set out herein, I find that the tendered new evidence is admissible pursuant to the Palmer test, and that I should conduct a hearing de novo.

Alleged Errors Made at the Bail Hearing

[37] The defence submits that the Justice of the Peace did not conduct any meaningful analysis of the primary and secondary grounds, and that he failed to properly consider Firth’s Aboriginal heritage, both of which constitute an error of law.

[38] Regarding Justice of the Peace Phillips’ analysis of the primary and secondary grounds, I accept that the analysis is brief, comprising only two full paragraphs on pages 48 and 49 of the transcript. However, these two paragraphs contain the conclusions that flow from Justice of the Peace Phillips’ previous examination of the evidence. In the preceding parts of his reasons the Justice of the Peace correctly identified all three of the grounds for detention. He then reviewed at length the inadequacies of the proposed sureties and Firth’s considerable criminal history. In addition, the Justice of the Peace noted that Firth had three prior convictions for failing to attend court, that Firth had an outstanding warrant for his arrest issued out of the Province of Québec, and that Firth had outstanding charges that were before the court in Toronto.

[39] The reasons of a Justice of the Peace for a detention order do not need to be perfect or tediously detailed. To be sufficient as reasons, the reasons should show that the Justice of the Peace understood the issues, and had a clear identifiable basis for the decision. In my view, Justice of the Peace Phillips’ reasons in this case were sufficient; the decision and the reasons for the decision are clear. There was no error of law with respect to his analysis of the primary and secondary grounds.

[40] With respect to Firth’s Aboriginal heritage, Justice of the Peace Phillips acknowledged Firth’s heritage during the course of his reasons, and stated that all of the matters and principles that apply to Indigenous people would be considered in his decision. After making this statement, Justice of the Peace Phillips did not subsequently reference Firth’s heritage.

[41] Defence counsel submits that a presiding judge cannot simply mention Aboriginal heritage without further analysis. In particular, it is insufficient for a court to state that the Gladue [1] factors have been taken into consideration—the courts must go on to explain how the principles have been applied—anything less amounts to simply paying “lip service” to the principles. Defence counsel relies on the case of R. v. Silversmith, [2008] O.J. No. 4646 at para. 18.

[42] I accept that defence counsel’s position is generally correct, as discussed in Silversmith, but in the circumstances of this case, I find that the Justice of the Peace did not make any error of law. Justice of the Peace Phillips was well aware that Firth’s Aboriginal heritage was a relevant factor in the bail hearing. However, I find that Justice of the Peace Phillips correctly took the view that there was no need for any further analysis of Firth’s Aboriginal heritage in light of his findings.

[43] Specifically, Justice of the Peace Phillips found that Firth’s two proposed sureties were inadequate to support any release plan given Firth’s criminal history. This finding shattered the foundation of Firth’s proposed plan for release. Thus, any further analysis of Firth’s circumstances and/or heritage was not necessary as it would not have changed the result.

Material Change in Circumstances

[44] On this application, defence counsel has tendered evidence of two changes in circumstances, specifically the nature and extent of the COVID-19 pandemic, and the availability and suitability of a new proposed surety, Ms. Thorpe.

[45] The evidence tendered with respect to these changes in circumstances is new evidence, and therefore, it must meet the four-part Palmer test before it can be admitted for consideration on this application.

[46] In my view, both aspects of this new evidence meet the Palmer test. In particular, regarding the first Palmer criterion, I find that the evidence with respect to COVID-19 could not have been adduced at the initial bail hearing as the magnitude and effect of the COVID-19 pandemic was not well known at that time; in fact, the character of the COVID-19 pandemic has evolved on a day-to-day basis since the closing of the courthouses on March 16, 2020.

[47] With respect to the proposed surety, Ms. Thorpe, I find that Ms. Thorpe has acted as Firth’s surety in the past and was Firth’s first choice as a surety in these proceedings. I accept Ms. Thorpe’s evidence that because she had recently obtained new employment and she was in the process of moving residences, she was unable to act as a surety in February 2020. Since that time, her situation has changed, and she is now available to present herself as a surety. Therefore, I find that this evidence also fulfills the first criterion of the Palmer test.

[48] For reasons set out herein, I also find that the second, third, and fourth Palmer criteria have been met. Accordingly, the new evidence is admissible.

[49] With respect to whether I should embark upon a hearing de novo, I accept that, generally, minor modifications to a plan for release are not sufficient to support a de novo review of a detention order. See R. v. Ferguson, [2002] O.J. No. 1969, and R. v. T. K., 2020 ONSC 1935.

[50] As Hill J. stated in Ferguson, at para. 17:

…Simply re-shuffling 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.

[51] This passage confirms that the general rule that the presentation of new sureties on a bail review will not provide a basis for a hearing de novo is not absolute. I find that where an accused can establish that the proposed changes regarding the sureties and/or the release plan are so significant that they call into question the continued validity of the reasons for detention, the change in circumstances will be material and will justify a hearing de novo.

[52] In the present case, I find that the proposal of a new release plan with Ms. Thorpe as a surety is significantly different than the proposal for release that was made at the bail hearing, and calls into question the continued validity of the reasons for Firth’s detention. Specifically, I find that the primary reason for Justice of the Peace Phillips’ order to detain Firth at the bail hearing was Justice of the Peace Phillips’ finding that the two proposed sureties at the bail hearing were inadequate. In contrast, for reasons set out herein, I find that Ms. Thorpe is an extremely adequate and suitable surety.

[53] Therefore, I accept that the proposal of Ms. Thorpe as a new surety along with the proposed new release plan constitutes a material change from the plan that was proposed at the bail hearing, such that I should conduct a bail hearing de novo.

[54] Regarding the COVID-19 pandemic, I find that subsequent to the bail hearing there has been an obvious material change that relates to the health and welfare of all citizens in this province. Several recent decisions, including R. v. J.S., 2020 ONSC 1710, at para. 5, R. v. Cain, 2020 ONSC 2018, at para. 8, and R. v. Dunn, 2020 ONSC 2654, at para. 6, have held that the effect of the COVID-19 pandemic on our society constitutes a material change of circumstances that permits a de novo hearing.

[55] In conclusion, I find that the combination of the new proposed surety, the new proposed plan of release, and the COVID-19 pandemic constitutes a change of circumstances that is so significant that I should review the detention order. Therefore, I will deal with this application as a hearing de novo.

Analysis

Strength of the Crown’s Case

[56] I find that there are both strengths and weaknesses in the Crown’s case against Firth.

[57] The investigation by police officers started because of information that the NRPS received about Firth selling illegal drugs. Thereafter, police officers conducted surveillance and observed what the officers believed to be 10 separate drug transactions conducted by Firth. The officers also acquired information that led the officers to believe that Firth resided at the Richmond Street residence. The cumulative evidence was strong enough to convince a Justice of the Peace to grant a search warrant for the residence.

[58] On his arrest, Firth was found to have a large amount of cash on his person. Three separate types of illegal drugs were found in the residence, and the quantities of fentanyl and crystal methamphetamine were significant. Also, weapons and more cash were found in the residence. I accept that all of this evidence strongly supports the Crown’s case.

[59] However, there are challenges for the Crown in this case. Specifically, there may be some difficulty proving that Firth resided at the Richmond Street residence given that there are no papers or documents that would suggest that Firth resided there, and there may be evidence that Firth was residing elsewhere. Further, I note that no illegal drugs were found on Firth’s person upon his arrest.

[60] Although one can never predict the actual outcome of a criminal trial particularly at an early stage of the proceedings, I find that at this stage the strength of the Crown’s case could be described as modest.

Personal Circumstances/Aboriginal Heritage

[61] Firth was born in Port Colborne, Ontario, and he is almost 51 years of age. His father was born in Thunder Bay, Ontario, is a member of the Cree Nation, and attended a residential school in his youth.

[62] Firth testified, and I accept, that his father had a significant negative effect on him. He provided evidence that his father was an alcoholic and was abusive to Firth’s mother, to Firth, and to Firth’s siblings. Firth’s mother was disabled in part as a result of an assault by his father.

[63] I accept that Firth and his mother spent many years regularly moving in order to escape the influence of his father. They often lived in poverty. As a result, Firth turned to petty criminal activity, such as shoplifting, at an early age. Thereafter, he became involved in other types of criminal activity, including the use of, and trafficking in, illegal substances.

[64] Firth has a positive, although sporadic, employment history. He is a trained motion picture special effects technician, specializing in pyrotechnics. He testified that he started working at rock concerts in approximately 1997, and that his work evolved into creating special effects, such as fires and explosions, for television and film producers. By virtue of his membership in a union, Firth obtains work, on an on-call basis, during the shooting of television and movie productions.

[65] Firth testified that his income is unpredictable because of the on-call nature of the work. He said that he has worked extensively in some years, and little in other years. I note that his testimony was inconsistent about his income in the last few years. At one point he indicated that work had been good for the last two or three years, but at another point he indicated that a leg injury had prevented him from working regularly.

[66] Regarding family, Firth has a 20-year-old son who lives in Welland, Ontario, and works in Guelph, Ontario. Firth testified, and I accept, that he has a good relationship with his son, and that he has been inspired by his son to become a better person.

[67] Despite his father’s abusive treatment, Firth testified, and I accept, that Firth has been involved with the Aboriginal community since he was a young adult. I accept that he was strongly encouraged in this respect by his uncle. In particular, I find that as a young adult Firth regularly engaged with the Aboriginal community in both Niagara and Toronto. He attended sweat lodges, engaged in smudging ceremonies, and participated in spiritual outings.

[68] Firth’s Aboriginal heritage is an important factor on this application as Firth had previously connected with the Native Centre in Owen Sound when he lived with Ms. Thorpe in late 2017 and early 2018. The current proposal is for Firth to live in Owen Sound and attend counselling at the Native Centre.

[69] I have a letter from a representative of the Native Centre indicating that the Native Centre is in the process of commencing a counselling program that would be appropriate for Firth, and a spot in the counselling program is available if and when Firth returns to Owen Sound.

Firth’s Criminal History

[70] Firth’s past criminal record is abysmal. Justice of the Peace Phillips described it as “one of the longest criminal records that I have seen in 40 plus years”.

[71] Firth was first convicted of a criminal offence in 1986, and his criminal convictions have continued unabated up to and including a conviction in March 2019. In total, he has 96 separate criminal convictions, mostly in the Regional Municipality of Niagara and Toronto, but also in Vancouver, Montréal, and Barrie.

[72] The criminal record spans a wide range of criminal offences, including thefts, drug offences, simple assaults, and threats. There are approximately 30 convictions for theft under, theft over, or robbery, and seven convictions regarding illegal substances. There are three convictions for failing to attend court in 1992, 2011, and 2019, and another 16 convictions for breaching court orders.

[73] In addition to the criminal convictions, Firth faces outstanding charges that arose out of an incident that occurred in Toronto in March 2019. At that time, he was arrested for shoplifting, and upon his arrest he was found to be in possession of 121 grams of methamphetamine, and $2,500 in cash. Those charges are still before the court.

[74] There is also an outstanding warrant from the Province of Québec, issued in 2016, with respect to two counts of theft under, fail to appear in court, and criminal harassment. Firth has not yet addressed that outstanding warrant.

[75] Moreover, as a result of a criminal conviction in Toronto in the early part of March 2019, Firth was placed on probation for a period of 12 months. Thus, it must be recognized that the alleged offences before this court occurred while Firth was on probation.

[76] Still further, I am cognizant of the fact that Firth was initially released with a surety on these charges, and only five days later that surety informed police that Firth was breaching his release order.

[77] Overall, Firth’s history suggests that he is a lifelong criminal; he is someone who has operated outside of the law for a significant part of his life; and he is someone who is not likely to follow a court order without provisions for strict enforcement of the order.

The Proposed Surety/Plan of Release

[78] I find that Ms. Thorpe is an exceptionally good proposed surety. She is 49 years of age and lives by herself in a rented apartment in Owen Sound. She presents as a sincere, honest, well-meaning person who understands her obligations as a surety.

[79] Ms. Thorpe is a hairdresser who has been self-employed for approximately 20 years. She recently moved into a management position with First Choice Haircutters in Owen Sound. She also works from home as a writer for a local real estate company. Currently, because of the COVID-19 pandemic, she is not working outside of her residence.

[80] Ms. Thorpe has known Firth for seven to nine years, and knows him well. Ms. Thorpe met Firth while she was doing hair and makeup in the motion picture industry. They have maintained regular contact over the years, primarily through social media. I find that they also see each other in person at least a few times every year.

[81] Ms. Thorpe has a dated criminal record with a conviction for possession of cocaine in 2013. She testified, and I accept, that she is not involved in the drug culture, and she has not used any illegal drugs for many years.

[82] I find that Ms. Thorpe is well aware of Firth’s past and current criminal history. They have been in regular contact since Firth’s arrest on these charges. Recently, Ms. Thorpe contacted the Owen Sound Native Centre and obtained information about the potential for Firth to attend the Centre’s counselling program.

[83] I find that Ms. Thorpe was Firth’s first choice to be a surety after his initial arrest. Because she had just started a new job and was in the process of changing residences, Ms. Thorpe could not be a surety at that time. At this point, Ms. Thorpe has moved to a new residence and is not working outside the home. She is now in a prime position to act as a surety for Firth. Moreover, her work hours are flexible and when she returns to the workplace, she can arrange to be available to supervise Firth.

[84] Most significantly, Ms. Thorpe acted as a surety for Firth in the past, from October 2017 to January 2018. She was successful in her role as a surety at that time; Firth did not breach any terms of his release and Firth attended court as required.

[85] In summary, I find that Ms. Thorpe is an informed and well-meaning surety. Ms. Thorpe and Firth have a mutual respect for each other, and they like to be in the presence of each other. I find that Firth intends to follow whatever direction he receives from Ms. Thorpe. I also find that Ms. Thorpe will not permit Firth to breach any conditions of his release, and will call police and/or revoke her surety if he does so.

The COVID-19 Pandemic

[86] At present the entire world is in the throes of the COVID-19 pandemic. The province, and the detention centres contained therein, cannot escape the pandemic.

[87] I take judicial notice of the fact that the virus that causes COVID-19 is serious, pernicious, highly contagious, and potentially deadly. I also take judicial notice of the fact that the public has been directed or ordered to practice social distancing behaviour, not congregate in groups, and engage in frequent handwashing.

[88] Detention centres are notoriously crowded places. The inmates live, eat, and sleep in a dormitory style setting. I find that it is very difficult, if not impossible, for inmates to practice social distancing or avoid groups within the confines of a detention centre. Further, I find that if the COVID-19 virus infects one inmate, it will likely very quickly spread to other inmates. Therefore, I accept that the risk of inmates contracting the virus is much higher than the risk to someone who is not confined to a detention centre.

[89] I acknowledge that there are currently no COVID-19 cases at the Niagara Detention Centre, and I acknowledge that the Ministry employs safety precautions that are directed at the suppression of the COVID-19 virus at the detention centres. I am not critical of the Niagara Detention Centre or the Ministry for its efforts; however, even the best efforts of the detention centre staff cannot ensure that the COVID-19 virus will not infiltrate the detention centre. Moreover, I accept that it may be difficult for staff to recognize a potential COVID-19 threat, as there is evidence that the virus may be present and contagious in persons who appear to be asymptomatic.

[90] In the present case, Firth has not provided any evidence that would suggest that he is particularly vulnerable, as he has no underlying conditions such as asthma or a respiratory ailment. However, the fact that Firth does not have an underlying condition does not reduce the risk that Firth may contract the virus at the detention centre; it only ameliorates the potential consequences if Firth contracts the COVID-19 virus. I reject the suggestion that an accused is required to call evidence to demonstrate that he/she is particularly vulnerable to contracting the virus in a jail setting or that the safety precautions practiced at a particular jail puts an accused at greater risk. I rely on the decisions in Cain, at para. 11, and R. v. C.J., 2020 ONSC 1933, at para. 9.

[91] In summary, because of the nature of a jail setting, I find that the inmates at detention centres are at greater risk of exposure to the COVID-19 virus, and that the virus will likely spread more quickly within the detention centres. In addition, I find that there is very little that the inmates can do for themselves to safeguard against the virus. Consequently, I agree that because of the COVID-19 pandemic, it is appropriate to exercise some leniency and flexibility in the assessment of any plan of release.

[92] However, the consideration of the COVID-19 factor must be balanced. As discussed in J.S., at paras. 18-20, T.K., at para. 63, R. v. Nelson, 2020 ONSC 1728, at paras. 40-42, and R. v. Glover, 2020 ONSC 2037, at para. 45, the presence of the COVID-19 virus in the community does not mean that the courts will just open the doors to the detention centres and release the inmates. Rather, the existence of COVID-19 is a factor that must be weighed in all the circumstances, including the possibility that the accused may commit a criminal offence if released, the confidence of the public in the administration of justice, and the strength of the proposed plan of release.

[93] In my view, the current situation calls for a common-sense approach to judicial interim release. I adopt the comments of Molloy J. in the case of R. v. T.L., 2020 ONSC 1885, at para. 36:

Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will be to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions.

[94] As to the s. 515(10) grounds for release, there is no dispute that the COVID-19 pandemic is a factor for consideration with respect to the tertiary ground, as discussed in J.S., at para. 18, T.K., at para. 58, and Nelson, at para. 42. Further, I find that COVID-19 is also a factor for consideration on the secondary ground as it is one of many factors that must be applied to the court’s analysis of the proposed release plan and the risk of the accused committing a criminal offence if released. In that respect, I rely on T.K., at para. 60, Cain, at para. 8, and R v. Cahill, 2020 ONSC 2171, at para. 30.

[95] In conclusion, I find that the COVID-19 pandemic is not a key that the accused can use to open the door to the detention centre, but it is a factor that must be considered in light of the proposed plan of release on both the secondary and tertiary grounds.

The Primary Ground

[96] Section 515(10)(a) of the Criminal Code sets out the primary ground. It states that the detention of an accused in custody is justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.”

[97] The Crown’s position is that Firth has a history of disobeying court orders. The Crown relies on the fact that Firth has been convicted of failing to attend court on three occasions, and has a lengthy criminal record. Therefore, the Crown submits that Firth is not likely to attend court as required if he were released pending the trial. I disagree.

[98] I acknowledge that Firth has three convictions for failing to attend court, but I note that only one of those convictions is recent. Specifically, Firth entered a guilty plea to a charge of failing to attend court in March 2019 at the same time as he entered a guilty plea to another charge.

[99] I also note that the surety, Ms. Thorpe, is an honest, sincere surety who will effectively exert control over Firth. Ms. Thorpe is well aware that one of her responsibilities is to ensure that Firth will attend court as required.

[100] Moreover, Firth will be living in Owen Sound, which is a more rural community. Firth will not have a motor vehicle, but he will be relying on Ms. Thorpe to provide transportation in her vehicle. Ms. Thorpe has a flexible schedule and testified that she will transport Firth to and from his court appearances.

[101] In my view, this plan of release provides assurance that Firth, with the assistance of Ms. Thorpe, will attend court as required. Accordingly, I find that Firth has met his onus on the primary ground.

The Secondary Ground

[102] The secondary ground, set out in s. 515(10)(b), states that the detention of an accused in custody is justified “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, … having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”

[103] In my view, the secondary ground is the most contentious ground in this bail review application. It causes the most concern about the potential release of Firth pending trial.

[104] I am mindful of the statement about the secondary ground made by the Supreme Court of Canada in the case of R. v. Morales, [1992] 3 S.C.R. 711, at para. 39:

Bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice, and only where the substantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary for public safety. It is not justified where a detention would merely be convenient or advantageous.

[105] Also, at para. 37 of Morales, the Court stated, “In general, our society does not countenance preventive detention of individuals because they have a proclivity to commit crimes.”

[106] The Crown correctly submits that the evidence suggests that there is a high risk of Firth committing a criminal offence if released. Firth has a long record with 96 convictions over a period of more than 30 years. He is a lifelong criminal who started his criminal activity as a teenager and has now continued his criminal activity into his fifties. Based on Firth’s past conduct, Firth’s future behaviour would appear to include more petty crime, theft, and drug dealing.

[107] The Crown also relies on Firth’s more recent alleged criminal activity to support the theory that he is likely to reoffend. In particular, the Crown relies on his March 2019 arrest in Toronto for shoplifting, when he was found to be in possession of large amounts of methamphetamine and cash; the fact that the charges before the court are alleged to have been committed while Firth was on probation; and the fact that Firth is alleged to have breached his initial release order on these charges in February 2020.

[108] Overall, the Crown submits that Firth has exhibited a pattern of behaviour that suggests that he is not likely to obey any court order, and that he is likely to commit criminal offences if released.

[109] I accept the two-step approach to the secondary ground as set out by Durno J. in the case of R. v. Budge, [2012] O.J. No. 2538 at para. 64-65. At the first step the presiding judge should determine whether the accused has been engaged in an ongoing criminal lifestyle. In my view, it is clear that Firth has been involved in such a lifestyle. Moreover, I accept that if Firth were released and left idle on his own, there is a substantial likelihood that he would commit a criminal offence.

[110] However, I still need to consider the second step of the analysis. That is, I need to consider whether Firth has proved that there is not a substantial likelihood that he will, if released on the proposed plan, commit a criminal offence or interfere with the administration of justice.

[111] In this case, there are three factors that support Firth’s possible release on this ground. First, there is Firth’s Aboriginal heritage. I accept that the principles in Gladue, and the recent amendments to the Criminal Code at s. 493.2, require the courts to modify the way in which bail hearings or bail reviews are analyzed. Specifically, the court must consider whether the proposed plan, in the context of the Aboriginal culture, can control the behaviour of the accused. In particular, the court must look at whether the subjective involvement of the accused with the Aboriginal community, combined with any proposed conditions of release, provide the necessary assurances of protection of the public that are required for release. Each case will be dependent on its specific facts. In that respect, I rely on the comments made in Silversmith, at para. 19, and R. v. Wheatley, 2018 ONSC 4783, at para. 42.

[112] Firth has been involved with the Aboriginal community for most of his adult life, and, in my opinion, that connection may assist him not only in his rehabilitation program, but also in obeying a release order. That is, if he were released on a condition that he must attend treatment and/or counselling at the Native Centre in Owen Sound, Firth would be compelled to receive some guidance and direction from the Indigenous workers at the Native Centre. That assistance may be more effective as the Indigenous workers are often able to personalize any counselling or treatment to relate to the heritage of the accused.

[113] The second important factor is the COVID-19 pandemic. As aforementioned, COVID-19 is a factor that may apply to the analysis of the secondary ground.

[114] As part of the overall plan of release, I must consider the fact that inmates at a detention centre are at higher risk of contracting COVID-19. As discussed, they are in a vulnerable setting, and there is very little that the inmates can do for themselves to safeguard against the potential infection. Thus, it is appropriate to exercise some leniency with respect to a potential release order, if there is a strong plan of release in place.

[115] The third factor at this step, and perhaps the most important factor, is the strength of the proposed surety. As I have already indicated, Ms. Thorpe is a sincere, honest, well-meaning citizen who has a good relationship with Firth. She has testified that she has a great deal of respect for Firth, and Firth has testified as to his respect for Ms. Thorpe. I find that Firth is likely to take direction from Ms. Thorpe, and Ms. Thorpe very clearly will provide that direction.

[116] It is obvious to this court that Ms. Thorpe has a genuine interest in assisting Firth in getting treatment, and in assisting him in breaking out of his criminal lifestyle. She is willing to devote a significant amount of her time to supervise Firth and his rehabilitation.

[117] Further, Ms. Thorpe currently has the time available to supervise and assist Firth, and she will adjust her work schedule when she returns to the workplace so that she can continue in that role. She has already spoken with her employer about obtaining handyman work for Firth when the hair salon reopens. If that work is available, Ms. Thorpe is willing to adjust her schedule to co-ordinate with Firth’s work schedule.

[118] On this point, it is significant that Ms. Thorpe has acted as a surety for Firth in the past, and that she completed her task successfully on that occasion. She understands her obligations as a surety, and she will contact police if Firth fails to follow her direction.

[119] Given all these factors, I find that the proposed plan of release is sufficient to address the concerns of the court. I find that on a balance of probabilities Firth has met his onus on the secondary ground.

The Tertiary Ground

[120] The tertiary ground, set out in s. 515(10)(c), states that the detention of an accused in custody is justified “if the detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances.” As part of “all the circumstances” the legislation specifically lists four factors for consideration, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the potential for a lengthy term of imprisonment.

[121] It is the position of the Crown that members of the public would lose confidence in the administration of justice if Firth was released pending trial given Firth’s extensive history of criminal behaviour. I accept that the Crown’s submission would have considerable weight if there were no other factors involved in this application.

[122] I acknowledge that two of the four enumerated factors under the tertiary ground tend to favour the Crown’s position. That is, the Crown’s case has modest strength, and there is potential for a lengthy term of imprisonment. In my view, the gravity of the offence and the circumstances surrounding the commission of the offence are not significant factors in this part of my analysis.

[123] Moreover, the legislation specifically provides that a bail court must consider “all the circumstances” in the analysis of the tertiary ground. In my opinion, the most significant non-enumerated factor that falls under the phrase “all the circumstances” is the effect of the COVID-19 pandemic.

[124] I find that, given the current COVID-19 pandemic, it would be a rare case in which the public would lose confidence in the administration of justice if an accused person, who is presumed to be innocent, is released from custody pending trial to reduce the risk of that accused contracting the COVID-19 virus where the release plan includes supervision by a strong surety and restrictive conditions that amount to house arrest.

[125] There are several previous court decisions that have echoed the same sentiments about the effect of the COVID-19 pandemic on the analysis of the tertiary ground. I accept and adopt the statement made by Schreck J. in R. v. J.R., 2020 ONSC 1938, at para. 47:

In my view, during this pandemic, reasonable members of the public would expect the courts to give significant weight to the public health implications of incarcerating individuals. Obviously, there will be some people who cannot be released notwithstanding the pandemic. However, in my view, while this pandemic is ongoing, where a person’s detention is not required on the primary or secondary ground, detention on the tertiary ground alone will rarely be justified.

[126] I also adopt the following statement by Harris J. in R. v. Rajan, 2020 ONSC 2118, at para. 39:

The simple fact is that a reasonable and informed member of the public would be wary of keeping alleged offenders in pre-trial custody for the sole purpose of advancing confidence in the system of justice. The dangers to the prison population--both inmates and staff--posed by the risk of contagion have reordered the usual calculus.

[127] Further, in the present bail review application, the predominant concern of the court is the possibility that Firth will commit criminal offences if he were released pending trial. As discussed in my analysis of the secondary ground, the defence has proposed a credible restrictive plan of release that, on a balance of probabilities, addresses that concern.

[128] For these reasons, I find that a fully informed member of the public would not lose confidence in the administration of justice if Firth were released pending trial on the proposed plan of release. Therefore, I find that, on a balance of probabilities, Firth has met his onus on the tertiary ground.

Conclusion

[129] In conclusion, I find that Firth has met his onus with respect to all three grounds. Firth has proved on a balance of probabilities that, in consideration of the proposed plan of release, it is not necessary to detain him in custody pending trial. Therefore, Firth will be released on a recognizance with a surety on conditions.

[130] Ms. Thorpe has testified that she has savings of about $2,000, and that her only other asset is her car. She has limited income at the present time. She proposes to pledge $2,500 as a surety, which essentially amounts to her life savings. I am prepared to accept that pledge.

[131] For these reasons, I hereby order that Firth is to be released from custody pending trial on a recognizance in the amount of $2,500, with a surety on conditions as follows:

1. Clarissa Thorpe will be Firth’s surety in the amount of $2,500.
2. Firth will reside with the surety at the surety’s residence at #201-892 Second Avenue East, Owen Sound, Ontario.
3. Firth shall obey all of the rules of the household as directed by the surety.
4. Firth shall remain in the residence and shall not leave the residence except in the presence of the surety, or in the event of a medical emergency involving himself or a member of his immediate family.
5. Firth shall report every Monday, between the hours of 9:00 a.m. and 5:00 p.m. to the Owen Sound detachment of the Ontario Provincial Police located at 922 Second Avenue West, Owen Sound, Ontario.
6. Firth shall present himself to police within five minutes of the request of any police officer.
7. Firth shall not consume or possess any illegal drug, controlled substance, or medication without a valid prescription.
8. Firth shall participate in any treatment or counselling as directed by the surety, including, but not limited to, counselling at M’Wikwedong Native Cultural Resource Centre, and sign any releases required to permit the surety to monitor his progress.
9. Firth shall not possess any weapons or firearms as defined by the Criminal Code.
10. Firth shall not communicate with or contact, directly or indirectly, April Pare.
11. Firth shall not associate with any person not approved in advance by the surety.
12. Firth shall not attend at 38 Richmond Street, St. Catharines, Ontario.
13. Firth shall not travel to the Regional Municipality of Niagara except to attend court, and in such case, he will travel directly to the appropriate courthouse, and he will travel out of the Regional Municipality of Niagara immediately upon the conclusion of the court attendance.

_____________________”electronic signature” J. R. Henderson J.

Dated: May 29, 2020

[1] R. v. Gladue, [1999] 1 S.C.R. 688.