Court File and Parties

COURT FILE NO.: 19-16915 DATE: 2020/06/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – M.M. Applicant

Counsel: Samir Adam, for the Crown Sarah Ahsan, for the Applicant

HEARD: June 3, 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.

Endorsement on Bail Review Application

LONDON-WEINSTEIN J.

[1] M.M. seeks review of the detention order issued on October 1, 2019. He is charged with five counts of possession for the purpose of trafficking fentanyl, crack cocaine and heroin contrary to CDSA 5 (2), one count of possession of property obtained by crime over $5000 contrary to s. 354 (1) (a) of the Criminal Code, one count of possession of property not exceeding $5000 contrary to s. 354 (1)(a) of the Criminal Code, and three counts of fail to comply contrary to s. 145 (3) of the Criminal Code. I delivered the reasons for detaining M.M. on June 3, but reserved the right to edit those reasons for grammar prior to releasing written reasons. These reasons have now been edited.

[2] The Crown concedes that the arrival of COVID-19 constitutes a material change of circumstances such that a de novo hearing is warranted under s. 520 (1) of the Criminal Code.

[3] M.M. indicates in his affidavit that he identifies as an indigenous person through his mother’s side of the family. The term indigenous person is a term used by M.M. and so it is the term I have used. He maintains he has a long history of lung related infections and diseases and is afraid to be in jail during the COVID-19 pandemic. He has asthma and takes Ventolin and Flovent inhalers. He has been on inhaler medication for 10 years. He is also prescribed antibiotics and Theodur twice a day for several months to assist his breathing. In addition, he takes medication for depression and Suboxone to address his addiction to heroin and fentanyl. A psychiatric report by Dr. D. indicated he also has struggled with cocaine addiction. Being in custody provokes M.M. into a state of anxiety. He is a long time drug addict but his addiction, he indicates, is under control at the present time. A health care record submitted from OCDC stamped May 22, 2020 and numbered page 57 in the materials provided by the defence indicated he had no history of shortness of breath related to asthma, chronic lung disease, smoking, or cardiac concerns. However, I accepted that he had a long term lung condition which impaired his breathing.

[4] M.M.’s medical records indicate he sought help while in custody in regard to having difficulty getting a deep breath on April 16, 2020, April 20, 2020, March 3, 2020, March 15, 2020, and February 9, 2020 amongst other dates.

[5] He plans to receive treatment for his addiction on release. The proposed plan of release would see him residing with a surety, K.D. and wearing a GPS ankle bracelet. He offers $3,000 in support of his release.

[6] M.M. proposes that K.D. act as his surety. A letter was submitted on behalf of K.D. from Rideauwood Addiction and Family Services. G.P. is an addictions counsellor at Rideauwood and has been working with K.D. since her intake on January 30, 2020. G.P. notes that K.D. is committed to sobriety and is in the maintenance stage of change, meaning that she has achieved abstinence from problem substances and is working with him on relapse prevention skills. She maintains connection with a strong family supporter, namely her mother.

[7] K.D. consulted with her counsellor to ask whether it would be a good idea for her to act as a surety for M.M. and she testified that she had the support of her counsellor. In her evidence before me, K.D. was extremely candid. I found her to be a very credible witness. She was frank about her past difficulties with addiction and the many steps she has taken to turn her life around. I accepted all of her evidence on this issue.

[8] K.D. is a close friend of M.M. and plans to live with him as his surety. K.D. was employed in court administration. She was on paid leave due to COVID-19 but has since been terminated due to COVID-19.

[9] On the date of the execution of the search warrant, August 8, 2019, M.M. was found inside an apartment which was in K.D.’s name. She had been renting that apartment for four years. At the time, K.D. was residing with her mother. She indicated in her affidavit that it came as a complete shock to her that M.M. was found inside her apartment with drugs inside. As far as she was aware, only J.V. was living in her apartment. K.D. indicated she had no knowledge that drug trafficking was alleged to have been happening in her apartment and would not have consented to this activity. In her evidence before me, K.D. admitted that she was doing really well at her mom’s place. She decided to get rid of the apartment due to the bad vibes and everything that had happened.

[10] The Crown provided the criminal record of J.V. He was the person who K.D. allowed to live in her apartment. J.V. has a seven page criminal record with convictions for possession of drugs, possession of a firearm knowing its possession is unauthorised, assaulting a peace officer with a weapon, conspiracy to commit an indictable offence.

[11] The defence argues that M.M. has made strides in his recovery and will continue to do so while under the supervision of K.D. The GPS monitoring bracelet with RF capability and $3,000 also strengthens the plan. The Crown maintains that GPS monitoring and the supervision of K.D. is insufficient to satisfy the primary, secondary and tertiary grounds.

[12] M.M. has 84 convictions on his criminal record including 19 convictions for breaches of bail orders, 11 convictions for failing to attend court, four convictions for probation breaches and a conviction for being unlawfully at large. Gladue principles require that bail judges be alive to the ways in which the bail system, in its current operation, exacerbates systemic disadvantages. It is common ground that Gladue principles have application to the question of bail. R. v. Robinson, 2009 ONCA 205 in chambers. I had limited information before me at this stage in regard to M.M.’s systemic or background factors as described in R. v. Ipeelee, 2012 SCC 13, but I am willing to take notice of the fact that addiction is a background factor which is certainly present in M.M.s life.

[13] The Crown argues that M.M.’s 11 convictions for failing to attend court militate in favour of a finding that he will not attend court. I agree that there is concern in regard to the primary grounds, but I was not satisfied that M.M. would not attend court. While GPS monitoring has its limitations, one thing it does do is enhance the knowledge of the accused that if they do not attend court, or if they violate the boundaries established with the GPS bracelet, that this breach will be discovered. The certainty of detection, in my view, enhances the efficacy of the monitoring bracelet in terms of the primary grounds. M.M. also has a relationship with K.D. which anchors him to the community. In my view, despite the concerns I had in regard to the primary grounds, I would not detain him on the primary grounds due to the existence of the monitoring bracelet, and K.D.’s demonstrated interest in supervising him to the best of her ability. I accepted that she would ensure that he attended court.

[14] However, in relation to the secondary grounds, I had concerns in regard to this plan and I conclude that M.M. has not met his onus in relation to the secondary grounds. M.M. is charged with trafficking in Fentanyl. K.D. is a person who has made excellent strides in terms of her own recovery. In fact, she has completely turned her life around, finished school, obtained meaningful work and is preparing to write the bar admission exams in order to be called to the bar as a paralegal. I cannot overstate how impressed I was with her progress. I also accept that she sought the input of her counsellor before agreeing to act as a surety for M.M. However, M.M. has in the past supplied drugs to K.D. They have a shared history of doing drugs together. She had a serious and longstanding conviction to heroin and cocaine. M.M. shares that addiction. I appreciate that K.D. wishes to help M.M. However, I am concerned that living with him, given their past shared history, would prove to be problematic. M.M.’s criminal record contains 26 CDSA convictions, including three convictions for trafficking in a Schedule I Substance. His medical records submitted at this hearing indicate that he professes to smoking fentanyl every day for the past five years and smoked cocaine every day for the past 20 years. He is alleged to have possessed a significant amount of fentanyl for the purpose of trafficking. In my view, K.D.’s shared drug history with M.M. make this plan vulnerable in terms of M.M. relapsing. In reaching this conclusion, I am in no way suggesting that I do not accept K.D.’s evidence regarding her recovery. I did accept her evidence. In my view, however, her shared history with M.M. would place his sobriety in jeopardy. I note he has been twice issued a bench warrant in drug treatment court.

[15] M.M. proposes a combination of GPS and RF monitoring. However, a GPS monitor is most effective when used in conjunction with a strong surety. Despite K.D.’s good intentions, which I accept, I am not satisfied that this plan will adequately mitigate the risk on the secondary grounds. M.M. is still in the early phase of his own recovery with the use of Suboxone. In my view, to have K.D. supervising her former drug supplier at this early stage in his recovery would be a perilous plan, despite the fact that I accept that she wishes to help him attain the level of recovery and sobriety that she has achieved.

[16] I also was concerned that K.D. was the lessor of the apartment, where M.M. was arrested. K.D. indicates that she allowed J.V., M.M.’s former co-accused to reside in the apartment and was completely unaware that M.M. was frequenting the apartment. In her evidence in this hearing, it was apparent that J.V. would have known that no one else was to use the apartment, yet M.M. was present.

[17] M.M. may very well now be motivated to follow the conditions of his release due to the presence of COVID-19. As a person with the lung and breathing issues described, he is also at a heightened risk of a poor outcome if infected with the virus. However, M.M. has a long history of non-compliance which is related to his longstanding drug addiction. I am concerned that given that the proposed surety is someone to whom he provided drugs, that his sobriety will be in jeopardy with this plan of release, despite K.D.’s own success with her own sobriety. In my view, there is a substantial likelihood, based on his record for non-compliance and the vulnerability of this plan of bail, that M.M. will commit additional offences if released on this particular plan. If M.M. were to have a surety who had not previously shared drugs with him, and did not share his vulnerabilities, he may have been able to have been released, despite his lengthy criminal record.

[18] In relation to the tertiary grounds, the Crown’s case is strong. The charges are serious where the Crown claims that M.M. is a mid-level drug dealer engaged in a commercial drug enterprise. The circumstances surrounding the offence involve allegations that M.M. was on a release for fentanyl trafficking at the time of these offences. Given the lethality and high toxicity of the substance, the fact that fentanyl was strewn around the bedroom is aggravating. A home day care is also nearby the apartment, in a nearby apartment a few doors down.

[19] Finally, M.M. faces a lengthy period of incarceration if convicted.

[20] I have also considered COVID-19 and M.M.’s particular vulnerability to a poor outcome if infected due to his particular health concerns. In my view, COVID-19 is one factor which must be considered, having regard to all of the relevant circumstances surrounding this bail review. I appreciate that it is impossible while in custody to physically distance and hand wash to a degree which is recommended for protection against COVID-19.

[21] I have concluded that M.M. cannot be released to K.D. as a surety. At present there are no cases of COVID-19 at the Ottawa Carleton Detention Centre, although that can change quickly. He is at a heightened risk, given his lung condition, of an adverse outcome if he becomes infected with the virus. I have considered that M.M.’s trial in this matter will be delayed due to COVID-19. I agree with Ms. Ahsan that a surety and the GPS monitoring system is a rigorous form of release. However, I am not satisfied that the proposed surety in this case would be able to adequately supervise M.M. given their shared history.

[22] The lack of a suitable surety in this case has persuaded me that M.M. must remain detained in order to maintain the public’s confidence in the administration of justice. I recognize that barriers in finding a suitable surety can have disproportionate consequences for Aboriginal accused persons, including spending more time in remand custody, or being denied bail. However, in this case, the particular vulnerability of the proposed surety, given her shared history with M.M. make her an unsuitable surety in the circumstances, despite the gains she has made in her own life. M.M. is detained on the secondary and tertiary grounds.

Madam Justice A. London-Weinstein

Released: June 8, 2020