COURT FILE NO.: CR 20-00000157-00BR
DATE: 20200618
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
K.D.
Defendant/Applicant
Counsel:
Nicos Fassler and Thomas Mack, for the Crown
Leo Salloum, for the Defendant/Applicant
HEARD: May 15, 2020, by conference call
BEFORE: Molloy J.
REASONS FOR DECISION
PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]
Introduction
[1] On the night of February 13, 2019, Tesfa Welsh-Hope was shot to death on a Toronto street. An eyewitness saw the shooting from her apartment window. She ducked down below the window for a brief time, which she estimated at about 10 seconds or less. When she looked out again, she saw a man, who she said was the shooter, running from the scene. She was able to give a general description of his clothing. Two other witnesses heard the shots and saw a man running from that area, although they did not see the actual shooting. They described the general nature of his clothing and the direction in which he had been running. Surveillance cameras at various locations along that route show a man wearing clothing similar to what these witnesses described. None of the witnesses had a clear enough view to identify the person they saw running. None of the video footage provides a clear view of the runner’s face. Based on the evidence they had gathered, the police believed the shooter to be K.D. and obtained a warrant for his arrest on the charge of second degree murder. Included in that evidence was video footage from surveillance cameras at a nearby Wendy’s restaurant a few hours before the shooting. K.D. is clearly identifiable in that video. He was wearing clothing very similar to what was worn by the shooter/running man several hours later. Identity will be the main issue at trial. The Crown’s case is largely circumstantial. The degree of similarity between the various items of clothing worn by K.D. in the afternoon, and what the shooter/runner was wearing that night, will be a central feature of the Crown’s case.
[2] Within two weeks of the shooting, K.D., together with one of his male friends, flew from Toronto to Edmonton, then immediately from Edmonton to Vancouver. From Vancouver, K.D. travelled by train to Nanaimo, where he was arrested by the R.C.M.P. on March 12, 2019, for entirely unrelated charges. At the time of his arrest, K.D. gave a false name to the police. He was also in possession of a driver’s license bearing yet another false name. He only admitted his real identity when the R.C.M.P. confronted him with the results of their database search demonstrating the information he provided was false and knowing that his fingerprints were being run through the national police database. That search disclosed not only K.D.’s real name, but also that a Canada-wide warrant had been issued for his arrest on the charge of murder.
[3] K.D. was returned to Toronto to face that charge and has been held at the Toronto South Detention Centre (“Toronto South)” since then. He now applies for bail pending his trial for second degree murder.
[4] In accordance with the protocols for bail hearings during the COVID-19 pandemic, the hearing was conducted by conference call. On the call at all times, in addition to me, were: the Registrar; the Court Reporter; Mr. Fassler and Mr. Mack for the Crown; Mr. Salloum for the accused; and K.D. from a private room at the Toronto South. Also on the call (for purposes of observation only) were the police officer in charge of the investigation and a representative of the Victim Witness Assistance Program on behalf of the family of the victim. Viva voce evidence was heard from K.D. and his father (one of the proposed sureties). Both testified on a solemn affirmation to tell the truth, after being instructed by me that this would have the same effect as testimony given in a conventional courtroom under oath or solemn affirmation, with the same consequences for lying.
[5] This is a reverse onus situation, with the burden on the accused to show why he should be released having regard to the primary, secondary, and tertiary grounds enumerated in the Criminal Code. At the conclusion of the evidence and submissions by counsel, I dismissed the bail application. I stated at that time that ankle monitoring, by itself, was not enough to support release, and that there was nothing else in the release plan that gave me any degree of confidence that K.D. would not reoffend if released. I ordered him detained. I advised that I would be delivering more detailed reasons for this decision in writing at a later date. In my opinion, K.D.’s continued detention is necessary under all three grounds – primary, secondary and tertiary. My reasons are set out below.
The Proposed Plan of Release
[6] The proposed plan for K.D.’s release is for him to live at the Toronto home of his parents, where he has resided for many years. He would be subject to a strict house arrest along with electronic monitoring with a GPS ankle bracelet. His father would be the surety and is prepared to pledge the entire equity in the family home ($482,000) to secure his son’s release.
K.D.’s Personal Background and Criminal Record
[7] K.D. was born in Canada on June 18, 1999. He is now 20 years old, about to turn 21. He was 19 at the time Tesfa Welsh-Hope was shot to death. K.D. has not yet finished high-school. Prior to his most recent arrest, when not in custody and not attending school, he sometimes worked for his father’s employer as a labourer on construction projects.
[8] K.D. was first arrested in May 2017, when he was still a youth, although approaching his 18th birthday. He was charged with having participated in an armed robbery of a convenience store, along with an adult male. He was released on bail under terms amounting to house arrest at his parents’ home, with his mother as his surety. The bail terms included a strict curfew from 9:00 p.m. to 6:00 a.m. Ultimately (on November 20, 2017), K.D. pleaded guilty to that offence and admitted that in the course of the robbery, he was wielding a knife and that his associate had a gun. He also admitted punching the store cashier in the head several times and swinging the knife at him.
[9] On July 20, 2017, while still on bail for the May 2017 armed robbery, K.D. breached his recognizance by attending a 1:00 a.m. drinking party in a house under construction, along with a number of other males. In the course of that party, K.D. and three other males attacked some of the other people present with baseball bats and a shotgun and robbed them of items such as cellphones and cash. Although some of the victims sustained serious injuries, those injuries were not inflicted by K.D., whose admitted involvement was punching one of the victims several times. Shortly after this assault, when the police attended at K.D.’s residence with a search warrant, K.D. was not there, which was a breach of his recognizance. On July 24, 2017, K.D. turned himself into the police. He was charged with multiple counts of assault, aggravated assault, robbery with a firearm, assault against three victims with a baseball bat, and breaching his recognizance.
[10] On April 23, 2018, K.D. entered a guilty plea to the breach of recognizance from July 2017 and to one count of simple assault in connection with that incident. He was sentenced for both sets of offences at that time, as follows:
Youth Court armed robbery charge: 17 months’ probation
July 2017 assault: one day in custody in addition to a credit for the equivalent of 90 days’ time served for the assault and one day concurrent for the breach of recognizance.
[11] K.D. was still subject to the probation order at the time of the murder for which he is now charged.
[12] One of K.D.’s convictions is for breaching the curfew provision of his recognizance from the May 2017 armed robbery charge. His father testified before me that this was by no means the only breach of that recognizance during the period between K.D.’s release in May 2017 and his subsequent arrest on July 24, 2017. On the contrary, his father reported that K.D. simply came and went from his parents’ home whenever he pleased, often staying away overnight, or for days at a time. He said that neither he nor his wife reported these breaches to the police because they did not want their son to go back to jail and because they did not want to lose the money they had pledged.
[13] I also received evidence from Katharine Cartmill, the probation officer who supervised K.D. during the probation period following his conviction for the July 2017 assault. The probation period would have run from April 23, 2018 to September 23, 2019, but for the fact that K.D. was arrested on the current charge before the probation period had expired. Ms. Cartmill reported that K.D. often failed to report for scheduled probation appointments and that she had considerable difficulty contacting him or his parents when these defaults occurred. When she was able to contact a parent, she was sometimes told that they had no idea as to his whereabouts, and other times was told that he was ill. She also reported that K.D. showed a lack of progress and commitment to the substance abuse counselling she had recommended for him. Ms. Cartmill last saw K.D. for a scheduled probation appointment on February 13, 2019. At that time, she instructed him to report to that office again at 1:00 p.m. on February 20, 2019 for substance abuse counselling and on February 27, 2019 to meet with her. K.D. did not keep either appointment.
[14] Ms. Cartmill reached K.D.’s mother at her home phone on February 25, 2019. K.D.’s mother told her that K.D. had not attended his appointment on February 20 because he was sick that week. Ms. Cartmill asked to speak directly to K.D. and his mother replied that he had gone out. When asked how things were going with K.D., his mother said that things were going well and that she had no concerns. K.D.’s mother agreed to remind K.D. about his appointment coming up on February 27. However, K.D. again failed to attend.
[15] Tesfa Welsh-Hope was shot to death on the night of Wednesday, February 13, 2019, the same day as K.D.’s last attendance with his probation officer.
Incidents While in Custody
[16] The Crown relies on five incidents involving alleged misconduct by K.D. while he has been in custody at Toronto South. One of those incidents is now the subject of a criminal charge that is still pending before the court and involves an alleged threat made by K.D. to a corrections officer at the institution. The defence concedes that evidence with respect to the pending charge is admissible before me on the bail hearing, subject to the weight that can be given to an unproven allegation. However, the defence objected to the admissibility of the other four allegations, none of which are currently the subject of charges and all of which rely upon untested hearsay allegations.
[17] I agree with defence counsel (and the Crown) that the subject matter of pending charges can be taken into account on a bail hearing. The incident giving rise to that charge occurred at 7:30 a.m. on December 13, 2019. Correctional officers were conducting a search of K.D.’s cell when they found a bag of home-brew alcohol secreted in his bedding. One of the officers seized the contraband. According to the two officers, K.D. threatened that when he got out of jail he would kill that officer. The correctional officer involved stated that he took this threat seriously and fears for his safety. A criminal charge of threatening death was laid and is still before the courts. There is, of course, a presumption of innocence. Although this allegation has not been proven in court, there were two officers present and apparently there is also CCTV video. Hearsay evidence is admissible in hearings such as this and I consider the evidence to be sufficiently reliable to be taken into account. I find this to be admissible evidence relevant to the secondary grounds with respect to whether K.D. could be a danger to the public if released.
[18] There are four other incidents that are the subject of occurrence reports. One of those incidents resulted in a formal charge before the courts, but that charge was subsequently withdrawn by the Crown. No charges were laid in respect of the other three incidents. The defence objected to the admissibility of any of these incidents. With respect to the incident that became the subject of a criminal charge that was then withdrawn, I agree with the defence. That evidence is not properly admissible. With respect to the other three incidents, the evidence is admissible, subject to the weight that can be given to it.
[19] I will start with the withdrawn criminal charge. The incident giving rise to that charge occurred on May 7, 2019. At 6:40 p.m. that evening, K.D. had been moved from one unit to another. At 8:30 p.m., a correctional officer conducting a search of K.D.’s belongings that had been moved from his previous unit found two pieces of a sharp knife blade hidden in a cookie wrapper. The knife was turned over to the police and K.D. was criminally charged. However, the charge was withdrawn by the Crown. I am advised by counsel, and accept, that the Crown who withdrew the charge stated that there was no reasonable prospect of conviction. In my view, that is more akin to an acquittal at trial than it is to charges simply being withdrawn for reasons of convenience or as part of an agreed disposition on a guilty plea to other charges. It is not safe or appropriate to rely on evidence of this incident. I have not taken it into account.
[20] The same reasoning does not apply to the other three incidents described in the occurrence reports. I summarize that information as follows:
(i) September 30, 2019: Three inmates, one of whom was K.D., got into a physical altercation in the video court area. When given verbal commands to stop, they did not, and O.C. spray was used to control them. None of them would provide a statement and none wanted to proceed with criminal charges. Nobody was injured. The correction staff elected to take no further steps.
(ii) February 5, 2020: K.D. and two other inmates were involved in a physical altercation in one of the holding cells. When ordered by officers to stop fighting, none of them did so. The officers used O.C. spray to break up the fight. None of the inmates would provide any information and officers could not determine how or why the altercation started. The only one of the three to sustain an injury was K.D. – a small cut below one eye.
(iii) March 17, 2020: An inmate in the same cellblock as K.D. reported to a correctional officer that he had been assaulted. He had a bump on his head and a bloody nose. The sergeant in charge reviewed the CCTV footage, which showed four inmates had assaulted the victim and two others were present in the cell where the assault occurred. One of the assaulters was K.D. who was seen on video kicking the victim and dragging him into a cell, where others assaulted him. The victim did not sustain serious injuries, refused to provide a statement, and did not want to proceed with criminal charges. Therefore, no further steps were taken.
[21] In each of these incidents there were independent witnesses to some of what occurred. The fact that K.D. was prone to engaging in incidents of violence even while in custody would be relevant to considerations under the secondary grounds. The evidence is admissible and reliable as far as it goes. However, both the September 30, 2019 and February 5, 2020 incidents involved fighting between three inmates in circumstances where it cannot be ascertained who started it or why. Both involved situations in which K.D. (and the other two inmates involved) failed to obey commands to stop fighting. However, it is difficult to take much from this without knowing whether or not K.D. was an aggressor, as opposed to a victim. If he is the one being attacked, it would not be easy for him to simply stop without sustaining further injury. I note that in one of the incidents, he was the only one who was hurt. Accordingly, while I find this evidence to be admissible, the absence of information about what was actually going on makes the evidence essentially unhelpful. I have therefore not taken the incidents of September 30, 2019 and February 5, 2020 into account at all in my reasoning process.
[22] The March 17, 2020 incident is more troubling as K.D. can be seen on video kicking an inmate and dragging him into a cell, where he was further beaten by others. This inmate had only arrived on the cellblock one hour before the assault occurred and was set upon by at least four inmates with two others possibly being complicit. I appreciate that I have not actually seen the video footage and am relying only on the occurrence report of what someone else observed on the video. Nevertheless, I consider this to be sufficiently reliable to take into account. The fact that K.D. engaged in such conduct, and that he did so in concert with others, is relevant to the extent to which he would be a danger to the public if released, particularly in light of the nature of his criminal record.
Weaknesses in the Proposed Plan for Release
[23] I have concluded that the accused has failed to meet his onus on all three grounds provided for in the Criminal Code because: (i) there is a serious risk he will flee the jurisdiction if released and not attend for his trial; (ii) there is a substantial risk that he will reoffend in a serious and violent manner if released, thereby endangering the public; and (iii) ordering his release would likely cause a reasonable person to lose confidence in the justice system. On each of these grounds, the central problem is the weaknesses in the proposed plan for release.
[24] The problem starts with the accused. He has demonstrated through his conduct, over and over again, that he will do whatever he wants, with no regard whatsoever for court orders.
[25] While on bail in respect to the May 2017 armed robbery and assault charges, with his mother as his surety, K.D. was required to reside with his mother and father at the same address as is proposed under the current bail application and to obey a curfew term. It is apparent from the evidence before me on the hearing, including the testimony of his father and the statement his mother gave to the police, that K.D. simply came and went whenever he pleased, ignoring the terms upon which he had been released. His mother told the police that she had no idea where her son was most of the time and that they called him “the Roadrunner” for that reason, stating:
We call [K] the roadrunner ’cause he’s just here, he’s here one minute, and then he’s gone the next, and then he’s here and, and he doesn’t sit still. Honestly, like, he’s all over the place. So he’ll be home for five minutes and gone. You’ll wake up in the morning, and you won’t see him ’til like three, four o’clock in the morning, like he’s gone all day.
[26] In July 2017, while subject to that May 2017 bail order, he was arrested and charged for another assault which occurred during the course of a late-night party, at a time when he was required to be at his parents’ home. Not only did he breach the curfew provision, he committed another violent offence while doing so.
[27] When he got out of jail from that offence, he was subject to a probation order. As I noted above, he frequently breached the terms of that probation by failing to attend appointments when required. Even more problematic was his trip to British Columbia under an assumed name, using forged identification, while subject to the probation order.
[28] Even while in custody, K.D. has been unable to stay out of trouble, including being involved with others in a violent assault.
[29] The next problem is with the people who would be supervising K.D. if I were to order his release. The main supervisors would be his father and his mother. Although it is K.D.’s father who is being proposed as the surety this time, he will be returning to work soon, if he has not done so already. When working construction, he is out of the home from sunup to sundown. Much of the supervision will therefore fall to K.D.’s mother, although she also may be returning to work soon.
[30] There are issues of honesty with respect to both parents. K.D.s father has a not insignificant criminal record including convictions for crimes of dishonesty, although it must immediately be recognized that the record is quite dated, the most recent conviction being in 2004. K.D.’s mother has a history of covering up for her son. In her formal statement to the police on February 26, 2019, K.D.’s mother said that she had last seen her son on Valentine’s Day, although she was unclear about whether that was February 13 or 14 and that she next saw him that following weekend very briefly when he came in to get his Xbox and a TV and immediately left again. She was not sure if that was late on the night of Friday, February 15 (going into the early morning hours of Saturday, February 16) or late on the night of Saturday, February 16. However, she was clear that she did not see him in person after that date. It follows that when the probation officer called to speak to K.D. on February 25, K.D.’s mother was not telling the truth when she said K.D. had “gone out” at the time, or that K.D. had failed to attend the February 20 appointment because he was sick. In fact, she had not seen K.D. since Valentine’s Day or the day before, apart from his brief appearance on the weekend to pick up his electronic gaming devices.
[31] K.D.’s mother lied to the probation officer about him being sick as the reason for missing his February 20 appointment. She also lied to the police about not having been in contact with K.D. during the period just prior to her interview on February 26. In fact, the cell phone records show frequent contact between her phone and the phones associated to her son during that time. Either she lied to her husband about the extent of those communications she had with her son, or he lied to the court about not knowing about it. Neither is a good option.
[32] It is apparent from K.D.’s track record that neither parent has much, if any, control over him. His grandmother also lives in the home, but I have not had any testimony from her and no way of assessing whether she would be the person who would be able to prevent K.D. from breaching the terms of any order I might make. She lived in the home before when K.D. was behaving in this manner, and he was nevertheless not deterred. I therefore find it unlikely that her presence would have any impact.
[33] It is deeply concerning that both parents knew that K.D. was repeatedly breaching the May 2017 recognizance order, and nevertheless failed to report this to the police. K.D.’s father testified that he personally did nothing because he did not want his son to be sent back to jail and he did not want his wife to lose the money she had pledged. There is no reason to believe either parent would do anything different this time. If anything, they would have more incentive to cover up for him because they fear more for his safety in custody due to the COVID pandemic, they are aware of the lengthy sentence he would face if convicted, and they would have even more money at risk.
[34] K.D. has shown that he will not be controlled by his parents, that he has no concern about them losing money they have pledged which they can ill afford to lose, and that he is also undeterred by court orders. K.D.’s parents have in the past shown that they will ignore breaches of court orders, will not turn their son into the police if he breaches court orders, and that they will cover up for him if he transgresses. The question then is whether the addition of electronic surveillance through a GPS ankle bracelet substantially strengthens the plan. The answer is “No.”
[35] Electronic monitoring is often a useful device to reinforce a release plan. However, it is a reporting mechanism once a breach has occurred; it cannot prevent a breach. As noted by Trotter J. (as he then was) in R. v. Sottomayor:
Nor am I persuaded that utilizing electronic monitoring would push this case over the line in favour of release. Electronic monitoring is not a primary ground panacea. It does not prevent absconding, it merely notifies the authorities when someone has moved out of the zone in which they are meant to remain (i.e., in a house arrest situation): see U.S.A. v. Khadr (2008), 2008 CanLII 41310 (ON SC), 234 C.C.C. (3d) 129 (Ont. S.C.J.) and U.S.A. v. Ugoh (2011), 2011 ONSC 1810, 269 C.C.C. (3d) 380 (Ont. S.C.J.).[^1]
[36] In R. v. Bahman,[^2] Nordheimer J. (as he then was) dismissed a bail application in circumstances where he found the sureties could not be relied upon to properly supervise the accused, noting (at para. 24) that “a plan of supervision is only as good as the sureties who are to implement it.” In that case, Nordheimer J. also considered whether the addition of electronic monitoring could overcome the weakness of an accused who had shown himself to be ungovernable and proposed sureties who would not be able to control his conduct, and found that it did not. He held (at para. 23):
Of more importance to this application, however, is the fact that electronic monitoring, at best, only establishes where a person is. It does not establish what that person is doing. Electronic monitoring does not, therefore, address the secondary ground concerns where the subject may be able to engage in criminal activity but remain within the geographic area that is the focus of the electronic monitoring. Electronic monitoring does not, therefore, displace the need to have capable sureties who will monitor the activities of the accused person and report any breaches of the conditions of release without hesitation to the authorities. [Emphasis added.]
[37] While I have often ordered electronic monitoring as part of a release plan when I have granted bail, it can never be a substitute for a reliable system of supervision with an accused who can be reasonably relied upon to obey the rules. Electronic monitoring will not prevent K.D. from hatching plans, nor will it stop him from committing offences or fleeing the jurisdiction. It will merely notify the agency, who will in turn notify the police, when a breach has occurred. This can be a useful back-up and conscience control for sureties, but it is not a substitute for reliable sureties.
Primary Grounds
[38] There is a substantial risk that K.D., if released, will flee the jurisdiction and fail to attend court to face the charge against him. On February 26, 2019, just under two weeks after Tesfa Welsh-Hope was killed, K.D. flew from Toronto to Edmonton, changed planes in Edmonton, and then flew to Vancouver. He travelled under the name Robert McCartney. He successfully used a forged Ontario driver’s license with his photograph on it, but bearing the name Robert McCartney with a date of birth of May 26, 2000. There was no valid reason for K.D. to travel to British Columbia and he was in breach of the terms of his probation order by doing so. It is concerning that he had contacts in the criminal underworld that enabled him to obtain a forged driver’s license. There is good reason to believe he would be able to obtain other travel documents to escape the jurisdiction if released.
[39] From Vancouver, K.D. travelled to Nanaimo. Again, there does not appear to be any valid reason for him to go there. He gave conflicting stories about where he was staying, why he was there, and what he had been doing. It is a mere happenstance that he was apprehended. Police officers spotted him in Nanaimo in possession of what they believed to be a stolen bicycle. They stopped him and he identified himself as Robert McCartney, passing over the forged driver’s license. However, when asked his date of birth, he said May 25 instead of May 26. When confronted with the fact that the police knew the driver’s license to be fake, K.D. then said that his name was Harley John, with a date of birth of June 13, 1996. After that he said his name was Harley John Cormier. He used various other names on social media found on his phone, many of which related to the name Robert Munch. K.D. only acknowledged his true identity after he had been in custody for many hours and it was apparent that the police either already knew who he was or were about to find out after running his fingerprints through their database.
[40] Given that history, there is every reason to believe that K.D. will flee the jurisdiction if released, and no basis for believing that the terms of any recognizance will stop him. He would be able to arrange any such plan without any detection by the GPS monitoring system. In my view his detention in custody is necessary to ensure that he attends in court to answer to this very serious charge.
Secondary Grounds
[41] There is a substantial likelihood that K.D. will be uncontrolled by the terms of the bail order proposed here. Just as he did before while required to be present in his parents’ home while on bail, he will come and go as he pleases and associate with the friends who his own mother described to the police in the following terms:
[T]hey’re all just a bunch of little fuckin’ punks with guns. That’s what [they] are, and that’s what he is. I’m sorry he’s my son but he’s a fuckin’ punk. He hangs out with these little bastards and ya’ll think you’re all mighty and tough and, I don’t know. I don’t get it.
[42] As I have already noted, K.D. is unlikely to comply with any terms of a bail order and his parents are unlikely to be able to control him. K.D. has a history of committing crimes of violence while subject to court orders and even while in custody at the Toronto South. There is a substantial likelihood that he would do so again. If he does reoffend, there is a substantial likelihood that it will be in a violent manner, such that public safety is jeopardized. Therefore, his detention is also necessary under the secondary ground.
[43] I do not see the COVID-19 pandemic as a deterrent to K.D. in respect of the secondary grounds. There may be cases where the pandemic is relevant on the secondary grounds. This is not such a case.
Tertiary Grounds
[44] The final ground to be considered is whether the accused’s detention is “necessary in order to maintain confidence in the administration of justice.” I find that the accused has also failed to meet his onus on this ground. The Criminal Code requires the consideration of four factors, all of which point towards detention: (i) the strength of the Crown's case; (ii) the gravity of the offence; (iii) the gravity of the circumstances of the offence, including whether a firearm was used; and (iv) whether the accused is facing a lengthy period of imprisonment if convicted.[^3] This is not the strongest of Crown cases, largely because the evidence is circumstantial. However, it is nevertheless a compelling case. A firearm was used and a man was killed, very strong factors pointing towards detention. Obviously, if convicted, K.D. would be facing a lengthy jail sentence. Consideration of these four factors in isolation would support a detention order. However, these four enumerated factors are not the only ones to be taken into account. All other relevant circumstances must also be considered in determining whether a reasonable person, aware of the law and the constitutional principles underlying bail, would lose faith in the justice system if K.D. were released. Other relevant circumstances in this situation would include the factors I have already discussed, such as K.D.’s history of violence, his history of breaching court orders, and his parents’ history of not being able to control him and failing to report past breaches. Such a person would also consider the impact of K.D.’s trip to British Columbia using false identification and in breach of a probation order. None of these factors would cause a reasonable person to believe that the judicial system should order K.D.’s release on the plan proposed. On the contrary, in my view, public confidence in the system would be eroded if a person in these circumstances facing these charges and with the history K.D. has, was released in these circumstances.
[45] The question then is whether the current circumstances of the COVID-19 pandemic changes the situation. As I, and numerous other judges, have found in other cases, the particular impact of COVID-19 on persons who are incarcerated is one of the factors to be considered under the tertiary grounds. Sometimes, particularly where there is a reliable supervision plan, the impact of COVID-19 can be a factor that tips the balance in favour of release. An individual inmate’s particular susceptibility or vulnerability to the disease can also be a factor supporting release, but it is not required. These are simply relevant factors to be considered.
[46] I am well aware of the literature and expert evidence on the potential impact of COVID-19 and the unique challenges of handling risk within a penal institution. However, the existence of these risks are not by themselves a basis for release. K.D. does not have any substantial risk factors if he were to contract the disease. However, his risk to the community if he is released is significant. Without considering the COVID-19 pandemic, I would have detained him under the primary, secondary and tertiary grounds. The pandemic does not cause me to change that conclusion under any of the three grounds.
Conclusion
[47] K.D. has failed to meet the onus of justifying his release. Even if the onus were on the Crown, I would have no hesitation in ordering his detention on all three grounds. There is no reliable plan of supervision. He is a flight risk. There is a substantial likelihood he will reoffend in a violent way if released. A reasonable person considering all of the circumstances, including the pandemic, would lose confidence in a justice system that would release K.D. in these circumstances. Accordingly, the application is dismissed.
Released: June 18, 2020 Molloy J.
COURT FILE NO.: CR 20-00000157-00BR
DATE: 20200618
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
K.D.
Defendant /Applicant
REASONS FOR JUDGMENT
MOLLOY J.
Released: June 18, 2020
[^1]: R. v. Sottomayor, 2014 ONSC 500 at para. 40; R. v. Jesso, 2020 ONCA 280. [^2]: R. v. Bahman, [2007] O.J. No. 4976 (S.C.J.). [^3]: Criminal Code, s. 515(10)(c)