R. v. Justin Morris

COURT FILE NO.: CR-20-109-BR

DATE: 2020/06/08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Justin Morris

BEFORE: Justice I.F. Leach

COUNSEL: Adam Campbell, for the Crown Geoffrey Snow, for the Accused

HEARD: June 2, 2020

ENDORSEMENT

Introduction

[1] The accused in this proceeding, Justin Morris, brought an application pursuant to s.520(1) of the Criminal Code of Canada, (“the Code”), seeking:

a. review of an order made by Justice of the Peace Chahbar on March 31, 2020, finding that Mr Morris had not satisfied the “reverse onus” cast upon him by s.524 of the Code to show cause why his continued detention in custody was not justified, denying Mr Morris release on bail, and ordering Mr Morris to be detained in custody until dealt with according to law; and

b. an order from this court vacating the order made by the Justice of the Peace, and directing the interim release of Mr Morris subject to terms of supervision including:

i. the appointment of the accused’ mother Linda James as a surety, who has assets worth approximately $9,000, and who was willing to pledge up to $5,000.00 as a guarantee of her promise to faithfully execute any surety obligations assumed by her;

ii. a requirement that the accused reside with his surety mother at her residence in the city of Woodstock, and confine himself to that residence 24 hours a day and seven days a week under essential “house arrest”, subject to limited exceptions for matters such as emergency and scheduled medical appointments, scheduled attendances with counselors, scheduled appointments with counsellors to address addiction and/or mental health issues, scheduled appointments with legal counsel, and scheduled court appearances, during all of which he would be accompanied by his surety mother at all times;

iii. a requirement that the accused avoid contact with certain named individuals; and

iv. a requirement that the accused be subject to electronic monitoring pursuant to the Electronic Supervision Program, (or “ESP”), currently being offered free of charge by the Ministry of the Solicitor General, to remotely monitor his compliance with terms of the order requiring him to remain in his surety mother’s residence subject to the limited exceptions permitted by the court’s order.

[2] In support of the application, counsel for Mr Morris acknowledged, consistent with the Supreme Court of Canada’s guidance in R. v. St-Cloud, 2015 SCC 27, that this court did not have an open-ended power of review in relation to an initial detention order such as that made by the Justice of the Peace in this case. However, it was argued, (in a manner also consistent with R. v. St-Cloud, supra), that the circumstances warranted review and intervention because the Justice of the Peace had made identifiable errors in law, and/or because there was evidence showing a material and relevant change in circumstances since the hearing before the Justice of the Peace, and the modified plan of release was sufficient to satisfy the reverse onus on Mr Morris to demonstrate that his continued detention in custody was not justified.

[3] The Crown, filing the requisite formal material indicating that it intended to respond to the application brought by Mr Morris, opposed the granting of the relief sought by Mr Morris in this court. In that regard:

a. Crown counsel did not concede that the Justice of the Peace had erred in law, but was prepared to acknowledge that at least some of the evidence, (including some aspects of the evolving COVID-19 pandemic and the Ministry of the Solicitor General’s offering of the ESP program free of charge), represented a material change in circumstances sufficient to justify a de novo review of the situation pursuant to s.520 of the Code, subject to Mr Morris continuing to bear the reverse onus of demonstrating why his interim release from custody was not justified; and

b. Crown counsel submitted that, even having regard to the current evidence, Mr Morris had not satisfied his reverse onus in the particular circumstances of this case.

[4] In accordance with the measures taken to address urgent criminal proceeding matters during the ongoing COVID-19 pandemic, notwithstanding the corresponding restrictions placed on current court operations, the application brought by Mr Morris was scheduled for a teleconference hearing “before” me on June 2, 2020.

[5] In the meantime, additional steps were taken to provide me, (electronically and several days before that teleconference hearing), with copies of the substantial material filed by the parties. In that regard:

a. The material filed by defence counsel Mr Snow, on behalf of Mr Morris, included:

i. a transcript of the proceedings before Justice of the Peace Chahbar on March 31, 2020;

ii. an application record including:

1. a notice of application;

2. copies of the underlying Informations;

3. an affidavit sworn by Mr Morris, attaching a copy of his criminal record and a copy of a pamphlet describing the “Electronic Supervision Program” being offered free of charge by the Ministry of the Solicitor General;

4. an affidavit sworn by the proposed surety Ms James; and

5. a draft release order and conditions of release;

iii. a factum; and

iv. a book of authorities; and

b. The material filed by Crown Counsel Mr Campbell included:

i. a “Response to Notice of Application for Bail Review”;

ii. an “Information Note”, provided by the Ministry of the Solicitor General’s Deputy Superintendent of Operations at the Elgin Middlesex Detention Centre, (“EMDC”), to the Crown Attorney for the County of Middlesex, providing information concerning measures taken by/at the EMDC responding to the COVID-19 pandemic;

iii. a “Response to COVID-19 Information Note”, issued by the Office of the Assistant Deputy Minister of Institutional Services, within the Ministry of the Solicitor General, dated May 26, 2020, providing an overview of the current status of the Ministry’s response to COVID-19;

iv. a responding factum; and

v. a responding book of authorities, providing electronic links to some authorities and copies of others.

[6] The teleconference hearing proceeded before me on June 2, 2020, with Counsel for Mr Morris, Mr Morris, Ms James and Crown counsel participating, in addition to a court Registrar, court reporter and myself.

[7] During the course of that teleconference hearing, I indicated, for brief oral reasons, why I felt that the threshold for a de novo review of the question of continued detention of Mr Morris in custody had been met, before inviting the parties to make further submissions as to whether Mr Morris had satisfied his reverse onus under s.524 of the Code.

[8] After hearing and considering substantive submissions from the parties in that regard, (along with confirmation of the parties’ agreement that I was to consider the evidence presented before the Justice of the Peace, along with the further evidence submitted by the parties in relation to the hearing before me), I indicated that, having reviewed and considered the written materials filed by the parties for several days, including the facta filed by counsel, (which counsel principally relied upon and mirrored in their more abbreviated oral submissions), I was in a position to render my decision, but thought it advisable to deliver more extended and detailed reasons than the time remaining in the teleconference might allow.

[9] After further discussion, during which counsel for Mr Morris emphasized the desire for an immediate decision, (having regard to other pressing developments which included a scheduled appearance by Mr Morris in the Ontario Court of Justice the next day), both parties indicated that they would be consent for me to indicate my decision immediately, for written reasons to follow.

[10] In the result, I indicated that I was denying and dismissing the application of Mr Morris, for written reasons to follow. These are those reasons.

Further background

[11] By way of further background:

a. Mr Morris was born in November of 1991, and is currently 28-years-old. He is the oldest of four children born to Linda James, formerly Linda Morris. His father has First Nations heritage, and is described by Ms James in her now filed affidavit as being “Cree of Grand Cache, Alberta”. Mr Morris accordingly has First Nations heritage as well, although Ms James says that, apart from when Mr Morris was a newborn child, he has never met his father and, to the knowledge of Ms James at least, he has never spoken with his father.

b. When Mr Morris was approximately eight years old, Ms James and her children relocated from Alberta to Ontario. Shortly thereafter, Ms James entered into a marriage which she herself describes as abusive, during which Mr Morris and his two younger brothers were acting out in various ways, (e.g., truancy and maintaining negative peer associations), which Ms James found hard to control.

c. It is not disputed that, prior to the events bringing Mr Morris before the court now, he had led a troubled life, including prolonged and serious addiction to a number of substances listed in Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, c.19, (i.e., crystal methamphetamine and fentanyl), and accumulation of a substantial criminal record. In that regard:

i. The record starts with convictions entered when Mr Morris was approximately 13-years-old, (in September of 2005), after which there are convictions, for a wide variety of offences, entered thereafter on a fairly regular and apparently accelerating basis for the next 15 years.

ii. The longest time gap between convictions would seem to be a period of approximately three years, between October of 2012 and November of 2015. Most of the other time gaps between convictions are of much shorter duration, (e.g., three to 16 months), with Mr Morris sometimes receiving a number of convictions at several points during the course of certain years. The pace of convictions generally seems to have accelerated significantly from late 2015 onwards.

iii. By my rough count, there are approximately 34 convictions, 32 of which predate the charges Mr Morris currently is facing. In addition to numerous forms of low-level property crime, (e.g., possession of stolen property under $5,000, mischief, trespassing and break and enter offences), most of which were committed earlier in the course of the criminal activity of Mr Morris, there are many convictions reflecting disrespect for legal directives and court orders, including no less than 16 “failure to comply” convictions, (occurring regularly between 2010 and 2019), along with convictions for escaping lawful custody and resisting a peace officer. The criminal record also includes a mounting number of offences involving or threatening violence, including a number of assaults, assault of a peace officer, possession of a weapon, and resisting arrest.

iv. In relation to one of those convictions, (i.e., a conviction for assault in September of 2016), the court imposed a weapons prohibition pursuant to s.110 of the Code, with a duration of five years.

v. In December of 2018, Mr Morris was placed on an undertaking that included various conditions; e.g., that he not have any communication with certain persons, (including his longstanding girlfriend Deanna Smith-Scott), and not attend at a specified residential address at 745 Dundas Street here in London.

d. Mr Morris currently is being detained in relation to a further 20 charges, set forth in six Informations sworn on various dates between January of 2019 and January of 2020. Full details in that regard are outlined in the material filed by the parties, but they include a range of offences, most of which are quite serious in nature. They include:

i. four counts of failure to comply with an undertaking, recognizance, reporting obligations or communication/association restrictions, contrary to various provisions of s.145 of the Code;

ii. one count of failure to comply with terms of probation by not reporting, contrary to s.733.1 of the Code;

iii. one count of breaking and entering to steal a firearm, (a rifle), contrary to s.98(1)(b) of the Code

iv. one count of possession of stole property under five thousand dollars, (a stolen rifle and ammunition apparently), contrary to s.354(1) of the Code;

v. one count of knowing unauthorized possession of a firearm (a rifle), contrary to s.92(1) of the Code;

vi. one count of possession of a firearm (a rifle) and while prohibited, contrary to s.117.01(1) of the Code;

vii. one count of possession of ammunition (shotgun shells and rifle rounds) while prohibited, contrary to s.117.01(1) of the Code;

viii. three counts of possession of stolen property over five thousand dollars (vehicles apparently), contrary to s.355(a) of the Code;

ix. one count of driving without a licence, contrary to s.32(1) of the Highway Traffic Act;

x. two counts of dangerous operation of a conveyance, contrary to s.320.13(1) of the Code;

xi. two counts of failure to stop after an accident, contrary to s.320.16(1) of the Code; and

xii. two counts of flight from a peace officer in a motor vehicle, contrary to s.320.17 of the Code.

e. Of course, Mr Morris is presumed to be innocent of those 20 charges, and nothing herein should be construed as any suggestion to the contrary. However, the Justice of the Peace and I also were presented with indications of some of the anticipated evidence upon which the Crown intends to rely, describing alleged circumstances leading to those charges. Those indications include the following:

i. On January 22, of 2019, a homeowner and complainant named Mr Caneiro, (known to Mr Morris and Ms Smith-Scott and vice versa), left his Dufferin Avenue residence here in London to run errands, fell asleep upon returning to his home, and woke to discover that someone had pried open his rear basement door and stolen his SKS rifle and an unknown amount of ammunition. Police investigation progressively led to a determination that Ms Smith-Scott and Mr Morris were suspects in the crime, and the discovery of some of the stolen items, (a rifle magazine and ammunition), in the residence of Ms Smith-Scott.

ii. On the afternoon of January 23, 2019, in the course of efforts to locate Mr Morris, police observed him attending 745 Dundas Street here in London, (i.e., the address he was not to attend according to the conditions of the undertaking given in December of 2018), where he was identified and arrested.

iii. When Ms Smith-Scott was then arrested and interviewed, on January 24, 2019, she provided the police with information describing conversations she had with Mr Morris about the rifle located in Mr Caneiro’s basement, and plans made by Mr Morris to break into that basement to steal the rifle. She also described how, on January 22, 2019, she had observed Mr Morris inspecting the rifle in the lobby of a specified Dundas Street building, and how Mr Morris had a firearm tucked down his pant leg when again met with Ms Smith-Scott, in a fast food restaurant, in the early morning hours of January 23, 2019. Police review of video surveillance from the Dundas Street building and the relevant fast food restaurant provided independent confirmation of those observations described by Ms Smith-Scott.

iv. On July 24, 2019, Mr Morris entered pleas in relation to the additional charges brought against him; i.e., relating to his alleged breach of his undertaking not to communicate or associate with Ms Smith-Scott, his alleged breaking and entering into the residence of Mr Caneiro to steal the relevant rifle and ammunition, and his alleged ensuing unauthorized and prohibited possession of that firearm and ammunition. After receiving those pleas, the Crown consented to Mr Morris being released on his own recognizance, subject to various terms. In that regard:

1. The terms included an obligation for Mr Morris to report to Probation and Parole on July 25, 2019. It is said that he failed to do so, and similarly failed to do so between July 25, 2019, and August 12, 2019, although there were numerous opportunities for Mr Morris to have done so.

2. Mr Morris also was to have reported to the John Howard bail supervision program on July 26, 2019, but was said to have failed to do that either.

3. Such alleged failures led to the filing of additional Informations; e.g., alleging repeated failures to comply with terms of his recognizance by not reporting to probation and to John Howard Society supervision.

4. Although charges against Mr Morris had been set for trial on October 25, 2019, Mr Morris did not attend then either, and a bench warrant was issued for his arrest.

v. It appears that the bench warrant was executed on or about December 9, 2019, with an arrest of an accused on interim release pursuant to s.524 of the Code also being sought in relation to all of the accumulating charged offences. Mr Morris thereafter was released from custody again.

vi. Shortly before midnight on January 1, 2020, a constable with the London Police Service was on patrol when she is said to have observed a stolen Hyundai vehicle, in turn prompting the constable to activate the emergency lights of her police cruiser and increase its speed; i.e., in an effort to stop the stolen vehicle. However, the driver of the Hyundai vehicle responded by making efforts to turn and avoid being stopped by the pursuing police cruiser. When the constable subsequently observed and located the vehicle parked in a driveway, she parked her cruiser sideways across the driveway’s entrance, blocking in the stolen vehicle. On exiting her cruiser and approaching the stolen vehicle, the constable is said to have had an unobstructed view of its driver, whose identity was unknown to her at the time, but whom she subsequently identified as Mr Morris. According to the constable, Mr Morris locked the doors of the stolen vehicle, refused to obey the officer’s command to unlock the doors of the vehicle and, when the officer attempted to gain entry to the vehicle to arrest Mr Morris, he proceeded to repeatedly ram the police cruiser and a nearby Jeep Wrangler vehicle a number of times, (i.e., by repeatedly reversing and driving forward again), until he succeeded in opening up sufficient space for him to drive off in the stolen vehicle without being apprehended.

vii. On January 8, 2020, at approximately 1:00pm, it is said that the same constable was again on patrol when she had a clear visual of the same driver, whom she recognized from the previous incident and later identified as Mr Morris, operating another vehicle reported to have been stolen, (a blue SUV), with three additional passengers inside. When the constable again activated the emergency lights of her police cruiser, in an effort to bring the stolen SUV to a stop, Mr Morris did not stop. It is said that he instead once again decided to ram his stolen vehicle into the constable’s police cruiser, (by reversing into it), after which he once again managed to drive away in the stolen vehicle without being apprehended, but not before Ms Smith-Scott exited the stolen vehicle by jumping out and proceeding on foot. When Ms Smith-Scott was then stopped and questioned, she identified Mr Morris as the driver of the stolen vehicle, and the constable’s review of the available “mug shot” photograph of Mr Morris confirmed, to the officer, that Mr Morris had indeed been the driver involved in the stolen vehicle pursuits on January 1 and January 8, 2020. Ms Smith-Scott also provided the constable with statements indicating that Mr Morris had described, to Ms Smith-Scott, details of his involvement in a police pursuit a number of days before January 8, 2020, consistent with the constable’s memory and notes of what had happened on the earlier occasion.

viii. Vehicle damage, caused by the two pursuits described above, was said to include approximately $3,000 worth of damage to the stolen Hyundai vehicle, $1,000 worth of damage to the Jeep Wrangler, and $5,000 worth of damage to the constable’s police cruiser.

ix. On January 9, 2020, another officer of the London Police Service located Mr Morris coming out of a fast food restaurant. It is said that Mr Morris attempted to flee, requiring the office to “ground” Mr Morris to effect an arrest.

x. On January 10, 2020, Mr Morris apparently was re-arrested pursuant to s.524 of the Code, based on execution of the warrant related to his failure to appear at trial on October 15, 2019, and in furtherance of newly executed warrants for the further charges addressed in accumulated further Informations.

f. What transpired when the matter came before Justice of the Peace Chahbar on March 31, 2020, and all the evidence presented for His Worship’s consideration, is fully set forth in the transcript that was provided for my review, and I accordingly will not attempt to reiterate or summarize that entire proceeding here. For present purposes, I will simply note, (subject the additional comments noted below), that:

i. The hearing apparently was conducted primarily by telephone, owing to the onset of the COVID-19 pandemic and related restrictions.

ii. Mr Morris was formally self-representing, but was assisted by duty counsel;

iii. As it was a “reverse onus” hearing, pursuant to s.524 of the Code, the Justice of the Peace was required to order that Mr Morris be detained in custody unless, after being given a reasonable opportunity to do so, Mr Morris showed caused why his continued interim detention was not justified having regard to the provisions of s.515 of the Code;

iv. With the assistance of duty counsel, (who called Ms James and Mr Morris as witnesses), Mr Morris took the position that his detention was not justified, relying in part of a plan of release that would involve his mother Ms James being appointed as a surety for Mr Morris, (a role she had assumed in the past), with a requirement that Mr Morris reside with her essentially under house arrest at a residence in Woodstock where Ms James lived with her youngest child, (a daughter and the sister of Mr Morris), with additional provisions prohibiting contact with a number of specified individuals;

v. Crown counsel opposed the proposed interim release, relying on what are colloquially known as the “primary” and “secondary” grounds for continued interim detention described in s.515(10)(a) and (b) of the Code, and arguing that the proposed plan of release was not be sufficient to address and mitigate legitimate concerns in that regard;

vi. In relatively brief oral reasons, (occupying approximately three pages of the relevant transcript), the Justice of the Peace found that Mr Morris had not satisfied the reverse onus cast upon him by s.524, having particular regard to the primary and secondary grounds set forth in s.515 of the Code; and

vii. In the course of his reasons, the Justice of the Peace noted, in particular, that: he was “not at all sure” that Mr Morris would heed his mother’s requests or follow court orders, having regard to his lengthy criminal record, the fact Mr Morris was facing very serious charges, and the Justice of the Peace’s view that Mr Morris had no ties to the City of London community, in terms of employment or family.

g. After retaining the services of Mr Snow, Mr Morris then proceeded to bring his bail review application, which was heard in the manner described above.

Satisfaction of threshold for de novo hearing

[12] As noted above, I provided brief oral reasons, during the teleconference hearing, for my view that the threshold for a de novo review of the question of continued detention of Mr Morris in custody had been met. My comments in that regard will be on the record, but by way of summary and expansion:

a. I did have concerns about possible errors made by the Justice of the Peace; e.g., insofar as:

i. His Worship made comments suggesting Mr Morris had no family ties to this community, which might technically be accurate insofar as the city of London is concerned, but is certainly not consistent with the obvious indications and evidence that the mother and sister of Ms Morris reside in the nearby city of Woodstock, in turn suggesting a misapprehension of evidence; and

ii. His Worship also appeared to apply a standard of proof requiring him to be “sure” that the continued interim detention of Mr Morris was not justified; a standard clearly higher than the balance of probabilities standard Mr Morris was required to meet in order to satisfy the reverse onus cast upon by s.524 of the Code.[^1]

b. In my view, there also was evidence suggesting a material and relevant change in circumstances since the hearing before the Justice of the Peace on March 31, 2020, including:

i. the evolving COVID-19 pandemic, the onset of which had reached Ontario and had begun to bring about significant changes in Ontario society, court operations and the operation of custodial facilities by the time of the hearing before the Justice of the Peace, but not to the extent now prevailing;[^2] and

ii. the Ministry of the Solicitor General’s subsequent offering of limited electronic monitoring facilities through the ESP, at no cost to accused persons.

c. In my view, a de novo hearing also was justified by the need, acknowledged by Crown counsel, to consider the Indigenous background of Mr Morris and the overrepresentation of those with Aboriginal heritage in our criminal justice system, in relation to the question of whether or not Mr Morris should be granted bail and judicially ordered interim release.[^3] In that regard, I note and acknowledge that the evidence of the Cree heritage of Mr Morris, provided by Ms James in her affidavit included in the application record filed in this court, may have been available at the time of the hearing before the Justice of the Peace. However, the reality is that it was not mentioned during that hearing, it accordingly was not considered by the Justice of the Peace, and it obviously is a consideration that must be taken into account in deciding whether continued interim detention of Mr Morris is appropriate.

General principles

[13] I will be referring to additional principles and authority during the course of my analysis described below.

[14] However, I pause at this point to provide an initial non-exhaustive review of some of the generally applicable legal principles and considerations I have in mind throughout this exercise, gleaned from authorities such as R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665; R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.); R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.); R. v. St-Cloud, supra, and R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509. They include the following:

a. In Canada, s.11(e) of our Charter of Rights and Freedoms (“the Charter”) guarantees that any person charged with an offence has the right “not to be denied reasonable bail without just cause”; an entitlement that rests on the presumption of innocence, guaranteed by s.11(d) of the Charter, which the Supreme Court of Canada has described as “the cornerstone of Canadian criminal law”.

b. In Canadian law, the release of an accused person is therefore generally the cardinal rule, and detention the exception. Consistent with what has been described as “the ladder principle”, release generally is favoured at the earliest reasonable opportunity and on the least onerous grounds; i.e., with the court considering less restrictive forms of release unless progressively more restrictive and justified ones are necessary, and ordering detention only if that can be justified on the specified and circumscribed grounds for detention set forth by Parliament in s.515(10) of the Code.

c. In relation to forms of release, in circumstances where detention is not justified:

i. terms of release should only be imposed to the extent they are necessary to address concerns related to the statutory criteria for detention;

ii. a recognizance with sureties is to be regarded as one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate;

iii. it generally is not necessary to impose cash bail on accused persons if they or their sureties are able to pledge assets to the satisfaction of the court;

iv. moreover, cash bail should be ordered only in exceptional circumstances, in which release on a recognizance with sureties is unavailable; and

v. the monetary amounts of cash bail or assets to be pledged also must not be set so high that it effectively amounts to a detention order, (or beyond what is necessary to satisfy the concern or concerns that would otherwise warrant detention), and they should also be proportionate to the means of the accused and his or her sureties, and the circumstances of the case.

d. However, the presumption of innocence and the corresponding right not to be denied reasonable bail without just cause does not mean there can be no deprivation of a person’s liberty until guilt is established beyond a reasonable doubt. There are parameters to that right - as emphasized by the reference in s.11(e) of the Charter to denial of “reasonable bail”, (which refers to the terms of bail), for “just cause” – with the requirements of fundamental justice and constitutional standards varying according to the context in which the right is invoked.

e. Consistent with such fundamental rights as the presumption of innocence and the right not to be denied reasonable bail “without just cause”, a justice hearing a bail application generally must ensure that interim detention is truly justified having regard to all the relevant circumstances of the case, while also bearing in mind the applicable onus, including “reverse onus” situations like the one before me.

f. The general principle of restraint in judicial interim release and bail determinations, underlying many of the above considerations and judicial directions, has been codified relatively recently in s.493.1 of the Code, which requires a judge to give “primary consideration to the release of the accused at the earliest opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection … 515(10)”.

g. The possible grounds for justification of detention, and correspondingly, a denial of bail for “just cause”, have been set out by Parliament in the current version of s.515(10) of the Code, which in turn reflects Supreme Court of Canada consideration of previous incarnations of the relevant provisions to determine what worded justifications would and would not be consistent with the constitution and fundamental rights guaranteed to an accused.

h. The current provisions of s.515(10) read as follows:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

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 or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

i. In relation to what has been referred to as the possible “primary” ground for justifying detention, set forth in s.515(10)(a) of the Code, (i.e., that the detention is necessary to ensure the accused’s attendance in court to be dealt with according to law), the nature of the concern generally speaks for itself. If there is a demonstrated concern in that regard, courts must determine whether the concern can be addressed sufficiently and practically in ways short of pretrial detention.

j. In relation to what has been referred to as the possible “secondary” ground for justifying detention, set forth in s.515(10)(a) of the Code, (i.e., that the detention is necessary for the protection or safety of the public):

i. persons are not to be detained simply because they have a proclivity to commit crimes;

ii. 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 that substantial likelihood endangers the protection or safety of the public; and

iii. detention is justified only when it is necessary for public safety.

k. In relation to what has been referred to as the possible “tertiary” ground for justifying detention, set forth in s.515(10)(c) of the Code, (i.e., that detention of an accused “is necessary to maintain confidence in the administration of justice”):

i. The Supreme Court of Canada has emphasized it is not a “residual” ground for detention that applies only as a last resort, where the first two grounds for detention are not satisfied. It instead is separate and distinct, and quite capable of independent application, regardless of whether or not the first two justifications may or may not apply in the particular circumstances of a case. In other words, in some circumstances it may be necessary to deny an accused bail, even where there is no risk he or she will not attend trial or may reoffend or interfere with the administration of justice. Public confidence is essential to the proper functioning of the bail system and the justice system as a whole.

ii. The Supreme Court of Canada also has emphasized that, contrary to a number of lower court decisions, the tertiary ground must not be interpreted narrowly or applied sparingly. In particular, it is not limited to “exceptional circumstances”, to “unexplainable” crimes, the “most heinous” of crimes, or to “certain classes of cases”, (such as murder). The Crown can rely on s.515(10)(c) for any type of crime. The fact that the tertiary ground for detention may be applied rarely in practice is not a precondition to its application, but a consequence of its application, including regard to the mandated considerations specified therein.

iii. In particular, the presiding justice must first consider all four of the considerations expressly identified in s.515(10)(c). In that regard:

1. In relation to “the apparent strength of the prosecution’s case”, it is not a question, at this stage, of whether the offence in question should be taken as proven beyond a reasonable doubt. To the contrary, a justice hearing a bail application must be careful not to play the role of trial judge or jury in relation to the relevant charges; e.g., by assessing the credibility of witnesses or the reliability of scientific evidence, which are matters left to analysis at trial. At the same time, however, the justice hearing a bail application is obliged to consider the quality of the evidence tendered by the prosecutor, in order to determine the weight to be given to this s.515(10)(c)(i) factor. A justice hearing a bail application also is obliged to consider any defence raised by the accused and, if there is any basis for it, take that into account as well in assessing the apparent strength of the prosecution’s case.

2. In relation to the second consideration mandated by [s.515(10)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(c)(ii) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), (i.e., the “gravity of the offence”), that is an objective consideration, assessed on the basis of the maximum sentence (and minimum sentence if any) provided by the Code for the offence or offences in question.

3. In relation to mandated third consideration, addressed by s.515(10)(c)(iii) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), focusing on “the circumstances surrounding the commission of the offence, including [but not limited to] whether a firearm was used”, the possible circumstances to be considered in that regard is deliberately non-exhaustive, but beyond involvement of a firearm can include such matters as: whether the offence was a violent, heinous or hateful one; whether it involved domestic violence, a vulnerable victim, or similarly pronounced social concern; whether it was committed by a criminal gang or terrorist organization; and more generally, the sort of aggravating and mitigating considerations that are considered by courts for sentencing purposes.

4. In relation to the fourth consideration mandated by s.515(10)(c)(iv), dealing with “the fact that the accused [may be] liable, on conviction, for a potentially lengthy term of imprisonment”:

  (a) The Supreme Court of Canada deliberately refrained from establishing a strict rule regarding the number of years that constitutes “a lengthy term of imprisonment”. However, the Supreme Court of Canada also made it clear that the term does not only include a life sentence. Moreover, a justice hearing such a bail application must consider not only the possible sentence, but all of the known circumstances of the case and the principles used for tailoring an applicable sentence, although the justice must not embark on a complex exercise to calculate what sentence the accused might receive. The presiding justice approaches this fourth consideration subjectively.

  (b) Although s.515(10)(c) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) specifies four mandated considerations, the Supreme Court of Canada has emphasized that they too are not exhaustive. The court must look to them, in particular, but also consider all circumstances of the case, which may include such additional factors as: the age of the accused; his or her criminal record; his or her physical or mental consideration; whether he or she is a member of a criminal organization; the status of the victim and the impact on society of a crime committed against that person; and whether or not the accused’s trial will be held at a much later date.

  (c) Moreover, the ultimate question, in relation to [s.515(10)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(c) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), is whether the combined effect of all of the relevant considerations, (including but not limited to the mandated four), on balance, warrant a conclusion that detention is necessary to maintain confidence in the administration of justice. No single consideration is determinative.

  (d) Even when the mandated four factors favour detention, a decision that detention is justified is not automatic, as other circumstances may still tip the balance in favour of release.

  (e) More generally, when considering the possible tertiary ground for detention, and all of the relevant circumstances that go into the relevant s.515(10)(c) determination, a justice hearing a bail application must always bear in mind:

    i. that the relevant “public” perspective is that of a reasonable person who is properly informed about the philosophy underlying the relevant legislative provisions, [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) values, and the actual circumstances of the case;

    ii. that reasonable person is a thoughtful person, and not one prone to emotional reactions, one who is making an assessment of the case based on inaccurate knowledge of the circumstances, or one who simply disagrees with our society’s fundamental values; and

    iii. that reasonable person, although aware of fundamental values like the presumption of innocence, the right to liberty and trial within a reasonable time, and the need for proof of culpable intent to establish an offence, nevertheless also is not a “legal expert” expected to appreciate the subtleties of various defences available to the accused.

  (f) The justice hearing a bail application, and considering the tertiary ground, must also bear in mind that a reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention or continued detention, but also if it orders detention where detention is not justified.

l. Again, no sweeping statements can be made in respect of what class of offences or what type of accused warrant detention pending trial. The decision as to whether detention is justified, (and whether or not bail should be granted), must be made on a case by case basis.

Analysis

[15] In this case, debate focused on the “primary” and “secondary” grounds for continued interim detention set forth in ss.515(10)(a) and (b) of the Code, and on whether or not the currently proposed plan of release was sufficient to address any concerns in that regard.

[16] In particular, although Crown counsel suggested in passing that there arguably might be reasons offered in support of continued interim detention of Mr Morris on the tertiary ground, addressed by s.515(10(c) of the Code, it was felt that the Crown should not rely on such suggestions in relation to the application before me, having regard to its position taken before the Justice of the Peace; i.e., a position focused exclusively on the primary and secondary grounds for continued interim detention.

[17] In the course of his written and oral submissions, counsel for Mr Morris acknowledged that, leaving aside the proposed plan for release, the underlying circumstances gave rise to legitimate concerns about whether the continued interim detention of Mr Morris was justified on the “primary ground” identified by s.515(10)(a) of the Code; i.e., “to ensure his … attendance in court in order to be dealt with according to law.

[18] In my view, defence counsel was right to make that concession. Without limiting the generality of the foregoing, even if one sets to one side the ostensibly compelling evidence relied upon by the Crown in relation to the current charges relating to repeated failure of Mr Morris to report for probation and repeated very determined, aggressive and successful attempts to flee from a police officer in stolen motor vehicles, (in respect of which Mr Morris is presumed to be innocent), it is a matter of record that Mr Morris failed to attend for his scheduled trial in October of 2019, and failed to voluntarily present himself to authorities for approximately six to seven weeks thereafter; i.e., until the police found an opportunity to execute the bench warrant on December 9, 2019. Mr Morris also has prior convictions for resisting a police officer, resisting arrest, and escaping from lawful custody.

[19] Similarly, I independently felt that, leaving aside the proposed plan for release, the underlying circumstances gave rise to legitimate and serious concerns about whether continued interim detention of Mr Morris was justified on the “secondary ground” identified by s.515(10)(b) of the Code; i.e., because the detention might be “necessary for the protection of society or safety of the public, … having regard to all the circumstances including any substantial likelihood that [Mr Morris] will, if released from custody, commit a criminal offence”. In that regard:

a. As noted above, the simple fact that Mr Morris may have a proclivity to commit crime, suggested by his extensive and varied criminal record over a substantial period of time, is not sufficient on its own to warrant continued interim detention. A criminal record inherently is a record of past behaviour, and the secondary ground is focused on the risk of the accused engaging in further criminal activity, (i.e., future offences), before trial.

b. However, as courts repeatedly have emphasized, while exact predictions are impossible, the best predictor of future behaviour is past behaviour. In other words, past misconduct of an accused is highly probative of whether there is a likelihood of the accused offending again, and whether a particularly pervasive proclivity toward engaging in criminal activity may be likely to overwhelm the intended safeguards of a proposed plan of release, including the abilities and efforts of a proposed surety.[^4]

c. In this particular case, leaving aside the proposed plan of release:

i. The criminal record of Mr Morris is not simply extensive. It continues over a prolonged period of time with few gaps of any significance, with convictions sufficiently close in time to strongly suggest that Mr Morris has repeatedly engaged in criminal activity while on release awaiting trial for other crimes, and the frequency of convictions seems to have accelerated significantly in the years leading up to the events underlying the current charges.

ii. Moreover, the nature of the crimes committed by Mr Morris in the past strongly suggests that he not only has very little regard for the criminal justice system, (as reflected in the extraordinarily large number of convictions for non-compliance, as well as his convictions for escaping lawful custody, resisting arrest and resisting a peace officer), but a growing proclivity to violence; e.g., reflected in his mounting number of offences involving or threatening violence, including assaults, assault of a peace officer, possession of a weapon, and resisting arrest.

iii. By way of possible explanation for such persistent and mounting misbehaviour, the evidence of Ms James and Mr Morris confirms that Mr Morris currently suffers from a longstanding addiction to very serious illicit substances controlled by Schedule I of the CDSA; an addiction which he has been unable to control despite efforts in that regard, (including an unsuccessful attempt to complete what Mr Morris described in his evidence as a “detox” program), an addiction which currently is not being treated, and an addiction which Mr Morris himself acknowledges as “definitely” becoming more of a problem for him over the past year or two. In that regard, Ms James candidly indicated in her testimony that the substance abuse issues plaguing Mr Morris are “highly addictive”; that Mr Morris has been “really struggling” with his addictions; and that such addictions repeatedly cause Mr Morris to make very poor choices, in turn leading to his involvement with the criminal justice system and incarceration. Ms James also indicated her belief that Mr Morris may have undiagnosed mental health issues, compounding that problematic trend.

iv. Although Mr Morris expressed his intention to not associate with Ms Smith-Scott in the future, (e.g., in accordance with the terms of his earlier undertaking and/or conditions of any judicially ordered interim release), he also acknowledged having remained in a relationship with Ms Smith-Scott for five years, and feeling unable to end his association with her, despite his mother’s repeated urgings to end the relationship, and even though he himself regarded the relationship as “toxic”.

v. Having regard to all these considerations, I think it clear that, apart from the proposed plan of release, there would be a substantial likelihood of Mr Morris committing one or more further offences, and posing a corresponding danger to public safety, if he is not detained in interim custody.

[20] In my view, the real question for determination, in relation to the application of Mr Morris, was whether the proposed plan of release was sufficient to address such legitimate and serious “primary ground” and “secondary ground” concerns, considered against a backdrop that includes possible additional concerns raised by the ongoing COVID-19 pandemic and the Aboriginal heritage of Mr Morris.

[21] After reviewing and considering the material filed by the parties over the several days prior to the teleconference hearing before me, and the submissions of counsel, I frankly considered the current application by Mr Morris to be something of a “close call”, but ultimately was not persuaded that Mr Morris had satisfied the reverse onus cast upon him by s.524 of the Code. In particular, I was not satisfied, on a balance of probabilities, that the continued interim detention of Mr Morris was not justified, on a balance of probabilities.

[22] My reasons in that regard include the following:

a. For the reasons outlined above, I think the evidence supporting concerns relating to the primary and secondary grounds for detention is strong and significant in this case.

b. As far as the possible implications of the COVID-19 pandemic are concerned:

i. As highlighted in the written and oral submission of counsel, decisions made in this court are far from uniform in their approach to whether and how the COVID-19 pandemic have relevance to the primary, secondary and/or tertiary grounds for continued interim detention. In that regard:

1. Some cases have held that an accused’s health issues and fear of contracting the COVID-19 virus, coupled with pandemic-related travel restrictions, may reduce primary ground concerns even where an accused has a history of fleeing to escape the consequences or possible consequences of criminal conduct.[^5] However, other authority has opined that the reverse might actually be true; e.g., insofar as an accused fearing possible exposure to COVID-19 upon being taken into custody might actually become more motivated and determined to avoid surrendering or presenting himself or herself to be dealt with according to law, if doing so carries a significant risk or perhaps even a probability of incarceration.[^6]

2. Some cases have held that COVID-19 may be relevant to secondary ground concerns. For example, it has been suggested:

  (a) that sureties no longer working outside the home, during the pandemic, may have increased ability to monitor compliance with an accused’s terms of interim release;

  (b) that the social effects of the pandemic, (such as restrictions on movement, the closure of businesses and the cancellation of many public gatherings), might reduce the opportunities for certain crimes to be committed; and/or

  (c) that where an accused has health conditions putting him or her at a greater risk of negative effects if he or she contracts the virus, that may in turn create a disincentive for the accused to engage in criminal activity that may increase exposure to the virus and/or result in incarceration possibly increasing the risk of exposure to the virus.[^7]

3. However, other cases have rejected that COVID-19 is relevant to the secondary ground, especially in the absence of any strong evidentiary basis to support such relevance.[^8] In that regard:

  (a) The supposed rationale of COVID-19 having a deterrent effect decreasing the probability of the accused committing further offences while on interim release has been questioned; e.g., by observations that accused persons, (especially those with a history of attempting to evade arrest), actually might pose an enhanced danger to the public if their fear of exposure to COVID-19 following detention increases their willingness to employ more drastic measures to avoid being taken into custody.[^9]

  (b) Other authority has emphasized that, where there is a risk that an accused may not only commit further offences on interim release but do so violently, considerations relating to the COVID-19 pandemic should carry less weight.[^10]

  (c) Moreover, other authority has gone somewhat further, emphasizing that, if continued interim detention is necessary for the protection or safety of the public, the risk of the accused contracting the virus in jail does not alter that fact; i.e., that a person does not become less of a risk from a public protection and safety viewpoint because of COVID-19, and that the protection of the public from a dangerous person mandated by the secondary ground must remain the uppermost concern, superseding the possible threats posed by COVID-19 to inmates.[^11]

4. Many cases have held that the pandemic may be relevant to the tertiary ground; e.g., as a non-determinative consideration offsetting other tertiary ground concerns otherwise militating in favour of continued detention, in that detained inmates may have elevated risk of being exposed to the virus compared to those released or detained at home under “house arrest”, and/or face anticipated increased delay in their cases being brought to trial, all of which in turn may have an impact on whether detention in such circumstances would maintain confidence in the administration of justice.[^12]

ii. In cases where this court has considered the COVID-19 pandemic to be a potentially relevant consideration, opinion also has been divided on the question of whether and what evidence may be required in that regard. For example:

1. Some cases seem to have required specific evidence of an accused having poor health, underlying health risks and/or some other identified heightened vulnerability putting the accused at greater risk from the pandemic if detained in custody, (including evidence of COVID-19 presence at the institution where the accused is being held), or at least have not been persuaded that interim release is appropriate in the absence of such evidence.[^13] Moreover, some cases have indicated that supposed risks may be countered by evidence outlining measures taken by the Ministry and/or relevant custodial facility to mitigate risks of inmates being exposed to the coronavirus, in respect of which perfection is not the required standard.[^14]

2. Other cases have held that the risk of a detained accused being exposed to COVID-19 via other inmates and custodial staff, or vice versa, is a relevant and established consideration and concern, by way of judicial notice, even if there is no evidence suggesting the accused has or will have a heightened vulnerability in that regard either generally or at a particular custodial facility.[^15]

iii. To date, authority from our Court of Appeal dealing with the possible relevance and potential impact of the COVID-19 pandemic on judicial interim release has been limited to decisions rendered in the different context of applications for bail and interim release pending the hearing of applications for leave to appeal or appeals. However:

1. there are indications that our Court of Appeal may regard pandemic considerations as something relevant to the tertiary ground for interim detention, but not the secondary ground;[^16]

2. it has been accepted that COVID-19 considerations may play a role in the decision to grant bail and interim release from custody where an applicant has known or documented health conditions placing the applicant within a vulnerable group that is more likely to suffer complications and require hospitalization if he or she contracts the virus;[^17]

3. there are indications that COVID-19 considerations nevertheless may not outweigh other considerations when there is no evidence to indicate that an applicant is not a member of a group especially vulnerable to COVID-19, nor incarcerated in an institution that has a significant outbreak of the virus;[^18] and

4. it seems considerations relating to the COVID-19 pandemic also apparently may carry less weight where there is a risk that an accused may commit further violent offences while on interim release, supporting detention on the secondary ground.[^19]

iv. There seems to be a general recognition that, although the COVID-19 pandemic may have relevance, it most certainly is not the figurative equivalent of a “get out of jail free card” automatically justifying judicial interim release in all cases; a point which has been emphasized expressly in a number of decisions.[^20]

v. Having regard to the authorities noted above:

1. I agree with the view that one must rationally acknowledge the possibility of COVID-19 considerations having relevance to each of the primary, secondary and tertiary grounds for interim detention of an accused; e.g., on the basis of the reasoned explanations and possible connections noted by other judges of this court.

2. I also agree with the view that our courts are entitled to take a degree of judicial notice in relation to certain realities and possibilities associated with the COVID-19 pandemic. For example, an applicant seeking interim release on bail reasonably should not be obliged, in each and every case, to lead evidence in relation to such matters as the known properties of the COVID-19 virus and its possible transmission, the possible consequences of contracting the virus, and the existence of prevailing restrictions and safety protocols enacted or publicly recommended by our various levels of government and public health agencies.

3. However, I also am of the view that the degree of relevance and weight to be given to possible COVID-19 considerations in the context of any particular application for bail and interim release, and the degree to which such considerations may offset demonstrated and significant concerns that otherwise exist suggesting a need for continued interim detection of the accused on the primary, secondary and/or tertiary grounds, also will depend in large measure on what evidence may or may not be presented; i.e., in terms of elevating the relevance and weight of such COVID-19 considerations beyond the realm of speculation to that of demonstrated significance.

vi. In this particular case, I am not satisfied, on the basis of the evidence before me, that COVID-19 considerations have much relevance, weight or significance, (either alone or in conjunction with the other considerations noted below), in terms of addressing and substantially mitigating the demonstrated and significant primary and secondary ground of detention concerns that otherwise exist in this case. Without limiting the generality of the foregoing:

1. In my view, there really was no evidence to support any suggestion that the COVID-19 pandemic would have any effect whatsoever, (let alone any significant effect), in terms of mitigating the primary ground for detention concerns noted earlier. In particular:

  (a) There was no evidence that Mr Morris suffers from any health issues or condition, or subjective fear of contracting the COVID-19 virus, that might create any particular disincentive from his perspective in terms of efforts to flee, escape or otherwise avoid attendance in court to be dealt with according to law.

  (b) Moreover, while I believe I can take some degree of judicial notice of pandemic-related restrictions on international travel, (e.g., insofar as international air travel remains limited and subject to quarantine regulations, and the border between Canada and the United States currently remains closed to travellers except for those engaged in cargo shipments and/or other essential services requiring cross-border movement), and non-essential travel is discouraged, I am unaware of any programs in place to monitor or restrict movement within Ontario or from Ontario to the rest of Canada, which obviously leaves considerable scope for movement, relocation and evasion if Mr Morris failed to attend court again.

2. In my view, there similarly was no evidence to support any suggestion that any aspects of the COVID-19 pandemic would mitigate the secondary ground for detention concerns in this particular case, apart from making the ESP, (the implications of which are discussed below), available free of charge to someone like Mr Morris. In that regard:

  (a) Ms James, the contemplated sole surety under the proposed plan of release, relies on the Ontario Disability Support Program for financial assistance, and there is no evidence that she would have been employed outside the home, or had any other obligations preventing her from generally remaining at home, even if there was no pandemic. In that sense, at least, the pandemic has no bearing one way or the other on her capacity to be an effective surety, as far as monitoring Mr Morris is concerned.

  (b) In my view, there is no evidence to suggest that the social effects of the pandemic, (as opposed to other factors such as the possible appointment of a surety and use of the ESP, considered below), are likely to reduce the opportunities for Mr Morris to engage in crime while on interim release. One might speculate that certain types of crime committed by Mr Morris in the past, (e.g., property-related crimes such as trespass, breaking and entering and/or mischief), might be more difficult if more people are staying at home more often during the pandemic. However, it seems to me that is just speculation, (without evidence in the form of statistics to support suggestions to the contrary), and one might just as easily speculate that certain opportunities for property-related claim may have increased as numerous businesses remain closed and various properties are no longer being attended on a regular or frequent basis. Moreover, opportunities to engage in certain other types of crime previously committed by Mr Morris, (e.g., possession of weapons, possession of Schedule 1 substances, and breach of non-association terms), would seem to have no obvious correlation one way or the other to the prevailing circumstances created by the pandemic.

  (c) As noted above, there is no evidence suggesting that Mr Morris has any health conditions putting him at any greater risk of negative effects if he contracts the virus, that he has any subjective fears or concerns in that regard, or that the virus itself creates any particular disincentive for Mr Morris to engage in criminal activity; e.g., because it may increase his exposure to the virus and/or result in his incarceration possibly increasing the risk of his exposure to the virus.

  (d) If anything, it seems to me that the evidence in this case suggests that COVID-19 pandemic actually may increase the probability of Mr Morris committing further crimes while on interim release, insofar as:

    i. his mother testified that the availability of help to address the drug addictions and possible mental health issues of Mr Morris has “slowed down” during the pandemic; and

    ii. his mother’s other testimony indicated that such currently untreated drug and mental health problems are what cause Mr Morris to continue making poor choices leading him into repeated contact with the criminal justice system.

3. Even if there had been evidence that Mr Morris had subjective fears of COVID-19 exposure having a possible bearing on concerns relating to the primary and secondary grounds for interim detention, (which there was not), in my view such evidence would have been offset by other evidence I received indicating that such fears might be unreasonable or overstated from an objective standpoint. In that regard:

  (a) The “Response to COVID-19 Information Note” issued by the Ministry of the Solicitor General on May 26, 2020, received and reviewed on consent in relation to the current application by Mr Morris, describes in considerable detail the measures taken by the Ministry to prevent, monitor and/or reduce the spread of the virus within custodial facilities; e.g., through screening, use of personal protective equipment (“PPE”), and other health care measures created and implemented in consultation with the Ministry of Health and Public Health Ontario. The entire document speaks for itself, but:

    i. it includes indications of the location and extent of positive COVID-19 cases in various detention and correctional facilities across Ontario, (by including indications of positive cases resolved in custody and positive cases released from custody in relation to specific custodial institutions), and there are no indications of any positive cases whatsoever at the EMDC, where Mr Morris is being detained;

    ii. it outlines the processes put in place to address any outbreak of communicable diseases, (such as the COVID-19 virus), at provincial custodial facilities;

    iii. it describes the medical care available at such facilities, including the steps taken to assess health upon inmate admission, and to assess inmates that may require additional monitoring and/or who are deemed to represent a “high risk” in relation to health concerns; and

    iv. it describes the actions taken to stop transmission of the COVID-19 virus in particular, including a detailed summary of the special pandemic-related inmate, staff and visitor screening procedures implemented at all provincial institutions, (which would include the EMDC; ), as well as the introduction of additional measures such as suspension of personal visitation, placement of a hiatus on non-essential transfer of inmates between institutions, provision of PPE to staff and inmates, and the taking of steps to reduce the number of inmates in custody through a Temporary Absence Pass program, and consideration of non-custodial options for individuals charged with non-violent or less serious offences.

  (b) The “Information Note”, describing the “EMDC Response to COVID-19”, also received and reviewed on consent, provides further details and particulars about how the steps described in the information provided by the Ministry have been implemented at the EMDC. Once again, the document speaks for itself. However, it includes indications that, in relation to the EMDC:

    i. screening tools are being employed in relation to staff, inmates and visitors to the institution, including the taking of temperatures in relation to all entering the facility;

    ii. steps have been taken to educate those concerned on the importance of PPE, and all staff are wearing surgical loop masks at all times while inside the EMDC;

    iii. efforts have been made to facilitate social distancing between staff members, and all meetings of senior managers are conducted in open areas;

    iv. extra cleaning measures have been implemented;

    v. inmate transfers and movements within the province have been restricted to those which are necessary;

    vi. a special intake unit has been created to house all newly admitted and transferred inmates for a 14-day assessment period; i.e., to determine whether or not they are infected with the virus before being permitted to circulate with others inside the facility;

    vii. all personal inmate visits have been cancelled, while alternative compensatory measures, (such as extra phone facilities), have been introduced;

    viii. all lawyer and doctor consultations are now conducted on a “non-contact” basis; and

    ix. the EMDC, now operating at less than full capacity, is housing inmates alone in single cells wherever possible.

  (c) While there obviously are no guarantees that the COVID-19 virus will not reach staff and/or inmates of the EMDC, where Mr Morris currently is being held, it seems that fortunately has not happened to date, and the measures taken by the Ministry and the EMDC itself have considerably reduced the likelihood of that happening.

vii. As noted above, it was not argued that there was any basis for interim detention of Mr Morris on the tertiary ground, in respect of which COVID-19 considerations most frequently have been considered.

viii. While COVID-19 considerations may have played a role in the decision to grant Mr Morris bail and interim release from custody in any event, had he any known or documented health conditions placing him within a vulnerable group more likely to suffer complications and require hospitalization if he contracted the virus, there is simply no evidence of such conditions in this case. Nor is there any evidence of Mr Morris being incarcerated at an institution where there has been any outbreak of the virus, let alone a significant one.

ix. While the onset of the COVID-19 virus and associated suspension of regular court operations may very well delay the trial of Mr Morris, thereby prolonging his interim detention, there would seem to be an obvious irony in Mr Morris expressing concerns in that regard when he failed to attend for trial in October of 2019, prior to the onset of the pandemic. However, the precise implications of the further pandemic-related delay, apart from a health perspective, seem best left for consideration in the context of a focused s.11(b) Charter application, if and when such an application is brought. For now, I think it sufficient to find, for the reasons outlined above, that COVID-19 concerns do not, in this case, have significance, (either alone or in conjunction with the other considerations noted below), in terms of addressing and significantly mitigating the demonstrated and significant primary and secondary ground of detention concerns that otherwise exist in relation to Mr Morris.

c. As for other aspects of the proposed plan of release, and their ability to contribute to mitigating and addressing concerns about the primary and secondary grounds for continued interim detention:

i. Insofar as compliance with the proposed plan of release would remove Mr Morris from the city of London and make it more difficult for him to engage in negative peer associations, (i.e., insofar as he would be required to reside with his mother Ms James at her residence in Woodstock), the plan as contemplated would contribute to Mr Morris avoiding further transgressions while awaiting trial. However, those benefits of the plan obviously depend on compliance.

ii. As for the proposed appointment of Ms James as a surety for Mr Morris:

1. My opportunity to make a direct assessment of Ms James as a possible surety was limited, owing to the nature of the teleconference hearing and the decision of the parties to rely principally on the testimony Ms James provided during the hearing before the Justice of the Peace and her affidavit filed in support of the application before me.

2. I nevertheless have no reason to doubt or disagree with the assessment made by the Justice of the Peace that Ms James has been forthcoming, honest, very well meaning and intent on doing “what is right” in putting herself forward as a proposed surety for her son. To the contrary, a review of the testimony given by Ms James before the Justice of the Peace, and her supplementary affidavit, persuade me that she is indeed earnest in putting herself forward as a diligent surety, fully understands the role and duties of a surety, and is firmly committed to fulfilling those duties; e.g., in terms of monitoring her son’s compliance with the contemplated terms of strict house arrest, immediately reporting any noted violation of those terms, and applying to have her appointment as surety revoked if she feels unable to perform such duties effectively. Indeed, Ms James has served in the capacity of a surety for her son before, and took steps to bring that status to an end when she no longer felt able to control her son. Her commitment to fulfilling her surety duties on this occasion is also underscored by her willingness to pledge up to $5,000 in security, which is an extraordinarily large sum for a person of her limited assets and income. She believes that her son, knowing her limited financial means, would not act in a manner that might cause her to forfeit such security. There is also hope that Mr Morris might be more considerate of his mother’s situation and challenging circumstances, insofar as he has been made aware of her recent health complications; i.e., an unfortunate diagnosis of blood cancer.

3. However, in my view, the surety concerns in this case do not relate to Ms James but to the probability or improbability of Mr Morris following her directions and rules in a manner sufficient to address the identified concerns about the possible need for detention on the primary and secondary grounds. In that regard:

  (a) Ms James acknowledged, in her testimony before the Justice of the Peace, that she has found Mr Morris hard to control in the past, and that difficulties in that regard are worse because of the currently uncontrolled and untreated drug addictions of Mr Morris which cause him to make poor choices, and in respect of which he does not always listen to his mother. Mr Morris similarly has not abided by his mother’s repeated requests that he have nothing further to do with Ms Smith-Scott. None of that bodes well for the prospects of Mr Morris following the directions of his mother while under house arrest, or stopping to think about the possible financial impact on his mother, if his currently untreated addiction – unlikely to be treated effectively during the course of the current pandemic according to Ms James - leads or drives Mr Morris into making further poor choices.

  (b) Ms James also acknowledged, during her testimony before the Justice of the Peace, that she and Mr Morris “most definitely” did not see or communicate with each other that often when he was out of custody. In particular, Mr Morris “wasn’t around too often” over a six-month period leading up to his detention, during which she worried about him. Their relationship in the time leading up to Mr Morris being detained accordingly was not close. Even by the time of the hearing before the Justice of the Peace, Ms James lacked complete awareness of the charges Mr Morris was facing, and the circumstances bringing him before the court.

  (c) Although the past history of Ms James reporting her inability to control her son her son and proactively taking steps to withdraw as a surety speaks well of her understanding of a surety’s obligations, it unfortunately also speaks to a reality that appointment of Ms James as surety is a weak and questionable guarantee of her son’s compliance with the terms of interim release. In other words, the “track record” of Mr Morris abiding by his mother’s directions to comply with his terms of interim release is not positive.

iii. As for the ESP program:

1. I accept the evidence and indications, set forth in the pamphlet issued by or through the Ontario government and/or the Ontario Monitoring Centre in Mississauga, Ontario, about the availability and nature of the program, the time required to investigate and install the system in relation to a particular individual, (usually up to 48 hours depending on volume), and the manner in which the system uses electronic monitoring/supervision technologies and software systems to monitor compliance with “house arrest”. In essence, the system relies on radio frequency based monitoring to detect the presence or absence of the accused at a pre-defined location. The device worn by the accused also has built-in “tamper protection” features that will generate alerts to the monitoring station if there are any attempts to remove or disable the device, or otherwise interfere with its operation.

2. There is no question that gratuitous availability of the ESP, as one of the responses to the current COVID-19 pandemic, is a relevant and significant development that enhances the strength of a proposed plan of release.[^21]

3. However, I think it is also important to remember that the focus is on whether the plan of release – including use of the EPS – is sufficient to address concerns regarding the primary and secondary grounds for interim detention, and also to keep in mind what the EPS can and cannot do. In that regard:

  (a) As noted above, the system can monitor whether or not there are any attempts to tamper with the device worn by the accused, and whether the accused is or is not present at a particular location, which in this case would be the residence of Ms James in Woodstock.

  (b) The EPS accordingly has the potential to enhance supervision of Mr Morris, and deter possible breaching of any imposed terms of house arrest, by detecting and “reporting” any attempt by Mr Morris to leave the Woodstock residence of Ms James, (even if Ms James is temporarily absent, sleeping or otherwise occupied), in circumstances not falling within the limited exceptions permitting attendance elsewhere in the presence of his surety.

  (c) The EPS nevertheless does not have the ability to indicate what Mr Morris may or may not be doing while inside his mother’s residence, (including periods when Ms James may necessarily be absent from the home or sleeping), and accordingly has no ability to detect the commission of release term breaches or further offences, (e.g., engaging in prohibited contacts or associations, possession or use of controlled substances, possession of weapons, or acts of violence), not involving a physical departure from the residence of Ms James.

  (d) As emphasized by Crown counsel, the EPS also is reactive rather than preventative tool; i.e., in terms of addressing possible flight or further offending. It will alert the monitoring station to any efforts to remove or disable the device, and/or any unauthorized departure from the home of Ms James, but it obviously would take time for the monitoring station to then contact the police and for the police to then respond. Nor is the EPS a GPS system capable of assisting in the location of Mr Morris during any temporary unauthorized departure from the residence of Ms James, or if Mr Morris absconded altogether.

  (e) In short, the deterrent to possible flight or further offending by Mr Morris offered by the EPS system is merely a psychological one; i.e., the effect which the prospect of Mr Morris eventually being arrested and charged with further offences might have on inhibiting such misbehaviour. Unfortunately, such prospects clearly have not done much in the past to deter his efforts to escape legal responsibility and commit further crimes.

d. Of course, continued detention of Mr Morris, even on an interim basis, inherently would add to the tragic overrepresentation of those with Aboriginal heritage being held in custody in our criminal justice system. That is a significant concern. In my view, however, it is outweighed in this particular case by the presence of other significant and serious concerns under the primary and second grounds for detention, noted above, that would not be adequately addressed by the proposed plan of release. While I think that would be true in any event, in the particular circumstances before me, I also note that the possible impacts of the Aboriginal heritage of Mr Morris on his life, past involvement with the criminal law and current situation may be less clear in this case than others; e.g., insofar as the Aboriginal heritage of Mr Morris apparently is derived solely from his father, with whom he apparently has had absolutely no contact since he was a newborn.

[23] In the result, I was not persuaded, even on a balance of probabilities, that the evidence and considerations relied upon by Mr Morris, considered individually or collectively, were sufficient to address the identified legitimate and significant concerns relating to the primary and secondary grounds for his continued interim detention.

Conclusion

[24] For the reasons outlined above, I determined that Mr Morris accordingly had not met the reverse onus cast upon him by s.524 of the Code.

[25] His application was dismissed accordingly.

Justice I.F. Leach

Date: June 8, 2020

[^1]: See R. v. Bray, [1983] O.J. No. 2509 (C.A.), at paragraph 12.

[^2]: Numerous decisions of this court have held that the onset and rapid evolution of the COVID-19 pandemic constitute a material and relevant change in circumstances within the meaning contemplated by the Supreme Court of Canada in R. v. St-Cloud, supra. To cite merely a few of the many available decisions in that regard, see: R. v. Cesar, 2020 ONSC 3165; R. v. D.M., 2020 ONSC 3152; R. v. Grant, 2020 ONSC 2957; R. v. Haughton, 2020 ONSCZ 1890; R. v. Mair, 2020 ONSC 3036; R. v. Medeiros, 2020 ONSC 2890; and R. v. Hassan, 2020 ONSC 2265.

[^3]: See R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at paragraphs 50, 58, 67 and 69; R. v. Hope, 2016 ONCA 648, at paragraphs 9 and 11; and the recently enacted s.493.2 of the Code.

[^4]: See, for example: R. v. Morales, supra, at paragraphs 41 and 43-44; and R. v. Ryczak, [2007] O.J. No. 3408 (S.C.J.), at paragraphs 192-193.

[^5]: See, for example, R. v. Grant, 2020 ONSC 2957.

[^6]: See, for example, R. v. Hastings, 2020 ONSC 2083.

[^7]: See, for example: R. v. T.K., 2020 ONSC 1935; R. v. Haughton, 2020 ONSC 1890; R. v. A.C., 2020 ONSC 2870; R. v. Elliott, 2020 ONSC 2976; R. v. Boast, 2020 ONSC 2684; R. v. A.F., 2020 ONSC 2880; R. v. Smith, 2020 ONSC 2668; R. v. Paramsothy, 2020 ONSC 2314; R. v. J.A., 2020 ONSC 2312; R. v. Osman, 2020 ONSC 2490; R. v. Fraser, 2020 ONSC 2045; and R. v. Cahill, 2020 ONSC 2171.

[^8]: See, for example: R. v. Hastings, supra; R. v. Halovich, 2020 ONSC 2709; R. v. Hassan, 2020 ONSC 2265; and R. v. B.M.D., 2020 ONSC 2671.

[^9]: See R. v. Hastings, supra.

[^10]: For example, see R. v. J.L., 2020 ONSC 2144.

[^11]: See R. v. Syed, 2020 ONSC 2195, [2020] O.J. No. 1552, at paragraphs 47-50; and R. v. Williams, 2020 ONSC 2237, at paragraphs 123-126.

[^12]: See, for example: R. v. J.S., 2020 ONSC 1710; R. v. T.K., supra; R. v. Cain, 2020 ONSC 2018; R. v. Haughton, supra; R. v. A.C., supra; R. v. S.A., 2020 ONSC 2946; R. v. Elliott, supra; R. v. Halovich, supra; R. v. A.F., supra; R. v. B.M.D., supra; R. v. Johnson, 2020 ONSC 1797; R. v. Paramsothy, supra; R. v. Ali, 2020 ONSC 2374; R. v. Osman, supra; R. v. M.K., 2020 ONSC 2266; R. v. Rajan, 2020 ONSC 2118; and R. v. T.L., 2020 ONSC 1885.

[^13]: For example, see R. v. A.C., supra; R. v. Mair, 2020 ONSC 3036; R. v. Hastings, supra; R. v. Forbes, 2020 ONSC 1798; R. v. Halovich, supra; R. v. Hassan, supra; R. v. Brown, 2020 ONSC 2626; R. v. Dawson, 2020 ONSC 2481; R. v. Dabrowski, 2020 ONSC 2382; R. v. Baidwan, 2020 ONSC 2349; R. v. Jeyakanthan, 2020 ONSC 1984; R. v. Budlakoti, 2020 O.J. No. 1352 (S.C.J.); and R. v. Nelson, 2020 ONSC 1728.

[^14]: See R. v. Hassan, supra; R. v. Yusuf, 2020 ONSC 2799; R. v. P.K., 2020 ONSC 2694; R. v. B.M.D., supra; R. v. Ali, supra; R. v. Baidwan, supra; and R. v. Budlakoti, supra. In that regard, other courts dealing with determinations of whether to grant bail and interim release during the COVID-19 pandemic have emphasized that jails are bound by common law and legislation to provide proper care for inmates, as well as a safe working environment for employees, and it should not be assumed, in the absence of evidence, that there has been any relevant systemic failure to provide such adequate care and protection. See, for example: R. v. Laurin, [2020] O.J. No. 1266 (O.C.J.); R. v. G.T.B., 2020 ABQB 228; and R. v. Alexander, [2020] N.J. No. 69 (Prov.Ct.).

[^15]: For example, see R. v. S.A., supra; R. v. F.D., 2020 3054; R. v. Nguyen, 2020 ONSC 2503; R. v. Rawson-Keely, [2020] O.J. No. 1727 (S.C.J.); R. v. J.A., supra; R. v. Cain, supra; R. v. Seegobinsingh, 2020 ONSC 2274; and R. v. C.J., 2020 ONSC 1933.

[^16]: See R. v. Morgan, an apparently unreported decision of the Court of Appeal, Docket: M51470 (C67536), rendered by Trotter J.A. on March 31, 2020, although I also note that matters proceeded in that case on the basis of a concession by appellate counsel in that regard; i.e., as opposed to a finding by the Court of Appeal made after competing submissions on the point.

[^17]: See R. v. Kazman, 2020 ONCA 251; and R. v. Stojanovski, 2020 ONCA 285.

[^18]: See R. v. Stojanovski, supra.

[^19]: See R. v. Kazman, supra.

[^20]: For example, see R. v. S.A., supra; R. v. Nguyen, supra; and R. v. Kazman, supra.

[^21]: See R. v. Sappleton, 2020 ONSC 1871.