Court Information

DATE: 20200630 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NELSON NIYONGABO Defendant/Applicant

Counsel: Brigid McCallum, for the Crown Rosalea Thompson, for the Defendant/Applicant

HEARD: June 24, 2020 by video conference

Decision on Defence bail review application

SPIES J.

Overview

[1] On January 17, 2020 I convicted the defendant, Nelson Niyongabo, of one count of sexual assault, contrary to s. 271 of the Criminal Code. He had sexual intercourse with a female whom he met only hours before in an elevator vestibule of a downtown office building on April 21, 2018. I found that the female complainant did not consent to having sexual intercourse with Mr. Niyongabo and that she did not have the capacity to consent. She was not only extremely intoxicated, she was also either asleep or unconscious. The sexual assault was interrupted when someone entered the elevator vestibule.

[2] The defendant brings this application for interim release until his sentencing hearing, pursuant to s. 523(2)(a) of the Criminal Code, which permits me, as the trial judge, at any time, to vacate the detention order made on December 9, 2019, by Justice of the Peace Ng (the “Detention Order”), “on cause being shown”. The Justice of the Peace decided that Mr. Niyongabo had not shown cause for why he should be released and ordered his detention on the secondary ground. Ms. McCallum opposes this application and submits that Mr. Niyongabo should be continued to be detained on both the secondary and tertiary grounds.

[3] With the consent of the parties, I heard this bail review application by video conference with the assistance of a Registrar and a court monitor who recorded the proceedings. Mr. Niyongabo was also on the call from the Toronto South Detention Centre (“TSDC”), which is where he is currently detained.

[4] At the conclusion of the hearing of oral submissions I advised counsel and Mr. Niyongabo that I was not satisfied that Mr. Niyongabo should be released on the secondary ground and dismissed the application with reasons to follow. These are those reasons.

Jurisdiction

[5] First of all, in addition to the inherent jurisdiction of this Court, in my view, even though I have convicted Mr. Niyongabo, he is now before me for the sentencing phase of his trial and I am still his trial judge; see British Columbia (Attorney General) v. British Columbia (Provincial Court Judge), [1999] B.C.J. No. 2406 (BCSC). As such there was no issue with counsel that s. 523(2)(a) of the Criminal Code still applies. In addition, in light of the ongoing COVID-19 pandemic, there was no dispute that there has been a material and relevant change in circumstances since the Detention Order within the meaning of R. v. St. Cloud, 2015 SCC 27, at para. 121. As I stated in my recent bail review decision R. v. Smith-Alexander, 2020 ONSC 2946, at para. 4, there have been a significant number of bail and bail review cases dealing with the impact of the COVID-19 pandemic, and there is near unanimous agreement that the COVID-19 pandemic constitutes a material change. Accordingly, the hearing proceeded before me as if I were the initial decision-maker.

Background

[6] The trial in this matter commenced on September 30, 2019. Counsel made closing submissions on November 18, 2019. Judgment was reserved until January 17, 2020 and as already stated on that date Mr. Niyongabo was convicted of sexual assault. Mr. Niyongabo was charged with a breach of his recognizance in relation to a breach of his curfew on November 25, 2019. He pleaded guilty to that charge the same day and was sentenced to 21 days in custody. In addition, his outstanding bail order was cancelled at the Crown's request pursuant to s. 524 of the Criminal Code.

[7] On March 3, 2020, Mr. Niyongabo’s sentencing hearing was adjourned with the consent of the Crown to April 3, 2020 because his counsel advised that he was seeking a special assessment of Mr. Niyongabo. The hearing did not proceed as a result of steps taken by this Court in light of the COVID-19 pandemic. Following discussions with counsel the sentencing hearing was set for June 29, 2020, to proceed by video conference. The Crown will be seeking a sentence of three years at Mr. Niyongabo's sentencing hearing. Mr. Niyongabo has now been detained for over 190 days and he may receive enhanced credit for pretrial custody, lockdowns, and COVID-related hardships. It was agreed at the conclusion of oral submissions that the sentencing hearing be adjourned.

The Evidence

[8] Mr. Niyongabo did not file an affidavit. I have no information about his background, family situation and no evidence to suggest that he is vulnerable to COVID-19. The reason for this application is that releasing Mr. Niyongabo would facilitate one of the assessments that his counsel would like to have done for the purpose of his sentencing hearing. Counsel for Mr. Niyongabo have arranged for two assessments to assist in Mr. Niyongabo's sentencing. The first is through a psychotherapist named Aaliyah Reckley who will assess Mr. Niyongabo’s mental health and assess how any issues are relevant to his rehabilitation. It had been planned that she would conduct the assessment by way of a professional visit with Mr. Niyongabo on March 27, 2020 at the TSDC. Even though the TSDC was permitting professional visits at that time, understandably Ms. Reckley did not feel comfortable attending. The appointment proceeded on June 19, 2020 and Ms. Reckley advises that her report will be completed by July 6, 2020.

[9] The second assessment is being arranged through the Sentencing and Parole Project (“SPP”). The SPP is funded by the Law Foundation of Ontario to provide assessments on the impact of race and culture for Black defendants in the province. In February 2020, Mr. Niyongabo was referred to SPP and placed on a list for assessment. Due to the COVID-19 pandemic, the SPP was on hold. Emily Lam, one of the project’s coordinators initially advised counsel that that the SPP is not able to conduct in-custody assessments at this time due to COVID-19. When it was pointed out to Ms. Lam that in fact professionals are being allowed into the TSDC for the purpose of assessments, Ms. Lam responded that her understanding is that the TSDC has only recently begun allowing appointments behind glass. It is her position that there are issues with conducting lengthy assessments this way that are not conducive to the manner in which the SPP does their assessments and for that reason, “not all” psychiatrists or other professionals are going into the jails at this time. She concluded that the SPP is keeping apprised of how the province is re-opening and the relevant public health guidelines and they will allow in-custody assessments to occur once they are satisfied that the risk is being “appropriately managed”. For out-of-custody assessments, Ms. Lam estimates around 60-90 days from start to finish. She also advised counsel that the SPP does not start assessments until they have all of the information they need, which suggests another indeterminate period of time.

[10] Given the length of time the assessment will take even once it can begin, it is important that a solution be found. I concluded that that solution could not be the release of Mr. Niyongabo on the terms proposed. Hopefully a psychiatrist who is prepared to attend at the TSDC to see Mr. Niyongabo for the purpose of the SPP can be found. Clearly Ms. Reckley was prepared to do so and, of course, that is the only way that counsel can see Mr. Niyongabo in person and for that matter that is the case for all of the defendants in custody.

[11] Mr. Niyongabo has seen a psychiatrist at the TSDC and has been prescribed medication for depression and anxiety. Mr. Niyongabo has expressed to counsel, through phone conversations over the past period of months, that this medication is assisting him to alleviate symptoms of anxiety and depression and that he intends to continue to take this medication whether or not he is released. He is also willing to take advantage of community supports that are available to him including those offered by the Yonge Street Mission (“YSM”) Helping Offenders on Probation Excel/Hope program and their in-house counselling services.

[12] Mr. Niyongabo has a criminal record, consisting of four convictions for five breaches of the curfew condition of his sexual assault bail. He also has a conditional discharge in relation to an assault. The details are as follows:

April 30, 2018 Arrested for sexual assault on SM May 1, 2018 Released to Bail Program May 20, 2018 Arrested for sexual assault on SMC-another complainant June 8, 2018 Released $1000 Surety w/ Curfew June 9, 2018 Arrested for FTC Curfew Condition (FTC w/d – no witnesses) March 18, 2019 Convicted for assault on SMC - conditional discharge May 10, 2019 Arrested FTC Curfew Condition May 14, 2019 Released $1000 Surety w/ Curfew July 16, 2019 Arrested FTC Curfew Condition July 31, 2019 Convicted FTC Curfew Condition - 15 days PSC August 1, 2019 Released Own Recognizance Bail program/curfew condition August 22, 2019 Arrested FTC Curfew Condition August 27, 2019 Convicted FTC Curfew Condition x 2 - 25 days / Probation September 16, 2019 Arrested FTC Curfew Condition September 23, 2019 Convicted FTC Curfew Condition - 21 days November 25, 2019 Arrested FTC Curfew Condition November 25, 2019 Convicted FTC Curfew Condition - 25 days December 8, 2019 Detained with 12 days remaining on FTC conviction sentence

[13] With respect to the conviction of the assault of SMC, Ms. McCallum provided the synopsis. SMC had significant mental health and cognitive issues and had previously been involved in an intimate relationship with Mr. Niyongabo. I do not know what facts were not proven to substantiate a conviction of sexual assault, as Mr. Niyongabo was alleged to have consumed alcohol with the complainant and her friend in the complainant’s apartment. Mr. Niyongabo was allowed to stay and sleep on the couch. After the complainant went to bed, she woke up at some point and felt Mr. Niyongabo touching her legs and she removed his hands and told him: “no”. This happened three times. The complainant then saw Mr. Niyongabo standing over her and she could feel him attempting to pull down her shorts. This time when he was told to stop, Mr. Niyongabo did.

[14] With respect to the arrest for breach of curfew on June 9, 2018, Mr. Niyongabo was seen by police with a small group of people consuming alcohol at approximately 12:30 a.m. He was in breach of a bail condition that he remain in his residence daily between the hours of 9:00 p.m. and 6:00 a.m. save for a medical emergency involving him (the “Curfew Condition”).

[15] With respect to the breach of curfew on May 10, 2019, Mr. Niyongabo was investigated at 10 Dundas Street East in the City of Toronto, by building security for trespassing just before 10:00 p.m. He was asked to leave and when he refused, he was placed under arrest for trespass. Police were contacted and discovered Mr. Niyongabo was in breach his Curfew Condition and arrested him.

[16] With respect to the breach of curfew on July 16, 2019, police were dispatched to the area of Queens Quay West and Dan Leckie Way at 12:29 a.m. to investigate a complaint that three males were assaulting a female. When officers arrived on scene, they located a female and three males, including Mr. Niyongabo. They determined that the female was his girlfriend. She had no visible injuries, was extremely intoxicated and did not report an assault. As a result, police determined that no assault actually took place. However, Mr. Niyongabo showed signs of impairment by alcohol and was arrested for being in breach of his Curfew Condition.

[17] With respect to the arrest for breach of curfew on August 22, 2019, at 1:35 a.m., police were investigating Mr. Niyongabo on an unrelated matter and discovered he was in breach of his Curfew Condition.

[18] With respect to the breach of curfew on September 16, 2019, at approximately 11:50 p.m., Mr. Niyongabo was near the intersection of King Street and Church Street in the City of Toronto. At that time he was investigated for an unrelated matter being a nuisance to females in the area. A 911 caller reported that a group of seven to eight males were corning and grabbing the caller and her friend outside of the Metro. During the course of their investigation, the females did not want to provide statements; however, officers became aware of Mr. Niyongabo’s recognizance and arrested him for being in breach of his Curfew Condition. In addition, they noted that Mr. Niyongabo had been drinking.

[19] With respect to the breach of curfew on November 25, 2019, at approximately 12:20 p.m. police responded to an alleged domestic incident at the area of 410 Queen St West, Toronto. Mr. Niyongabo and a female party were investigated at that location. The officers observed that both parties were unsteady on their feet, smelled heavily of alcoholic beverages, slurred speech and were clearly intoxicated in a public place. Both parties were placed under arrest for Being Intoxicated in a Public Place. During the subsequent investigation Mr. Niyongabo was arrested for breach of his Curfew Condition.

[20] Mr. Niyongabo provided two letters of support; the first from Eddy Martinez who is a social worker and the HOPE Program Coordinator with the YSM and the second from Nazreth Mebrahtu, RP from the YSM.

[21] The YSM’s Helping Offenders on Probation Excel/HOPE program attempts to address the complex needs of street youth that are on probation, parole and other conflicts with the law situations that require some level of monitoring or support. Mr. Martinez has been working with Mr. Niyongabo since before he was incarcerated due to his probation status. He has also made multiple visits during custody and apparently, he has come to an agreement with Mr. Niyongabo on the type of care he needs. If and when Mr. Niyongabo is released, Mr. Martinez advised that he and Mr. Niyongabo will be working on getting him housing. Mr. Martinez has already had discussion with Central Intake in regard to Mr. Niyongabo getting a shelter bed upon his release. Unfortunately, it is not possible to secure a shelter bed for Mr. Niyongabo prior to his release.

[22] Mr. Martinez states that he is currently having discussion with our external partners at Restorative Justice Housing Ontario on Mr. Niyongabo’s behalf. Mr. Martinez advises that Mr. Niyongabo has agreed to participate in substance abuse and addiction counselling, and anger management group sessions. This will allow him to address conflict resolution issues and find coping strategies. While Mr. Niyongabo is in custody, YSM is limited in their support, but once released they would put their “gears in motion” and do what they can to “help reduce recidivism by our strategic and individual tailored based methods”.

[23] Nazreth Mebrahtu advises that Mr. Niyongabo is a client with the Mental Health & Counselling Services at YSM and that YSM will continue to support Mr. Niyongabo once he is out in the community. Information is provided as to the type of psychotherapy and anger management that YSM provides.

The Proposed Plan for Release

[24] Mr. Niyongabo’s mother is not prepared to act as a surety and she has told him that he cannot come to live with her, his stepfather and siblings. In other words, Mr. Niyongabo is homeless. It is also clear that he has an alcohol problem. It is proposed that Mr. Niyongabo be released on his own recognizance on the following terms:

a) surrender yourself into custody on the day preceding your sentencing hearing; b) comply with all treatment recommendations made by your doctor(s); c) sign any releases and attend for any counselling or treatment as recommended by the Yonge Street Mission or any of its affiliated programs; d) notify the Officer in Charge (or designate) of your address and cellular number within 24 hours of any change; e) not contact in any way or communicate directly or indirectly, by any physical, electronic, or other means, with the following: SM; f) not be within 100 meters of any place where you know SM lives, works, goes to school, frequents or any place you know her to be EXCEPT for required court appearances; g) not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person); h) not apply for an authorization, licence, or registration certificate for any weapon as defined by the Criminal Code.

Analysis

[25] When I reviewed the cases provided by counsel in advance of the hearing, I realized that Ms. McCallum intended to rely on R. v. Young, 2010 ONSC 4194, a decision of Justice Clark, for what “a substantial likelihood” means. As I had considered Young in a recent bail review decision, I provided counsel with a copy of R. v. Ward, 2019 ONSC 7176 where, at para. 25, I found that any doubt on the issues of the test on the secondary ground was cleared up in R. v. Manasseri, 2017 ONCA 226, where Watt J. A. speaking for the Court stated:

[87] Second, in connection with the specified circumstances encompassed by the clause ‘including any substantial likelihood that the accused will, if released from custody, commit…’, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely. [Emphasis added]

[26] Ms. Thompson argued that Mr. Niyongabo’s position to participate in the SPP assessment is only possible if he is out of custody. She relied in this regard on a passage from R. v. Green, 2006 ONSC 27306, a case where the court considered an application to revoke bail pending sentence:

In considering an application under s. 523(2)(a) of the Criminal Code, the trial judge should also keep in mind that the revocation of bail can have a significantly detrimental impact on the offender's ability to prepare for sentencing. If the offender is in custody, contact with his or her counsel will be more onerous; it will complicate the gathering of materials, such as letters of reference and the like, which are routinely relied upon by the courts at the time of sentencing; and it will preclude the offender from getting his or her affairs in order before being incarcerated. Thus, the trial judge hearing an application for revocation of bail should first consider, where the Crown has legitimate concerns, whether these could be met by varying the terms of the release. Of course, any doubt about whether or not the offender will receive a custodial sentence would be another important factor militating against the revocation of bail.

[27] There is no doubt in this case that Mr. Niyongabo will receive a custodial sentence. Ms. Thompson concedes even a few months from now he will not be in a time served position. For the reasons that follow I have concluded that Mr. Niyongabo has not satisfied me that if he is released from custody that it is not substantially likely that he would not reoffend by at a minimum committing another breach of curfew. Ms. Thompson submitted that the prior breaches were driven by the fact that Mr. Niyongabo was homeless, but there is no evidence that he made efforts when he was out of custody to find shelter and if released now, he still may not have access to a shelter bed despite the best efforts of Mr. Martinez. She also submitted that he has had time to reflect and that he has never been in custody for as long a period before. I hope that will be a deterrent from further criminal behaviour, but I do not even have any evidence from Mr. Niyongabo to this effect and even if I did it would not alleviate my concerns.

[28] As Ms. McCallum submitted, it is clear that although Mr. Niyongabo’s convictions for fail to comply are for curfew breaches, there was much more involved for at least some of those breaches including behaviour causing women concern while he was intoxicated. Given the facts that I found with respect to the sexual assault of SM and the synopsis with respect to the conviction of assault of SMC, I agree with Ms. McCallum that there is a substantial likelihood that if released on the proposed terms that Mr. Niyongabo would breach his curfew condition and that absent police intervention, as has occurred in the past, there is a substantial likelihood that he would have consumed alcohol and commit further serious offences against women who were in vulnerable states of intoxication or asleep and/or with mental health issues. It cannot be said that there are fewer vulnerable women on the streets now because of the COVID-19 pandemic. In fact, it is likely the opposite given the pressures on Toronto’s shelter systems as a result of the pandemic. The proposed plan would simply put Mr. Niyongabo back in the same circumstances as before even if he secured housing. Mr. Niyongabo clearly has a serious addiction to alcohol and that is an illness that has not been resolved even if he has had no access to alcohol while he has been detained. For these reasons, I do not agree with Ms. Thompson that the breaches for which Mr. Niyongabo has been found guilty were simple breaches of curfew that do not engage public safety.

[29] Having found that Mr. Niyongabo should remain in custody on the secondary ground it is not necessary to consider if his detention is also justified on the tertiary ground.

Disposition

[30] For these reasons, I dismissed Mr. Niyongabo’s application for interim release.

Spies J. Released: June 30, 2020