Court File and Parties
Court File No.: CRIMJ(P) 1859/19 Date: 2020-06-29
Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent T. Sarantis, for the Crown
And: Jerome Green, Applicant T. Okada-Phillips, for the Applicant
Heard: June 23, 2020, by teleconference
Reasons for Judgment – Bail Review
André J.
[1] Mr. Jerome Green brings an application for bail after Justice of the Peace Krayzman detained him on July 15, 2019 on the secondary and tertiary grounds and Harris J.’s November 12, 2019 decision affirming his detention. His counsel submits that Mr. Green’s length of time in pretrial detention, the availability of electronic monitoring and Covid-19 collectively justify his release.
Background Facts
Brampton Allegations
[2] Members of the Peel Regional Police Force (PRPF) arrested Mr. Green on August 24, 2018, after receiving a complaint from his girlfriend that he had instructed her to hide a loaded firearm in her laundry room. The police recovered the firearm and subsequently charged Mr. Green with a number of firearm-related offences. Mr. Green was granted bail on these charges on September 18, 2018.
[3] Mr. Green allegedly failed to appear in court on these charges on October 24, 2018. A bench warrant was issued for his arrest on January 11, 2019. On February 8, 2019, Mr. Green’s surety advised the police that he no longer wished to act as surety for Mr. Green.
Crack Cocaine
[4] On January 7, 2018, police officers discovered a small quantity of crack cocaine in Mr. Green’s vehicle. He fled the scene but was arrested on January 24, 2018 and charged with simple possession and other charges. The police released him on a promise to appear. Mr. Green pleaded guilty to possession of crack cocaine in November 2019 and received a sentence of 30 days in custody. The Crown withdrew the other January 7, 2018 charges against Mr. Green.
St. Catharines’ Charges
[5] On April 4, 2019, police officers investigated a vehicle in which Mr. Green and another male were occupants. The police allege that Mr. Green and his companion fled the vehicle. However, Mr. Green maintains that he remained in the vehicle while his companion fled the scene. The police located 107 grams of fentanyl in a bag within the vehicle. Following a contested bail hearing on July 2, 2019, the court released Mr. Green on a recognizance of $37,000 without deposit and with three sureties. The sureties included his father, Elvis Green, and his new girlfriend, Kwinzy Pepa. Mr. Green has a judge and jury trial in this matter scheduled for July 2, 2020.
Bail Hearing on July 15, 2019
[6] The PRPF returned Mr. Green to this jurisdiction following his release in St. Catharines on July 2, 2019 and held him for a bail hearing on the firearm-related charges. During this hearing, Mr. Green called evidence regarding a proposed plan of supervision. Justice of the Peace Krayzman ruled that the proposed supervision plan did not allay the court’s concerns on the secondary grounds given Elvis Green’s testimony that Mr. Green had shown little regard for the conditions of his recognizance dated September 14, 2018. The court therefore concluded at pp. 156-157 that:
Both sureties testified candidly for the most part, including with respect to weaknesses in the plan. However, the weaknesses I have heard about are troubling to me. While I have no doubt that your proposed sureties would both do their best to supervise you, my concern is with your willingness to follow a bail order and to not commit offences while on that bail.
Continuing the quote to page 157:
From what I have heard in this bail hearing, the problem on the secondary grounds is that I have no confidence that you will follow any rules I place on you, but especially not the same plan as before and rules on a similar plan to that.
Harris J.’s Decision on November 12, 2019
[7] Mr. Green submitted to Harris J. that a change in circumstances, based on the following factors, justified his release:
a) Some of his charges had been withdrawn;
b) The length of time he had spent in custody; and
c) GPS monitoring.
[8] Regarding the first factor, Harris J. concluded at p. 41 that the two major charges of possession of a firearm and fentanyl trafficking remained outstanding and therefore, the court’s concerns on the secondary and tertiary grounds remained.
[9] Second, Harris J. concluded, at p. 41, that “the time in custody has to be measured against the potential jeopardy on the charges currently before the court.” He noted that “the general ranges are about three years on the firearm charges, and five years on the fentanyl trafficking.” Measured against these figures, the pretrial custody, “while not insignificant, does not fundamentally alter the approach to bail”: at pp. 41-42.
[10] With respect to electronic monitoring, Harris J., at p. 42, adopted the following passage from a previous decision he had written:
There is now quite a volume of case law in Ontario considering the efficacy of electronic monitoring in relation to the three grounds for bail. The view universally expressed in the cases is that electronic monitoring is of minimal utility because it fulfils no preventative function, merely enabling the reporting of a transgression after the fact. It may tell the police where the accused is, but it will not convey information about what he was doing. Particularly in the case of the primary ground, this reduces the efficacy of electronic monitoring.
[11] Harris J. then concluded that electronic monitoring “is only as good as the surety”. Given the failures of the supervision plan identified by Justice of the Peace Krayzman, Mr. Green’s recent spate of criminal activity involving alleged violations of court orders and the shortcomings of electronic monitoring, Harris J. dismissed Mr. Green’s application for bail.
Criminal Record
[12] Mr. Green had no criminal record prior to August 2018.
Position of the Parties
Applicant’s Position
[13] Mr. Okada-Phillips submits that the following factors collectively constitute a material change in circumstances that justify Mr. Green’s release:
a) Length of pretrial custody;
b) Electronic monitoring; and
c) Covid-19.
Crown’s Position
[14] Mr. Sarantis submits as follows:
a) Mr. Green is relying on the same inadequate supervision plan proposed to Harris J. which has been found wanting.
b) Covid-19 is not a “get-out-of-jail free card” and there is no evidence of any outbreak of the infection at the Maplehurst Correctional Complex where Mr. Green is being held nor any evidence that he has any pre-existing medical problems that make him vulnerable to infection.
Governing Principles
[15] Section 11(d) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
[16] Section 11(e) of the Charter provides that any person charged with an offence has the right not be denied reasonable bail without just cause.
[17] Section 515(10)(b) of the Criminal Code, R.S.C. 1985, c. C-46, provides that the 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 that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[18] In R. v. Morales, [1992] 3 S.C.R. 711, at p. 737, the Supreme Court of Canada noted that:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.
See also R v. Antic, [2017] 1 S.C.R. 509.
[19] In R. v. Abdel-Gadir, 2015 ONSC 1522, at para. 32, the court listed the following factors that can be considered under the secondary ground:
a. The nature of the offences;
b. The relevant circumstances of the offences;
c. The likelihood of a conviction;
d. The degree of involvement of the accused;
e. The accused’s personal circumstances including his occupation, lifestyle and criminal antecedents;
f. The danger which the interim release of the accused represents to the community specifically affected by the matter.
[20] To these factors could be added the nature of the proposed supervision plan, the offences for which the accused has been convicted and the length of sentence, if convicted.
Analysis
[21] This application raises the following question:
Is there a material change in circumstances that requires an analysis regarding whether Mr. Green should continue to be detained on the secondary and tertiary grounds?
[22] In R. v. Rajendram, 2020 ONSC 3176, I noted at para. 60 that:
I am prepared, as a number of courts have done before me, to find that Covid-19 constitutes a material change in circumstances that requires an analysis, under s. 515 (10)(c), whether Mr. Rajendram should be released: see R. v. J.A., 2020 ONSC 2312; R. v. Davison, 2020 ONSC 2481; R. v. P.K., 2020 ONSC 2694, at paras. 37-39; R. v. A.S.Y.A., 2020 ONSC 2155, at para. 59.
[23] In R. v. Rajan, 2020 ONSC 2118, Harris J., who did not consider the implications of Covid-19 in his November 2019 decision denying Mr. Green’s application, noted at para. 69 that:
… the threat of the virus pulls strongly in the other direction, towards release. In the end, the threat, if not the actuality of Covid-19, goes a long way to cancelling out the traditional basis for tertiary ground detention.
Does a material change in circumstances justify a detention on the secondary ground?
[24] A material change in circumstances that would justify Mr. Green’s release is one that materially calls into question the continued validity of the detention order: see R. v. Ferguson, [2002] O.J. No. 1969, at para. 17. Such a change could be the offer of new sureties, the lessening of the potential jeopardy because of a withdrawal or staying of charges, a more robust supervision plan, problems with the Crown’s case against the applicant, and, as already noted, Covid-19.
Supervision Plan
[25] In this application, the supervision plan remains essentially the same. However, the sureties, and particularly Elvis Green, have shown that they would not tolerate any failure of the applicant to abide by any condition imposed by the court, if the applicant is released. The Crown has conceded that Elvis Green assisted in looking for his son, Jerome, when he was sought by the police and that he let his son languish in jail for some time before offering himself as a surety. Elvis Green works as a mechanic and earns approximately $6,000 monthly. He understands the duties of a surety and is prepared to supervise his son, if the latter is released.
[26] Ms. Pepa was pregnant when Harris J. heard Mr. Green’s renewed application for bail. Her child is now six months old. While the evidence at that hearing suggested that Ms. Pepa had little control over Mr. Green, the new plan involves Ms. Pepa’s mother, who lives with Ms. Pepa, and is willing to supervise Mr. Green if he is released.
Absence of a Criminal Record
[27] Another relevant factor on the secondary ground is that at the time of the firearms allegations in April 2018, Mr. Green had no criminal record. He has not been convicted of breaching court orders although it appears that with his conviction for possessing crack cocaine, he violated his September 14, 2018 recognizance. Mr. Green’s November 2019 conviction for possession of cocaine post-dates the firearms allegations.
Strength of the Crown’s Case
[28] The strength of the Crown’s case against Mr. Green is also relevant to the s. 515(10)(b) analysis. I am unable to conclude that the Crown’s case on the fentanyl charges is a strong one. I do not know if there is either forensic evidence or a statement connecting Mr. Green to the drugs or whether the bag in which the drugs were found belonged to him. On the other hand, the Crown’s case on the firearm charges may be strong, although it is based on the statement of Mr. Green’s former girlfriend. The apparent strength of the Crown’s case against Mr. Green is a factor in considering whether Mr. Green’s detention is justified on the secondary ground.
[29] That said, this factor raises another relevant issue on this ground: the potential jeopardy faced by Mr. Green if he is convicted. Harris J. stated that Mr. Green faced an approximately three-year sentence if convicted of the firearms charges and five years of incarceration if he is convicted of the fentanyl charges.
[30] Mr. Okada-Phillips, on the other hand, has presented cases indicating that the judicially imposed sentencing range for the firearms charges is two to three years imprisonment.
Pretrial Custody
[31] Regarding Mr. Green’s pretrial custody, Harris J. noted at pp. 41-42 that the pretrial custody, “measured against these figures, while not insignificant, does not fundamentally alter the approach to bail”.
[32] I am unable to arrive at a similar conclusion. Mr. Green was in pretrial detention for eight months when he had his hearing before Harris J. He has now been in custody for an additional 7 months or 15 months in total. He will likely receive credit for pretrial custody from April 4, 2019 to March 16, 2020 (the date when the courts closed down on account of Covid-19) at a ratio of 1:1.5 days or approximately 19 months. He will likely receive a greater amount of credit from March 6, 2020 given the increased restrictions he has had to contend with, such as twice being placed under 15-day quarantine, deprivation of family visits, and the overarching fear of infection. To the extent that he receives credit for this period at a ratio of 1:2, he would receive 6 months of credit for time spent in prison from March 16, 2020 to the present, for a total of 25 months. That clearly places him in a position of having substantially served his sentence in the event that he is convicted of the firearms charges. If he remains in custody until his trial date of November 30, 2020, he would receive an additional 10 months of credit for a total of 35 months.
[33] For these reasons, pretrial custody is a significant factor in determining whether or not Mr. Green should be detained on the secondary ground. Indeed in R. v. Myers, 2019 SCC 18, 375 C.C.C. (3d) 293, at paras. 50-51, the Supreme Court of Canada noted that a bail judge should determine whether pretrial custody has become disproportionate to the seriousness of the allegations against the accused. Molloy J. also noted in R. v. T.L., 2020 ONSC 1885, at para. 35, that additional time spent in custody pending a trial is a factor to take into account on the tertiary ground. In my view, it is also a factor on the secondary ground.
Seriousness of the Allegations
[34] This factor is relevant to both the secondary and tertiary grounds. Our community has been wracked by the scourge of illegal drug activity and gun violence. There is no evidence before me that this violence has abated since the onset of Covid-19. On the contrary, the anecdotal evidence suggests that compared to last year, gun violence in the Greater Toronto Area has increased rather than decreased.
[35] That said, Mr. Green should not be automatically detained before he faces gun and drug charges. Other factors such as his antecedents, plan of supervision and other relevant factors must be considered as well.
Electronic Monitoring
[36] In R. v. Doucette, [2016] O.J. No. 852, at para. 5, Nordheimer J. (as he then was) stated that electronic monitoring significantly reduces the likelihood of re-offending given that the accused knows that there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.
[37] However, as I noted in Rajendram, at para. 48, electronic monitoring only reveals where the monitored person is, not what they are doing. Second, it cannot guarantee the police presence in an ongoing offence: see also R. v. Jesso, 2020 ONCA 280, paras. 23-27.
[38] While I accept these limitations, electronic monitoring as part of an overall supervision plan can clearly assuage concerns that an applicant, if released, will pose a substantial risk of re-offending.
[39] For the above reasons, I find that Mr. Green does not pose a substantial risk of reoffending if he is released.
Tertiary Ground
[40] Section 515(10)(c) of the Code sets out the following factors to determine whether an applicant’s detention is necessary to maintain confidence in the administration of justice:
The strength of the Crown’s case;
The seriousness of the offence;
Whether the applicant faces a significant jail sentence, if convicted; and
The circumstances of the case including whether the firearm was discharged in a public place.
[41] The presence of these factors does not result in the automatic detention of an applicant for bail: R. v. St-Cloud, [2015] 2 S.C.R. 328, at paras. 68-71.
[42] To consider whether Mr. Green should be detained on the tertiary ground, I must ascertain whether a reasonable and well-informed member of the public who is conversant with the rule of law, the presumption of innocence, the right under s. 11(e) of the Charter not to be denied reasonable bail without just cause, and the circumstances surrounding the allegations, would conclude that the detention is necessary to maintain confidence in the administration of justice.
Strength of the Crown’s Case
[43] The Crown’s case on the firearms charge appears to be strong. However, it is largely based on the statement of Mr. Green’s girlfriend who identified him as the person who gave her the loaded firearm.
Seriousness of the Allegations
[44] As already noted, the allegations are very serious. There is simply no valid reason why someone would have a loaded firearm in their possession.
Sentence if Convicted
[45] Mr. Green faces a lengthy period of incarceration if he is convicted of the firearms charges.
Circumstances of the Case
[46] The allegations and Mr. Green’s conviction indicate that he is involved in the illegal drug trade. This pernicious activity has caused significant harm to our community.
Other Factors
[47] All of the above factors favour detention on the tertiary ground. However, I must consider other factors, specifically Covid-19, to decide whether Mr. Green should be detained on the tertiary ground.
The COVID-19 Pandemic
[48] I am prepared, as a number of courts have done before me, to find that Covid-19 constitutes a material change in circumstances that requires an analysis, under s. 515 (10)(c), as to whether Mr. Green should be released: see R. v. J.A., 2020 ONSC 2312; R. v. Dawson, 2020 ONSC 2481; R. v. P.K., 2020 ONSC 2694, at paras. 37-39.
[49] Given the considerable body of information about the pandemic, the report of epidemiologist and Assistant University of Toronto Professor Dr. Aaron Orkin filed on consent and the jurisprudence on the intersection of Covid-19 and bail, I am also prepared to take judicial notice of the following facts:
a) The pandemic has wreaked untold death and destruction worldwide;
b) Covid-19 is extremely infectious and can spread rapidly in any location;
c) The main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protective equipment (PPE), and iii) regular testing of the population;
d) Persons in confined spaces, such as long-term care facilities, shelters and prisons, given the inability to take mitigatory measures such as social distancing, are particularly vulnerable to the disease;
e) Persons who have pre-existing medical problems such as diabetes, high blood pressure and respiratory problems are particularly susceptible to being infected by the virus.
[50] The Crown has filed a letter from the Minister of the Solicitor General, dated June 15, 2020, indicating that a number of policies and procedures have been taken to stop the transmission of the Covid-19 virus in all provincial adult correctional institutions. It also indicates the following:
a) Stocks of critical supplies, including PPE and cleaning products, are monitored daily and any shortages are addressed immediately;
b) Inmates have access to both formal and informal complaint procedures to both internal and external oversight bodies for a timely resolution of complaints;
c) Inmates have access to PPE, including face masks, and are required to wear PPE when directed by healthcare according to guidelines developed by the Ministry of Health and Public Health Ontario; and
d) All screening processes were created in consultation with the Ministry of Health and Public Health Ontario.
[51] The Report also indicates that with the exception of the Ontario Correctional Institute, there have been few, if any, cases of infection in the vast majority of Ontario correctional institutions. It also indicates that as of May 11, 2020, there have been no positive cases of infection at the Maplehurst Correctional Complex. Mr. Green, however, indicated that he is presently under quarantine because of a recent positive case of infection at the facility.
Analysis
[52] The laudable steps taken by the Ministry of Correctional Services do not alter the fact that Covid-19 is highly contagious and that persons in confined spaces such as prisons, where social distancing is virtually impossible, are at a heightened risk of infection. I agree with those cases which have held that there is an enhanced risk of infection in prisons and that no evidence needs to be tendered to establish that fact: see Rajan, at paras. 28-40; R. v. J.S., 2020 ONSC 1710, at paras. 18-19; R. v. T.L., 2020 ONSC 1885, at para. 35; R. v. C.J., 2020 ONSC 1728, at para. 34.
[53] Additionally, the documents presented by the Crown regarding the steps taken to mitigate the spread of infection in provincial institutions do not include the number of inmates who have been tested for the virus and the frequency of such testing. This is significant given that some persons who are infected with the virus could nevertheless be asymptomatic. This phenomenon of asymptomatic spreaders and the fact that the steps taken to reduce the risk of infection do not appear to address this problem give the court little confidence that the risk of infection in prisons has been eliminated.
[54] The Crown relies on R. v. Jeyakanthan, 2020 ONSC 1984, for the proposition that it is a matter of speculation that inmates in an institution are at an elevated risk of contracting Covid-19 more than the general population and accordingly, the pandemic does not constitute a material change in circumstances: see also R. v. Alexander, [2020] H.J. No. 69, at para. 7.
[55] I disagree for two reasons. First, McWatt J. in Jeyakanthan did not have the benefit of Dr. Orkin’s evidence when she concluded that the enhanced risk of infection in penal institutions is merely a matter of speculation. Dr. Orkin concludes that the measures taken by the authorities to mitigate the spread of the virus are insufficient “without sufficient physical distancing.” Second, in the absence of widespread testing, it is a matter of speculation how many inmates in an institution have been infected by the virus.
[56] That said, there is no evidence of a significant Covid-19 outbreak at the Maplehurst Correctional Complex where Mr. Green is being held. Nor is there any evidence that Mr. Green has a pre-existing medical condition that increases his vulnerability to infection. These are factors I must consider in assessing the significance of Covid-19 on the tertiary ground analysis: see Jesso, at para. 36-38.
[57] Several decisions have emphasized that Covid-19 is not a “get out of jail free card”: see Rajan, at para. 74; R. v. P.K., 2020 ONSC 2694, at para. 67; R. v. Williams, 2020 ONSC 2237, at para. 25; R. v. Kazman, 2020 ONCA 251, at para. 20. The virus does not permit a judge to jettison the analytical framework for assessing whether an applicant should be released on bail; it merely requires consideration of an additional factor that may have grave implications on an inmate’s health. This factor must be carefully assessed in every case involving a bail application given that, as noted in Williams, at para. 125, “the wholesale release of those held in our detention centres is neither feasible nor sensible.”
[58] The Crown submits that the scourge of gun violence, Mr. Green’s disdain for court orders and the anaemic supervision plan mandate Mr. Green’s detention. However, in R. v. J.R., 2020 ONSC 1938, Schreck J. released an accused despite allegations that he discharged a firearm in public and the fact that he had a lengthy criminal record with multiple breaches of court orders.
[59] In J.R., Schreck J. noted at para. 5 that the applicant was alleged to have discharged a firearm “in a public place while in a motor vehicle in circumstances where death or serious injury was likely but fortunately did not occur.” The applicant allegedly had a loaded prohibited firearm and several rounds of ammunition in his possession. The police also seized a quantity of cocaine, cash and a digital scale during their investigation. The applicant’s record contained several convictions for serious violent offences and for failing to comply with a recognizance. The applicant also filed evidence that he suffered from severe asthma: at para. 7. Schreck J. noted at para. 50 that while the applicant’s health was relevant in his analysis of the risk while in custody, it was not dispositive of the matter.
[60] Mr. Green is 22 years old. He did not have a criminal record at the time of the allegations before this court. He has been involved in the illegal drug trade. I can conclude that those involved in this trade are often in possession of a firearm for protection. Mr. Green faces a significant term of incarceration but has been incarcerated since April 2019. Furthermore, in R. v. Morgan, 2020 ONCA 279, the Court of Appeal has noted that Covid-19 is a factor in sentencing, although it would not justify a sentence that would be disproportionate to the gravity of the offence committed.
[61] In my view, considering the above factors, the presumption of innocence and Mr. Green’s right to reasonable bail, a reasonable member of the public would not have concerns about the administration of justice if he were released.
[62] Accordingly, Mr. Green is released on a recognizance in the amount of $15,000 without deposit subject to the following conditions:
Ms. Kwinzy Pepa will be a named surety and is to pledge $5,000 without deposit.
Elvis Green is a named surety and is to pledge $10,000 without deposit.
Mr. Green must have no weapons in his possession.
Mr. Green must have no non-medically prescribed drugs in his possession.
Mr. Green shall reside with Kwinzy Pepa at 106 Veteran’s Drive, Basement Unit, Brampton, Ontario.
Mr. Green shall remain in his residence at all times except when in the company of his surety or his lawyer.
Mr. Green shall have no association or contact directly or indirectly with Tyesha Dyer-Lindsay and Lindsay Sheppard.
Mr. Green shall, at his own expense, be subject to GPS monitoring by Recovery Science Corporation (RSC) which shall include:
a. entering into RSC’s Participant Agreement and complying with its terms;
b. wearing a GPS ankle bracelet at all times;
c. permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;
d. complying with RSC leave notification and battery charging requirements; and
e. cooperating fully with RSC staff.
The GPS ankle monitor must be installed on Mr. Green within 24 hours of his release.
Mr. Green must attend court as required.
André J. Released: June 29, 2020