Court File and Parties

Court File No.: CR/20-100-BR Date: 2020-06-09

Ontario Superior Court of Justice

Between:

Her Majesty The Queen, Respondent J. Razaqpur for the Public Prosecution Service of Canada, and S. Kim for the Crown Attorney

- and -

Patrick Benson, Applicant J. Stephenson, for the Applicant

Heard: May 28 and June 4, 2020

Reasons for Ruling on Application for Bail Review - Section 520 of the Criminal Code

This video-conference proceeding was brought during the COVID-19 pandemic, after the Superior Court of Justice suspended regular court operations. A Publication Ban is continued pursuant to ss. 517(1) and 520(9) of the Criminal Code. However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings.

A.J. GOODMAN J.

[1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the applicant’s detention order.

[2] The applicant, Patrick Benson (“Benson”), stands charged with various offences, including possession of drugs for the purpose of trafficking, (fentanyl), impaired driving, leave the scene of an accident, fail to comply with a demand made by a peace officer and breaches of court orders, contrary to their respective provisions in the Criminal Code. The alleged offences arise from events that occurred on October 19, 2019 in Hamilton.

[3] The applicant was detained following a bail hearing on March 19, 2020 before Justice of the Peace Phillips of the Ontario Court of Justice. Pursuant to s. 515(10), the justice of the peace ordered the applicant’s detention on the secondary grounds.

[4] This hearing proceeded by recorded videoconference wherein the parties presented evidence and made oral submissions. Numerous cases and other written materials were filed electronically and referred to during the course of submissions.

[5] On June 4, 2020, I advised the parties that the applicant had met his onus to establish a material change in circumstances. The bail hearing proceeded as a hearing de novo. At the conclusion of the evidence and submissions, a return date of June 8, 2020 was set. I advised the parties that the bail review application was dismissed with reasons to follow. These are my Reasons.

Positions of the Parties

[6] The applicant submits that there are two bases warranting a hearing de novo. First, the Justice of the Peace erred in his assessment of the evidence and his conclusion regarding the secondary ground concerns as it pertained to the applicant’s criminal record and the proposed plan for release. Second, there is a material change of circumstances as a result of the COVID-19 pandemic and the recent outbreak at the Hamilton Wentworth Detention Centre (“HWDC”) along with the applicant’s current health situation and predicament while incarcerated.

[7] The applicant emphasizes that consideration ought to be given to the plethora of rulings from the Superior Court, including my decision in R. v. King, 2020 ONSC 1935, as they pertain to a material change in circumstances arising from the ubiquitous pandemic situation in Ontario and its potential impact on inmates in custodial institutions. While the initial bail hearing was held during the outset of the pandemic emergency in Ontario, there was no reference made to the issue at the hearing.

[8] The applicant submits that the material change of circumstances provided to the court goes beyond the Crown’s concession. In effect, the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10) of the Code. The applicant says that the current plan is similar to the one before the original bail court in that the applicant’s grandfather will be able to provide 24/7 supervision, under full house arrest. The grandfather is retired and remains at home for the most part due to the virus. The applicant’s father will assist in the supervision along with electronic monitoring. This will address all of the concerns advanced by the Crown.

[9] The Crown acknowledges there may be some circumstances where COVID-19 can affect the analysis for a material change of circumstances. However, the Crown disagrees that there is a material change in circumstances in this case and submits that this court ought to take a different or renewed approach to its assessment of the matter.

[10] The Crown says that the real issue is whether the material change in circumstance would have impacted the original jurist’s decision and how COVID-19 has affected this particular accused. The caselaw is evolving and the threshold issue needs to be reassessed in light of new information as to how the custodial institutions are addressing the pandemic.

[11] The Crown submits that the justice of the peace considered all of the evidence and did not commit an error in applying the relevant test to the secondary ground. Alternatively, even if the application does constitute a material change in circumstance, the Crown submits that there is a substantial risk that the applicant would reoffend and that the applicant’s conduct gives reason to believe that he will continue to commit offences if released on bail. His record also demonstrates a disregard for court orders including prior bail. Further, the public’s confidence in the administration of justice would be defeated by this plan of release. The Crown asserts that none of the factors elicited by the applicant adequately address the primary, secondary or tertiary grounds and warrant his continued detention.

Summary of the Evidence

[12] A lengthy summary of the evidence and allegations before Justice of the Peace Phillips is reflected at pp. 4 - 13 of the transcripts. Having reviewed this information in the context of the issues in this bail review, along with counsels’ materials, I need not recite them here.

Legal Principles

[13] It is settled that the approach to a review under s. 520 or 521 of the Criminal Code has been altered since the release of the Supreme Court of Canada’s seminal decision in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[14] At para. 120 of St-Cloud, the Supreme Court stated that a judge can review a justice's decision with respect to the detention or the interim release of an accused where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case.

[15] In St-Cloud, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) "the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another"; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.

[16] The fundamental rights require that the justice ensure that interim detention is truly justified having regard to all of the relevant circumstances of the case.

[17] In St-Cloud, the court held that in order for new evidence to be admissible at the bail hearing, four criteria must be met. The criteria are from the court’s prior decision concerning the admissibility of new evidence on appeal in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759. The Palmer criteria were modified to suit the bail review context in St-Cloud. When new evidence meets the four criteria for admissibility, the reviewing judge can repeat the analysis for whether detention is justified as if he/she were the initial decision maker. The four Palmer criteria and the modifications in the bail context are as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.

[18] The reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for a reason that is legitimate and reasonable (para. 132).

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

[19] In the context of a bail review, it is sufficient that the evidence is relevant for the purposes of the bail review (para. 135).

3. The evidence must be credible in the sense that it is reasonably capable of belief.

[20] This criterion must be interpreted in light of the relaxation of the rules of evidence at the bail stage (para. 136).

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[21] This last, albeit important factor, stipulates that the fresh evidence on review must be “significant” in the sense that it must be reasonable that it could have impacted the balancing exercise undertaken by the justice (para. 137).

[22] Given the generally expeditious nature of the interim release process, Wagner J. (as he then was) states at para. 129 of St-Cloud:

In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr.C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C.

[23] At para. 131, Wagner J. wrote that "[a] generous and liberal interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court". At para. 130, Wagner J. notes "that the pre-trial detention of accused persons -- like their release -- is by its nature very often interim and not final”: See also R. v. A.A.C, 2015 ONCA 483, [2015] O.J. No. 3450, at para. 52.

Analysis: Error in law or misapprehension of the evidence

[24] First, I will deal with the applicant’s assertion of an error in law on the record or excessive weight placed on the applicant’s criminal record related to the secondary ground. Ms. Stephenson submits that, in effect when reading the ruling, the justice of the peace wrongly concluded that no plan could ever be mounted to afford a release for her client. Counsel says that this is clearly an erroneous interpretation of the law.

[25] Justice of the Peace Phillips’ analysis and reasons are detailed in 12 pages of transcript. At pp. 61 - 65 of the transcripts, the justice of the peace addressed the primary, secondary and tertiary grounds.

[26] Having reviewed the transcripts, in my opinion, Justice of the Peace Phillips provided a detailed examination of the relevant issues. The justice of the peace considered all of the evidence before him, the submissions of counsel and applied the relevant legal principles. After having reviewed the applicant’s criminal record with the plan, the justice of the peace concluded that there was no plan in play before him that could be fashioned to effect a release.

[27] In reading his reasons as a whole, I am not persuaded that the justice of the peace decided that there would never be a plan that could be fashioned to allow for judicial interim release. In this regard, I agree with the Crown attorneys’ interpretation of the ruling in that it was limited to the evidence and the plan before him in applying the relevant factors and jurisprudence. While the reasons could have been stated more clearly, overall, I find that the justice of the peace properly exercised his discretion to address the secondary ground concerns and he did not commit an error on the face of the record or misapprehended the evidence.

Material Change in Circumstances – Application of the Legal Principles

[28] Turning to the applicant’s primary focus for this review, the issue is whether the applicant has met his onus to demonstrate a “material change of circumstances” to invoke a de novo hearing. The question is whether the material change in circumstances would have impacted the jurist’s decision.

[29] In St-Cloud, the Supreme Court stated at para. 138:

If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process. As I explained above, that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.

[30] The applicant says that his personal circumstances – his health issues and the concerns with COVID-19 at the jail puts him at an even greater risk and clearly does not allow for any form of meaningful social distancing. Ms. Stephenson submits that with COVID-19, the preponderance of recent jurisprudence from the Superior Court opens the door to a threshold consideration of a material change in circumstances and a hearing de novo. This material change wholly applies in this case when considering the individual circumstances of her client. Counsel suggests that this material change of circumstances goes beyond just the threshold issue. In effect, the grounds for review with the new plan not only meets the threshold of material change, but goes further to tip the balance for release under s. 515(10).

[31] As I have already made findings in support of a material change of circumstances linked to the recent pandemic, my conclusion in King and in more recent cases such as R. v. J.A., 2020 ONSC 2312, R. v. Dawson, 2020 ONSC 2481, R. v. Foster, 2020 ONSC 2880 and R. v. P.K., 2020 ONSC 2694, could be considered dispositive of this threshold issue.

[32] Indeed, my approach to this question is comparable to the huge inventory of decisions arising from other cases from the Ontario Superior Court: See R. v. Jeyakanthan, 2020 ONSC 1984, [2020] O.J. No. 1409, R. v. J.S., 2020 ONSC 1710. R. v. Budlakoti, 2020 O.J. No. 1352 (S.C.), R. v. Cain, 2020 ONSC 2018, and R. v. Fraser, 2020 ONSC 2045. I note that all of these cases dealt with an original show cause hearing occurring prior to March 16, 2020 or before the Province announced its emergency pandemic regime.

[33] As mentioned, this case was heard on March 19, 2020, at the outset of the pandemic emergency and mere days after the suspension of proceedings issued by the Chief Justice of the Superior Court, followed by a similar direction from the Chief Justice of the Ontario Court of Justice.

[34] The Crown submits that this case ought to be considered in tandem with my most recent bail review ruling in R. v. Virag, 2020 ONSC 3255. In Virag, I held that the threshold argument of a material change in circumstances had not been established. In Virag, the original bail hearing was conducted on April 8, 2020, at the height of the COVID-19 pandemic. Specifically, in Virag, the justice of the peace averted to the very issue of COVID-19 and the custodial institutions. (at pp. 129 - 131 of the transcripts). Clearly, that case was situated differently from all of the other matters previously considered by me, and those of many of my colleagues.

[35] Here, I agree with the applicant that Virag is distinguishable. At the original show cause hearing in this case, no evidence was called and no consideration or mention was made of the COVID-19 pandemic as potentially impacting a plan of release or the applicant’s detention. That is not being leveled as a criticism, but merely to acknowledge that in the early days of the pandemic emergency, scarcely little was considered by jurists as to the virus or its impact on inmates in jails. I also agree with the applicant that at the time of the original bail hearing, there would have been no need to address the COVID-19 issue with the plan for release before the justice of the peace.

[36] That being said, there is an enhanced awareness and knowledge surrounding COVID-19, its effect on society generally, and those who are incarcerated in jail. Further, there is additional information now available from health professionals, government, along with the modifications to procedures and protocols being undertaken to address the pandemic in the detention centres. While not perfect, it can be said that in the short timeframe of two and a half months, the court’s information base and understanding has progressed exponentially with various approaches to limit the spread of the virus.

[37] As such, the Crown suggests that it is now timely to re-address whether the fact of COVID-19 is a material change of circumstances for the purpose of a bail review under the governing jurisprudence.

[38] The applicant testified and raised certain concerns about the conditions in the jail as expressed in paras. 8 – 11 of his affidavit. He also testified about concerns related to his health and the lack of treatment being afforded to him at the institution for various medical issues.

[39] The applicant goes on to claim, inter alia, that there is limited time outside of his cell, no disinfectant for the cell, issues with soap, the overall cleaning is lacking, laundry is soiled, kitchen implements are dirty and other concerns.

[40] In response, the Crown provided numerous materials including an update from Public Health Ontario, Epidemiologic Summary to May 25, 2020 as well as a May 21, 2020 information note from the Ministry of Community Safety and Correctional Services. (Ex. 2). Briefly, the extensive information in this report includes, but is not limited to:

Ontario has implemented several strategies to limit the effects of COVID-19 on our inmate population and our correctional staff. Through the combined actions of the Ministry of the Solicitor General and the Ministry of the Attorney General, the population in Ontario’s adult correctional institutions has been reduced significantly.

Quick Facts: As of May 20, 2020, there are 5,753 inmates in custody across all 25 institutions. This is a 31% reduction since March 16, 2020. Inmate Testing data was provided (with one positive case that was resolved at HWDC.) The information included healthcare polices and procedures, the measures taken, action to stop transmission of COVID-19 in jails, along with other procedures and policies.

On April 17, 2020, an outbreak was declared by Peel Public Health at the Ontario Correctional Institute (OCI). The ministry temporarily closed the facility on April 21, 2020 after transferring all inmates to the Toronto South Detention Centre (TSDC). All inmates who have been transferred from OCI have been placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates…

…Facilities are inspected and thoroughly cleaned regularly and/or as required…In the case of a confirmed positive case of COVID-19, an outside vendor will come in to complete a deep cleaning in the areas where the employee was working and/or travel pattern within the facility… Inmates are provided with cleaning supplies and direction on the proper cleaning protocols, as well as appropriate PPE where necessary…Proper handwashing and cough/sneezing protocol has also been communicated to inmates. For health and safety reasons, inmates are not provided with hand sanitizer, but may have supervised access in some cases. Information has been posted in inmate areas…Staff have access to PPE including face masks, eye protection, gloves and gowns, and are instructed to wear it when appropriate according to Guidelines developed by the Ministry of Health…Inmates also have access to PPE including face masks and are instructed to wear it when appropriate according to guidelines developed by the Ministry of Health. If an outbreak of a reportable communicable disease occurs or is suspected, institution officials take immediate precautionary containment measures in accordance with operating procedures, including notifying the local Medical Officer of Health, and SolGen provincial health professionals. Institution health care staff working collaboratively and under the direction of the local Medical Officer of Health to manage the situation, including containment strategies such as medical isolation

[41] The Crown called Sergeant Scriven (“Scriven”) from the Hamilton Wentworth Detention Centre (“HWDC”). Scriven provided information about the protocols currently in effect at the institution. As mentioned, on April 24, 2020, a COVID-19 outbreak was declared at HWDC. Scriven detailed the circumstances surrounding the positive COVID-19 event. Scriven testified about the jail’s revised procedures that were being adopted. This includes cleaning of facilities, soap and other disinfectants, isolation protocols, droplet unit, phone usage, access to the range, meal preparation, amongst other topics. She also provided details about the applicant’s file and his requests for medical attention. For the most part, Scriven disagreed with most, if not all of the assertions made by the applicant as to the state of affairs at HWDC.

[42] As discussed in recent cases, there is no obligation on the applicant to provide evidence about COVID-19 and its personal impact on him or her. Of course, with the pervasiveness of COVID-19, and the nature of the institution, there is always the possibility of any inmate housed in a secure and restricted setting with limited ability to self-isolate from contracting the virus.

[43] In this hearing, the applicant has provided some evidence and has raised health concerns regarding a pre-existing medical condition that could make him more susceptible to the virus. He testified that he suffers from pulmonary issues and fibromyalgia. A medical report from Alberta was filed (Ex. 1). There were no updated medical reports related to this specific health concern from the 7.5 months the applicant has been housed at HWDC.

[44] The current analysis relates to whether the applicant has met his onus with the Palmer test. In this case, the applicant argues that there is a material change of circumstances by virtue of the recent outbreak at HWDC and the evidence provided by the applicant as to his particular situation and health issues. From my perspective on the threshold issue, with the infusion of the applicant’s medical condition, even with the updated information presented in this review, I am satisfied that the applicant has met his onus to show a material change in circumstances.

[45] Suffice it to state, that while I am entitled to conduct a hearing de novo, it does not mean that the aforementioned consideration of the global pandemic and the applicant’s personal circumstances allows for a de facto release. Those factors must also be balanced with the plan being proposed, along with the jurisprudence related to the secondary grounds for detention and the Crown’s argument during this review that both the primary and tertiary grounds are also engaged.

[46] Notwithstanding the aforementioned and before moving on to the next stage, with the advent of enhanced information from the institutions with the significant protocols being taken by the jail to manage the pandemic, along with our ever-evolving understanding of COVID-19, it may be timely to revisit whether COVID-19 per se meets the threshold question per St.-Cloud. Both prosecutors have made a very powerful and valid argument for such a reconsideration. Nonetheless, I leave that question for another day.

Analysis: Primary, Secondary and Tertiary Grounds - Legal Principles

[47] As the applicant has satisfied his onus to demonstrate a material change in circumstances, the bail review continued as a hearing de novo.

[48] In addressing the primary ground, detention of the accused is justified where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.

[49] In accordance with the secondary ground, detention is justified where it is necessary for the protection or safety of the public having regard to all of the circumstances. It has been settled that in dealing with the secondary ground, the danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Appellate courts have held that, in general, society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime: R. v. Morales, [1992] 3 S.C.R. 711 at p. 32.

[50] Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial risk” of committing an offence or interfering with the administration of justice. Moreover, detention is justified only when it is “necessary” for public safety. It is also well established that jurists must consider the approach directed by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509. If there is a substantial likelihood that the accused will not comply or cooperate with the terms of the bail, he or she is likely to be denied bail on the principles and objectives of the bail provisions of the Code.

[51] The tertiary ground provides that the application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove that the detention of the accused is justified to maintain confidence in the administration of justice.

[52] While the applicant has raised some health concerns, he had not seen a medical professional about his fibromyalgia for breathing issues while at HWDC. His one previous visit to the clinic was for an unrelated issue. He testifies that he returned to work in the oil fields in Alberta after having been prescribed medication for fibromyalgia.

[53] I find that the applicant’s evidence was inconsistent and he tended to overstate his observations or concerns about his situation in the jail, the cleaning, lockdowns, the correctional officers, visits, yard and other topics. This includes the information related to his own health. While he claimed that he wanted to see a doctor in March, it seems that the specific concerns raised in this hearing did not surface for the first many months of his incarceration and even then his prior visit to the clinic was for an unrelated matter. He made various bald assertions intermixed with much conjecture.

[54] The heightened risk posed by COVID-19 to incarcerated individuals is echoed in the affidavit of physician and epidemiologist, Dr. Aaron Orkin. As noted by Dr. Orkin at para. 27: “The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities. This is a geometry problem, not a policy or a strategy problem. There simply is not enough space to create the distance required between people in Ontario corrections facilities.”

[55] I am cognizant that Dr. Orkin is an epidemiologist focussed squarely on the public health implications of continued incarceration. He said as much at para. 37: “My opinion is concerned only with what is in the community’s best interest with respect to the imminent threat of a COVID-19 pandemic. Subject to other considerations, any solution that promotes and enables physical distancing between individuals is in the community’s best interest for the management of COVID-19”. The qualification of being “subject to other considerations” is important.

[56] While I have held that this is an important factor amongst others in addressing the secondary (and tertiary) ground) it is not determinative and must be balanced with other considerations.

[57] In any event, the Crown argues that the institution is taking all necessary steps to contain this limited outbreak. I agree. The outbreak at HWDC in April 2020 was related to one incident, resolved approximately one month ago, with no additional occurrences since that time. I accept Sergeant’s Scrivens’ testimony and the information filed by the Crown as to the significant steps being taken by the Ministry and HWDC in relation to staff and inmates’ safety and COVID-19. While social distancing is a challenge, the evidence reveals that the jail is taking all reasonable precautions with established protocols. At this juncture, institutional staff are adopting significant measures to deal with the pandemic.

[58] When I consider the current state of affairs in the specific detention centre with all the evidence that I have received with due consideration to the COVID-19 pandemic, I am compelled to conclude that in this case, the applicant’s risk of contracting the virus is minimized. In other words, the pandemic, in of itself, does not advance the reasonableness of the plan to remedy the applicant’s continued detention on any of the three grounds under review.

[59] Turning to the plan itself, the applicant proposes supervision, albeit similar to that presented at the initial show cause hearing. In their respective affidavits and testimony, the sureties advise that the recognize the expectations of their responsibilities. The plan includes house arrest terms, primary supervision from Norman Taylor, (“Taylor”) the applicant’s grandfather with the assistance of Patrick Benson Sr., (“Benson Sr.”) his father. Benson Sr. will monitor the applicant upon release for 14 days at a residence of a friend and then the applicant will be under the direct supervision of Taylor who will remain at home at all times with the addition of a GPS electronic ankle monitor from Recovery Sciences. The evidence surrounding the payment of the monitoring services was somewhat equivocal.

[60] Taylor was deemed as a suitable surety by the justice of the peace and I have no difficulty accepting that conclusion.

[61] In this hearing, I was less than impressed with Benson Sr.’s evidence. He clearly does not know his son or has chosen not to make reasonable inquires of the applicant as to his overall situation, employment or lifestyle. His awareness of his son’s criminal record and past behaviour is wholly lacking or otherwise minimized. Benson Sr. did not recall the details of his involvement with his son’s prior and recent bail release.

[62] Benson Sr.’s affidavit was also somewhat misleading. In particular, the reference to his own past criminal record, which was more significant than originally suggested. Further, I reject Benson Sr.’s belief that the last time he was a surety for his son, “things went well”. I do not accept the explanation proffered to the effect that he was not a residential or primary supervisory surety and thus, he may have been confused or misquoted. In any event, I note that he had to call the police for an alleged breach.

[63] At the outset, Benson Sr. did not offer to pledge any amount in support of the release plan. While that can be attributed to a drafting error, more significantly was my consideration of Benson Sr.’s reaction to the question of the bond posed to him in cross-examination. In my view, his initial response and demeanour is suggestive of a lack of confidence in either his own ability or that of his son to follow court orders. Indeed, most of his response in cross-examination regarding the applicant were equivocal or speculative.

[64] As mentioned, the proposed plan invokes electronic monitoring. I have no doubt that electronic monitoring can certainly enhance a release plan. It provides some increased level of certainty and some breaches will be detected quite expeditiously, but does not prevent such non-compliance.

[65] This type of electronic monitoring system has been addressed by several jurists. In USA v. Pannell, [2004] O.J. No. 5715 (S.C.J.), an extradition case, Nordheimer J. (as he then was), stated that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. Jesso, 2020 ONCA 280, at paras. 24-27.

[66] Electronic monitoring is not infallible and its introduction to a release plan where there is a personal stake lacking by one surety or the accused (and notionally, concerns about his abiding by release terms), do not remedy the reality that “the real ‘pull of bail’ is still missing”: United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at paras. 11-12. While electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it: Pannell, at para. 23. Indeed, 24/7 electronic monitoring does not replace the need for good, effective and reliable sureties.

[67] I have held that there is an important distinction to be considered when addressing a release plan under the auspices of the pandemic and s. 515(10) of the Criminal Code for non-violent offenders as opposed to those who are deemed violent. As I stated in recent cases, while the pandemic is daunting and challenging, I am reminded that the court must be mindful of the risks of releasing violent offenders back into the community for the sake of reducing the population in detention centres.

[68] The case at bar involves offences of a non-violent nature, however the applicant’s record is replete with egregious crimes of violence.

[69] In any event, the applicant’s alleged conduct implicated in these numerous offences, and especially the drug charge, are nonetheless very serious: See: R. v. Pearson, [1992] S.C.J. No. 99. Even with the infusion of 24/7 electronic monitoring proposed in this case, the law is clear that the sureties must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137.

Primary Ground

[70] The nature of the offence along with the applicant’s past conviction for failing to attend court may give rise to a flight risk. Here, the Crown's position that these factors demonstrate a concern about the primary ground. At the time of his arrest for the offences that are the subject of this review, the applicant had had three outstanding warrants for his arrest – one in Peterborough, one in Alberta and a Canada-wide warrant issued also from Alberta. The applicant already has one conviction for failing to attend court. In any event, he has failed to appear in other jurisdictions. The applicant was subject to a probation order in 2016 and he reported twice and then never again. A warrant was issued and he was arrested on these charges in early March of 2019 and then released on a recognizance. On his first appearance date after release, the applicant failed to attend court and another warrant was issued. He has convictions related to evading the police.

[71] In this case, based on the applicant’s conduct while on various forms of release, the Crown has advanced more than just generic concerns. From what I can glean from the applicant’s conduct in the past, his criminal antecedents, and with resources as a mid-to-high level drug dealer, it is likely that flight from eventual prosecution will reasonably come to fruition. As such, I have concerns on the primary ground and would go further to find that he would otherwise abscond to avoid prosecution.

Secondary Ground

[72] I have considered the applicant’s background leading up to and including the current offences. The applicant has two previous convictions of failing to comply with a recognizance or undertaking, eight previous convictions for failing to comply with court orders, two convictions for obstructing justice, four convictions for other crimes of dishonesty, two convictions for flight while pursued by a police officer and numerous convictions for violent offences, including armed robbery. The analysis includes the applicant’s conduct while on previous forms of release as well as his continued - apparently unabated - involvement with evading police and drugs. It is through this lens that one must assess whether or not the COVID-19 crisis, the electronic monitoring and proposed plan for release separately or cumulatively addresses concerns on the grounds for detention.

[73] Even with the infusion of 24/7 electronic monitoring proposed in this case, the law is clear that the sureties must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: St-Cloud, at paras. 135, 137.

[74] In R. v. Fraser, 2020 ONSC 2045, the accused unsuccessfully sought release from detention, arguing a material change in circumstances based on a new release plan and 2) the COVID-19 pandemic. He argued that the virus posed a potential health and safety risk to inmates in general, and to the accused in particular, because he was being housed with 12 other inmates and he was in remission from leukemia. The judge agreed that the COVID-19 virus was a material change in circumstances warranting a de novo bail hearing and that the heightened risk posed to detained inmates is a factor when assessing the grounds for detention. The judge also accepted the accused’s testimony that it was not possible to implement the protocols in his current living conditions. The accused was a cancer survivor and his fear of the virus was motivation to comply with release terms. Nevertheless, the judge denied the application because, weighed against the accused’s long history of disobeying court orders and unsatisfactory bail plan, the risk he posed to public safety could not be managed in the community.

[75] Similar to the scenario found in Fraser, when weighing the applicant’s long history of disregard for court orders with the unsatisfactory bail plan, the risk he poses to public safety cannot not be managed in the community with the proposed plan of supervision. Moreover, proffering what is essentially the same plan of supervision but with one different surety does not amount to satisfying the applicant’s onus. I share the very similar concerns raised by the justice of the peace at the original show cause hearing. Although we are past the material change in circumstances threshold, Hill J.’s holding in R. v. Ferguson, 2002 O.J. No. 1969 (S.C.) at para. 17 is instructive.

[76] I recognize the potential harmful health impact on detained persons in the various institutions, while exercising the balancing required to sustain the court’s fundamental role in the administration of justice and the protection of the public. Here, there is no fundamentally no change in the plan.

[77] An accused’s history regarding non-compliance with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay-at-home rules. I have no confidence that the applicant will comply and be adequately supervised even with electronic monitoring. The problem here may not rest entirely with the sureties, per se, but with the applicant. His overall conduct demonstrates a wanton lack of interest in complying with court orders.

[78] In sum, the proposed plan of supervision is deficient as the applicant is deemed to be a substantial risk to reoffend. In adding the COVID-19 pandemic into the proposed release plan’s “mix”, I am not persuaded that the applicant has met his onus for release.

Tertiary Ground

[79] With respect to the tertiary ground, the Crown refers to the factors set out in s. 515(10)(c) of the Criminal Code. The prosecution’s case is very strong. The accused was essentially caught red-handed with the drugs when he was arrested. Further, the quantity is significant (approximately ½ of a kilogram) that there can be no argument that the drugs were possessed for anything other than the purpose of trafficking. This suggests an imminent intent to distribute them. The drug is fentanyl, a potentially lethal and insidious narcotic. If convicted, the applicant will be looking at significant penitentiary time. The circumstances surrounding the commission of the offence are also serious. The charges arose as a result of a motor vehicle collision where the applicant was allegedly impaired and left the scene. Further, at the relevant time, he was violating other terms of release and his record is replete with breaches of probation, parole violations and a conditional sentence.

[80] The Crown submits that the public would lose confidence in the administration of justice if the applicant, with his track record for violence, drug dealing, failing to comply with court orders and who was caught with a very large volume of fentanyl, was permitted to be released on bail in these circumstances. While I accept the Crown’s position that there is simply no reason to believe that the proposed sureties and plan can sufficiently mitigate the risk of absconding or the substantial risk to public safety, I am not entirely satisfied that the tertiary ground is engaged in this case.

Disposition

[81] For all of the aforementioned reasons, the bail review application is dismissed. The applicant’s continued detention is ordered on both the primary and secondary grounds.

A.J. GOODMAN J. Date: June 9, 2020 Released: June 9, 2020