Court File and Parties

COURT FILE NO.: CRIMJ(P) 67/20 DATE: 20200804 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. G. Gill, for the Crown

- and -

CORTEZ DOWNEY Mr. D. Molloy, for the Accused

HEARD: July 31, 2020, via audio conference

REASONS FOR DECISION ON SECTION 525 DETENTION REVIEW

STRIBOPOULOS J.:

Introduction

[1] On February 13, 2019, Mr. Downey was arrested and charged with several Criminal Code offences, including:

• Unauthorized possession of a firearm (s. 91(1));
• Possession of a loaded restricted firearm (s. 95(1));
• Possession of a firearm with its serial number removed (s. 108(1));
• Possessing a firearm in contravention of a prohibition order (s. 117.01); and
• Failing to comply with a probation order (s. 733.1).

[2] Mr. Downey has not had a bail hearing on these charges; he has remained in custody awaiting trial for the last 18 months. A jury trial was scheduled for June 2020, but an adjournment was necessary because of the COVID-19 pandemic. Since then, the parties have agreed to a re-election, and Mr. Downey's judge-alone trial is scheduled to commence on September 8, 2020.

[3] Mr. Downey appeared before me, by telephone conference call with his consent, for a detention review under s. 525 of the Criminal Code. Given that Mr. Downey has not had a bail hearing, the court was required to conduct one "from the ground up": see R. v. Myers, 2019 SCC 18.

[4] Section 525 requires a determination of whether Mr. Downey's continued detention is justified within the meaning of s. 515(10) of the Criminal Code: Myers. Because Mr. Downey faces firearms-related charges allegedly committed while he was subject to a weapons prohibition order, he bears the onus of showing cause why his detention is not justified: Criminal Code, s. 515(6)(a)(viii).

The Allegations

[5] At the hearing, with Mr. Downey's consent, the Crown read in the allegations that form the basis for the charges he currently faces.

[6] Just after 2:00 a.m. on February 13, 2019, Peel Regional Police responded to a report of gunshots fired on a residential street in Brampton. When police attended, they found a vehicle parked on the road with several bullet holes in its tires and spent shell casings on the roadway. They also observed a trail of footprints in the freshly fallen snow leading away from the street and behind a nearby residence.

[7] Police followed the trail, with the assistance of the canine unit. It appeared someone had taken flight through backyards and over fences. The dog led police into the yard of a residence where they found a loaded Steyr L9-A1 9mm handgun. Further along the same trail, the dog led police to Mr. Downey. He was hiding behind a home located just two streets away from where police found the shell casings and bullet strewn vehicle. When arrested, Mr. Downey's clothing was wet.

[8] Ballistics analysis of the Steyr L9-A1 9mm handgun determined that it was not the firearm responsible for the shell casings located on the street where police found the vehicle with the bullet holes in its tires. The handgun was subject to DNA analysis, and a single sample yielded four different DNA profiles.

[9] During the hearing, the Crown, Ms. Gill, read an excerpt from the report prepared by a DNA analyst. Its conclusion provides: "The STR DNA results are estimated to be 230,000 times more likely that they originate from Mr. Downey and three unknown people than if they originate from 4 unknown people unrelated to Mr. Downey."

Mr. Downey's Background and Circumstances

[10] Mr. Downey did not testify at the hearing. Nevertheless, the evidence of the proposed surety (Ms. Armaleo) and his criminal record (which became an exhibit) furnish some insight into his background and circumstances.

[11] Mr. Downey is 25 years old. He is originally from Nova Scotia, where his mother still resides. From the entries on his criminal record and the fact that he has a five-year-old son who lives in Burlington, it appears Mr. Downey relocated from Nova Scotia to the Greater Toronto Area about five years ago.

[12] Mr. Downey has a long and mostly uninterrupted criminal record that begins with youth entries at the age of 16. He has twenty prior criminal convictions. Beyond crimes of violence and drug offences, there are five previous convictions for failing to comply with a recognizance and one for failing to comply with a probation order.

[13] Mr. Downey's most recent criminal conviction was on July 31, 2018, when he was convicted of unauthorized possession of a firearm in a motor vehicle. He was sentenced to one day of imprisonment for that offence after receiving credit for 18 months spent in pre-sentence custody. He was also placed on probation, subject to a condition that he keep the peace and be of good behaviour. Finally, he was ordered not to possess weapons. The probation and weapons prohibition orders were still in effect when he was arrested for the charges he now faces.

[14] The court has limited information about Mr. Downey's circumstances immediately before his arrest. Although Ms. Armaleo began dating him in October 2018, she did not know how Mr. Downey was supporting himself when they were dating. (There is no evidence before the court regarding whether Mr. Downey has any history of employment.) Further, although Ms. Armaleo knew Mr. Downey lived in Brampton, she had never been to his residence and could not say if he was living alone or with others.

The Release Plan

[15] Mr. Downey proposes a $5,000 surety release, with Ms. Armaleo as his surety, subject to a condition that he reside with her and not leave her residence except in her company.

[16] As mentioned, Ms. Armaleo testified at the hearing. She has known Mr. Downey for five-years, and they began a romantic relationship in October 2018. At the time of Mr. Downey's arrest, she acknowledges being reluctant to act as his surety. However, they have remained in almost constant contact by telephone while he has been in pre-trial custody. Ms. Armaleo testified that during that time, Mr. Downey has changed for the better.

[17] According to Ms. Armaleo, Mr. Downey now speaks of returning to school, obtaining employment, ending his involvement with the criminal justice system, and starting a family. Ms. Armaleo cites this transformation in Mr. Downey's outlook as the reason she now has faith in him and is willing to act as his surety.

[18] Ms. Armaleo is a 27-year-old lifelong resident of Windsor, where she currently resides. In terms of employment, Ms. Armaleo works for Chrysler on a vehicle assembly line. She owns a car and a condominium. During her testimony, she estimated having approximately $100,000 of equity in her residence. Ms. Armaleo does not have a criminal record.

[19] During her testimony, Ms. Armaleo accurately described the role and responsibilities of a surety. When asked how she would ensure that Mr. Downey remains inside her residence while she is away at work, she noted that she has three cameras installed inside her condominium unit, with one pointed at the front door. The cameras link to an app on her phone. The app provides her with a notification whenever one of the cameras detects any motion. From the app, she can see a still photo of whatever served to activate the camera and also view a live feed from the cameras. Ms. Armaleo testified that she has her phone with her while working on the assembly line and checks it regularly. As a result, she was confident that it would quickly come to her attention if Mr. Downey left her residence while she was at work.

[20] Should the court order Mr. Downey's release under Ms. Armaleo's supervision, she testified that she would conscientiously discharge her responsibilities as a surety. She is willing to take time off work to drive Mr. Downey to and from court appearances. Ms. Armaleo testified that she would not hesitate to call the police if Mr. Downey failed to comply with any conditions of his release.

[21] Further, Ms. Armaleo described $5,000 as being a substantial sum of money for her. Asked by the court if she would pledge even more, if necessary, Ms. Armaleo testified, with somewhat understandable hesitation, that she would.

[22] Finally, it deserves mention that Ms. Armaleo has acted as a surety in the past. Approximately two years ago, she was a surety for a former boyfriend. The terms of that bail order also included a home confinement condition. Ms. Armaleo's former boyfriend breached the terms of his bail while he was under her supervision. During her testimony, Ms. Armaleo candidly acknowledged some responsibility for that breach, admitting that she did "make a mistake."

Positions of the Parties

[23] The parties focussed their submissions on both the secondary ground (the protection or safety of the public under s. 515(10)(b)) and the tertiary ground (maintaining confidence in the administration of justice under s. 515(10)(c)).

[24] Defence counsel, Mr. Molloy, emphasizes the plan of release in arguing that Mr. Downey has demonstrated that his detention is not necessary for the protection or safety of the public. Any concerns the court might otherwise have based on Mr. Downey's criminal record, he argues, should be more than adequately met by the proposed surety's supervision and the surveillance system in her home.

[25] Concerning the tertiary ground, Mr. Molloy makes several arguments as to why Mr. Downey's detention is unnecessary to maintain confidence in the administration of justice.

[26] First, he argues that the Crown's case is not especially strong. He notes that the DNA evidence does not conclusively establish that Mr. Downey handled the firearm recovered by police. He advises that, at trial, the defence is planning on calling a DNA expert of its own. He also points out that ballistics analysis did not link that firearm to the spent shell casings found near the vehicle with the bullet holes in its tires.

[27] Second, Mr. Molloy emphasizes the delays that have occurred in Mr. Downey's case. First, when the Crown unsuccessfully attempted to review a ruling by the preliminary inquiry judge to continue with that proceeding after Bill C-75 came into effect on September 19, 2019: see R. v. Downey, 2019 ONSC 6167. And, then, the adjournment of the June 2020 trial date because of the COVID-19 pandemic. By the time of his trial next month, Mr. Downey will have spent 19 months in pre-trial detention. With enhanced credit, Mr. Molloy argues that that period nears or even exceeds the sentence that Mr. Downey is likely to receive if convicted.

[28] Finally, Mr. Molloy emphasizes the impact that the COVID-19 pandemic has had at Maplehurst Detention Centre. In July, Mr. Downey reports that efforts to combat the virus in the detention centre led to him being locked down in his cell for 26 days. Although initial concerns that COVID-19 could overrun provincial detention centres have not come to fruition, the virus has still served to harshen conditions in such facilities.

[29] Emphasizing all of these circumstances, Mr. Molloy argues that Mr. Downey's release on bail, subject to strict conditions, including house arrest, is unlikely to cause reasonable members of the community to lose confidence in the administration of justice.

[30] On behalf of the Crown, Ms. Gill argues that Mr. Downey has failed to demonstrate that his detention is unjustified on either the secondary or tertiary grounds.

[31] Concerning the secondary ground, Ms. Gill makes two main arguments. First, she disputes that the case against Mr. Downey is not especially strong. Ms. Gill emphasizes the need to consider the cumulative effect of all of the circumstantial evidence. In particular, she notes that the fresh footprints in the snow led directly to the loaded handgun and then Mr. Downey, who police found hiding in the backyard of a home in the wee hours of the morning. These circumstances, along with the DNA evidence, Ms. Gill submits, demonstrate that the Crown has a strong case against Mr. Downey on all of the charges. Mr. Downey's apparent connection to a loaded firearm and his prior firearm's conviction, combined with his demonstrated track record of breaching court orders, Ms. Gill argues, give rise to significant public safety concerns.

[32] Ms. Gill further submits that the release plan proposed does not adequately address the secondary ground concerns that Mr. Downey's release would present. Under that plan, the public's safety would depend on Ms. Armaleo managing to monitor her phone while working on the car assembly line and then acting on any apparent breach by contacting the authorities.

[33] When it comes to the tertiary ground, Ms. Gill argues that all four of the factors enumerated in s. 515(10)(c) counsel in favour of concluding that Mr. Downey's release on bail will lessen confidence in the administration of justice. She argues the Crown's case is strong, the offences are most serious, a firearm was involved, and, if convicted, Mr. Downey faces a lengthy penitentiary sentence. Additionally, she relies on statistics that show firearms-related offences steadily on the rise in Peel Region in recent years. Given all of this, Ms. Gill argues that Mr. Downey's release on bail would cause reasonable members of the community to lose confidence in the administration of justice.

Law and Analysis

[34] The decision whether to release Mr. Downey on bail turns on an assessment of the secondary (s. 515(10)(b)) and tertiary (s. 515(10)(c)) grounds. More specifically, whether or not Mr. Downey has shown that his detention is not justified on either basis. I will address each issue in turn.

Has Mr. Downey demonstrated that his detention is not justified for the protection or safety of the public?

[35] Section 515(10)(b) of the Criminal Code requires pre-trial detention where it "is necessary for the protection or safety of the public." Under this provision, the "danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention": R. v. Morales. Instead, detention is only warranted where an accused poses 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": Morales. A "substantial likelihood" refers "to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely": R. v. Manasseri, 2017 ONCA 226.

[36] In explaining the secondary ground for detention in Morales, the Supreme Court of Canada acknowledged the impossibility of making exact predictions about an accused's potential for recidivism and future dangerousness: Morales. The law, however, does not require clairvoyance. Instead, it demands a reasoned assessment, based on all the available information, of the probable risk the accused poses if released: Morales.

[37] In assessing the risk of release, a key consideration is the accused's criminal record. If an accused has a track record of not abiding with court orders, that may provide a basis for concluding that he will not be compliant with a proposed plan of supervision and the conditions of release: Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Carswell, 2010) at 3-17.

[38] The nature of the charge and the strength of the Crown's case are also important considerations. Where an accused faces serious charges and overwhelming evidence, public safety concerns may foreclose bail. That said, the charges the accused faces and the apparent strength of the Crown's case, although relevant to the secondary ground for detention, should be considered with caution. No matter the offence charged, the Criminal Code contemplates the potential for bail; the nature of the charge itself can never justify a denial of bail: R. v. LaFramboise. Also, bail hearings, due to their expeditious nature and the more relaxed rules of evidence, may result in the Crown's case appearing much stronger than it proves to be when tested at trial: see Trotter, at p. 3-7; R. v. St-Cloud, 2015 SCC 27.

[39] I have given the evidence on this hearing careful consideration in light of the governing legal principles. Ultimately, I am less than persuaded that if released on bail, Mr. Downey does not pose a substantial likelihood of committing an offence that is likely to endanger public safety. I have a few reasons for coming to that conclusion.

[40] First, there is Mr. Downey's demonstrated propensity for not abiding by court orders. Mr. Downey has a prior conviction for breaching a probation order, and five previous convictions for failing to comply with a recognizance. That history causes me significant concern that Mr. Downey is unlikely to abide by any conditions the court might impose as part of a bail order.

[41] Second, there is also the mostly uninterrupted pattern of increasingly dangerous criminal behaviour evidenced by Mr. Downey's criminal record. That includes a recent conviction for a firearm offence, just six-months before Mr. Downey's arrest for the firearm charges that he now faces. The evidence in the current prosecution has now been subject to at least some testing at Mr. Downey's preliminary inquiry, resulting in his committal to stand trial. And, although the DNA evidence appears far from conclusive, when combined with the other circumstantial evidence, I am satisfied that Mr. Downey faces a formidable Crown case.

[42] Given Mr. Downey's track record of not abiding by bail orders, his relatively recent firearm conviction, and the strength of the Crown's case on the current firearm charges he faces, I have grave concerns about his release on bail. Ultimately, I am less than persuaded that if released, Mr. Downey does not pose a substantial likelihood of committing further offences that would jeopardize public safety.

[43] Third, I am not convinced that the release plan adequately addresses the risks created by Mr. Downey's release into the community. To be sure, Ms. Armaleo impressed me as a well-meaning and honest person. Nevertheless, given the danger posed by Mr. Downey, a plan that depends on Ms. Armaleo's fastidious monitoring of her phone as she is busy working on a vehicle assembly line, is woefully inadequate. It also entirely depends on Ms. Armaleo's willingness to report any breach by Mr. Downey of his terms of release. Ms. Armaleo's obvious affection for Mr. Downey, along with her relatively recent unsuccessful surety supervision of a former boyfriend, only serves to heighten my concerns about the release plan.

[44] For all of these reasons, I have concluded that Mr. Downey has failed to demonstrate that his detention is not justified for the protection or safety of the public.

Has Mr. Downey demonstrated that his detention is not justified to maintain confidence in the administration of justice?

[45] Section 515(10)(c) of the Criminal Code provides that the detention of an accused person in custody is justified if it is necessary “to maintain confidence in the administration of justice … having regard to all of the circumstances.” The provision also sets out a non-exhaustive list of factors that the court must consider in making this determination: s. 515(10)(c)(i)-(iv).

[46] Each of the factors enumerated in s. 515(10)(c) weigh in favour of ordering detention in this case. The Crown appears to have a strong case. Serious offences involving a firearm are alleged. And, if convicted, Mr. Downey faces a lengthy term of imprisonment.

[47] Nevertheless, it is essential to remember that even where the four factors listed in s. 515(10)(c) weigh in favour of detention; a detention order is not automatic: St-Cloud. Ultimately, a judge must consider the four factors "together with any other relevant factors" to determine "whether, in the case before him or her, detention is necessary" to "achieve the purpose of maintaining confidence in the administration of justice": St-Cloud.

[48] In assessing whether or not detention is necessary to maintain confidence in the administration of justice, the concern is with public confidence: R. v. Hall, 2002 SCC 64; St-Cloud. The measure is the perception of "reasonable members of the community." People who are dispassionate, thoughtful, well-informed, and familiar with the basics of the rule of law, the fundamental values of our criminal law, and the rights guaranteed by the Charter, including the presumption of innocence, the right to reasonable bail, and the right to be tried within a reasonable time: St-Cloud.

[49] After considering all of the circumstances, including the factors enumerated in s. 515(10)(c), Mr. Downey's track record on bail, and his recent firearm conviction, I am far from persuaded that his release on bail, at this time, would not cause reasonable members of the community to lose confidence in the administration of justice.

Conclusion

[50] Mr. Downey has failed to demonstrate that his detention is not justified under s. 515(10) of the Criminal Code. In coming to that conclusion, it deserves mention that, as required by s. 525, I have considered the delays that have taken place in bringing Mr. Downey to trial and that his trial is now scheduled for next month.

[51] In Myers, the Supreme Court recognized that under s. 525, the reviewing judge "must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted": Myers. If the delay crosses that threshold, the judge conducting a s. 525 review will need to consider the proportionality of continued detention when applying s. 515(10): Myers. As the Supreme Court explained, it may "be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person's loss of liberty or of a loss of public confidence in the administration of justice.": Myers.

[52] In Mr. Downey's case, I do not believe his time spent in pre-trial detention – 19-months by the time his trial commences next month – approaches the bottom end of the sentence he will likely receive if convicted of the charges he faces. With enhanced credit, Mr. Downey's time in pre-sentence custody would equal 28 months of imprisonment. Remembering his lengthy criminal record, which includes a recent conviction for a firearm offence for which he received a sentence that credited him for 18-months of pre-sentence custody, if convicted of the current charges, Mr. Downey likely faces a sentence in the range of three to five years.

[53] All of that said, should Mr. Downey's trial not proceed in September, as currently planned, any further delay in bringing him to trial is something that the court would need to consider carefully on any future s. 525 review.

[54] For all of these reasons, this court orders Mr. Downey's detention.

Signed: Justice J. Stribopoulos Released: August 4, 2020

COURT FILE NO.: CRIMJ(P) 67/20 DATE: 20200804 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - CORTEZ DOWNEY DECISION on section 525 Detention review Stribopoulos J. Released: August 4, 2020