Court File and Parties

COURT FILE NO.: BR 9986 DATE: 2020-06-03 ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – J.P. Applicant

Counsel: Kathleen Nolan, Counsel for the Crown, Respondent Ryan Heighton, Counsel for the Accused, Applicant

HEARD: May 28, 2020

PUBLICATION BAN UNDER S. 517(1) IS CONTINUED UNDER S. 520 (9) OF THE CRIMINAL CODE

The Honourable Mr. Justice C. S. Glithero

REASONS FOR DECISION

[1] This is an application for a s.520 review of a detention order made on March 23, 2020 by a Justice of the Peace in Kitchener, Ontario following a show cause hearing held that same date.

[2] On one information, Mr. J.P. was charged that on January 19, 2020 he occupied a motor vehicle knowing that it had been taken without the consent of the owner contrary to s.335(1) of the Criminal Code, and charged with having possession of the same vehicle knowing it to have been obtained by the commission in Canada of an indictable offence, contrary to s.355(a) of the Criminal Code.

[3] On another information he is charged with five offences, all said to have occurred on February 7, 2020. One count charges him with possessing an identity document relating to another person contrary to s.56.1(1) of the Criminal Code. Count 2 charges him with possession of crystal methamphetamine contrary to s.4(1) of the CDSA. Count 3 charges him with possession of fentanyl for the purpose of trafficking contrary to s.5(2) of the CDSA. Count 4 charges him with possession of cocaine for the purpose of trafficking contrary to the same section and Count 5 charges him with breach of probation by operating a motor vehicle while bound not to do so contrary to s.733.1(1) of the Criminal Code.

[4] After the show cause hearing, and prior to this bail review, the first information charging the two offences with the motor vehicle was withdrawn.

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

[6] The position of the applicant is that the application should succeed, and he should be granted bail on the condition that he reside at a named address, that he be required to remain at that address at all times except for medical emergencies or if in the company of either of two sureties. The identity of the two proposed sureties and the proposed place of residence have been moving targets. At the show cause hearing, the two proposed sureties were Craig Pedersen and Emmylou Martin and the proposed place of residence was Unit #2, 39th Avenue, Kitchener, Ontario. Shortly before the first date set for the bail review, counsel for the applicant sought an adjournment in order to prepare new materials proposing that the applicant be released to reside at W[…] Drive, Kitchener, Ontario, that Richard Gullison be named as a surety and that he would move into the accused’s residence at W[…] Drive, and that Mr. Pedersen would be the non-residential surety. It was an additional feature of the plan as advanced before me that the accused would be subject to electronic monitoring.

[7] Mr. Pedersen and Mr. Gullison both testified on this bail review, and as a result of their evidence during submissions, counsel for the applicant reverted back to the original plan, the Pedersen-Martin plan, as proposed at the show cause hearing but with the addition of electronic monitoring.

[8] Ms. Nolan, on behalf of the Public Prosecution Service of Canada, takes the position that the application should be dismissed, having regard to the applicant’s lengthy criminal record and the unsuitability of the plan for release.

[9] The Superior Court of Justice is temporarily closed for in-court hearings because of the current COVID-19 pandemic but is open to hearing urgent matters without an actual attendance in court. In this case, Mr. J.P. did not desire to be present for the bail review. Both counsel consented to the matter being heard by way of a recorded teleconference.

[10] At the conclusion of the hearing I advised counsel that I was dismissing the application and that reasons would follow. These are my reasons.

Basis for a Review

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

[12] The applicant relies on the development of the COVID-19 pandemic since the March 23, 2020 show cause hearing as constituting a material change in circumstances. Additionally, he relies on the evidence as to a new plan for release, including, as it does, the proposal that he be subject to electronic monitoring.

[13] The applicant also submits that the justice erred in failing to place sufficient weight on the risks associated with COVID-19 to incarcerated persons.

[14] In my opinion, several factors here qualify as material and relevant changes in circumstances, such as to permit an open review of the detention order. The withdrawal of the first information outlined above charging the two offences with the motor vehicle, constitutes a material change in circumstances, although those two offences are less serious than those charged in the remaining count. Secondly, after the show cause hearing, Ontario made available electronic supervision at no expense to the accused. Previously electronic monitoring on a private basis costs several hundred dollars per month, something obviously out of the reach of Mr. J.P.. Accordingly, the ability to add electronic monitoring as an integral part of the plan for release is something that for practical purposes was not available at the time of the show cause hearing and constitutes a material change in circumstances. Thirdly, the defence submits that Crown disclosure since the show cause hearing indicates that the fentanyl and the methamphetamine were in fact found in a knapsack in the vehicle occupied by the accused and that it was a rental vehicle, not rented to him, and accordingly, alleged that the Crown’s case is not as strong with respect to the drugs as had been indicated at the show cause hearing.

[15] Lastly, while acknowledging the COVID-19 pandemic was recognized in Ontario as of the date of the show cause hearing, the applicant submits that the seriousness of the situation has increased so greatly as to constitute a change of circumstances. I agree. The need for physical distancing has been made more important and is stressed daily in the various updates broadcast by both federal and provincial elected and medical officials. In my opinion that information entitles me to take judicial notice that the awareness of the dangers of COVID-19, with the daily reports of the increasing number of deaths resulting from that virus, makes the situation of an inmate in an institution sharing a cell a material change in circumstances. In R. v. Morgan, 2020 ONCA 279, our Court of Appeal took judicial notice of the fact of the pandemic, of its impact on Canadians generally, and as to the current state of the medical knowledge of the virus, its modes of transmission and the recommended methods of avoiding transmission. I am entitled to do the same.

[16] In my opinion, the seriousness of the situation has become much better known since the time of the show cause hearing. Even then, albeit in brief terms, the justice acknowledged that it was a factor, but just one factor, and did not amount to a get out of jail card.

[17] The applicant submits that the justice erred in law by deciding to issue the detention order on the basis of an insufficient bail plan. I don’t see such a decision amounting to an error in law within the St-Cloud categories enabling a review.

[18] On the basis of what I have outlined as being relied upon as material change in circumstances, I am of the view that the test on that basis as formulated by St.-Cloud has been met and that accordingly I am entitled to conduct an open review of the detention order.

Circumstances of the Alleged Offences

[19] The first information has been withdrawn and accordingly is of no moment for this review.

[20] As to the other information, the justice was advised at the show cause hearing that on February 7, 2020 police received a report of a possible impaired driver in the driver’s seat, slumped over the steering wheel, of a vehicle with the horn blaring and being unable to be awakened by witnesses. Police arrived, found the applicant to be the individual in the vehicle and exhibited what the officers thought to be signs of being impaired by a drug and was arrested for that offence. A search incident to arrest “located the following on Mr. J.P.’s person, as well, within reach of Mr. J.P. who was sitting on the motor vehicle”.

[21] There were two backpacks on the passenger’s seat and a hip sack wrapped around the passenger’s seat so as to be in close proximity to the driver, Mr. J.P., the only person in the vehicle. The police seized 162 grams of fentanyl, 5.37 grams of suspected cocaine, and .6 grams of suspected methamphetamine, as well as new dime bags, a digital scale and $870 Canadian and $20 U.S., as well as identity documents belonging to a deceased person.

[22] The applicant submits that further disclosure received after the show cause hearing indicates the Crown’s case to be weaker than as advanced in that it shows that the fentanyl and cocaine were seized from the hip sack, rather than being on the applicant’s person. On my reading of the transcript, the Crown simply indicated that the drugs were found either on the person or in the hip sack or the knapsacks without differentiating, as referenced in the quotation contained in paragraph 20.

[23] As to the breach of probation charge, the transcript indicates that the accused was placed on probation on April 16, 2009 with a term prohibiting the operation of a motor vehicle and that it was still in effect as of February 7, 2020.

Circumstances of the Applicant

[24] The applicant did not testify at the show cause hearing. The transcript of that hearing does not indicate that any affidavit was filed in his name. No affidavit of the applicant has been filed before me as required by rule 20.05(1). Instead, relying on the difficulty in having an inmate sign an affidavit, the applicant relies on an affidavit by an articling student from Mr. Heighton’s office. It is short on any information as to age, family situation, residential history or work history.

[25] Judging from the dates when his record changes from that of a youth to that of an adult, Mr. J.P. would appear to be approximately 35 years of age. One of the proposed sureties, Mr. Gullison, believes the accused has a child who lives in another city. Mr. Pedersen testified that the accused is known to him to do some construction work. There is no evidence before me as to whether there is any significant other in his life, or whether there has been in the recent past, or whether he supports anyone other than himself. There is a paucity of information as to addresses where this applicant has resided.

[26] Unfortunately, the most outstanding feature known about Mr. J.P. is his criminal record. By my count he has some 16 convictions as a youth and 59 convictions as an adult. Included in those are six breaches of recognizance, 13 breaches of probation, two failed to appears, one escape custody and one unlawfully at large. In addition, there are two convictions for possession of drugs and one conviction for possession for the purpose, all contrary to the CDSA. There are eight assault convictions, including one for assault police and for aggravated assault. There is a robbery conviction, three break and enter convictions, three theft convictions and two convictions for possession of property obtained by crime. He has four convictions for flight from police.

[27] Accordingly, he has demonstrated virtually a continuous willingness to disobey court orders, to disobey bail terms and a propensity to try and evade police chase. His record shows several convictions for offences of dishonesty, and prior drug offences.

The Plan for Release

[28] The plan I was asked to consider, at least at the outset of the May 28, 2020 hearing, had Mr. Richard Gullison as a surety who would live with the accused and provide 24 hour supervision. His affidavit indicates that he is 36 years of age, has lived in his current residence in London, Ontario for a week, but if approved as a surety would then move to the W[…] Drive in Kitchener. He swears that he is a general skilled labourer who does drywall taping and framing but is not currently working because of the COVID-19 pandemic, but previously earned between $2,000 - $2,500 per month. He has no substantial assets or liabilities. He testified to having a criminal conviction “related to impaired driving in 2018”. In fact, he has a fail to remain conviction arising from the same incident. He asserts that 24 hour supervision of the applicant would not be a challenge for him as he is not currently working. While he is aware that the accused is facing drug charges, he swears that he is uncertain if the applicant has addiction issues because he hasn’t wanted to ask him and thereby invade his privacy. He swears that he believes the accused wishes to change his life and wants to be able to help him. He swears that he has discussed the proposed supervision plan with the other proposed surety, Mr. Pedersen and believes they can work effectively together.

[29] When questioned in cross-examination about the proposed residence on W[…], Mr. Gullison testified that the apartment is supposed to belong to someone named Allyssa. He has never been to that building. He swore under oath that it was only the day before this bail review that he heard about Allyssa being associated with the W[…] address. He guesses that she’s out of town a lot. He doesn’t know Allyssa and doesn’t know what relationship she has to the accused that would permit him, or the applicant, to live there in her apartment. He didn’t know who else lives in that apartment. He testified that he actually understood that it was the applicant’s apartment and was so informed by someone named Fallon, whose last name he didn’t know. Interestingly, someone named Fallon drove the other proposed surety, Mr. Pedersen, to court when he attended at the show cause hearing. He testified that he doesn’t know Craig Pedersen, even though in his affidavit he swears to having spoken with him.

[30] He testified that this Fallon woman messaged him on Facebook the day before this hearing to tell him that the W[…] address was not actually the accused’s apartment.

[31] He further testified it was this Fallon person who asked him to become a surety for the applicant. This Fallon person, he testified, is part of a group that he tried to get away from in the past.

[32] Mr. Gullison has neither visited nor spoken to the applicant since the applicant was incarcerated and accordingly has not discussed the matter of bail with him.

[33] As far as his knowledge of the accused, he testified that he has known him for approximately 10 years, that they hung out together when they both lived in Niagara Falls, drinking together, smoking together, playing video games and partying. After they both moved from Niagara Falls, he would see the applicant about every six months or 12 months, but they would have phone contact in-between, so he feels that they are decent friends. He testified he could not describe any of the places where the accused lived, didn’t know where the accused worked and didn’t think the accused worked very much. He did not know how the accused supported himself.

[34] He also testified that he did not know about the accused’s record before agreeing to be a surety, although has been told of the record by counsel since. He didn’t know the accused had been to jail.

[35] When first asked in cross-examination why he would agree to move to an apartment which he knew nothing about, he testified it was because it gave him a place to stay so he could be close to family members who live in Kitchener.

[36] He has four children for whom he does not pay support, choosing rather to buy them some things. When it was suggested to him that his willingness to pledge a penal sum as a surety could mean the loss of money which would otherwise be available for the benefit of his children, he was unable to give any satisfactory reason.

[37] When I questioned him about his current unemployment, he swore that he normally works in construction, but hasn’t been because of the COVID-19 lockdown. When I suggested the lockdown on construction had recently been lifted, he answered that he had not organized anything. He then added that in fact he had worked two days the previous week, something inconsistent with his assertion that he can be with the applicant at all times because he isn’t working.

[38] Craig Pedersen testified at the show cause hearing, and again before me. He was offered as one of the residential sureties at the show cause hearing, then again in the initial documentation for the bail review, then agreed to be a non-residential surety while the applicant lived on W[…], and then was converted back to a proposed residential surety during the course of this bail review hearing. He understood the first shift in his proposed role was because of his criminal record. He was convicted in 2002 of driving with more than 80 mg. and in 2019 of possession of break in instruments for which he was conditionally discharged and is on probation. This latter conviction arose when he and his partner Emmylou Martin had temporarily split and he had no place to live so he broke into a storage room in a building to obtain shelter.

[39] He is currently working for a moving company, indicating that he had two shifts the week before, and at another place he said he worked 3-4 days a week. At the time of the show cause hearing he was working for a drywaller. He has no money in the bank and if called upon to honour the penal sum pledged of $5,000, he testified he would have to sell some tools and furniture. He can’t drive because he is suspended for unpaid fines for driving without insurance and while suspended.

[40] He agreed he didn’t really know much about the accused’s criminal history at the time of the show cause hearing, when he first volunteered to be a surety.

[41] He agreed he really couldn’t say whether the applicant is involved with drugs. Mr. Pederson himself uses drugs but denies it is an issue for him.

[42] He sees his probation officer and has been referred to a counselling service, but hasn’t gone yet, and claims not to know what it is that he is to be counselled on.

[43] Mr. Pedersen was asked what basis he had for saying that if released the applicant would not commit crimes as he has for decades. He admitted he had no basis to say so—but if the applicant did breach, he would turn him in.

[44] He plans on working so he won’t be home during the day. Emmylou Martin currently is on disability but plans to return to work when that runs out in October, so she won’t be home either. Their apartment has two bedrooms and she has a son, but he isn’t living with her right now as she has issues to deal with, but if the son returned there would be no room for the applicant.

[45] Mr. Pedersen did not know if the W[…] apartment belonged to the applicant, or who lived there, yet was willing to accept the responsibilities of a surety when the plan was that the applicant was to live there in such unknown circumstances.

Discussion

[46] I accept that there are health risks to an inmate because of the inability to achieve physical distancing. COVID-19 is present in Maplehurst where the applicant is housed. Evidence has been led that there are five inmates and two staff who have tested positive.

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

[48] The detention order was said to be issued on the primary and secondary grounds. The reasons did not explicitly deal with the primary grounds although clearly the justice had the criminal record before him. That record raises concerns. The electronic monitoring goes a long way if accompanied by solid sureties. This type of monitoring is not GPS based, so it doesn’t tell authorities where the accused is, but does tell them when he leaves the location where he is supposed to be. When the proposed plan is that the applicant can be out in the company of a surety, the suitability of the sureties is important.

[49] I have significant reservations about the proposed sureties here. In my view, the suitability of the surety is not tied as much to the amount of the penal sum, but rather to the degree of confidence or trust the court can place in the surety to influence and control the accused. Important also is that there be evidence from which the court can have confidence that an accused will be influenced by the surety to comply with the conditions of release.

[50] Mr. Gullison was effectively withdrawn as a surety during the course of the hearing. Understandably so. His evidence remains significant in that it illustrates that no one made any enquiries about the nature of the residence the applicant was to live and be supervised in. No one knew who lived there, who the apartment belonged to, whether the accused had ever even been there, or whether he had permission to live there.

[51] Mr. Pedersen does not know the accused very well. It is laudable, I suppose, that he believes the best of everyone irrespective of their past history. As a qualification to act as a surety, that outlook is not one to inspire confidence. Confidence in the surety may well be raised significantly if an examination of the background of the surety demonstrates a commitment to good values and good judgment. In my view that cannot be said of Mr. Pedersen. His willingness to act as the non-residential surety on the W[…] plan, even though since withdrawn, demonstrates a failure to approach the role of a surety with sufficient care and attention. That shortcoming on his part carries through to his suitability as a surety on the final plan for release.

[52] In my view the applicant has not met the onus as to the first ground.

[53] Similarly, I find the applicant has not met the onus as to the secondary ground. He has an abominable criminal record justifying the label suggested by the justice as a career criminal. That record contains many convictions for offences of breaching bail, other court orders, and involving defiance of authority. In my opinion the ultimate plan of release offered here is not sufficiently strong to overcome the applicant’s demonstrated proclivity to commit crimes. The penultimate plan of release was even less satisfactory and was built basically on unknowns.

[54] The tertiary ground was not raised or dealt with at the show cause hearing. Nevertheless, as I have determined this to be a hearing de novo, I am entitled to and indeed obliged to consider this ground as well. I look first to the factors enumerated in s.515(10)(c). I think it to be a fairly strong Crown case. While the applicant argues that it was a rented car, and not rented by him, he was alone in the vehicle with some drugs on his person and others within reach. It is possible that some previous lessee of the rented car left his stash there, or that someone lent this rental car to the applicant with these costly drugs in the vehicle. Anything is possible. Likelihood is another matter.

[55] The drug charges are serious. The dangers of fentanyl and cocaine need no elaboration. Upon conviction a lengthy prison sentence is likely.

[56] This tertiary ground requires a balancing. I think it likely that a well-informed reasonable member of the public would think it a serious matter that an accused is held in custody during this pandemic because of the health risks. Similarly, the closure of the courts for trials has led to backlogs and likely delays in getting cases to trial. This must be balanced against the concerns that this mythical citizen would understandably have if the applicant was released with anything less than a solid plan of release in which one could be confident that the accused will obey any terms of release.

[57] This man’s criminal record shows a choice for a life of crime. Any acceptable plan for release must involve a suitable and stable residence, fellow inhabitants who are themselves appropriate, and sureties that garner confidence in their ability to control the accused and influence him to obey the terms of release.

[58] I am of the view that neither the ultimate plan of release proposed here, nor particularly the interim one, are sufficiently strong to cause the reasonable and informed member of the public to maintain confidence in the administration of justice if I were to order the release of the applicant.

C.S. Glithero J. Date: June 3, 2020

COURT FILE NO.: BR 9986 DATE: 2020-06-03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – J.P. Applicant reasons for decision C.S. Glithero J.

Released: June 3, 2020 /lr