COURT FILE NO.: CR-20-60000304-00BR
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.J.
J. Flaherty, for the Crown
F. Roy, for C.J.
HEARD: October 1, 2020
DECISION ON DETENTION REVIEW
P.J. Monahan J.
[1] CJ faces six sets of charges arising from incidents that occurred in the city of Toronto between February 18, 2020 and May 14, 2020. He was ordered detained at a bail hearing on May 12, 2020. He seeks a review of that detention order pursuant to s. 525 of the Criminal Code.
[2] In addition to the Toronto charges that are the subject of this detention review, CJ is facing three sets of charges in the Peel region and three sets of charges in the Halton region that were laid between December 2018 and March 2020.
[3] At the conclusion of the October 1, 2020 detention review hearing, which was held by audio conference due to the Covid-19 pandemic, I found CJ’s continued detention to be necessary for the protection and safety of the public, and the s. 525 application was accordingly dismissed. I indicated that written reasons for this conclusion would follow. These are my reasons.
Background
[4] The Toronto charges that are the subject of this detention review are as follows:
a. In January 2019, CJ was arrested and released on a recognizance with a condition that he not possess any weapons as defined by the Criminal Code. On February 18, 2020, it is alleged that CJ left a restaurant without paying the bill. Police were on scene dealing with an unrelated matter. They pursued and arrested CJ without incident. He was searched incident to arrest and found to be in possession of a knife which was seized by the arresting officers. He was charged with fraudulently obtaining food or beverage, carrying a concealed weapon, and failure to comply with the terms of release order;
b. on February 21, 2020, CJ was in court for a bail hearing in relation to the February 18, 2020 charges. While there, it is alleged that he became involved in an altercation with court officers who were escorting him. He was charged with uttering threats and assaulting a police officer;
c. on February 25, 2020, CJ was in court on an unrelated matter. It is alleged that he became involved in an altercation with court officers. He was charged with assault of a peace officer;
d. CJ was subsequently released on his own recognizance. One of the conditions of his release was that he not possess any weapons as defined by the Criminal Code. On March 26, 2020, CJ was residing at a shelter in Scarborough. It is alleged that while CJ was waiting in line for food he assaulted another resident of the shelter. Some moments later, while CJ was eating his food, it is alleged that he became involved in a dispute with two other residents of the shelter. CJ is alleged to have pulled out a knife and threatened the other residents, causing them to walk away. CJ was charged with two counts of assault, carrying a concealed weapon, weapons dangerous, and failure to comply with various release orders;
e. CJ was released on March 27, 2020. On April 16, 2020, he was diagnosed with Covid-19 and ordered to self-isolate. However, it is alleged that early in the morning of April 17, 2020, CJ attended at a Toronto restaurant, where he became involved in a dispute with serving staff. In the course of this dispute, CJ is alleged to have thrown a beer bottle at the serving staff as well as flipping a table onto its side. He was charged with assault with a weapon, mischief under $5000 and failure to comply with a release order;
f. CJ was ordered detained at the bail hearing held on May 12, 2020. On May 14, 2020, he was being held in the infirmary section of the Toronto South Detention Centre, given his prior diagnosis of Covid-19. It is alleged that CJ broke off pieces of the hospital bed in his room and used those pieces to damage walls, floor tiles and reinforced glass windows, causing approximately $15,000 in damage. He was charged with mischief over $5000.
[5] CJ has a limited criminal record. In 2013 he was convicted for possession of a controlled substance under the Controlled Drugs and Substances Act and fined $1000. In December 2019, he was convicted of failure to attend court and sentenced to one day in custody.
May 12, 2020 Bail Hearing
[6] At the May 12, 2020 bail hearing, it was proposed that CJ be released on his own recognizance and that he be referred to Sound Times, an organization which provides support to persons involved in the criminal justice system who have mental health issues. CJ testified and was cross-examined and the court also received a letter from Sound Times describing its services.
[7] The Justice of the Peace ordered CJ detained on the secondary ground in s. 515 (10) of the Criminal Code. His Worship was of the view that the Crown case in relation to the April 17, 2020 charges was strong, given the evidence of two witnesses. The Justice of the Peace was also concerned over the fact that on two prior occasions, it was alleged that CJ had been in a possession of a knife and that on one occasion he had allegedly used the knife to threaten residents of a shelter. A further concern arose from the fact that CJ had been on a number of release orders since February 2020 and it was alleged that he had committed further criminal offences in those instances. There was also a concern that CJ had been infected with Covid-19 and yet he did not seem willing to self-isolate and avoid spreading the virus to others.
[8] The Justice of the Peace found that CJ appeared to be unwilling or unable to control his behaviour and that there was a substantial likelihood that, if released from custody, he would commit further offences and pose a threat to the protection and safety of the public. The Justice of the Peace further found that the proposed plan of release, involving a referral to Sound Times, would not sufficiently alleviate these secondary ground concerns. His Worship pointed out that CJ had already been required, as a condition of one of his prior releases, to work with Sound Times. However, in his testimony CJ indicated that he had only had one call or meeting with the staff at Sound Times and had not otherwise followed up with them. CJ did not appear to be familiar with Sound Times and its role in providing mental health support. In any event, CJ denied that he had mental health issues.
[9] Considering the totality of the circumstances, the Justice of the Peace found that the proposed bail plan would not sufficiently alleviate the concerns identified and CJ should be detained.
Proposed Plan of Release
[10] The proposed release plan is identical to that put forward at the May 12, 2020 bail hearing. CJ seeks to be released on his own recognizance with a referral to Sound Times. In support of the referral, he has filed a copy of the same letter from Sound Times which was before the Justice of the Peace at the initial bail hearing.
[11] CJ testified and was cross-examined at the detention review hearing. CJ is 34 years old. Prior to his arrest he was working part-time as a landscaper. If he were to be released, he does not know where he will reside, nor does he have any plans for employment.
[12] CJ denies that he has any mental health issues. He does not appear to have had any further contact with Sound Times since the initial bail hearing. He is unfamiliar with the work of the organization, nor does he see any particular reason why he should be referred to Sound Times.
Applicable Legal Principles
[13] As Chief Justice Wagner observed in R. v. Myers, a detention review hearing under s. 525 proceeds on the basis that the right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system.[^1] In the pre-trial context, “release – at the earliest opportunity and in the least onerous manner – is the default presumption in Canadian criminal law.”[^2] Pretrial detention should be regarded as the exception, not the rule. Chief Justice Wagner expressed concern over the large numbers of individuals in custody awaiting trial.
[14] A review under s. 525 is focused on whether the continued detention of the accused is justified, rather than on whether the initial detention order was appropriate or correct. Yet the judge at the s. 525 hearing should show respect for any findings of fact made by the first level decision-maker if there is no cause to interfere with them. At the same time, the s. 525 judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question of whether his or her continued detention in custody is justified.[^3]
[15] In determining whether detention remains justified, the judge should pay particular attention to whether the time in custody that has already elapsed, or that is anticipated to elapse, will impact the appropriateness or proportionality of the detention. Reviewing judges must be 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.
[16] An analysis of the secondary ground for detention in s. 515 (10) requires the court to undertake a risk assessment to determine whether, having regard to all the circumstances, it is necessary to continue the detention of the accused for the protection or safety of the public. This risk assessment must include a consideration of whether it is substantially likely that the accused will, if released, commit a criminal offence or interfere with the administration of justice. A “substantial likelihood” requires a probability of certain conduct, not a mere possibility, and the probability must be substantial, in other words, significantly likely.[^4] It is relevant to consider the nature of the alleged offences, the circumstances surrounding their alleged commission, the likelihood of conviction, and the danger that the release of the accused would pose to the community.
Positions of the Parties
[17] Counsel for CJ argues that with the support of Sound Times, CJ will receive the help that he needs to treat his mental illnesses. Sound Times could help to ensure that CJ does not reoffend while he is awaiting trial. There is also a psychiatrist available through Sound Times for him to speak with in order to help him to further address his current struggles.
[18] CJ’s counsel also relies on the fact that his client has now been in pretrial detention for 148 days. With a pretrial detention credit ratio of 1.5 to 1, CJ has a credit of approximately 7.5 months. Counsel argues that CJ has already served more time than what would be required if he were found guilty of the Toronto charges.
[19] In contrast, the Crown argues that there is a substantial risk that CJ will commit further and other offenses if he were released. In the Crown’s view, CJ fails to have any insight into likely mental health issues that now see him before the criminal courts. The Crown also maintains that the likely sentence after trials on his outstanding Toronto charges would significantly exceed his current accumulated credit for pretrial custody. The Crown further points out that CJ has a trial on his April 17, 2020 charges scheduled for October 22, 2020, and that trials on the other Toronto matters can be held within the next 90-120 days.
[20] In summary, the Crown’s position is that a proportionality assessment that takes into account CJ’s apparent mental instability, his repeated acts of aggression and his possession of knives, weighs in favour of his continued detention.
Analysis
[21] Having reviewed the circumstances of this case, and having heard from CJ at the detention review hearing, I see no basis to differ with the conclusion of the Justice of the Peace that there is a substantial risk that CJ would reoffend if he were to be released on his own recognizance.
[22] Over the space of less than three months in early 2020, CJ accumulated six separate sets of charges in Toronto. These charges are in addition to six separate sets of charges he is facing in Peel and Halton, those charges having been laid between December 2018 and March 2020. Over the past two years he has been on a form of release nine times, and is alleged to have breached the terms of his release on numerous occasions.
[23] To be sure, CJ has yet to be tried on any of the charges and therefore remains entitled to the presumption of innocence. It is also impossible at this stage to make a confident assessment of how matters might unfold at trial. Nevertheless, based on the information provided by the Crown in relation to the six sets of Toronto charges at the detention review hearing, which was not contested by counsel for CJ, at this point the Crown’s case in relation to these matters appears to be strong.
[24] In his evidence, CJ evinced little insight into his behaviour, nor did he provide any meaningful assurances that he would avoid reoffending if he were released. CJ maintained that he has no mental health issues. He sees no reason why he should be in contact with Sound Times. Like the Justice of the Peace at the original bail hearing, I find no basis to believe that CJ would participate in any treatment or counselling regime. I find that it is substantially likely that CJ would reoffend if he were released on his own recognizance and, further, that the referral to Sound Times would not address these concerns given CJ’s apparent indifference to any assistance they may be able to provide.
[25] Counsel for CJ pointed out that many of his alleged offenses fall on the less serious end of the spectrum. Even accepting this to be the case, I am concerned over the fact that in a number of instances, it is alleged that CJ was in possession of knives, which pose a significant risk to public safety.
[26] In his oral submissions, counsel for CJ relied in particular on the fact that CJ has been in pretrial custody for nearly 5 months. The Covid-19 pandemic has delayed CJ’s proceedings and counsel maintained that it may be a substantial period of time before he can be tried. Counsel argued that CJ has, or soon will have, effectively served his likely sentence, without having come to trial. As Harris J. recently observed in R. v. Ismail, the presumption of innocence must prevail over factors militating towards detention, particularly in the case of vulnerable individuals who lack community support.[^5]
[27] While recognizing that CJ has indeed spent a substantial period of time in pretrial custody, I find that he is not yet approaching the point at which he would be in a “time served” situation in the event he were found guilty of his outstanding Toronto charges. CJ has a trial scheduled on the April 17, 2020 charges within a matter of weeks. I further accept the submissions of Crown counsel, which were not disputed by counsel for CJ, that trials on the remaining Toronto matters could be held within the next 90-120 days. As such, the circumstances in the present case are very different from those in Ismail, where the accused was facing a period of an additional 12 months in pretrial custody before his matters could be tried.
[28] Taking all of the relevant circumstances into account, I find that there is a substantial likelihood that CJ will, if released, commit further offences and that his continued detention is necessary for the protection and safety of the public. I therefore dismiss the s. 525 application.
P. J. Monahan J.
Released: October 9, 2020
COURT FILE NO.: CR-20-60000304-00BR
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.J.
DECISION ON DETENTION REVIEW
P. J. Monahan J.
Released: October 9, 2020
[^1]: R. v. Myers, 2019 SCC 18 ("Myers") at para 1.
[^2]: Myers, at para 1.
[^3]: Myers, at paras 48 to 49.
[^4]: R. v. Manasseri, 2017 ONCA 226, at para 87.
[^5]: R. v. Ismail, 2020 ONSC 5519 at para 27.