Her Majesty the Queen v. B.E.
COURT FILE NO.: 19-18045
DATE: 2020/06/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. B.E.
BEFORE: A.E. London-Weinstein J.
COUNSEL: Moiz Karimjee, for the Crown James Coulter, for B.E.
HEARD: June 16, 2020
Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.
Decision on application for bail
[1] B.E. seeks review of his bail decision. Counsel agree that COVID-19 constitutes a material change in circumstances such that a new hearing is warranted pursuant to s. 520(1) of the Criminal Code. R v. J.S. 2020 ONSC 1710.
[2] B.E. is charged with sexually assaulting a deaf woman at a shelter in Ottawa. The allegations include full vaginal penetration after smearing her vaginal area with yogurt for lubrication. B.E. is alleged to have promised this woman crack cocaine, which he is alleged not to have provided.
[3] B.E. testified in this bail review and he explained that he has made mistakes in the past but wants to move on with his life. I listened to what he had to say, and I think that if B.E. had a suitable surety, he could be released.
[4] Unfortunately, B.E. does not have a suitable surety. He is asking me to release him to be supervised by the John Howard Society and to live at a rented room through an Ottawa rental agency. There are a number of problems with this plan.
[5] B.E. is a person living with paranoid schizophrenia. When he spoke to me on Tuesday, he was lucid and articulate. However, there are times when he has been living on the street when he poses a threat to public safety. He has a very long criminal record. This does not mean that he could not be released on an appropriate bail plan which would offset the substantial risk that he would commit additional criminal offences if released without a surety.
[6] B.E. has two prior sexual assault convictions. These convictions are not as serious as the allegations before the court. He is presumed innocent of the charges before the court. His previous convictions include forcible confinement, assault, assault with a weapon, and robbery. Having a criminal record, of course, does not rule out being released where an appropriate plan of bail is in place. However, I do have to consider the fact that there are a number of convictions for not following court orders.
[7] B.E. has been accepted by the John Howard Society. I am not convinced that the substantial risk that he will commit additional criminal offences is sufficiently mitigated by this plan, which offers limited to no supervision.
[8] I agree that as a person with paranoid schizophrenia, B.E. is at an enhanced risk of contracting COVID-19. This evidence was not contested by the crown. Mr. Coulter provided an article by Nicole Kozloff, Benoit H. Mulsant, Vicky Stergiopoulos and Aristotle N. Voineskos, “The COVID-19 Global Pandemic: Implications for People with Schizophrenia and Related Disorders”, Schizophrenia Bulletin (May 2020), at pages 1 and 2. Online: https://pubmed.ncbi.nlm.nih.gov/32343342/
[9] This article pointed out that features of the disorder, such as delusions, hallucinations, disorganized behaviour, cognitive impairment, and poor insight, and social demographic characteristics, including living in congregate housing and homelessness, may put these individuals at a higher risk of becoming infected with COVID-19. Furthermore, people living with schizophrenia are at an enhanced risk for adverse outcomes, including death, because compared to the general population, they typically have poorer physical health, greater socioeconomic disadvantage, and are more isolated socially. They also experience pervasive stigma and discrimination.
[10] I also am of the view that it is not possible to socially distance, or engage in frequent handwashing, as mandated to avoid contracting the virus. R. v. J.S. 2020 ONSC 1710.
[11] In regard to the tertiary ground, I accept that B.E. is at a heightened risk of contracting the virus, and a worse outcome because he is a person living with paranoid schizophrenia. He is currently housed at the Ottawa Carleton Detention Centre.
[12] However, at present there are no cases of COVID-19 at the detention centre. I appreciate that this fact could change swiftly, and that the virus is highly contagious.
[13] However, COVID-19 is one factor, of many which must be considered. I also must consider the protection of the public. This proposed plan offers no meaningful supervision of B.E., and it fails on the secondary ground, as there is a substantial likelihood that B.E. will commit additional offences if released on this particular plan.
[14] I also agree that the Supreme Court has directed judges to ensure that persons do not languish in custody where the time they will end up serving will exceed the eventual sentence they receive. R v. Myers, 2019 SCC 18. Given the emergence of COVID-19, scheduled trials have been pushed back. B.E. may not be able to set a trial date in July or August. He may not have a trial until 2021. The defence argues that at that point, B.E. will have served more time than the Crown’s pre-trial position. The Crown does not agree with this suggestion and may bring a long term supervision order in regard to B.E.
[15] I agree that B.E. should not serve a disproportional sentence; that is, he should not serve more time in jail than he would if he is convicted, simply because he cannot obtain bail. I am particularly concerned that B.E. not be warehoused, as a person living with schizophrenia, for a period of time which would exceed any sentence he may receive if convicted. However, that prejudice has not crystallized yet.
[16] At this point, B.E. will have been in custody for almost a year as of this August. He is at present, not serving more time in jail than a conviction may warrant.
[17] In terms of the tertiary ground, I must consider the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[18] In terms of the apparent strength of the Crown’s case, I note that this assessment is made at a time when the strength of the Crown’s case is at it’s zenith. No credibility assessments of the complainant take place in this bail review, and yet, credibility assessments are often central to the analysis at trial. There is some confirmatory evidence that sexual activity took place, the issue will be whether the sexual activity was consensual. I would regard this factor as neutral, based on the evidence before me at this stage. However, the offence is grave, B.E. will be facing a penitentiary sentence if convicted. The circumstances surrounding the offence involve the penetrative sexual assault of a vulnerable complainant who was both homeless and deaf. Given that B.E. has two prior convictions for sexual assault, albeit less grave in nature than the index offence, he is liable to face a potentially lengthy term of imprisonment if convicted.
[19] I also have considered the other relevant factors in this case, including COVID-19 and the fact that B.E. is also a vulnerable person himself and is at a heightened risk of contracting this virus. He also has the potential to have a more adverse outcome if he does contract the virus.
[20] In all of the circumstances, on this particular plan, I cannot release B.E., despite his vulnerability to COVID-19. He is detained on the secondary grounds. In my view, the tertiary grounds also weigh in favour of detention.
[21] It is also, in my opinion, with respect, premature to argue that B.E. will definitively serve more time waiting for his trial than he will if convicted. That prejudice has not crystallized yet. However, given B.E.’s particular vulnerabilities, as a person living with paranoid schizophrenia, if he does find himself in a position where he is definitively serving more time waiting for his trial than he would on conviction, I would invite Mr. Coulter to bring this matter in front of me to have B.E.’s circumstances reviewed. Further, as I said, B.E. cannot be released without adequate supervision. However, should he be able to have a suitable surety act for him, this would, in my view change his potential for release. Again, in that scenario, I would be happy to have this matter heard in front of me, if the Crown has no objection.
A. E. London-Weinstein J.
Date: June 19, 2020
COURT FILE NO.: 19-18045
DATE: 2020/06/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. B.E.
BEFORE: A.E. London-Weinstein J.
COUNSEL: Moiz Karimjee, for the Crown James Coulter, for B.E.
decision on application for bail
A. E. London-Weinstein J.
Released: June 19, 2020