SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-20-9992-BR

DATE: 2020/10/09

RE: R. v. BLAISE ANGAZE

BEFORE: Mr. Justice D.A. Broad

COUNSEL: Katie L. Krafchick, Counsel for the Crown (Responding Party) Sarah Cheshire, Counsel for the Applicant (Moving Party)

HEARD: September 17 and October 7, 2020

ENDORSEMENT

Background

[1] The applicant Blaise Angaze is charged with a number of serious offences, including sexual assault, assault, uttering threats, failure to comply with an Undertaking on February 15, 2020, robbery with a weapon, and conspiracy to commit on February 17, 2020. He also faces a charge of breach of probation dated September 28, 2019.

[2] The applicant was released on a recognizance in respect of the robbery charge on March 4, 2020 with three sureties, being his father Justin Zihindula, his mother Josee Zihindula and his girlfriend Brianna Anger.

[3] A bail hearing was held on April 14, 2020 before Justice of the Peace Ziegler for the additional charges, including the sexual assault charge that pre-dated the alleged robbery.

[4] The proposed plan of release in the April bail hearing called for 24-hour house arrest with the applicant’s father Justin Zihindula and his mother Josee Zihindula as sureties. Ms. Anger was no longer able or willing to act as a surety as she gave birth to her and the applicant’s child on March 7, 2020.

[5] Counsel at the initial bail hearing were agreed that it was a reverse onus situation due to the breach charge against the applicant.

[6] Justice of the Peace Ziegler ruled that the applicant had failed to satisfy the onus on him on both the secondary and tertiary grounds and issued a detention order.

[7] The applicant has brought an application pursuant to section 520 of the Criminal Code for review vacating of the detention order. The grounds relied on in support of the application is that there has been a material change in circumstances.

[8] There are two bases for what the applicant alleges constitutes a material change in circumstances, considered together:

(a) the applicant’s medical records which demonstrate a change in his medical circumstances represented by an increased frequency of seizures; and

(b) a revised plan of supervision which includes electronic monitoring of the applicant while on release through the Electronic Supervision Program offered by the Ontario Monitoring Centre.

[9] The new proposed plan provides for the applicant to reside with his father and mother as his sureties at their residence in Kitchener, Ontario and that he be monitored by an electronic ankle bracelet, subject to its availability from the Ontario Electronic Supervision Monitoring Program.

[10] The applicant proposes that he remain at home under the direct supervision of his parents around the clock unless he is given permission by his sureties to attend medical appointments related to his son and while in the direct company of his girlfriend.

Guiding Principles

[11] On a review under section 520 of the Criminal Code it is appropriate for the reviewing judge to intervene in three situations:

a) if the justice erred in law;

b) if the impugned detention decision was clearly inappropriate; or

c) where new evidence submitted by the applicant shows a material and relevant change in the circumstances of the case.

See R. v. St Cloud [2015] 2 S.C.R. at para. 121.

[12] The onus is on the applicant to show that there has been a material change in circumstances. If there has not been a material change, the matter does not proceed any further. If a material change in circumstances is shown, then I, as the reviewing judge, am to consider de novo whether the detention of the applicant is justified under one or more of the grounds under section 515(10) of the Code. The situation remains one of reverse onus and accordingly, the applicant bears the onus on the de novo enquiry, provided that a material change has been shown.

Applicant’s Medical Treatment

[13] With respect to the medical issues relied upon by the applicant, he deposed in his affidavit that, prior to his arrest, he suffered from seizures and since his detention in April, his health has deteriorated greatly. He deposed that he has experienced three or four seizures in the last few months while in custody. He believes that his seizures are caused by the intense lighting in the jail. He stated that each time he had a seizure he was unable to see a doctor and sometimes the nurse would give him the wrong medication or the wrong dosage. He also said that the medication he receives is not always administered on time.

[14] In his viva voce evidence, the applicant stated that, after experiencing seizures, he sometimes sees a nurse who would advise him that he needs to see a doctor, but there is a waiting list and he often is unable to see a doctor until two weeks after the seizure.

[15] The applicant stated that the doctor prescribed medication to him in late March or April comprising of 200 ml per day. Three weeks later he saw the doctor again who adjusted medication to 100 ml three times per day. Prior to his latest seizure in August, the doctor ordered blood work and increased his medication to 100 ml four times per day. After the August seizure he was called by the doctor for blood work and he has been prescribed 550 ml per day. He indicated that he had secured an appointment to see a specialist at the end of September 2020.

[16] The applicant also testified that he has not been offered sunglasses to deal with the light issue in the facility which he believes is a trigger for his seizures.

[17] The applicant testified that, although an instruction was given by a nurse that he be provided with a bottom bunk or a mattress on the floor, he was not always provided with a bottom bunk due to a cell-mate also requiring a bottom bunk. He stated that he would lie on the mattress on the floor to watch television.

[18] The applicant produced his medical records from Maplehurst Correction Institution for the period from February to June 2020.

[19] Michelle Currie, a registered nurse and the Health Care Manager at Maplehurst, testified with respect to the nature of the health care services provided to inmates at the institution and with respect to what was disclosed by the applicant’s records for the February to June period.

[20] Ms. Currie testified that there are two groups of physicians who provide medical service on a rotating schedule, comprising of 18 different physicians. A physician is available by telephone at all times and a physician is physically on duty in the building every morning and afternoon from Monday to Friday.

[21] Nursing staff are on duty on a 24-hour basis, with 22 nurses on duty during the day and 4 on duty from 7 p.m. to 7 a.m. She estimated that each nurse would see between 10 to 40 patients per day.

[22] Ms Currie testified that nurses come through the facility three times per day to administer medications and accordingly, if the applicant were receiving medication, he would see a nurse at that time. Otherwise, inmates would see a nurse the day following a request or on the same day if the issue was urgent. She stated that the situation of an inmate self-reporting a seizure would be considered urgent and that inmate would see a nurse immediately. If the seizure were found to be sufficiently serious the inmate would see a doctor the next day or, if necessary, would be transported to a hospital.

[23] The applicant’s records indicated that he was seen by a nurse on February 27, 2020 at which time his seizure history was identified, and a memorandum was issued that he be provided with a bottom bunk or a mattress for the floor.

[24] Ms. Currie advised that it is a routine practice that an inmate upon admission to the institution be referred to a physician.

[25] The records indicated that the applicant saw a physician on March 20, 2020 and was prescribed medication to assist with sleep. On April 13, 2020 he was prescribed Dilantin to manage his seizures. At the beginning Dilantin is administered once a day and then it is monitored for blood level to determine the correct therapeutic dosages. This may result in a need to split the medication into multiple levels. This was done in the applicant’s case in order to make the medication more effective.

[26] The applicant’s records set forth the frequency and dosages of the medication administered to the applicant.

[27] Ms. Currie testified that, although there have been other inmates with seizure disorders in the institution, the lighting has not been identified as a problem. She indicated that the triggering event for seizures may often not be apparent whereas sometimes seizures can be triggered by strobe lights, by a patient not feeling well or coming down with an illness or feeling tired.

[28] Ms. Currie indicated that, to her knowledge, no one has been prescribed sunglasses to prevent seizures but if they were requested the nursing staff would have a family member of the inmate bring them in.

[29] Ms. Currie stated that it would be appropriate to transport an inmate to the hospital following a seizure if it had been for an extended duration or the patient had lost consciousness, if the patient was bleeding profusely or was unable to breathe. There is nothing in the applicant’s records that indicated a need for him to have been transferred to a hospital. Ms. Currie testified that the applicant’s medical reports indicated nothing that would cause concern with respect to his medical care and treatment.

[30] It is evident that the applicant’s susceptibility to seizures pre-existed both his arrest and the detention hearing in April. The applicant deposed that he has experienced three or four seizures while at Maplehurst, however he provided no evidence with respect to the frequency with which he experienced seizures prior to his incarceration. Assuming that the frequency of his seizures increased in custody, it does represent a change in his medical condition and thus in his circumstances, however, in my view, it does not represent a material change in circumstances to support a review of his detention.

[31] The Supreme Court of Canada in St. Cloud referred at para. 128 to the four criteria for the admission of fresh evidence in R. v. Palmer (1979), [1980] 1 S.C.R. 759 (S.C.C.).

[32] Wagner, J., as he then was, writing for the Court, observed as follows at para. 135 with respect to the second criterion:

As to the second Palmer criterion, the evidence obviously does not have to "bea[r] upon a decisive or potentially decisive issue in the trial": p. 775. It will suffice if the evidence is relevant for the purposes of s. 515(10) Cr.C. Where, more specifically, the third ground for detention under s. 515(10)(c) — the one at issue here — is concerned, I note that the justice must consider "all the circumstances". The second Palmer criterion will therefore rarely be decisive in the context of an application for review under ss. 520 and 521 Cr.C., since the range of "relevant" evidence will generally be quite broad.

[33] With respect to the fourth Palmer criterion, Wagner, J. stated as follows at para. 137:

Finally, the fourth Palmer criterion should be modified as follows: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) Cr.C. The new evidence must therefore be significant.

[34] Thus, even though the increased frequency of the applicant’s seizures may be relevant as representing a change to his medical condition, it is not significant for the purpose identified in St. Cloud. It is not reasonable to think, having regard to all the relevant circumstances, that evidence of an increase in the frequency of the applicant’s seizures to the extent he experienced, could have affected the balancing exercise at the initial detention hearing.

[35] Although the medical treatment afforded to inmates generally and to the applicant specifically, at Maplehurst may not be perfect, the applicant has not shown that it is inadequate in his circumstances, or that it is deficient when compared to the medical treatment that would be available to him in the community should he be released.

[36] The applicant was seen by a nurse immediately upon his admission, was assessed by a physician approximately one month later, and was subsequently prescribed medication to treat his seizure disorder. The dosage and frequency of administration of his medication was subsequently monitored by blood testing and was adjusted. The institution maintains round-the-clock nursing staff and daily staffing by physicians. The applicant led no evidence that the medical treatment that he received was inappropriate or deficient.

Electronic monitoring

[37] With respect to the applicant’s proposed inclusion of electronic monitoring in his release plan, it is noted that the applicant does not rely upon electronic monitoring in isolation as supporting a material change in circumstances, but rather argues that a material change in circumstances has occurred when electronic monitoring is considered together with the issues respecting his medical condition.

[38] Goodman, J. recently commented on the limitations of electronic monitoring in relation to a finding of material change in circumstances in the case of R. v. Virag, [2020] O.J. No. 2365 (S.C.J.) at paras. 57-60, as follows:

As mentioned, the proposed plan in this case invokes electronic monitoring. Electronic monitoring can certainly enhance a release plan and in some cases, tip the scale to allow for a material change in circumstances.

This type of electronic monitoring system has been addressed by several jurists. In United States v. Pannell, [2004] O.J. No. 5715 (Ont. S.C.J.), an extradition case, Nordheimer J. (as he then was), stated that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. GPS monitoring has been described as a risk management tool, rather than crime prevention tool: see R. v. Jesso, 2020 ONCA 280 (Ont. C.A.), at paras. 24-27.

Electronic monitoring is not infallible and its introduction to a release plan where there is a personal stake lacking by the accused (and notionally, concerns about his abiding by release terms), do not remedy the reality that "the real 'pull of bail' is still missing: United States v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380 (Ont. S.C.J.), at paras. 11-12.

It provides some increased level of certainty some breaches will be detected relatively rapidly but does not prevent such non-compliance. While electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it: Pannell, at para. 23. Indeed, 24/7 electronic monitoring does not replace the need for good, effective and reliable sureties.

[39] Justice of the Peace Zeigler found, at p. 23 of his Ruling, that each of the applicant’s parents were insufficient sureties. At p. 18 he noted “the history of Angaze’s breaches indicates that the accused is not respectful of his father Justin as he breached four times under his supervision and put his father at risk for estreatment.”

[40] He went on to state that “the relation between the accused and his father is not bound by any respect by the accused for his father and in turn, the surety has not indicated any active supervisory role or efforts on his part to ensure the order was being followed by his son.”

[41] With respect to the suitability of applicant’s mother Ms. Zihindula to act as a surety, the Justice concluded at p. 23 that “it was hard to get a sense of her understanding of her responsibilities for how she would supervise her son” but did get a sense from her employment and childcare responsibilities to her other children that her involvement would be minimal.”

[42] Mr. Zihindula testified that he and his spouse have arranged their work and school schedules in order to ensure that they will be able to provide round-the-clock supervision of the applicant. He also testified that he believes that the applicant has a changed attitude, that he has “learned from his mistake” and will “follow the rules.” On cross-examination he stated that he and his wife are “trying to give him a last chance.”

[43] In my view, little has changed in the applicant’s proposed supervisory plan other than the addition of electronic monitoring. It has not been shown that anything of substance has changed to alter Justice of the Peace Zeigler’s assessment of the relationship between the applicant and his parents and of their capability to act as his effective jailers. As observed by Goodman, J. in Virag, the addition of electronic monitoring does not replace the need for reliable and effective sureties.

Finding re Material Change of Circumstances

[44] In my view, the applicant has failed to show a material change in circumstances to support a review of the detention order made by Justice of the Peace Zeigler.

Secondary and Tertiary Grounds for Detention

[45] The foregoing has the effect of ending the inquiry. However, I would add that, if the matter were considered de novo, I would not find that the applicant has met his onus of showing that the proposed plan adequately addresses the secondary and tertiary grounds, given the lack of suitability of his proposed sureties, as discussed above.

[46] In my view the continued detention of the applicant is necessary for the protection or safety of the public having regard to all the circumstances, including any substantial likelihood that the applicant will, if released from custody, commit a criminal offence or interfere with the administration of justice. The proposed plan does not adequately address the concern under this secondary ground.

[47] Similarly, if considered de novo, the applicant’s detention is necessary under the tertiary ground in order to maintain confidence in the administration of justice having regard to all the circumstances including the apparent strength of the prosecution’s case, the gravity of the offences, the circumstances surrounding the commission of the offences include the allegation respecting the use of a firearm in the alleged robbery, and the fact that the applicant is liable on conviction for a potentially lengthy term of imprisonment. Justice of the Peace Zeigler carried out a full review of these factors in his Ruling. It is not necessary to repeat those findings here.

Disposition

[48] The application is therefore dismissed.

D.A. Broad, J.

Date: October 9, 2020