Court File and Parties

COURT FILE NO.: CR-20-31 DATE: 2020/06/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – David Gaudet

COUNSEL: Andrew McAllister, for the Federal Crown Isabel Blanchard for the Provincial Crown Jon Larochelle, for the Accused

HEARD: June 17, 2020

REASONS on Detention review under s. 525

LEROY, J.

Introduction

[1] Mr. Gaudet was ordered detained on the secondary ground after bail hearing on January 22, 2020. At the time the burden of showing cause why he should not be detained was on him. That burden remained with him on the detention review.

[2] This detention review under section 525 of the Criminal Code, was heard and argued on June 17, 2020 by teleconference. Mr. Gaudet shall be released from detention into house confinement for the following reasons.

[3] The issue is whether continued detention in custody is justified five months later within the parameters of s. 515(10) of the Criminal Code in the context of an accused who identifies as Indigenous in the midst of the pandemic that lugs in public health and trial scheduling concerns. This review centers on the impact of time and unreasonable delay on the proportionality of detention, the rational offered for the original detention order and any new information brought forward.

[4] My review of the evidence is that the determination as to whether Mr. Gaudet should have been detained on January 22, 2020 was not an easy one. It could have gone either way.

[5] The release plan of house arrest offered today is the same offered on January 22, 2020 with added appurtenances such as no access to a phone or community.

Legal Context

[6] The right to reasonable bail is entrenched in s. 11(e) of the Charter and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s.11(d)), the right not to be arbitrarily detained or imprisoned (s.9) and the right to liberty and security (s.7).

[7] The Supreme Court iterates that the pre-trial release of accused persons is the cardinal rule and detention the exception. The jurisprudence (R. v. Myers 2019 SCC 27) and s. 493.1 of the Code provide that release on reasonable terms is favoured at the earliest reasonable opportunity on the least onerous appropriate conditions including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) and 515(10) as the case may be.

[8] It is incumbent on the review court to respect the bail court’s findings of fact if there is no cause to interfere. Both parties are entitled to advance submissions on the basis of additional new credible and trustworthy information relevant to the analysis.

[9] Mr. Gaudet identifies as Indigenous. Gladue principles and purposes apply to all situations where an Indigenous person’s liberty is at stake. Section 493.2 of the Criminal Code provides that a judge shall give particular attention to the circumstances of an Indigenous person in making a bail decision.

[10] That analysis is not without potential hazards. Given that the examination of Gladue factors in sentencing is directed at diminished moral blameworthiness for an offence in sentencing, the same application without adaptation in a bail proceeding could inappropriately violate the presumption of innocence.

[11] The interaction of Gladue principles and s. 515(10) of the Criminal Code will evolve. They cannot be brought to bear in a vacuum. Consideration might include the factors and practices that disproportionately affect Indigenous persons and contribute to their over-incarceration. Such factors could include the documented pernicious effects of colonization, racial bias, the tendency to overcharge Indigenous persons in policing, the over-reliance on sureties and the use of overly stringent forms of release.

[12] The principle of restraint in bail is codified in s. 493.1 of the Criminal Code. The interim release process is not the time to apply rehabilitative or reformative provisions. Provisions looking like probation or conditional sentence are problematic.

[13] The Supreme Court in Myers instructed detention review justices to provide direction for expediting the trial and related proceedings where it is appropriate to do so. Trial bottlenecks in the criminal justice trial system arising from pandemic restrictions are for now frustrating that option.

The Judicial Interim Release Hearing January 22, 2020

[14] Detention in January 2020 was based on the secondary ground. Mr. Gaudet did not testify. Viva voce evidence was offered by Mr. Gaudet’s proposed surety, Linda Seguin.

[15] The bail court knew that on December 6th, 2019 Mr. Gaudet was accorded a residency release with Ms. Seguin, requiring compliance with house rules, a no contacts provision and an undertaking to keep the peace and be of good behaviour.

[16] Subsection 515(10)(b) of the Criminal Code provides that detention of an accused is justified where the detention is necessary for the protection or safety of the public…having regard to all the circumstances, including any substantial likelihood the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[17] At one end of the spectrum, pre-trial detention is not justified where it would merely be advantageous or convenient. At the other, the bail system does not function properly when individuals commit crimes or interfere with the administration of justice while on bail.

[18] The applicant is not arguing that the Justice of the Peace committed an error of law by detaining Mr. Gaudet based on the reasons stated. The record included the extensive criminal record, the concomitant record of breaches and the Justice of the Peace was entitled to assess the reliability of the proposed surety as he did. He was not satisfied that Mr. Gaudet and surety would in tandem constrain offending while on interim release.

[19] Although I had the benefit of the bail hearing transcript I did not actually hear Ms. Seguin as she was unavailable today. She is a recovered addict. Mr. Gaudet and Ms. Seguin have an affinity. They are notional siblings. One could conclude, as did the learned Justice of the Peace, that she sees good in Mr. Gaudet others may not discern to the extent of disregarding symptoms of wayward ways.

[20] Ms. Seguin was and is prepared to pledge a bond in the amount of $1,000. She receives ODSP benefits. The prospect of having to actually pay $1,000 for a person in her financial circumstances, in my view, represents a serious motivational factor to hold Mr. Gaudet to terms of release or call 911 as she said she would.

Factors Relevant to Protection of the Public and the Apprehension of Further Offending

i. Criminal record of the accused and compliance with court orders

[21] An extensive criminal record is cause for pause. That said, criminal records are variable and require close examination. A record comprised of relatively minor offences does not need to carry much weight.

[22] The accused person’s criminal record for breaches of undertakings, release terms or probation may be helpful when predicting future criminal behaviour and whether the accused will comply with release terms.

[23] His record at this stage carries little weight. Although Mr. Gaudet is enmeshed in criminal culture, the inference to be drawn from the sentencing record is that he is a regular but minor offence offender.

[24] Mr. Gaudet is forty-six. He is Indigenous. At least one co-accused charged on January 20, 2020 is Indigenous. His experience with the criminal justice system is extensive.

[25] His criminal record began when he was a youth in 1990. He has been before the criminal courts if not annually since then close to it. In the last 5 years, Mr. Gaudet has been convicted of failing to attend court or compliance with conditions of undertaking, recognizance or probation five times. He had two assault convictions in that period. This latest stint of detention is his longest in the last five years.

[26] The record reveals that Mr. Gaudet honours conditional sentence terms. One inference is that he is able to keep the peace and be of good behaviour when breach signifies incarceration.

ii. Whether the accused was already on bail or probation

[27] Mr. Gaudet was on bail and probation on January 21, 2020. The Justice of the Peace correctly viewed this as a significant factor in the conclusion he drew regarding Mr. Gaudet’s propensity for offending while on bail.

[28] When the accused is already on bail when the predicate offences were committed and subject to the presumption of innocence this can inform valuation as to whether a person will be compliant with release conditions. This segues into the next factor which in my view depletes this factor of weight in the analysis.

iii. The nature of the offence and the apparent strength of the crown case are to be considered.

[29] This factor weighs on the secondary and tertiary grounds for release. The nature of offences charged are serious but the strength of the cases against Mr. Gaudet is problematic.

[30] Mr. Gaudet faces charges arising from events on September 5, 2018 and January 20, 2020.

[31] The charges from events on September 5, 2018 involve an allegation of assault with a weapon, namely a Billy-club. The only source of direct evidence attaching Mr. Gaudet to the acts involved is the victim’s girlfriend at the time and she identified three individuals. She has a criminal record for crimes of dishonesty. The evidence is she testified against Mr. Gaudet during a trial heard December 6, 2019 wherein Mr. Gaudet was largely acquitted. The victim did not identify Mr. Gaudet as the person who caused the injuries. Neither are willing witnesses.

[32] Defence raises Jordan issues. The arrest warrant for that event was issued on November 8, 2018. Mr. Gaudet was arrested on this warrant at the courthouse on December 6, 2019 when he attended for trial on other matters. As noted, he was released on condition that he keep the peace, reside with Linda Seguin and obey the rules of her home.

[33] Trial dates for this set of charges were lost when trials were suspended in March 2020.

[34] The same can be said for the charges on January 20, 2020. Mr. Gaudet was arrested with three other individuals on January 20, 2020 as part of a drug investigation at 1780 Cumberland in Cornwall. This address is not affiliated with Ms. Seguin with whom Mr. Gaudet was supposed to be residing. Ms. Seguin said Mr. Gaudet resided with her after December 6, 2019 but there were times he slept over at the girlfriend’s home. That the investigating officers who had been watching the comings and goings at 1780 Cumberland leading up to the warrant were unaware Mr. Gaudet was out of custody as prelude to the arrests validates her context. As to whether or not Mr. Gaudet presented as a resident at 1780 Cumberland to the arresting officers will be a trial issue. The evidence adduced during the bail hearing suggested that the residents of those premises were Mr. Gaudet’s girlfriend and the other co-accused. He and the girlfriend were arrested in her bedroom. The inventory and paraphernalia were consistent with a trafficking operation. Whether the evidence is sufficient to put Mr. Gaudet in control of the controlled substances and paraphernalia remains to be seen.

[35] In response to the federal crown’s submission regarding the analysis regarding strength of case on the CDSA charges applied by the Justice of the Peace it is my view that neither the Justice of the Peace nor I have sufficient information to assume a finding of guilt at trial. That is, with respect, not a finding of fact. Some might argue that the Justice of the Peace discounted the presumption of innocence in that portion of his reasons.

iv. Stability of the Accused Person

[36] The only direct evidence on this subject during the January hearing derived from Ms. Seguin. From her view, Mr. Gaudet had settled into her home nicely, complying with her rules and to her knowledge was keeping the peace and being of good behaviour.

[37] Mr. Gaudet’s affidavit evidence tendered on the detention review application reveals substance addiction issues not alluded to in January and denied by Ms. Seguin.

New Information

[38] The Justice of the Peace ruled without knowledge of the pandemic onset and the concerns for inmate safety and the ensuing prospect of unreasonable delay in getting to trial. The Justice of the Peace was not given the opportunity of assessing Gladue factors in the bail context. If he had his assessment of the release plan and the surety may have moderated.

S. 525 Detention Review

[39] There are valid reasons for releasing Mr. Gaudet. The gist of a s. 525 review is to ensure that detained persons do not languish in detention pending trial. Mr. Gaudet has been detained for five months. Prospects for timely trial fade on a daily basis. This Court’s faculty to direct expedited trial is frustrated to the point of disappearance. If Mr. Gaudet’s detention continues, the only portrayal could be that he will languish in detention awaiting trial. The pressure to plead out will drive the case.

[40] That the learned Justice of the Peace did not advert to the fact of Mr. Gaudet’s Indigenous heritage weighs on the issue of whether continued detention is justified. The over-representation of the Indigenous in detention population is a factor that is relevant and close to dispositive to the review. I dedicated space earlier in my reasons to the strength of case against Mr. Gaudet. He has the right to be tried for the offences before the Court. His criminal record is not part of the trial process. The system has to be concerned that an Indigenous person could languish in detention for months or years on these charges in these circumstances.

[41] Mr. Gaudet reported that the Indigenous support programs in the detention center were terminated in March and emphasized the importance of the loss of this support on his mental health.

[42] In his affidavit, there is an acknowledgment of addiction issues. He connects ADHD to marijuana use as self-medication. That he has served five months is evidence of present stability. Any concern for criminal withdrawal symptomology will have run its course. He noted that he connects bad decision-making to using alcohol, marijuana or cocaine and aspires to continued sobriety. He believes that Ms. Seguin will be a valuable support.

[43] That is a change for the better. From what he said it is fair to conclude that Mr. Gaudet was abusing substances in January 2020. A release then would have returned him to the same life-style without hiatus.

[44] The ostensible urgency driving the review request lies in the fact that Mr. Gaudet suffers with asthma. It is a tertiary ground circumstance. That was not a relevant issue in January. He offered his prescribed medication list to show that he is treated for asthma and described the symptoms he deals with daily.

[45] Living conditions at the detention center do not permit social distancing. The Crown offered in evidence reports from the Ministry of the Solicitor General to reassure the Court and Mr. Gaudet of the importance the Ministry places on detainee safety in the face of the pandemic. There are no known cases of COVID-19 at the detention center.

[46] The pandemic stands as a material change in circumstances since January 20, 2020. I take notice that an asthmatic may have a higher risk of dangerous symptomology should that person contract COVID-19 but such is not determinative. There are several rulings from this bench where asthmatic accused persons have been ordered detained in a detention center notwithstanding the possible higher risk of symptomology.

[47] Each case turns on its facts. The public’s confidence in the administration of justice is informed by awareness of all the facts. As such, concern for increased risk of symptomology weighs in with all the other circumstances.

[48] In this case, the pandemic in conjunction with the medical condition, although by no means dispositive, add some weight to concluding that trial delay resulting from pandemic restrictions renders continued detention disproportionate.

[49] Mr. Gaudet’s record indicates that he honours conditions when a breach would result in automatic incarceration. Mr. Gaudet should realize that a fresh arrest while on bail for the incumbent charges will prejudice prospects for showing cause why he should be released.

[50] House arrest is penal. The task of honouring prolonged house arrest pending trial will test the resolve of surety and accused.

[51] If Mr. Gaudet breaches Ms. Seguin will report it. She will post a bond without cash in the amount of $1,000. For a person in her financial circumstances that is a significant commitment and imports the tug of bail on her part. She knows she is undertaking the role of jailor and if she neglects her duties, she will be called on to pay up.

[52] The application of Gladue principles and purposes in bail requires the court to consider factors and practices that disproportionately affect Indigenous persons and contribute to their over-incarceration. In this case his proposed surety was found wanting. It begs the question as to who else a person in Mr. Gaudet’s circumstances might turn to in time of need. It is no stretch to conclude that Ms. Seguin is the best he has. His individuality is only partly to account for his circumstances and the court is directed to react accordingly in bail hearings

[53] Accordingly having regard to:

• Indeterminate trial delay today without an efficacious remedy
• Suspension of Indigenous services in the detention center
• That Mr. Gaudet has had five months to stabilize his propensities
• Concerns in relation to the strength of crown cases notwithstanding the serious charges
• That as an Indigenous person the court has an affirmative duty to have regard to all the circumstances that drive significant over-representation of the Indigenous in pre-trial detention
• That Mr. Gaudet’s criminal record demonstrates he is inclined to honour conditional sentences – that is sentences wherein a breach takes him to prison as is the case here
• That Ms. Seguin after pledging the sum of $1,000 is highly motivated to report even the smallest breach
• Mr. Gaudet’s record although lengthy is one reflecting a relatively minor offence offender
• That house arrest while not adequate in January 2020 is offered again in all these circumstances and is the most restrictive form of release
• That Mr. Gaudet is asthmatic and possibly more vulnerable to more serious symptoms should he contract COVID-19,

notwithstanding the valid reasons provided by the Justice of the Peace for detention at the time continued detention is a disproportionate outcome at this time and Mr. Gaudet met the burden of showing why he should be released.

Release Terms

[54] Mr. Gaudet is to enter into a recognizance with surety namely, Linda Seguin born December 17, 1970; both to pledge $1,000; Mr. Gaudet to reside with Ms. Seguin at 15 Second Street East, apt 7, Cornwall, ON K6H 1Y2 and obey the house rules. Mr. Gaudet is to keep the peace and be of good behaviour at all times.

[55] Save for his own or his surety’s medical or dental emergencies Mr. Gaudet shall be confined to that home between 2:00 p.m. and 12:00 noon daily with time of the essence. He is to have two hours free time daily. If requested by a peace officer during the confinement period, Mr. Gaudet will immediately present himself at the front door of the residence.

[56] If Mr. Gaudet is able to abide these confinement restrictions and sustain good behaviour over a period of three months from release, I am amenable to hearing an application to reduce the daily confinement period.

[57] Confinement exceptions for scheduled court appearances, scheduled appointments in writing with legal counsel of record, scheduled medical or dental appointments in writing, medical or dental emergencies are permitted. There are no other exceptions.

[58] Save for his or his surety’s own medical emergencies Mr. Gaudet shall not use or direct someone else to use a telephone – cellular or landline. Mr. Gaudet shall not have visitors while under these terms of release unless that visitor is delivering necessities of life and then only for the time strictly necessary for delivery.

[59] Mr. Gaudet shall not have in his possession at any time for any purpose any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive device, or things intended for used as a weapon as defined under the CCC.

[60] Mr. Gaudet shall attend all scheduled court appearances.

[61] No contact with witnesses and co-accused from the two incidents.

[62] Mr. Gaudet to travel directly from the detention center to Ms. Seguin’s residence.

The Honourable Mr. Justice Rick Leroy Released: June 24, 2020