Court File and Parties

COURT FILE NO.: CR-20-103-BR DATE: 2020-06-23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Respondent Warren Milko, for the Respondent

- and -

A.K. Appellant David Smith, for the Appellant

HEARD: June 10, 2020

Restriction on Publication

An order has been made pursuant to section 517 of the Criminal Code. Counsel are permitted to circulate this judgment to other counsel for use in court. Publication and quotation of general principles in these reasons is permitted, but publication of any facts about the applicant, his personal circumstances or the evidence is prohibited. This judgment complies with that order and maybe published.

Reasons for Decision

This proceeding, pursuant to Section 525 of the Criminal Code, was brought and determined during the COVID-19 pandemic, after the Chief Justice of the Superior Court suspended regular court operations.

The Honourable Mr. Justice A. C. R. Whitten

I. Introduction

[1] This is an application pursuant to Section 525 of the Criminal Code RSC,1985, c. C-46, for a review of the necessity for the continued detention of the applicant in circumstances in which the setting of dates for a preliminary hearing is delayed.

[2] The applicant faces charges arising out of an alleged home invasion on December 21, 2019; namely, break and enter (s.348(1)(b)), aggravated assault (s. 268 x 2), theft under $5000, possession of a firearm without a license (s. 91(3)), point firearm (s.87.2), and possess firearm while prohibited (s.117.0(3)).

[3] A bail hearing was conducted April 21, 2020 before Justice of the Peace P. Valeriano. Her Worship detained the accused upon the secondary ground. This present hearing was conducted by teleconference (ZOOM), because of the COVID-19 pandemic. At the conclusion of this hearing, I determined that A.K.’s detention should continue and I indicated that I would provide Reasons at a later date. In my opinion, the original determination by the Justice of the Peace, that the detention of A.K was necessary on the basis of the secondary ground by virtue of the criminal antecedents of A.K., the circumstances of the alleged offence, and a disconnect between he and his parents as potential sureties, was valid.

[4] At the bail hearing, the Crown essentially led all of his case, which consisted of:

a) initial and subsequent statements of R. Sampson and S. Spree, the two complainants; b) medical evidence pertaining to their injuries, accompanied by photographs; c) CCTV video footage was referred to to show the arrival and departure of four persons in a vehicle at the residence of the complainants; d) DNA evidence revealing traces of the applicant on a screwdriver used to inflict injuries upon the two complainants, and e) the criminal record of the applicant.

[5] Furthermore, both parents of the applicant testified at the bail hearing as proposed sureties for the applicant.

[6] There are agreed-upon points between counsel:

a) the basic chronology of events in the days leading up and including the night of December 21, 2019, are agreed (excepting the identity of the applicant and his girlfriend); b) the medical evidence concerning the injuries to both Samson and Spree is acknowledged to constitute an aggravated assault upon both parties; c) the applicant was subject to three lifetime weapon prohibitions as of December 21, 2019; d) the time elapsed between the arrest of the accused on or about December 24, 2019 and the suspension of operations in the Ontario Court of Justice, which consequently impeded the setting of a date for the anticipated day and a half preliminary hearing, is not evidence of an unreasonable delay on the parts of either the prosecution or the defense. The matter is scheduled to be spoken to July 6, 2020, on the assumption that is the earliest anticipated date for the regular resumption of court operations. As alluded to at the outset of these Reasons, the COVID-19 pandemic has put the establishment of future dates for criminal matters in issue; e) the applicant through counsel, candidly acknowledges that he has “No underlying health concerns that put him at a greater risk beyond the general population. The inability to control physical distancing does not put him at a greater risk than those who are not incarcerated.” (ref. Factum for the Applicant, para.77), and;

[7] It is acknowledged that the gravity of the offence (it is anticipated that robbery charges will be laid by the Crown), would normally lead to a form of imprisonment beyond five years in duration.

II. The Issues

[8] Generally, there is no dispute about the expanded nature of the review, pursuant to Section 525. That being said, the applicant has strongly advanced that the original bail hearing and determination was flawed both procedurally and substantively.

[9] The procedural objection is that the Crown was permitted to aggressively cross-examine the parents, the proposed sureties, to undermine the assertions of their ability to control the applicant.

[10] The substantive objection is that the Justice of the Peace made several erroneous evidentiary findings. The principal objection was that of a finding that there was a substantial case for the Crown, given the limitations of the identification evidence. Furthermore, the Justice of the Peace erred in finding motive in these events, fueled as it were by the drug addiction issues of the applicant.

[11] The totality of these errors, the defence alleges, caused the Justice of the Peace to erroneously conclude that the applicant should be detained pursuant to the secondary ground.

[12] Furthermore, beyond the decision of the Justice of the Peace, the defence argues that the setting of a date for the preliminary hearing has been upended by the suspension of regular court settings until July 6, 2020. To use the words of counsel, the applicant is languishing “in limbo” at a time in which there is a growing and serious backlog of cases.

III. The Context

A. Chronology of Events

[13] The applicant and complainant, Sampson, knew each other from serving time together in jail. The accused has distinctive features. He is 6‘2“, has a shaved head with an indentation or abscess in his neck. Sampson calls him “Polish”.

[14] The applicant’s girlfriend, A.R., was known to the complainant Spree as someone who had lived below her sister in “housing”. Spree describes A.R. as a white female, 5‘2“, thin build, brown eyes and medium length hair.

[15] The applicant and his girlfriend, in addition to the charges referred to above, were jointly charged in the possession of cocaine, arising out of their being discovered in a rental vehicle with two crack pipes in plain view on the centre console of the vehicle.

[16] Before December 21, the applicant and his co-accused/girlfriend, contacted the complainant Sampson at 5:00 a.m. They were apparently stranded and requested help in moving. Sampson took his girlfriend’s vehicle and helped them pack their entire belongings in their rented BMW and the vehicle that Sampson himself had driven. They all went to Sampson‘s girlfriends’ place, Ms. Spree. The two co-accused ended up spending a day and a half in that residence.

[17] Apparently at the end of that time, Sampson had an appointment to go to. The applicant (Polish) came up to him and advised he had just found in his girlfriend’s purse, items belonging to Spree. Polish explained that she had taken the items as she was high on Valium. “She did not know what she was doing”. Polish spoke of everything taken being under the bathroom sink in bags. At that time Sampson, who had his appointment, told Polish that he and his girlfriend had to go, and that they should put all the stuff in their rented BMW. Polish asked for some quiet time with Rivero, his girlfriend, and Spree was inclined to let them stay. Sampson and Spree were gone for a couple of hours and returned to find Spree’s truck window smashed. A search of the house revealed several items missing. A review of security videotapes revealed Polish breaking into the vehicle and loading everything into a van driven by yet another male. The girlfriend Rivero was observed carrying out garbage bags of stuff into the newcomer’s van.

[18] Sampson called the applicant to complain when the latter played dumb and confronted him with the fact of the security videotapes. The applicant apologized in texts. He was going to make it all right. However, he wanted to know where his rented BMW was. This exchange proceeded over several days. The applicant explained he needed sleep, “to get his bearings”.

[19] Within days the applicant was demanding the return of the rental car with its contents. Finally, he sent a text to the effect that his girlfriend was going to bring everything back that night and that he had something for Sampson. Later that night, (the date of the event), Samson was alerted to a knock at the front door. He checked the security cameras to see four people, one of whom he believed to be Polish. Within seconds, the door was kicked in. Sampson was hit on the back of the head, possibly by a shotgun, stabbed three times but managed to run out through the front door to get help. While he was asking a neighbour to call 911, he observed the four people running by.

[20] All of the above was related by Sampson to the police at the hospital. In that statement and others he identified one of the four assailants as being Polish and attested to having heard the voice of A.E., the co-accused’s girlfriend.

[21] Spree herself was stabbed in her hip and elbow. An unknown male member of the invading group stuck a gun in her face and struck her on the back of her head. She actually managed to demand of A.E., “Why are you doing this”. A.E. responded, “You know why”. Spree heard the applicant say that Sampson had got away and she saw the applicant with the DVR system, (the system that had recorded the original theft), in his hands.

[22] The four suspects were captured on nearby CCTV footage, one of whom appeared to be carrying a double-barreled shotgun.

[23] As mentioned above, the serious nature of the injury for both Sampson and Spree experience were conceded. Spree had, amongst other injuries, suffered a fractured skull which required neurosurgery. Sampson had a partially collapsed lung because of a puncture, along with stab wounds to his head, neck and back.

B. The Criminal Record of the Applicant

[24] The applicant is 33 years of age. The first entry on the record was in December 2005 in Hamilton, for two counts of assault and a breach of recognizance. He received credit for pre-trial custody plus a day on each assault charge and a two-year probation period. A Section 110 Prohibition Order was imposed for five years.

[25] The next entry was in 2006 at Cornwall. He was convicted for breach of probation which would be the first of seven such breaches. He was convicted of possession of stolen property under $5000 and taking flight when pursued. An additional period of probation was imposed.

[26] Two months later he was convicted in Ottawa of mischief under and breach of probation. One month later, still in Ottawa, there were two more breaches of probation convictions.

[27] Two months later in August 2006, still in Ottawa, he was convicted of possession of stolen property under $5000.

[28] Almost a year later in Hamilton he was convicted of possession of a prohibited weapon, assault with a weapon, possession of a firearm contrary to the prohibition order and breach of probation. These convictions generated yet another probationary period of two years and a lifetime prohibition order. He was in prison for 341 days, with credit for 194 days pretrial custody.

[29] In January 2011, in Hamilton, he was convicted of gang sexual assault. He was given credit for four years in pre-trial custody, and a sentence of one year, another breach of probation conviction was registered, and another lifetime weapons prohibition was imposed. Given the presentence custody he had experienced, there was literally a month between the commission of this offence and the prior conviction in Hamilton.

[30] Later in 2011, the applicant was convicted for yet another breach of probation charge for which he received a short sharp sentence of 30 days.

[31] In July 2013, the applicant was convicted of trafficking a Schedule I substance and of course a breach of probation. He received 75 days imprisonment, concurrent on both charges, with credit for 41 days presentence custody.

[32] From the record one gleans that the applicant was somewhat mobile in his early adulthood i.e. Hamilton, Cornwall, and Ottawa. By the time he was 20, he was convicted of a serious weapons offence, and by age 24, a serious personal injury offense; namely, gang rape.

[33] He definitely was not particularly controllable by probation orders.

[34] By age 26, he was drug trafficking.

[35] With the offence before the court at this time, at the age of 33, there appears to be a flareup of serious violence, with overtones of drug usage. Plus, for the second time, since the gang rape, he appears to be acting in concert with others.

C. The Proposed Sureties

[36] Jolanta K. testified at the original bail hearing as did her husband Andrej They are the parents of the applicant and the proposed sureties. Jolanta is 53 years of age, I assume because of Andrej’s work history he is probably at least the same age as Jolanta.

[37] Both parents reside in Hannon, Ontario along with Jolanta’s 86-year-old mother and their 26-year-old daughter. Their house is estimated to have a market value of $800,000. They have a little over $600,000 in equity.

[38] Both parents are employed. Andrej tends to work a shift that extends into the evening.

[39] In-chief both testified that they understood the role of sureties, specifically to supervise their son and ensure that he obeys the term of any form of judicial release. Apparently Jolanta had been a surety for him in 2007, until his bail was revoked.

[40] They both professed confidence that their son would obey them. Jolanta spoke of giving him “a last chance” (ref. pg.115 of the Bail Transcript). Under cross-examination by the Crown, Jolanta stated that their home was the permanent address of their son.” He would go away for a few days” ( Ibid, p.120). That being said, apparently, he and his girlfriend did not think to stay with his parents when they had to move and prevailed upon the complainants for refuge. Jolanta spoke of trying to contact her son without success in the lead up to Noel.

[41] Jolanta agrees things went really wrong when he was 20 ( Ibid, p.122). She did know he was found in possession of a handgun, but did not know why. She doesn’t even want to remember that day ( Ibid, p. 123).

[42] As for the imprisonment for the gang rape, Jolanta believed he was “intoxicated”. He had a drug problem. “He did not know the lady (the victim) would be there” ( Ibid, p. 124, 125).

[43] Apparently, according to her, the applicant owned a company that located utility and pipeline equipment. Business was very slow.

[44] Andrej spoke of the applicant working with a friend in the towing business. He was working “a little bit here, a little bit there in 2018” ( Ibid, p. 141).

[45] As for the applicant having a gun, Andrej never received an explanation for possessing it. Apparently, the applicant had said “he had borrowed it from somebody” ( Ibid, p 143). Andrej did not want the gun in his house ( Ibid, p. 143).

[46] As for the gang rape, the applicant told Andrej that “he was at a party and did not touch her” ( Ibid, p. 145). One notes that the applicant pled guilty to the offence.

[47] With respect to drug usage, Andrej thought it was for personal consumption. The latest drug being fentanyl ( Ibid, p. 146]). “He was in and out of the house. He would say he was visiting his girlfriend”. ( Ibid, p. 147). The Justice of the Peace asked the father if his son ever had a job for two years straight. He agreed with the Justice of the Peace, “yeah because you know between those jobs he was always someplace in jail”. ( Ibid, p.151).

D. COVID-19 and Delay

[48] As indicated at the outset, the applicant concedes that neither the prosecution nor the defence were responsible for any delays as such up until and beyond the April 20, 2020 bail hearing. In fact, matters had proceeded to a judicial pretrial before Justice Zivolak of the Ontario Court of Justice.

[49] Things started to go off the rails when all courts suspended active operations as a consequence of COVID-19, and the consequential need for social distancing to contain the pandemic.

[50] July 6, 2020 is the presently scheduled return date for this matter and hundreds of other cases. Normally, an elapse of two months from the bail hearing would not be considered unreasonable delay. Indeed Section 525 triggers an automatic review up to 90 days. At this juncture, there are no Jordan concerns.

[51] The suspension of active operations has generated a massive rethinking about how courts will operate in the future, given the fact that the pandemic is not over and we all brace for the possibility of a second wave as sectors of our economy and government go through phased openings.

[52] It is natural in the face of the backlog which is building that the applicant would be concerned about when the next step, the preliminary hearing, will actually occur. Counsel for the Crown argues as a matter of logic, and I agree, that in-custody matters will be given priority. That is a fact, a principal enumerated by Chief Justice Wagner in R. v. Myers, 2019 SCC 18, 2019 S.C.J. No. 18 para. 23.

[53] It cannot be said that the courts and the Ministry of the Attorney General, have been idle in this time of cessation of active operations of courts across the province. Various directives to the Bar have encouraged electronic filings of documents as was the case in this application. This application, as noted at the outset, was conducted by a Zoom audio and visual conference over close to three hours, in which both counsel and myself, in the audio presence of the applicant and his mother, could see each other virtually and discuss the pros and cons of the application. These kinds of formats involving judge alone matters will no doubt continue into the foreseeable future.

[54] There is no reason why a preliminary hearing could not be similarly formatted.

[55] Coincidentally, the Ministry and the courts are exploring how to clean the existing court rooms in all 39 court houses, to provide ongoing social distancing, by designated control of persons in the courthouse in general, and the use of plexiglass barriers to make for safe courtrooms.

[56] These two approaches; namely, virtual courtrooms and physical changes to courthouses and courtrooms, to ensure appropriate social distancing and safety, are all with an aim to address the ever-increasing backlog. How effective these approaches will be remains to be seen. We simply do not know at this point, how things will work out.

IV. Applicable Law

R. v. Myers, (2019) [2019 SCC 18](https://www.canlii.org/en/ca/scc/doc/2019/2019scc18/2019scc18.html), S.C.J. No.18

[57] This decision is the seminal decision with respect to Section 525 applications. Such an application is based on “the long-standing principle of our criminal justice system that individuals in pre-trial custody should be given a certain priority in scheduling trials. Sections 525 (9) and 526 which confer on the reviewing judge a discretion to give directions for expediting the trial of and any proceedings in relation to an accused continue to operate as a reflection of that principle”. (Ref. para.23).

[58] The purpose of the 525 hearing is “to prevent accused persons from languishing in pre-trial custody and to insure a prompt trial”. This is achieved by providing “judicial oversight, an opportunity for a judge to consider whether to continue detention of an accused person is justified”. Ancillary to that review, is the discretion of the reviewing jurist to make specific directions to expedite matters. (Ref. para. 24).

[59] It is mandatory that the jurist consider whether further detention is justified. The consideration of whether there was unreasonable delay up to the time of the hearing (which in this case there was not) may be considered, its presence is not a precondition to the hearing. (Ref. para. 32).

[60] Typically, and indeed the section itself does speak of it being the obligation of the jailer to bring on the Section 525 obligation. This was noted by Justice Schreck in R. v. G.F., 2020 ONSC 3389, at para.19. In the application before this court, it was the accused who initiated the application. It would be quite draconian to say that a defence initiated application is not permissible under the section. Possibly it would have been desirable, if the defence has sought leave to bring such an application. Then the jurist exercising the inherent powers contained in subsection 9 of the section, could grant or deny such leave. That being said, the addition of such a step presents as being antithetical to the very purpose of Section 525. This section focusses on time elapsed and going forward, it does not exist to waste time. Accordingly, whatever leave is required to allow the defence to bring such an application is granted.

[61] The “overarching question” of this section is whether or not the accused should be released from custody. “While Sections 520 and 521 exist for the purpose of reviewing a prior order, a review under Section 525 is more characterized as a review of the detention itself”. (Ref. para. 45).

[62] Given the nature of the review, there is deference given to any” finding of fact made by the first level decision-maker if there is no cause to interfere with their decision”. Deference does not mean a rubber stamping of the original order. (Ref. para. 47 and 55).

[63] Therefore, in totality, the Section 525 jurist with an eye to whether the continuing detention is necessary and justifiable, does consider the viability of the original order amongst a cluster of other issues, such as a change in circumstances, fresh evidence and elapsed time in custody.

The Original Order

[64] The original Order in the case at hand was based on the secondary ground which states, “whether the detention is necessary for the protection or safety of the public including any victim or witness to the offense… 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”. (Ref.. Section 515(10)b)).

[65] As Crown counsel opined there is an inevitable cascading of some or all of the elements of the tertiary ground into the “all the circumstances” of the secondary ground.

[66] That was the case in the bail hearing before Justice of the Peace Valeriano.

[67] The apparent strength of the prosecution’s case was front and center. In commenting on that aspect, Justice Wagner (as he then was), stated in R. v. St-Cloud 2015 SCC 27, “On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury, matters such as credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at the hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise”. (Ref. para.58).

The Survival of the Bail Hearing Onus

[68] Although part of the discussion before this court focussed on the survival or absence of the original reverse onus that the applicant faces in the original hearing, I am inclined to agree with the practical observation of Justice Schrek in R. v. G.F. at para. 18, who in referring to Myers stated, “ Section 525 imposes an independent responsibility on the reviewing judge to consider whether to continue detention of the accused is justified. In my view, this means that the reviewing judge’s responsibility to review whether the detention is justified does not depend on whether one or the other party discharges any onus”. The fact that these remarks were in the context of a jailer-initiated Section 525 hearing is really academic. That being said, counsel for the defence has the practical evidentiary burden to persuade the presiding jurist that one aspect of the evidence to be reviewed; namely, the original bail hearing was erroneously decided.

Cross Examination of a Proposed Surety

[69] Counsel for the applicant vigourously advanced that the cross-examination of the sureties by the Crown was inconsistent with bail principles and sometimes it was unfair given the realities and sensitivities of family relationships.

[70] As Justice London Weinstein in R. v. M.K. 2020 ONSC 2266 observed, it is not unusual that accused persons are going to be less than forthcoming to their parents or relatives as to their criminal antecedents or lifestyle.

[71] One notes in passing, there was no objection by counsel for the applicant during the Crown cross-examination at the bail hearing.

[72] It is true that time could be saved if all parties consented to the use of questionnaires or an affidavit completed by sureties. Generally, bail hearings are meant to be expeditious and efficient exercises to protect both “liberty interests and the security of the public”. (R. v. John, 2001 O.J. No. 3396 (OCJ) as referenced by Goodman J.in R. v. A.F. 2020 ONSC 2880 at para.48.)

[73] Obviously, the more serious the crime, the greater the stakes for both individual and social interests. The object is to determine the suitability of a proposed surety to manage a particular accused given the antecedents of that accused and the nature of the crime.

[74] Fairness in cross-examination can be maintained by the oversight of the presiding jurist, whose responsibility it is, is to ensure that the questions are relevant, and are posed in a respectful fashion to the proposed sureties.

[75] Cross-examination of a proposed family member as a surety, can become personal to the surety. Again, this examination is not an unfettered exercise. The presiding jurist no doubt has some understanding of how families can have complex undercurrents, but in the context of deciding how a particular risk can be addressed, the nature of the relationships with the accused has to be explored. In a way this is an educative function for the surety, because they potentially become more than just as a family member, but an agent of society for addressing the particular risk involved.

V. Analysis

[76] At the outset, it should be noted that there was no new or fresh evidence adduced by the applicant.

[77] The focus of the review came down to the correctness of the decision to detain on the secondary grounds by Justice of the Peace Valeriano and the potential difficulties posed by the suspension of active operations by the court, and the ongoing response of the courts to COVID-19.

[78] As previously mentioned, there is no suggestion that either the defence or the prosecution were responsible for any delay before the suspension of active operations. Indeed, as of the time of that suspension, a return date of July 6, 2020 was set to set dates for preliminary hearing.

[79] We are left to speculate about problems with timelines as of this moment. There are no Jordan issues now. This jurist has briefly touched upon approaches engaged in by both the judiciary and the Ministry of the Attorney General, to address the ongoing need for social distancing and minimizing of physical interaction between all of us, until the pandemic no longer is an issue. No one has a crystal ball to determine how effective these measures will be with respect to the ongoing backlog of cases.

[80] That being said, as this hearing illustrated by means of a virtual court, it is possible to have judge alone proceedings without risk to safety of anyone and at minimal expense. The technology like Zoom or Skype for business is available. Coincidentally, slowly physical courts and court houses will become progressively safer with logistics that address the need to contain the virus.

[81] Given the general uncertainty as to how all these measures and new technology translate out, I think it appropriate pursuant to Section 525(9) that the review of the necessity for continued detention of the applicant, maybe renewed before October 30, 2020 or such date as can be agreed-upon between counsel. The idea being, by the date of the renewed application, there will be more understanding of the realities of the remedial efforts in the courts and how they impact upon the ongoing need to detain the applicant.

[82] What remains for consideration is whether or not the decision to detain by the justice of peace was erroneous.

[83] Part of that decision-making process encompassed the cross-examination of the parents as sureties. Although the sureties presented as having the assets to back a significant pledge, the cross- examination revealed parents inclined to make excuses for their son’s prior delicts, gang rape and gun possession. In particular, “he was drunk… He didn’t know the woman would be there… He borrowed the gun”. They knew of a drug problem, but had no idea of its extent, nor have they ever encouraged their son to seek treatment.

[84] Both parents were vague as to what form of employment if any their 33-year-old son had over the years. They were equally vague as to his whereabouts in the time leading up to the offence. Meanwhile in the statements of the applicant through the witness Sampson, it would appear that the applicant was in some ongoing relationship with the co-accused and had to move residences for some inexplicable reason.

[85] The applicant and co-accused had been found in a rented car with crack cocaine residue in two pipes. The applicant had been convicted in 2011 of gang rape, an inherently violent and degrading offence. He had been convicted of aggressive behaviour before, along with the possession of a firearm. The offence now before the court again speaks of extreme violence, again a gun is present. This apparent resurgence of violence of this 33-year-old man does not bode well. It renders any suggestion of a gap in the record meaningless. It is this constellation of factors; the extreme violence, the transitory nature of this person’s life to date, the hint of drug abuse (one notes that it is not likely that anyone would reveal this trait to one’s parents), mitigates against the reliance upon a couple in their 50’s as sureties, especially so when there is a disconnect between their understanding and knowledge of their son’s lifestyle, and behavioral evolution. To a great extent it would be putting whatever financial commitment they are willing to make at risk. It was not unreasonable for the Justice of the Peace to conclude that they, the parents, were not suitable sureties to manage the risk their son presented. The cross-examination was not unfair, nor disrespectful, it was necessary to realize the limitations of the proposal.

[86] As referenced, the sub-elements of the tertiary ground played a role in the finding that there was a risk to the administration of justice as per the secondary ground.

[87] The Crown was able to paint a very viable picture of the offence details. Motive, although not necessary to be proven, was a distinct possibility. The circle was complete, when the only item retrieved in the home invasion was the security DVR, which would have established the previous theft during the time of cohabitation between the co-accused and the complainants. The accused already had possession of everything else they had taken.

[88] Counsel for the defence forcefully argued that the identification of the accused was so flawed that the finding itself that it was the applicant and his girlfriend as two of the home invaders was fatal to any characterization of a strong compelling case for the Crown.

[89] Granted, there are numerous judicial expressions about the frailties of eyewitness identification evidence. These concerns are addressed in patent jury charges such as Watt’s Manual of Criminal Jury Instructions, David Watt, Thomson/Carswell. Within such charges, aside from the overall question, jurors are asked to consider whether the witness knew the person committing the guilty act, had they seen him or her on a prior occasion, what was the duration of the witness’s exposure to the accused, were there any visibility or lighting issues etc. The presence of a cautionary approach, and questions as to why a witness identifies a particular person, does not mean that identification evidence is per se inadmissible.

[90] In this case, the applicants and Sampson knew each other from being in jail together. The couples lived together for a day and a half within days of the offence. Both Sampson and Spree could describe the physical characteristics and voices of the applicant and his co-accused.

[91] Counsel for the defence/applicant has isolated possible differences in the many statements produced by the complaints, no doubt these differences can be mined at the preliminary hearing and trial, but for the purposes of a bail hearing, given the task of the Justice of the Peace as previously referred to in the words of Justice Wagner in R. v. St-Cloud, that identification would contribute to the sense of a compelling case for the crown. This is especially the case when there is corroboration in the form of DNA evidence with respect to the screwdriver, and the nearby security tapes showing the arrival of the four assailants complete with a shotgun.

[92] The Justice of the Peace was completely within her discretion to find a compelling case for the Crown of a vicious and serious assault in a home, committed by a person who had a history of violence, who faced a minimum sentence of five years in prison. Admittedly these are the factors identified in the tertiary ground, but they would be part of all of the surrounding circumstances and could inform the jurist of the risk this accused presented.

[93] The risk of reoffence was far greater than could be managed by the parents as sureties.

[94] For all of the above reasons, I find as I indicated at the hearing, that there is no reason to disturb the initial finding that the detention of the applicant is necessary and that his ongoing detention is merited.

[95] Therefore, for all of the above, this particular Section 525 application is dismissed, with the caveat that, as mentioned, that because of the uncertainty posed to the administration of justice by the national pandemic response to COVID-19, a renewed application may be brought before October 30, 2020 or on such other date agreed-upon. The hope being that all of us will know better “the lie of the land by then”.

Whitten J. Released: June 23, 2020