R. v. Roy Desvreaux

COURT FILE NO.: CR-063-DR DATE: 2020/09/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Roy Desvreaux

BEFORE: M.G. Ellies R.S.J.

COUNSEL: J. Piszczek, M. Warsi for the Crown R. Currie, A. Perrin for the Defendant

HEARD: September 10, 2020

Corrected ENDORSEMENT

NOTICE Corrected decision: The text of the original endorsement was corrected on September 16, 2020.

[1] Mr. Desvreaux is before me for a detention review pursuant to s. 525 of the Criminal Code. He has been in custody since his arrest in October 2019.

The Charges

[2] Mr. Desvreaux faces charges arising from two separate occurrences.

[3] The first happened on February 27, 2019. On that date, a car Mr. Desvreaux was driving collided head-on with a car travelling in the opposite direction. The collision took place in the other car's lane of travel. An eyewitness to the accident told the police that the Desvreaux vehicle was travelling at a high rate of speed and crossed over the centre line in front of the oncoming car. A traffic reconstructionist with the OPP reached a similar conclusion. Based on the forensic evidence available and information obtained from recording devices taken from the car, he concluded that the Desvreaux vehicle was travelling at approximately 130 kph a few seconds before the accident, which took place in an 80 kph zone. Fortunately, he also concluded that the collision occurred at a slower speed. The photographs of the vehicles taken after the collision make the eyewitness and expert evidence easy to accept. Both cars were severely damaged. Both drivers were lucky to live, although both were seriously injured.

[4] The police obtained a warrant to search the Desvreaux vehicle and clothing found at the scene of the accident. They found 65.1 grams of fentanyl and approximately $3,000 cash in a jacket they believe belongs to Mr. Desvreaux. The fentanyl was bundled in smaller amounts. A search of the car revealed a small amount of "burnt" fentanyl on foil found in front of the driver's seat of the car.

[5] Mr. Desvreaux faces five charges relating to the February collision, including impaired operation causing bodily harm, dangerous operation, and possession of fentanyl for the purpose of trafficking. Mr. Desvreaux was released on these charges on a promise to appear, although he was still in the hospital at the time.

[6] Seven months later, on October 23, 2019, Mr. Desvreaux was again found in possession of fentanyl. Based on the information of a confidential informant, Mr. Desvreaux was followed by the police while driving and arrested at a place at which he is alleged to have trafficked in drugs in the past. A search incident to arrest yielded 264.4 grams of fentanyl – the largest seizure ever in the District of Nipissing. The Justice of the Peace found that that the drugs were worth between $100,000 and $150,000. That finding is not challenged here.

[7] The search also revealed that Mr. Desvreaux was carrying a set of brass knuckles and a prohibited knife.

[8] Mr. Desvreaux faces six charges in connection with his arrest in October, including possession of fentanyl for the purpose of trafficking and possession of a prohibited weapon.

[9] Mr. Desvreaux has been in custody since his arrest. Following a bail hearing held on December 12, 2019, he was detained by a Justice of the Peace on all three grounds under s. 515(10) of the Code.

[10] On his behalf, counsel submits that, in addition to the passage of time since Mr. Desvreaux's bail hearing, there have been a number of other material changes in circumstance that weigh in favour of his release. I will deal with each in turn, starting with the passage of time.

The passage of time

[11] As the Supreme Court of Canada held in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 47, the focus on a detention review is on the detention itself. Central to that focus is the effect of the passage of time on the continued detention of the accused. As the Supreme Court pointed out, reviewing judges must be alert to the possibility that the amount of time spent in pre-trial custody has approximated or even exceeded the sentence an accused person would serve if convicted: para. 51.

[12] The Crown advises that it will seek a sentence of nine years in prison if the charges against Mr. Desvreaux are disposed of before trial and more if a trial is held. I will not comment on the appropriateness of the proposed submission. However, I can say that, if convicted of the fentanyl charges, it is likely that Mr. Desvreaux will serve a lengthy penitentiary sentence: R. v. Loor, 2017 ONCA 696, at para. 50.

[13] Therefore, this is not a case where Mr. Desvreaux is presently serving what is commonly referred to as "dead time".

Withdrawal of an assault charge

[14] At the time that Mr. Desvreaux was detained in custody on December 12, 2019, he was also facing an assault charge related to a domestic dispute. That charge has since been withdrawn.

[15] I do not see this as much of a change, and I do not believe that defence counsel is suggesting that it is. The assault charge does not seem to have played much of a role in the decision to detain Mr. Desvreaux last December. The Justice of the Peace referred to it only once, and briefly, early in his reasons for detention.

COVID-19

[16] Counsel for Mr. Desvreaux relies quite heavily on the outbreak of COVID-19 as a circumstance weighing in favour of Mr. Desvreaux’s release. As he correctly points out, COVID-19 was not a factor at the time of his client’s bail hearing in December 2019.

[17] There have been many cases dealing with the effect of COVID-19 on the detention of accused persons since the pandemic began. While courts have also almost uniformly held that COVID-19 may constitute a material change in circumstances, they are not all uniform on the extent to which evidence is necessary to satisfy the court as to the potential risk to an accused person of continued detention. I do not wish to join in the judicial debate. Instead, I propose to recognize the different lines of authority and demonstrate that the evidence in this case falls short regardless of which line of authority I apply.

[18] The risk to a detainee of COVID-19 stems from two things: (1) the potentially higher risk of infection for people detained in a custodial facility (i.e. the greater risk of harm) and (2) the potentially higher risk of harm to the particular detainee from infection (i.e. the risk of greater harm). The jurisprudence in this court is divided on the extent to which an accused person seeking release must introduce evidence of each of these risks.

[19] A number of cases, especially those decided early in the pandemic, hold that judicial notice may taken of the increased risk of infection from COVID-19 for detainees: R. v. J.S., 2020 ONSC 1710, at para. 19; R. v. Cain, 2020 ONSC 2018, at para. 6; R. v. Y.-A., 2020 ONSC 2155; R. v. Tully, 2020 ONSC 2762, at para. 38; R. v. Ibrahim, 2020 ONSC 2241, at para. 30; R. v. S.A., 2020 ONSC 3622, at paras. 39-42; R. v. H.K., 2020 ONSC 3275, at paras. 78-79. Other cases have held that there must be evidence adduced of the increased risk of infection: R. v. Nelson, 2020 ONSC 1728, at para. 35; R. v. Jeyakanthan, 2020 ONSC 1984, at paras. 33-34; R. v. Grant, 2020 ONSC 2957, at para. 32; R. v. Mbuyamba, 2020 ONSC 4434, at para. 56; R. v. Brown, [2020] O.J. No. 1432, at para. 59.

[20] Importantly, even where judicial notice has been taken of the increased risk of infection within custodial facilities, this may be rebutted by evidence: R. v. Josipovic, 2020 ONSC 2621; R. v. S.M., 2020 ONCA 427, at para. 26. The Crown has done that here.

[21] An e-mail message from the Deputy Superintendent of the North Bay Jail dated September 2, 2020 submitted by the federal Crown states that there have been no known cases of COVID-19 at that facility. An “Information Note” dated August 31, 2020 regarding the Ministry of the Solicitor General’s response to COVID-19 sets out the various protective measures that have been put in place to protect inmates and to prevent the spread of the virus. That document also indicates that, notwithstanding those measures, the virus has infected inmates at other Ontario custodial facilities. Counsel for Mr. Desvreaux submits that his client may be transferred at any time from the North Bay Jail to one of these other facilities. The Crown does not challenge that submission. However, I have no evidence as to how the infection rate within those facilities compares to the infection rate outside of them.

[22] In this case, the accused seems to be suggesting not only that there is a higher chance that he will get infected because he is in custody, but also that he is more susceptible to infection because of his own medical condition. A significant number of cases have held that an accused must introduce evidence that he is at risk of greater harm if infected: R. v. Budlakoti, [2020] O.J. No. 1352, at para. 14; R. v. Baidwan, 2020 ONSC 2349, at para. 75; Josipovic; R. v. Niyongabo, 2020 ONSC 3960, at para. 8; Mbuyamba. However, even where judicial notice has been taken that certain medical conditions place an accused at risk of greater harm if infected, there must be some evidence that the accused suffers from one of those judicially recognized conditions, such as asthma or diabetes: R. v. Ibrahim, 2020 ONSC 2241, at para. 25; R. v. Rahman, 2020 ONSC 4371, at paras. 41-42; R. v. Onyeachonam, 2020 ONSC 3256; R. v. E.J., 2020 ONSC 3108. I have no evidence of that here.

[23] The evidence indicates that Mr. Desvreaux suffers from a condition known as Arnold Chiari Malformation, a condition which affects his brain. The evidence also indicates that, since his incarceration, Mr. Desvreaux has suffered from a number of ailments, including strep throat and an infection in his right shin. There is also evidence that Mr. Desvreaux has an injury to his arm, although it is not clear when that injury was sustained, and that Mr. Desvreaux has gained a significant amount of weight while in custody, at least in part because he cannot exercise using his injured arm.

[24] Mr. Desvreaux’s father deposes that, because of these physical and certain mental ailments, his son is at greater risk of becoming infected with COVID-19. However, Mr. Desveaux (the father’s name is spelled without an “r”) has no medical training and there is no medical evidence in support of his opinion. In fact, there is no evidence, expert or otherwise, about the nature of Chiari Malformation. I have not been provided with any case in which a court has judicially recognized any of the conditions suffered by Mr. Desvreaux as placing. inmates at greater risk.

[25] The evidence falls short, therefore, of establishing that Mr. Desvreaux is at greater risk of infection from COVID-19 or that any of the injuries or ailments suffered by Mr. Desvreaux put him at risk of greater harm should he contract the virus.

Efforts at rehabilitation

[26] Since his detention in October 2019, Mr. Desvreaux has taken admirable steps to improve himself. He enrolled in courses to try to complete secondary school. He attended AA and NA programs. He completed six self-study courses in areas such as substance abuse, anger management, and managing stress. Some of these programs have been affected by the pandemic. However, there is no evidence that the affected programs would be available to him if he is released. The pandemic appears to have affected these programs for people both in and out of custody.

[27] Mr. Desvreaux has expressed an interest in obtaining both residential and outpatient treatment for his admitted drug addiction. That, too, is commendable. However, at present the evidence indicates that these are nothing more than aspirations. Nothing has been done to secure a spot in one of these programs and I have no evidence as to how the secondary and tertiary concerns that led to his detention could be addressed even if that was the case.

[28] Further, Mr. Desvreaux successfully completed a residential treatment program for opioid drug addiction following his February accident, yet he re-offended in October. Because of this, I have less confidence in the potential for treatment to prevent recidivism in this case.

Delay due to COVID-19

[29] Beyond the potentially harmful effects on an accused of contracting the virus while in custody, COVID-19 may also have an affect on the continued detention of an accused because of the effect of the virus on the justice system. I have not come across any case that required an accused to prove that COVID-19 has caused delays in our courts, nor would I hope to find one at the present time. The delay is well-known and something of which the court can take notice.

[30] The charges against Mr. Desvreaux are proceeding by indictment. During the hearing, I raised the issue of delay in obtaining a preliminary hearing date before the Ontario Court of Justice due to the pandemic. I was told by counsel for the federal Crown that the Ontario Court of Justice has resumed in-person hearings for in-custody matters and that, in August, he set a date for a hearing in October on a matter. This information was not challenged by the defence.

[31] I am also told that Mr. Desvreaux will appear in video remand court again on September 24. Assuming that he can obtain a date in about the same amount of time as the Crown did recently, Mr. Desvreaux could have a preliminary inquiry before Christmas.

[32] I do not find the delay to be significant given the potentially long sentence that Mr. Desvreaux faces if convicted in this case.

A new release plan

[33] Finally, counsel for Mr. Desvreaux submits that his client now has a much stronger plan for his release than he did at his bail hearing last December. In addition to Mr. Desveaux (the father), Mr. Desvreaux proposes two additional sureties: a cousin, who lives with Mr. Desveaux, and a close family friend. However, I am not persuaded on the evidence that the plan is strong enough.

[34] This detention review was conducted in a COVID-19 modified courtroom. I heard evidence from Mr. Desveaux and the family friend. The cousin was not called. Like the Justice of the Peace, I concluded that Mr. Desveaux was well-intentioned and I believe that the family friend is, as well. I must say that I liked both sureties. But, respectfully, I do not know enough about them to be satisfied that they can overcome what the evidence shows is a very strong addiction to drugs on Mr. Desvreaux’s part and a predilection to selling them in contravention of court orders.

[35] This is not a case like R. v. Gagne, 2020 ONSC 5299, a recent decision of mine relied upon by counsel for Mr. Desvreaux. In Gagne, I ordered the release of an accused person who, like Mr. Desvreaux, had been detained originally on the secondary and tertiary grounds. But, unlike this case, in Gagne, I was satisfied after that the sureties were up to the task of supervising the accused if released.

[36] In Gagne, the accused filed affidavit evidence about the difficulties he had related to COVID-19 while in custody. He deposed that he wanted to get treatment if he was released and I found that his efforts at self-improvement while in jail lent credibility to his evidence. I have no affidavit evidence from the accused in this case and I learned very little about him from the rest of the evidence. I also learned very little about the sureties themselves. Their affidavits were quite brief, and they were not added to appreciably during the hearing. They might turn out to be good sureties, but I was not provided with enough information about them or their relationship with the accused to make that determination. Where there is a basis for detaining an accused on the secondary and the tertiary grounds, as there is in this case, it is important that the court be provided with enough information to determine whether the safety of the public can be entrusted to the sureties proposed by the accused: R. v. Ibrahim, 2020 ONSC 3024, at para.. 31.

[37] I would also point out that the secondary and tertiary grounds for detaining the accused in Gagne were not as strong as they are here. Mr. Gagne had repeatedly broken into places to support his addiction. The risk to human safety in Gagne was no where near what it is here. Mr. Desvreaux was trafficking in one of the most lethal street drugs we know of to support his habit. Furthermore, he was trafficking these drugs in unheard of quantities.

[38] The potential harm that might result from a failure of the release plan in this case is much greater than in the Gagne case, weighing in favour of Mr. Desvreaux’s continued detention on the secondary ground.

[39] The more egregious circumstances surrounding the offences with which Mr. Desvreaux is charged also weigh in favour of his continued detention on the tertiary grounds. The Crown’s case is strong on the dangerous driving offence. It is also strong on the drug charges relating to that offence. While it is more difficult to assess the strength of the Crown’s case on the October offences because they rest substantially on the information of a confidential informant and the factors set out in R. v. Debot, [1989] 2 S.C.R. 1140, I have not been provided with any specific information by the defence that would cause me to question it.

[40] The other factors set out in s. 515(10)(c) also weigh more heavily in favour of detention in this case than in Gagne. Trafficking in fentanyl is a more serious offence, in my view, than breaking and entering, even into a dwelling house. The speed at which the accused was travelling in February could easily have resulted in the deaths of both drivers. Although there is no evidence before me on just how many people could have been killed by the amount of fentanyl found then and in October, it is well accepted in the case law that fentanyl is a very dangerous drug: Loor, at para. 33.

[41] Lastly, as I stated earlier, if convicted, Mr. Desvreaux faces a much lengthier period of time in custody than did Mr. Gagne.

[42] The nature and severity of the offences allegedly committed by Mr. Desvreaux in this case require a strong plan of release to overcome the secondary and tertiary grounds on which he has been detained. Without knowing more about the sureties and the specifics of the plan for release, I am not satisfied that the plan is strong enough.

Conclusion

[43] None of the changes in circumstances since the bail hearing, taken either in isolation or as a whole, are sufficient to warrant Mr. Desvreaux’s release at this time.

Ellies R.S.J.

Date: September 14, 2020

EXPLANATION OF CORRECTION

September 16, 2020: The correct neutral citations have been provided for the decisions in R. v. Ibrahim, in para. 19, and R. v. Josipovic, in para. 20. In addition, pinpoint citations have been provided where they are available.