Court File and Parties
COURT FILE NO.: 20-1-037 DATE: 2020-06-05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – C.T.
COUNSEL: Sonya Andersen, for the Crown Juan Lopez, for C.T.
HEARD: March 12 & June 1, 2020
DECISION ON CROWN BAIL REVIEW
P.J. Monahan J.
[1] CT was arrested on November 21, 2019 and charged with six counts of trafficking a restricted firearm and one count of possessing a restricted firearm for the purpose of trafficking that firearm, contrary to ss. 99 (1) and 100 (1) of the Criminal Code, respectively. He was released on bail on January 24, 2020. The Crown applies under s. 521 to review the decision of the justice of the peace to release CT.
[2] This matter was originally heard on March 12, 2020, with judgment scheduled to be delivered the week of March 17, 2020. However, in the interim, all matters in the Superior Court were adjourned as a result of the COVID-19 pandemic.
[3] The court heard supplementary submissions from the parties via teleconference on June 1, 2020, focusing on the impact of the COVID-19 pandemic on the tertiary grounds for detention under s. 515 (10) of the Criminal Code.
[4] As described below, I find that there has been a material change in circumstances subsequent to the January 24, 2020 release order. I further find that the bail justice erred in her characterization of the offences with which CT is charged. On this basis, it is appropriate to conduct a de novo hearing on the question of whether CT should be detained pending his trial.
[5] Turning to that question, I conclude that there are no primary or secondary ground concerns which would justify CT’s detention prior to trial. CT has been under house arrest at his mother’s home in Petawawa, Ontario for over four months, without incident.
[6] With respect to the tertiary grounds, the four criteria identified in s. 515 (10) (c) all favour CT’s detention. However, the strong plan of release, coupled with the fact that CT has demonstrated through his behaviour that there is no substantial likelihood that he will commit further offences while released, are significant considerations favouring CT’s continued release under the tertiary ground.
[7] The COVID-19 pandemic is also a relevant consideration in relation to the tertiary ground. I recognize that the Ministry of the Solicitor General (the “Ministry”) has put in place strict protocols and procedures which have been largely successful in limiting the introduction and/or spread of COVID-19 in the province’s correctional institutions. Nevertheless, it will be many months before CT’s trial can be held, during which time there remains a substantial risk that he might contract COVID-19 if he were returned to a correctional facility. I find this to be a relevant consideration in assessing whether CT’s continued release on bail would undermine public confidence in the administration of justice.
[8] On balance, I find that permitting CT to continue to reside under house arrest with his mother in Petawawa, Ontario would not undermine public confidence in the administration of justice.
[9] The Crown’s application is therefore dismissed.
Background Facts
[10] Following an investigation into alleged drug trafficking activity, on November 20, 2019, members of the Toronto Police Service ("TPS") executed a search warrant at the apartment where Connor Vorps resided, which was located in the Avenue Road and Wilson Avenue area of Toronto. As a result of that search, Mr. Vorps was arrested for possession of various narcotics and possession of firearms.
[11] Amongst the firearms seized from Mr. Vorps’ apartment were five restricted handguns, which were registered to CT. CT had lawfully purchased these handguns on October 15, 2019, at the G4C Gun Store in Markham, Ontario (“G4C”), pursuant to a Possession and Acquisition License (“PALS”) issued under the Firearms Act and associated regulations.
[12] Also seized from Mr. Vorps’ apartment were five identical Kel Tec semi-automatic 9 mm folding rifles. These rifles had been lawfully purchased by CT, pursuant to his PALS, on November 17, 2019 from Al Flaherty’s Outdoor Store on Dufferin St. in Toronto (“Al Flaherty’s”), for $4800 in cash. However, these five rifles had not been registered under the Firearms Act.
[13] During the search at Mr. Vorps’ apartment, police identified a storage locker at 4500 Chesswood Drive in Toronto and seized the key for it from Mr. Vorps. Believing it to contain further evidence of drug-related activity, officers sought and were granted a search warrant for that storage unit.
[14] The search of the storage unit yielded a total of 1916 rounds of various calibre ammunition, including ammunition suitable for the firearms seized from Mr. Vorps’ apartment. The storage unit also contained two unregistered long guns, whose origin has not yet been determined, and significant amounts of illicit drugs.
[15] As a result of these seizures, members of the Toronto Police Service-Firearm Enforcement Unit commenced an investigation into CT. CT’s registered address was on Lakeshore Drive in Etobicoke, Ontario. He was found to be the holder of a valid PALS and had 26 firearms registered in his name. There was no known connection between CT and Mr. Vorps.
[16] CT’s registration certificate required him to store the firearms at his residence on Lakeshore Drive. TPS officers confirmed that the Chief Firearms Office of Ontario had received no information regarding any lawful transfer or theft of any registered firearms from CT. Nor had there been any reports of any break-ins at his apartment. Further, CT has not made any changes to his address for lawful storage.
[17] TPS officers obtained and executed a search warrant for CT’s residence on November 21, 2019. Although CT was not home at the time the warrant was executed, his girlfriend, CDF, was present. She advised police that she had lived at that address with her boyfriend CT since September 2017. There had been no break-ins or thefts at their home.
[18] As a result of the search, police seized a Glock 9 mm handgun found under the bed in the bedroom as well as an Airsoft pistol found in a safe in the apartment. CDF indicated that she was aware of the firearm under their bed but did not know that CT had any other firearms and had never seen another one in their apartment.
[19] Police also executed a search warrant on CT’s vehicle, where they located a certificate of ownership for five Kel-Tec semi-automatic rifles. The serial numbers for these rifles matched the serial numbers for the rifles which CT had purchased four days earlier from Al Flaherty’s and which had been seized from Mr. Vorps’ apartment the day before.
[20] Police were unable to locate 20 of the 26 firearms registered to CT and which were required to be stored at his apartment. Eighteen of the missing registered firearms are handguns, while two are semi-automatic rifles (Omni Hybrid AR-15s) purchased by CT on September 24, 2019 from G4C. Police have also been unable to locate a non-registered Kel-Tec semi-automatic rifle purchased by CT on August 12, 2019. This unlocated rifle is an identical model to the five Kel-Tec semi-automatic rifles seized from Connor Vorps during the search of his apartment on November 20, 2019.
[21] In addition, police determined that between the months of July and October 2019, CT had purchased at least 4700 rounds of ammunition from G4C. He had also purchased a Radelli Gatekeeper 12-gauge shotgun on September 18, 2019 and a Canuck Enforcer 12-gauge shotgun on October 6, 2019. These shotguns are classified as long guns and, as a result of the enactment of the Ending the Long-gun Registry Act, S.C. 2012, c. 6, are not required to be registered. The whereabouts of this ammunition and these two shotguns are unknown.
[22] Police estimated that the total value of CT’s lawful purchases of firearms and ammunition between July and November 2019 was approximately $50,000.
[23] CT was arrested and charged on November 21, 2019.
CT’s Background
[24] CT is 31 years old. He is a Canadian citizen with a limited criminal record, having been convicted of three counts of theft under $5,000 in 2013. He received a six-month conditional sentence for these offences, which he served without incident.
[25] Prior to his arrest, CT had been employed laying floors in Toronto for six to seven years. His income from employment is approximately $35,000 per year. He lived with his girlfriend, CDF, at an apartment on Lakeshore Drive in Etobicoke. He had been raised by his mother, BN, for most of his life, but had been living apart from her for the past 2.5 years, following her retirement and move to Petawawa, Ontario. He had obtained a PALS, which enabled him to lawfully make the purchases of firearms and ammunition described above.
The Bail Hearing and Release Decision
[26] At the bail hearing, it was common ground that this was a “reverse onus” situation, given that CT had been charged with offences identified in s. 515 (6) (a) (vi) of the Criminal Code. The Crown opposed CT’s release on both the secondary and tertiary grounds identified in s. 515 (10).
[27] The plan of release proposed by CT was that he would reside with his mother, BN, who would serve as his surety. BN is 58 years old and has no criminal record. In her evidence at the bail hearing, she indicated that since she is retired, she could devote her full attention to the supervision of CT. She also agreed to pledge $100,000, based on the fact that she owns her two-bedroom home in the Petawawa area outright.
[28] BN indicated that she has always had a good relationship with her son and that he listens to her. Since her move to Petawawa, she speaks with CT two or three times a week. CT would not be allowed to have a cell phone and BN would monitor him when he used a computer. It was further argued that, given the distance between Petawawa and the Greater Toronto Area, CT would not be in a position to continue his involvement with any of his prior associates.
[29] In her decision released on January 24, 2020, the justice of the peace concluded that CT should be released largely on the conditions proposed at the bail hearing. The justice noted that this was a reverse onus situation. In her analysis of the secondary grounds for detention, namely, whether detention was “necessary for the protection or safety of the public”, Her Worship pointed out that CT had a limited criminal record and had not been convicted of any violent crimes. While acknowledging that “guns are a big worry for everyone in the city” and that “there are too many people walking around with loaded weapons”, the justice found that “this is not the case here”. CT had a firearms acquisition license for the weapons that were found and the serial numbers on those weapons were clearly visible. Although the guns should have been stored in CT’s residence on Lakeshore Drive rather than in Mr. Vorps’ apartment on Avenue Road, “they were not found loaded on his person in the community, nor were they found on anyone else out in the community.”
[30] Turning to the tertiary ground, whether detention is necessary “to maintain confidence in the administration of justice”, the justice observed that within a span of a few months, CT had purchased at least 31 handguns and rifles along with about 200 pounds of ammunition. The fact that these purchases had been made by someone earning $35,000 a year was “a bit surprising.” The justice also acknowledged that the Crown’s case was strong. However, the firearms purchases had been made legally, as there appears to be no limit on the number of firearms a person can acquire as long as he or she has the necessary acquisition certificate or license. While Her Worship recognized that there is a concern over what CT intended to do with all of the weapons and ammunition he had purchased, “the court can only consider the charges that are before it, not what might happen in the future.” The charges are concerned with CT “not storing the guns where he was permitted to, namely his own home.”
[31] In concluding that CT should be released, Her Worship noted that he had never been charged with a violent offence, for having been in possession of a loaded weapon in public, or for obtaining a weapon illegally. The weapons that were found were not being used and there had been no attempt to scratch out the serial numbers. In Her Worship’s view, the Crown’s concerns on both the secondary and tertiary grounds could be addressed by the close supervision provided by BN.
[32] Amongst the terms of release was that CT should deposit any weapons in his possession with the police within 48 hours. No firearms or other weapons were deposited with the Toronto Police by CT or on his behalf.
The Crown’s Review Application
[33] The Crown seeks a review of the release order, pursuant to s. 521 of the Criminal Code.
[34] The principles governing such a review are those set out by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27. As Wagner J. (as he then was) observed in St-Cloud, s. 521 does not grant reviewing judges an open-ended discretion to substitute his or her decision for that of the bail justice. There are three circumstances in which a reviewing court may intervene;
a. if the impugned decision was based on an error of law; b. if the decision was “clearly inappropriate”, in that the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another; or c. if there is new evidence that shows a material and relevant change in the circumstances of the case.
[35] The Crown applies for review on the basis of all three grounds identified in St-Cloud.
a. Material change in circumstance
[36] The assessment of whether a material change in circumstances exists in a particular case depends upon the actual considerations that underpinned the bail justice's refusal of bail. The issue is whether the change in circumstances is relevantly material in light of those considerations. R. v. Whyte, 2014 ONCA 268, at para 26.
[37] The Crown notes that in the event that the evidence shows a material and relevant change in the circumstances of the case, the reviewing court must undertake the analysis under s. 515 (10) as if it were the initial decision maker.
[38] In this case, the new evidence consists of the fact that one of the 20 firearms registered to CT that were unaccounted for at the time of his release has subsequently been recovered.
[39] The firearm in question is a handgun that was seized on February 11, 2020 in conjunction with the arrest by Halton Police of three individuals who are suspects in a number of armed bank robberies in the Greater Toronto Area. The vehicle in which the bank robbery suspects were driving had a loaded restricted firearm, namely a Glock GEN4 model 22, hidden under the driver’s seat. Although the serial number on the Glock had been defaced, a firearms expert was able to recover the serial number from the firearm. It matched one of the missing firearms registered to CT, which he had purchased on September 19, 2019 from G4C.
[40] There is no known association between CT and the three individuals arrested on February 11, 2020.
[41] The Crown notes that this new evidence is material and relevant since a key component in the reasons of the bail justice was that the firearms purchased by CT were “not being used” and that there had been no attempt to scratch out their serial numbers. The justice of the peace further emphasized the fact that the firearms were “not found loaded on his person in the community, nor were they found on anyone else in the community.” The circumstances surrounding the seizure of the Glock GEN4 handgun on February 11, 2020 directly contradict these facts relied upon by the bail justice in her decision to release CT. The Crown argues that if such facts had been known to the bail justice, her decision may well have been different. As such, the new evidence satisfies the test for a material and relevant change of circumstance.
b. Error of Law
[42] The Crown alleges that the bail justice made a number of errors law, including the following:
i. applying the wrong onus, by failing to recognize that CT had the burden of showing why his detention in custody was not justified; ii. misstating the tests under s. 515 (10) (b) and 515 (10) (c) and conflating the two in her analysis. In particular, the bail justice failed to consider the four specific factors identified in s. 515 (10) (c) as relevant to the question of whether the detention of CT was necessary to maintain confidence in the administration of justice; and iii. misapprehending the law in relation to firearms trafficking. In particular, the bail justice misunderstood the allegation against CT to be that he had failed to properly store firearms which he had lawfully purchased. In fact, the Crown’s allegation was that CT had exploited his position as a person licensed to purchase and possess firearms in order to legally purchase a large number of firearms (and ammunition), which he then illegally transferred to others, including Connor Vorps, for criminal purposes.
c. Crown submission that the Release Decision was “Clearly Inappropriate”
[43] A bail decision will be “clearly inappropriate” if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. St-Cloud, at para 121. However, reviewing judges are not permitted to substitute their weighing of the relevant factors in place of that undertaken by the bail justice. Reviewing judges should adopt a deferential approach and intervene only in cases where there is “some demonstrable error or problem in the handling and balancing of relevant and irrelevant factors” by the bail justice. R. v. Dang, 2015 ONSC 4254 at para. 37.
[44] In this case, the Crown alleges that the bail justice gave excessive weight to the role of the surety in supervising CT. The justice also overemphasized the fact that the firearms were purchased legally and that there is no limit on the number of firearms or ammunition a person is permitted to buy. Conversely, the justice failed to consider the threat to public safety posed by firearms trafficking. CT is alleged to have provided firearms to criminals, including an alleged drug trafficker, by taking advantage of the fact that he could lawfully purchase handguns and semi-automatic rifles. The Crown contends that the bail justice failed to appreciate that such activity poses a major threat to public safety.
d. Crown Evidence on COVID-19
[45] The Crown introduced evidence outlining the impact of COVID-19 on inmates and staff in the province’s 25 correctional institutions (collectively, the “Crown COVID-19 Evidence”). The Crown COVID-19 Evidence included the following: (i) a May 26, 2020 Information Note from the Ministry, which provided an overview of the Ministry response to COVID-19 as of that date; (ii) a May 13, 2020 letter from Donata Calitri-Bellus, the Superintendent of Toronto South, setting out additional information relating to the specific circumstances at Toronto South; (iii) the transcript of evidence of John Marchant, the Deputy Superintendent of Toronto South, from a bail hearing held on May 20, 2020 before Molloy J.; and (iv) an affidavit of Danuta Raskiewicz, the Health Clinic Manager at Toronto South.
[46] The Crown COVID-19 Evidence indicates that immediately upon the declaration of a provincial state of emergency in the middle of March 2020, the Ministry began aggressively reducing the inmate population in the province’s correctional institutions. As of May 26, 2020, there were just under 5800 inmates registered in custody in Ontario. While this is a slight increase from the daily count from earlier in May 2020, it nevertheless represents a 31 percent reduction since March 16, 2020, and the inmate population in Ontario’s jails remains at its lowest level since 1986. R. v. B.M.D., 2020 ONSC 2671 at para 39. At Toronto South, the inmate population has been reduced from just under 1300 to approximately 840, plus 100 inmates that were transferred from the Ontario Correctional Institute (the “OCI”) in mid-April 2020 (as explained below). Whereas a typical unit in Toronto South would normally have an operating capacity of 40 inmates, those units are now housing 23 to 25 inmates, with most of those individuals occupying single cells.
[47] It is evident that the Ministry has put in place a number of strict protocols and procedures intended to limit the introduction and/or spread of COVID-19. There is a particular focus on controlling and screening those entering a correctional facility. For example, at Toronto South, all inmates are screened when they are admitted to the institution and, if they do not pass the screening process, they are placed in medical isolation. Even those inmates who do pass the screening process are placed in an intake unit for a minimum of 14 days and monitored for symptoms before they are moved into the general inmate population. All newly admitted inmates are also provided with a voluntary COVID-19 test by their 10th day in custody. Correctional staff have also reduced any unnecessary movement within a correctional facility. Thus, inmates who are housed within a particular unit in a facility tend to remain within that unit, thereby reducing the risk of introducing or spreading COVID-19 within the unit.
[48] In mid-April 2020, there was a significant outbreak of COVID-19 at the OCI, with about three quarters of the inmates and a significant number of staff testing positive. Inmates at OCI are housed in a dormitory setting with shared cafeteria facilities and shared programming areas such as gyms and recreation facilities. As a result of this COVID-19 outbreak, the OCI was temporarily closed on April 17, 2020 and all 112 inmates were transferred to Toronto South. The transferred OCI inmates were placed in medical isolation in a separate part of Toronto South and Toronto Public Health took carriage of the file. On May 12, 2020, the OCI outbreak was deemed resolved by Toronto Public Health, with no institutional transmission of cases inside Toronto South.
[49] 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 26, 2020, there were a total of 12 positive inmate cases and 30 positive staff cases across the province’s institutions, with the vast majority of correctional facilities having no active cases amongst either inmates or staff. Significantly, at Toronto South, the province’s largest correctional facility, there has been no incidence of internal transmission of COVID-19, either from officer to inmate or from inmate to inmate, within the facility.
e. Toronto Shooting Statistics
[50] The Crown introduced statistics compiled by the TPS summarizing the numbers of shooting occurrences and related victims in the City of Toronto, dating back to 2004 and current to May 2020. These statistics show that between 2005 and 2014, the number of shootings and victims in Toronto either stayed constant or declined somewhat. However, since 2015, there has been a significant increase in shooting incidents recorded by TPS and, in 2019, there were a record number of shooting occurrences and related victims. Thus far in 2020, despite the COVID-19 pandemic, the number of shootings and victims in the City of Toronto is similar to the pattern of the past five years.
Position of the Respondent CT
[51] CT argues that the decision of the bail justice did not proceed on the basis of an error of law, nor was it clearly inappropriate.
[52] CT argues that the release conditions imposed by the bail justice addressed the secondary and tertiary ground concerns identified by the Crown. The fact that the presiding justice may have failed to articulate a detailed analysis and did not expressly refer to all of the factors that led to her ultimate decision is immaterial. When her ruling is considered functionally, in the context of all her reasons, it is clear that she addressed all the relevant factors sufficiently.
[53] In particular, the justice considered the following factors:
a. the fact that CT had an unrelated criminal record from 2013; b. the surety’s background; c. the plan of release that was proposed; d. the $100,000 pledge from BN, which was found to be meaningful and sufficient; e. whether there was a substantial likelihood that CT would commit further offences; f. the need to ensure the protection of the public; g. the evidence against CT and the strength of the Crown’s case; h. the gravity of the offence and the potential for a lengthy jail sentence; and i. the public’s confidence in the administration of justice.
[54] CT submits that the justice’s decision was neither clearly inappropriate nor did it proceed on the basis of an error of law. CT’s only criminal record was an unrelated matter from 2013. He was released to his mother, who presented well and was not challenged in cross-examination in a way that would indicate she was an inappropriate surety. The plan imposed was for house arrest and a $100,000 residential surety bail.
[55] The justice made this decision after hearing 1.5 days of evidence and submissions and reserving her decision for 17 days. Her decision is entitled to deference. Unlike a reviewing court, the presiding justice has the best opportunity to consider the allegations and the evidence of BN, the respondent’s surety.
[56] Nor is there a material change in circumstances that, had it been known at the time, would have affected the result in this case. The strong plan of release, particularly the ability of the surety, to supervise CT, is not affected by the seizure of the handgun in February 2020 by Halton Police.
[57] After taking into account the entirety of the record, and the reasons that were ultimately rendered for his release, CT submits that the decision was a reasonable one. It does not reflect an error of law and it falls significantly short of the “clearly inappropriate” standard as described in St-Cloud.
[58] However, in the event that the court were to find a material change of circumstances justifying a de novo analysis of whether CT should be detained, he argues that his continued release on bail is justified. There are no concerns arising under either the primary or secondary grounds for detention in s. 515 (10). This is evident from the fact that he has been living with his mother in Petawawa, Ontario for more than four months without incident.
[59] CT argues that the risk of COVID-19 is an appropriate consideration under the tertiary ground. In particular, he argues that where there are no concerns under the primary or secondary grounds, the serious risks posed by the COVID-19 pandemic will favour release under the tertiary ground. In addition, the indeterminate delay in the courts created by COVID-19 is a further concern, beyond the threat of the virus itself, that the court must weigh in favour of CT’s release.
Review of Release Order
a. Material Change in Circumstances
[60] In determining whether there has been a material change in circumstances, the issue to be determined is whether the new evidence materially calls into question the continued validity of the reasons for detention. The new information must be relevant and bear on a decisive or potentially decisive issue, such that it could have affected the result.
[61] The bail justice emphasized the fact that the firearms registered to CT were not found loaded on his person in the community, nor were they found on anyone else in the community. Her Worship also relied on the fact that there were no attempts to scratch out the serial numbers on any of the firearms.
[62] The seizure of the Glock GEN4 model 22 firearm by Halton Police on February 11, 2020 bears directly on these circumstances relied on by the bail justice. The Glock GEN4 model 22 was found in a vehicle being driven by three suspected bank robbers. The firearm was loaded, and its serial number had been scratched off. As such, it can no longer be said that the firearms registered to CT were not found in the community, nor can it be said that the firearms were not loaded and had their serial numbers intact.
[63] Given the reasons articulated by the justice, it is clear that these new facts may well have affected her decision. I therefore find that the evidence provided by the Crown qualifies as a material and relevant change in the circumstances of the case, necessitating a fresh assessment by this Court of whether CT’s detention is justified.
b. Error of Law
[64] While this material and relevant change in the circumstances is sufficient for this Court to consider anew whether CT’s detention is justified, I further find that the bail justice made an error of law in her characterization of the offences with which CT is charged.
[65] The bail justice noted that if CT had been in possession of a weapon while committing an offence, then concerns raised by the Crown over the threat firearms pose to public safety would have been relevant. However, Her Worship found that these concerns did not apply because the firearms were not being used. Nor had CT ever been charged with a violent offence, or with possession of a loaded weapon in public. The bail justice found these facts to be relevant in her analysis of both the secondary as well as the tertiary grounds for detention under s. 515 (10) of the Criminal Code.
[66] In fact, CT is charged with having transferred firearms to Mr. Vorps, knowing that he had no authority to do so, in circumstances where the logical inference is that Mr. Vorps was intending to use firearms for a criminal purpose. This offence, by its very nature, involves the unlawful use of a firearm, namely, the act of transferring the firearm with knowledge that such a transfer is unlawful. This conclusion is reinforced by the fact that Parliament regards trafficking in firearms as being sufficiently serious that any person charged with this offence must show why their detention in custody is not justified. It follows that trafficking in firearms must be an offence involving the use of the firearm, within the meaning of s. 515 (10) (c) (iii). See R. v. Abdullahi, 2013 ONSC 4873 at pp 17-18. See also R. v Steele, 2007 SCC 36 at para 31, which found that merely possessing a firearm cannot be considered to be “using the firearm” while committing an offence for purposes of s. 85 of the Code. In contrast, trafficking in a firearm contrary to s. 99 goes beyond merely possessing it, and it involves the act of transferring it to another person, knowing that such a transfer is not authorized.
[67] I therefore find that the bail justice erred in her characterization of the offences with which CT is charged as not involving the use of a firearm. This constitutes an error of law that calls into question the validity of her findings on the secondary and tertiary ground.
Should CT Be Detained?
a. The Secondary Ground (s. 515 (10) (b))
[68] The issue here is whether CT has shown that his detention is not necessary for the protection or safety of the public, including any substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[69] The bail justice found that BN is a responsible surety who is in a position to closely supervise CT. Her Worship was confident that BN would be able to ensure that CT abided by the conditions of his release. Also relevant is the fact that BN resides in Petawawa, which is a substantial distance away from the Greater Toronto Area. This means that CT would no longer be in a position to transfer any further firearms to any of his prior associates.
[70] I see no reason to interfere with any of these findings, as they are based on the bail justice’s observation and assessment of BN.
[71] What of the fact that there are 19 firearms registered to CT, as well as a further Kel Tec rifle he purchased, which have still not been located? These firearms could well be in the possession of others who intend to use them to commit further criminal offences.
[72] As will be discussed below in relation to the tertiary ground, I regard the fact that these firearms are unaccounted for and could be used (or may, indeed, have already been used) in connection with other criminal offences, to be a matter of concern. Nevertheless, the focus of analysis under the secondary ground is whether the release of CT would give rise to concerns relating to the protection or safety of the public. In particular, the court is to consider whether there is any substantial likelihood that CT will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[73] I fail to see how CT’s release from custody would make it either more or less likely that these unaccounted-for firearms will be used by others to commit further criminal offences. If the firearms are already in the hands of third parties, who intend to use them to commit crimes, their ability to realize those intentions will be neither facilitated nor frustrated by CT’s detention or release.
[74] The other possibility to consider is that CT has not yet transferred the firearms to third parties and still has them, directly or indirectly, in his own possession or control. Once again, however, any potential threat to public safety from these firearms would not be increased by CT’s release from custody. CT would not be in a position to access those firearms directly while he is living with his mother in Petawawa. If the concern is that CT could indirectly access the firearms by relying on intermediaries to transfer them to third parties, he would be able to do so regardless of whether he is in or out of custody.
[75] These conclusions are reinforced by the fact that CT has been living with his mother in Petawawa, Ontario for over four months without incident. He has attended court as required. In short, I see no reason to disturb the justice of the peace’s conclusion that the detention of CT is not necessary to ensure his continued appearance in court or for the protection or safety of the public. I find CT has met his burden in relation to the primary and secondary grounds.
b. The Tertiary Ground (s. 515 (10) (c))
[76] In assessing whether an accused’s detention is necessary to maintain confidence in the administration of justice, s. 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.
[77] However, while the court must pay particular attention to these four circumstances, these factors are not exhaustive. Moreover, even if all four of these enumerated circumstances support a detention order, detention of the accused should not automatically follow. 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. St-Cloud, at para 87.
[78] I turn first to an analysis of the four circumstances expressly identified in s. 515 (10) (c), before considering other factors relevant to the tertiary ground.
1. The apparent strength of the prosecution’s case
[79] As noted by the justice of the peace, the Crown has a strong case against CT. In the space of a few months, CT purchased dozens of firearms along with approximately 200 pounds of ammunition. He had no involvement in hunting, competitive shooting, or any other legitimate reason for possessing such a large number of firearms or ammunition.
[80] What is particularly concerning is that many of CT’s purchases were of significant quantities of identical firearms. For example, on November 17, 2019, CT purchased five identical Kel Tec semi-automatic rifles for $4800 in cash. Three days later, these rifles had made their way into the hands of Connor Vorps, who has been charged with drug trafficking. The logical inference from these facts is that CT purchased the rifles with the intention of transferring them to Mr. Vorps, in order to facilitate the latter’s criminal activity.
[81] In oral argument, counsel for CT suggested that the defence of duress may be available to his client. It would not be appropriate to speculate as to what evidence will be adduced at trial. Suffice to say that at this stage of the proceedings, there is no evidence on the record that would suggest that the defence of duress could be successfully pursued at trial.
[82] I conclude that at this point, the Crown’s case against CT would appear to be strong.
2. The gravity of the offences
[83] There can be little doubt that trafficking in firearms is an extremely serious offence. This type of activity underpins and facilitates a wide variety of violent crime in the community. As Trafford J. noted in his reasons for sentence in R. v. Abdullahi, 2015 ONSC 4163, those who buy and sell firearms do so for their own personal gain, even though they are fully aware of “the risk of serious bodily harm or death inherent in their eventual use on the streets in connection with drug deals, robberies, homicides and other crimes of violence.” For this reason, it is appropriate that trafficking of firearms “attract the same emphasis on general deterrence and specific deterrence and denunciation as do the crimes of violence committed by the actual users of the firearms.” Abdullahi, at page 18.
[84] In assessing the objective gravity of an offence, it is appropriate to consider the maximum and minimum sentence, if any, provided for in the Criminal Code. St-Cloud, at para 60. The maximum penalty for firearms trafficking is a 10-year term of imprisonment, while the minimum penalty in the case of a first offence is a three-year term of imprisonment and, in the case of a second or subsequent offence, a five-year term of imprisonment.
[85] I conclude that the offences with which CT is charged are extremely grave.
3. The circumstances surrounding the commission of the offence, including whether a firearm was used
[86] I have already found that trafficking in firearms is an offence involving the use of a firearm within the meaning of s. 515 (10) (c) (iii). What makes the circumstances in this case particularly concerning is that CT appears to have taken advantage of the fact that he had a right to lawfully purchase firearms and ammunition, in order to acquire large numbers of firearms and ammunition with the intention of transferring those who intended to use them for criminal purposes.
4. The fact that the accused is liable for a potentially lengthy term of imprisonment or, in the case of an offence that involves a firearm, a minimum punishment of imprisonment for a term of three years or more
[87] As noted above, the minimum term of imprisonment for weapons trafficking is three years. This means that the firearms offences with which CT has been charged fall within the category of offences identified in s. 515 (10) (c) (iv).
[88] In summary, all four of the enumerated factors in s. 515 (10) (c) tend to support the detention of CT.
[89] Nevertheless, as St-Cloud indicates, this is not the end of the analysis under the tertiary ground. In my view, there are two additional factors which tend to favour CT’s release, and to which I now turn.
5. The release plan has been successfully in place for over four months
[90] As Trotter J. (as he then was) found in R. v. Dang, 2015 ONSC 4254 at para. 58, a strong plan of release is relevant in assessing whether the release of an accused person would undermine public confidence in the administration of justice. This is because, as Trotter J. observed, a reasonable and knowledgeable member of the community would tend to have significantly less concerns with the release of an accused where there is a strict plan to monitor his or her compliance with the conditions of release.
[91] In this case, not only is there a strict plan of release, but that plan has been successfully implemented since late January 2020. The fact that CT has been living under house arrest with his mother for over four months in Petawawa, Ontario without incident is an important consideration supporting public confidence that CT’s continued bail release will not undermine the administration of justice.
6. The Impact of COVID-19 on the Tertiary Ground
[92] I further find, consistent with an extensive and continuing body of jurisprudence of this Court, R. v. J.S., 2020 ONSC 1710; R. v. T.L., 2020 ONSC 1885; R. v. Hassan, 2020 ONSC 2265, that the COVID-19 pandemic is an additional factor favouring release under the tertiary ground.
[93] In making this finding, I recognize that the Ministry has been largely successful thus far in controlling the introduction and/or spread of COVID-19 in provincial correctional facilities. The protocols currently in place appear to have been successful in identifying anyone who might be positive for the virus and, in cases where individuals are identified as positive, isolating them so as to prevent any further spread within an institution. Movement within facilities is also being strictly monitored and controlled, and any non-essential entry into or exit from an institution has been eliminated.
[94] At the same time, it should also be acknowledged that the ability to control the spread of COVID-19 in provincial correctional facilities has been facilitated by the fact that in-person trials in both the Superior Court and the Ontario Court of Justice have been suspended for the past 10 weeks. As a result, there has been no necessity to transport individuals who are in custody to and from court on a daily basis. Once such trials do resume, it will be necessary to resume the daily movement of significant number of inmates to and from court. This will increase the risk of such inmates being exposed to the virus and, in turn, introducing it into provincial facilities upon their return.
[95] This does not necessarily mean that there will be a significant spread of COVID-19 within provincial correctional facilities upon the resumption of in-person trials. No doubt the Ministry, in collaboration with correctional staff, will develop and implement new measures to deal with any emerging risks. The point is simply that circumstances within provincial correctional facilities are fluid and evolving, as is our understanding and knowledge of the COVID-19 virus. Despite the Ministry’s success thus far in responding to COVID-19, evolving circumstances mean that there will continue to be a risk of exposure to the virus by both inmates and staff.
[96] As a number of decisions of this Court have found, the COVID-19 pandemic is not a determinative or conclusive factor under the tertiary ground. Nevertheless, given the ongoing risk posed by the virus within provincial correctional facilities, it remains a material consideration in the assessment of whether public confidence in the administration of justice would be undermined by the release of an accused person from custody. This is regardless of whether the individual in question has a pre-existing medical condition that places them at heightened risk if they contract the virus.
7. The Relevance of the Shooting Statistics Tendered by the Crown
[97] As discussed above, the Crown tendered statistics compiled by the TPS setting out the number of shooting occurrences and related victims in Toronto since 2004. The question that arises is the relevance of such statistics to the tertiary ground for detention in s. 515 (10).
[98] Decisions to detain or release an accused person require consideration of the particular circumstances of an individual case in light of the relevant law. This is so, even where, as here, the decision turns on a consideration of whether the detention of the accused is necessary in order to maintain confidence in the administration of justice. This is clear from the wording of s. 515 (10) (c), which instructs the court to have regard to the “circumstances of the case”. The context-specific nature of the exercise is reinforced and confirmed by the comments of Wagner J. (as he then was) in St-Cloud, to the effect that the task of the justice under s. 515 (10) (c) is to determine 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.” St-Cloud, at para 69 (emphasis added).
[99] In my view, statistics that show either an overall increase or decrease in shooting occurrences and victims over a particular time period have a limited role to play in such an analysis. By their very nature, such statistics reflect overall societal trends and, as such, do not bear directly upon the particular circumstances of an individual case. This kind of statistical information is no doubt relevant and important for police, government and Parliament, as they attempt to grapple with the significant and pressing problem of gun violence. But the role and obligation of a court under s. 515 (10) is rather different. The distinctive judicial role is to determine whether this accused should be detained based on the particular circumstances of this case, rather than on whether there has been an overall increase or decrease in shooting incidents in a particular jurisdiction in the recent past.
[100] To the extent that the Crown wishes to adduce such evidence to demonstrate that gun violence is a matter of serious public concern in Toronto, such evidence is unnecessary. Parliament has clearly spoken on the issue through the enactment of the various firearms prohibitions and penalties in the Criminal Code, all of which clearly identify gun violence as a matter of pressing public concern.
8. Conclusion on the Tertiary ground
[101] I recognize that the four factors specifically enumerated in s. 515 (10) (c) all favour the detention of CT. Nevertheless, the fact that he has been residing under house arrest at his mother’s home in Petawawa, Ontario without incident for more than four months, combined with the risks posed within correctional institutions by the COVID-19 pandemic, weigh in favour of his continued release.
[102] On balance, taking all relevant considerations into account, I find that CT's continued release in accordance with the conditions in place since January 24, 2020 would not undermine public confidence in the administration of justice.
Disposition
[103] The Crown’s application under s. 521 of the Criminal Code is dismissed.
P. J. Monahan J. Released: June 5, 2020