SUPERIOR COURT OF JUSTICE
5
B E T W E E N:
10
HER MAJESTY THE QUEEN
- and - FANTASIA HOO-HING
15 * * * * * * * * * * *
R E A S O N S F O R J U D G M E N T
20 -- Before the HONOURABLE MR. JUSTICE BAWDEN, at 361 University Ave., CR 7-3, Toronto, Ontario, on the 28th day of September, 2020.
25 APPEARANCES (via ZOOM):
MS.
J.
BATTERSBY
For
the
Crown
MS.
A.
GILMER
For
the
Crown
30
MR.
S.
STAUFFER
For
the
Defence
MONDAY, SEPTEMBER 28, 2020
R E A S O N S F O R J U D G M E N T
5 Bawden J., Orally:
This is an oral judgment with respect to a bail application made by Ms. Hoo-Hing.
Overview
10
Overview
Fantasia Hoo-Hing is charged with second degree
murder. She has brought an application for bail pursuant to
s. 522 of the Criminal Code. Ms. Hoo-Hing previously applied for bail under the same provision in November of 2019 before Justice A. O'Marra. In his Reasons for
15 Judgment, Justice O'Marra indicated that he had concerns about the ability of the sureties to supervise Ms. Hoo-Hing, but he did not expressly detain her on the secondary ground. Justice O'Marra's main concern, and the basis for his detention order, was the tertiary ground. He observed that
20 the deceased was taken by surprise in his own home. He was shot in the hip and beaten to death. The applicant was, at very least, "instrumental in opening the door" to the victim's death.
The applicant relies on two material changes
25 which have occurred since the initial bail hearing. The COVID-19 pandemic was not a factor in December of 2019, and a new and much better surety has come forward. The principal surety at her initial bail hearing was her mother, Nicola Hoo-Hing. Nicola Hoo-Hing suffers from a number of
30 physical ailments. She is unable to work and she acknowledged in her testimony that she suffers from unpredictable memory lapses. The applicant's grandmother,
Claudia Camsmith has now come forward to act as the principal surety. Ms. Camsmith is in excellent health. She is able to offer a substantial amount in surety. She is clearly a responsible and well-meaning surety.
5 It is proposed that the applicant be released on a house arrest bail. She would live with her grandmother from Monday to Friday, and stay with her father during weekends. Ms. Hoo-Hing's compliance with the house arrest provision would be monitored by a GPS ankle bracelet
10 installed by Recovery Science Corporation, who I will refer to as RSC from this point forward.
Jurisdiction
Jurisdiction
Release on a s. 469 offence is governed by s. 522
15 of the Criminal Code. Subsection 522(4) provides that any review of a decision under s. 522 must proceed by way of s. 680 of the Code. Section 680 requires that the review be conducted by the Court of Appeal.
Mr. Stauffer has not challenged the correctness
20 of Justice O'Marra's earlier detention order. He relies at this bail application instead on a change of circumstances. The Crown contests that the new surety constitutes a material change, but Ms. Battersby acknowledges that the COVID pandemic is a material change. As such, the Crown
25 does not dispute the jurisdiction of this court to conduct a new bail hearing.
The Superior Court retains jurisdiction to review a detention order under s. 522 if the basis for the review is a change in circumstances rather than an alleged error in
30 law (see Whyte, 2014 ONCA 268 at para 21). I am satisfied that there has been a material change and I therefore find that I do have jurisdiction to hear the application.
The standard for this review is set out in St.
Cloud, 2015 SCC 27 at para 138: Having admitted the new evidence and concluded that it does constitute a material change in circumstance, a reviewing justice is authorized to
5 repeat the analysis under s. 515(10)(c) as if he or she were the initial decision-maker.
The Facts
The Facts
The Officer in Charge of the case, Detective Rob
10 Choe, testified at the original bail hearing. The Crown also introduced surveillance video and photographs of exhibits seized during the investigation. All of this evidence has been introduced on consent in this application. The Crown has filed the following additional materials in
15 this proceeding:
i. Cellular phone records of Ms. Hoo-Hing which appear at Exhibit 3, PDF pages 11 through 38;
ii. A note from the Office of the
20 Solicitor General dated September the 14th,
2020, indicating that there have not been any positive COVID-19 tests at Vanier as of that date. One case has been resolved while an inmate was in custody. Three individuals who had tested positive have since been
25 released from the institution.
Justice O'Marra reviewed the evidence in detail and made factual findings which can be found in Exhibit 1, PDF pages 321 to 330. Neither of the parties have challenged those findings. I adopt Justice O'Marra's
30 findings as my own for the purposes of this application. That evidence unmistakably demonstrates that Ms.
Hoo-Hing was a party to a home-invasion robbery. The victim
of the robbery was her purported boyfriend, Edwin McGowan. The evidence leads to the strong inference that Ms. Hoo-Hing initiated the plan to rob Mr. McGowan and was instrumental in its execution. The phone records indicate that she was
5 speaking to one of the perpetrators, O'Neil Thompson, as the offence was taking place. This was a heinous offence. Ms. Hoo-Hing took advantage of the deceased's trust in order to set him up to be beaten and robbed in his own home. There is little doubt that she will someday serve a lengthy
10 penitentiary sentence for this offence.
The issue raised before Justice O'Marra was whether the Crown will be able to satisfy a jury beyond a reasonable doubt that Ms. Hoo-Hing intended to cause Mr. McGowan's death within the terms set out in s. 229 of the
15 Criminal Code. The same issue has been raised before me.
Counsel at the first application argued that there was no evidence that the applicant knew of the murderous intentions of her co-accused. Justice O'Marra rejected that categorical submission. He concluded instead
20 that there is "clearly a triable issue" as to whether Ms. Hoo-Hing shared their intention to cause death. I come to the same conclusion.
In my view, there is a constellation of circumstantial evidence which permits the inference that Ms.
25 Hoo-Hing shared the intent of her co-accused to kill Mr. McGowan. That evidence includes:
i. The clear signs of premeditation exhibited by extensive surveillance video;
ii. The repeated contact between Ms. Hoo-Hing and
30 O'Neil Thompson on the day of the homicide, including the call which occurred at the very time that the murder was being committed,
and;
iii. Some elements of Ms. Hoo-Hing's post-offence conduct.
While these are available inferences, I would not describe
5 them as inescapable inferences. In my view, the Crown may struggle at trial to pass the Villaroman test. It is also questionable whether the Crown will be able to prove beyond a reasonable doubt that Ms. Hoo-Hing knew that her
co-accused were armed with a firearm when she assisted them
10 in entering the deceased's apartment.
The Surety Evidence
The Surety Evidence
The primary surety proposed is the applicant's grandmother, Claudia Camsmith. Ms. Camsmith's affidavit
15 appears in Exhibit 1, PDF pages 16 to 20. She also testified via Zoom during this application.
Ms. Camsmith is 73 years of age. She is retired, having worked as an administrator at the University of Toronto for 30 years. Ms. Camsmith is in excellent health.
20 She lives alone in a two-bedroom condominium which she owns. She has substantial assets including her pension from the University, her RRSP and TFSA accounts amounting to roughly
$350,000, and the equity which she holds in her condominium and estimates to be $200,000. Prior to the COVID pandemic,
25 Ms. Camsmith volunteered at the North York General Hospital and participated in community events such as prayer sessions. Given that she is retired and has a steady pension income, she is able to stay home with her granddaughter at all times and enforce a house arrest
30 provision. It is proposed that Ms. Hoo-Hing stay with her grandmother every week from Sunday evening until Friday evening. During the weekends, she would stay with her other
proposed surety, her father. It is clear that Ms. Camsmith fully appreciates the gravity of the task that she is offering to undertake. The Crown acknowledges that she would be a satisfactory surety.
5 Ms. Camsmith was asked why she did not come forward to act as a surety at the initial bail application. She explained that at that time she was so shocked and disappointed by Fantasia's involvement in this offence that she was reluctant to become involved. She described her
10 granddaughter's arrest as a "total nightmare" and felt that she needed time to absorb it. What she knew of the offence was utterly out of keeping with her own experience with Fantasia. She has since met with Mr. Stauffer and he has provided her with details of the police investigation. Ms.
15 Camsmith has come to realize that Fantasia kept many aspects of her life hidden from her family. One important fact that Fantasia hid was her close association with O'Neil Thompson, a man with a lengthy criminal record. Ms. Camsmith was shocked to learn that Fantasia had offered to act as a
20 surety for Mr. Thompson and had contributed money to his canteen while he was in jail. She made it abundantly clear in her testimony that if Fantasia is released on her surety, all such associations will stop.
The second proposed surety is Ms. Hoo-Hing's
25 father, David Thomas. Mr. Thomas was proposed as a surety at the first bail hearing and he testified before Justice O'Marra. The transcript of his evidence is contained in Exhibit 1, PDF pages 170 to 207. The defence filed a further affidavit for this proceeding which appears at
30 Exhibit 1, PDF pages 23 to 28. Mr. Thomas testified again before me, this time via Zoom. Mr. Thomas has worked as a manager for Paladin Securities for the past 7 years.
Paladin installs and maintains security devices in homes, businesses and public buildings. His wife is an administrator at Ontario Shores. They own a home in Whitby which has approximately $600,000 in equity. Mr. Thomas has
5 two daughters in his second marriage. The elder daughter suffers from a serious genetic disorder and, at the age of 19, she requires around the clock care. Fantasia Hoo-Hing is Mr. Thomas's daughter from an earlier marriage. Mr. Thomas had custody of Fantasia on alternating weekends when
10 she was growing up and they have maintained close contact once she left her mother's home at the age of 16. Mr. Thomas saw Fantasia every second weekend as an adult and she attended all of her family's gatherings. Mr. Thomas was understandably shocked when his daughter was arrested and
15 charged with murder. Fantasia was 32 years old at that time, had no criminal record, and worked full-time at Shoppers Drug Mart. There was nothing in her behaviour which had alerted him to the possibility that she associated with anyone involved in criminal activity. He has since
20 come to learn that there were many unsavoury aspects to Fantasia's life that she hid from her family. Mr. Thomas had no idea, for instance, that his daughter was associating with O'Neil Thompson, a man with a significant criminal record. He also did not know that she had acted as a surety
25 for Mr. Thompson. He described the murder allegation as "the most shocking thing that I have ever seen". Mr. Thomas is able to sign for $100,000 to secure his daughter's release. He will supervise her during the weekends when he is not working. In addition to his own scrutiny of her
30 whereabouts, he would be assisted by the ten security cameras which he has installed on his property. Those cameras will alert him to the movements of anyone entering
or leaving the house.
The fact that the two proposed sureties were unaware of the unsavoury aspects of Fantasia's lifestyle does not, in my view, undermine their reliability as
5 sureties. Fantasia had been living away from her family since she was 16 years old. She had no criminal record and she had been steadily employed. By all accounts, she was a kind and thoughtful daughter. The fact that her father and grandmother were unfamiliar with her company certainly does
10 not diminish their reliability as sureties, nor does it indicate a lack of inquisitiveness on their part. The fault for that deception lies with Fantasia, not her family.
The Electronic Monitoring Evidence
15
The Electronic Monitoring Evidence
The defence filed an affidavit from Mr. Stephen Tan, a director of Recovery Science Corporation. RSC is a well-known provider of compliance monitoring services. The company has been providing such services for over ten years. In his affidavit, Mr. Tan states that the residences of both
20 proposed sureties are within the cellular coverage for a GPS ankle bracelet and that Ms. Hoo-Hing is an appropriate candidate for supervision by RSC. His affidavit goes on to explain the means by which RSC uses electronic monitoring to ensure compliance with bail conditions including house
25 arrest, curfew and area restrictions. RSC is currently supervising the bail compliance of 450 people across the country.
Ms. Battersby cross-examined Mr. Tan regarding two recent occasions when RSC monitoring was said to have
30 failed in its responsibilities. In the case of B.M.D., reported at 2020 ONSC 2671, Justice Monahan had released an accused with the condition that his ankle bracelet be
affixed within 24 hours of the release. The bracelet was not affixed within the required time limit and RSC did not report that breach directly to police. In a second case, an accused was ordered released with a condition not to leave
5 Brampton and not to enter Toronto unless for the purpose to attend in court. It was subsequently determined that the accused did enter the bounds of Toronto 19 times without triggering any response from RSC.
Mr. Tan vigorously responded to both of these
10 challenges.
In the first instance, the RSC technician did attend to install the bracelet within the required time but the surety unexpectedly balked as a result of concerns raised by a neighbour. RSC immediately contacted counsel
15 for the accused to report the problem. Counsel undertook to RSC that she would handle the problem and subsequently advised RSC that the accused would turn himself into police, effectively surrendering his bail. This in fact did occur, but the Peel police declined to take custody of the accused.
20 The accused returned to court the following morning and the matter was resolved before Justice Monahan. I am fully satisfied by Mr. Tan's account of this incident and it does not give rise to any concerns on my part about the reliability of RSC monitoring.
25 In the second incident, Mr. Tan explained that on each occasion that the accused left Brampton, his surety had called RSC and advised the company of the accused's anticipated movement. The identity of the surety was confirmed on each occasion using voice recognition software.
30 The RSC software at that time prioritized the Brampton boundary restriction over the Toronto area restriction. Once the system was alerted by the surety that the Brampton
restriction was to be temporarily relaxed, it failed to recognize the Toronto breach. This lapse in the software design has since been corrected. The RSC software did properly track the accused's movements at all times and is
5 now the primary source of evidence on the alleged breach of bail. Mr. Tan observes that the accused in that instance has since been released again under RSC supervision.
Although this challenge was more concerning, it does not cause me to lose confidence in the services of RSC.
10 Electronic monitoring never has and never will replace the role of a responsible surety. It is no news to me that electronic monitoring can be defeated by a negligent or unscrupulous surety. This case illustrates to me the importance of responsible sureties rather than any failings
15 on the part of RSC. It is also worth noting that an incident such as this has led RSC to amend their software to eliminate any chance that the same event could occur in the future. This illustrates one of the important advantages of the systematic supervision of detainees through electronic
20 monitoring: The system does have the capacity to adapt quickly to unforeseen circumstances and such challenges do not result in a complete failure of the system. The system will continue to monitor the location of the detainee at all times and will maintain an indelible record to prove
25 noncompliance with the bail.
Once again, this event does not diminish my confidence in electronic monitoring or the services offered by RSC.
30 The Grounds for Detention Under Section 515(10)(c)
The Grounds for Detention Under Section 515(10)(c)
Where the accused is charged with a s. 469 offence, she bears the onus of establishing that she should
be released on all three of the grounds listed in s. 515(10)(c).
The Primary Ground
5
The Primary Ground
The Crown concedes that Ms. Hoo-Hing has met her onus on the primary ground.
The Secondary Ground
The onus is on Ms. Hoo-Hing to establish that
10 her detention is not necessary for the protection of the public or the safety of the public. This is to be determined based on all of the circumstances including any substantial likelihood that, if she is released, she will commit a criminal offence or interfere with the
15 administration of justice.
Ms. Hoo-Hing is 33 years of age. She has no criminal record or outstanding charges. She has a history of steady employment, having supported herself since she left home at the age of 16. She enjoys strong support from
20 her family. There is no evidence that she suffers from any form of addiction or mental health disorder.
The two proposed sureties are highly successful, disciplined and law-abiding citizens. They are collectively able to offer $120,000 to secure Ms. Hoo-Hing's release. It
25 is clear that both sureties understand the gravity of their undertaking and would revoke their surety at the first sign of a breach.
This release plan is highly reliable in its own right, but it is further proposed that the plan be augmented
30 by electronic monitoring. Electronic monitoring is particularly effective in enforcing house arrest provisions, as are proposed here.
The Crown has observed that the gun which was used in the homicide has not yet been recovered. The suggestion is that Ms. Hoo-Hing may be in a position to interfere with the administration of justice by disposing of
5 that firearm if she is released. This offence occurred almost a year ago. It seems most unlikely that the gun will be recovered now. The house arrest and electronic monitoring provisions of the proposed release extinguish any realistic concern that Ms. Hoo-Hing could surreptitiously
10 escape from her house arrest, find the gun and then dispose of it. It is also worth observing that Ms. Hoo-Hing would have little incentive to undertake such a venture, given that the firearm does not contribute anything to the case against her.
15 The Crown has also adduced evidence that the victim's family is fearful of Ms. Hoo-Hing and concerned that they would be endangered if she were released. One can readily understand why the family of the deceased would be opposed to the release of anyone who is involved in the
20 murder. Their concern must be respected by this court. In this case, however, there is no realistic basis to fear that Ms. Hoo-Hing would cause harm to any member of the deceased's family. She has no criminal history, nor any record of prior violent behaviour. She is already gravely
25 implicated in the most serious of offences. There is no imaginable motive for Ms. Hoo-Hing to menace the members of Mr. McGowan's family.
I am satisfied based on the fresh evidence presented to me that Ms. Hoo-Hing has met her onus on the
30 secondary grounds. In my view, there is no likelihood at all that Ms. Hoo-Hing will commit a criminal offence which will endanger the safety of the public while she is subject
to the supervision of Mr. Thomas and Ms. Camsmith.
The Tertiary Ground
Justice O'Marra detained Ms. Hoo-Hing on the
5 tertiary ground and it is certainly arguable that all four of the criteria set out in s. 515(10)(c) tell against her:
a. There is overwhelming evidence that Ms.
Hoo-Hing participated in a home-invasion robbery and there is a triable case that she
10 was a party to a murder;
b. Second degree murder is an extremely grave offence;
c. The circumstances of the offence were heinous and included the use of a firearm;
15 d. There is no doubt that Ms. Hoo-Hing faces a lengthy term of incarceration in any event and, if she is convicted of murder, will be subject to imprisonment for the rest of her life.
20 Those four criteria are necessary considerations in assessing the tertiary ground but they are not determinative in deciding whether the release of the accused is necessary to maintain public confidence in the administration of justice. The ultimate question is whether
25 the applicant has demonstrated that her release would not cause a reasonable member of the community to lose confidence in the administration of justice. This is a comparatively fluid determination which can be affected by changing circumstances within an individual case, or in the
30 justice system at large.
It is indisputable that the COVID-19 pandemic has had a profound effect on the court's assessment of the
tertiary ground. Many detainees have been released during the pandemic who would have had little chance of getting bail at the time of Ms. Hoo-Hing's first bail application. The case book filed by Mr. Stauffer includes a small
5 sampling of such cases including Hui, 2020 ONSC 3213, Monique Ibrahim, 2020 ONSC 3024, and Mustard, 2020 ONSC 2973. Some courts have gone so far as to say that the threat of COVID-19 all but cancels the traditional basis for detention on the tertiary ground (see Rajan, 2020 ONSC 2118
10 and J.R., 2020 ONSC 1938).
In my view, the pandemic has been an important change in circumstances which has arisen since the time of the original bail hearing. The Province of Ontario is presently teetering on a second wave of the pandemic. The
15 concerns which animated the lenient bail decisions released during the heart of the first wave are still present. Correctional facilities in the Province have done a stellar job of keeping the infection out of the prison population, but that has been achieved in some measure by significantly
20 lessening the total inmate population. It has also come at the cost of the freedoms and privileges ordinarily enjoyed by inmates.
It must also be recognized that the pandemic has only accelerated an evolution in the law of bail which began
25 with the release of St. Cloud from the Supreme Court of Canada in 2015, and has continued with Antic in 2017, Myers in 2019, and Zora in 2020. The Supreme Court of Canada has set a clear direction to courts of first instance concerning the interpretation of s. 510 of the Code. Fairness and the
30 recognition of the presumption of innocence lie at the heart of that new direction.
The second change of circumstances which has
made a powerful impact on the tertiary ground in this case is the change in sureties. Justice O'Marra had significant concerns about releasing the accused to the supervision of her mother. On this application, that proposed surety has
5 been replaced with an entirely able surety who satisfies any reasonable concern on the secondary ground. The strength of the plan of release can be an important factor in deciding whether a reasonable member of the community would lose confidence in the administration of justice if the accused
10 is released (see Dang, 2015 ONSC 4254 at para 57).
The combination of these two material changes in circumstance tip the balance in favour of the applicant on the tertiary ground. A reasonable member of the public would take into account that the accused does not pose any
15 threat to the safety of the public when released under such a stringent plan with the supervision of dedicated sureties. The same reasonable observer would also recognize the threat that COVID-19 presents to those held in custodial facilities and would take into account the value of releasing those
20 inmates who can be safely supervised in the community. Lastly, an informed observer would consider the fact that many offenders who presented far greater dangers than Ms. Hoo-Hing have been released in recent months. Parity is not a recognized principle in the law of bail, but fairness is.
25 The applicant has satisfied her onus on all three grounds and, accordingly, she will be granted judicial interim release on the following conditions:
a. A $120,000 surety bail to be divided between two named sureties: $100,000 surety to be
30 signed by David Thomas; $20,000 surety to be signed by Claudia Camsmith;
b. Ms. Hoo-Hing will live with Claudia Camsmith
at apartment 201, 3300 Don Mills Road, Toronto, beginning at 8 p.m. every Sunday evening until 8 p.m. the following Friday evening;
5 c. She will live with David Thomas at 53 Waterdown Crescent in Whitby from 8 p.m. Friday evening to 8 p.m. Sunday evening;
d. Ms. Hoo-Hing will observe house arrest at both addresses with the customary exceptions
10 to leave the home in the company of her surety to attend court or prearranged medical, dental, or similar appointments;
e. She will only have access to the Internet while she is under the direct supervision of
15 a surety;
f. The accused is not to have possession of a cellular phone unless she is under the direct and immediate supervision of a surety;
g. She will be subject to electronic monitoring
20 with terms as recommended by RSC;
h. The GPS ankle bracelet is to be attached within 48 hours of the applicant's release from Vanier Detention Centre;
i. She is to have no contact with her co-accused
25 or any anticipated witness in this case;
j. The applicant must surrender her passport to the Officer in Charge, Detective Choe, within one week of her release.
30 I will invite counsel to fine tune these release conditions, including providing the names of prospective witnesses at trial.
Form 2
Form 2
Certificate of Transcript (Subsection 5(2))
5 Evidence Act
I, Vanessa Giorno certify that this document is a true and accurate transcript of the recording of R. v. HOO-HING, in the Superior Court of Justice, held at 361 University Ave,
10 Toronto, Ontario, taken from Recording
4899_7-3_20200928_125215 20__ BAWDENPE, which has been certified in Form 1.
15
(Date) Vanessa Giorno
20
25
30