NEWMARKET COURT FILE NO.: CR-20-4774-00BR

DATE: 20201022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Chidubem Anthony Okeke

BEFORE: The Honourable Justice Dawe

COUNSEL: S. Doyle, Counsel for the Crown

M. Rieger, Counsel for the Applicant/Defendant

HEARD: October 13, 2020 (by teleconference)

ENDORSEMENT

[1] Chidubem Anthony Okeke is facing trial on charges of attempted murder, aggravated assault and breach of recognizance, arising out of an incident on March 27, 2020 when he assaulted and seriously injured a police officer. The assault was captured on video and there is no real dispute about what happened, nor does there seem to be any serious dispute that Mr. Okeke’s behaviour at the time was significantly affected by his mental illness. His likely defence at trial will be that he is not criminally responsible on account of mental disorder (Criminal Code, s. 16).

[2] Mr. Okeke applied for bail in the Ontario Court of Justice, and since he had been on bail on other charges he bore the onus of justifying his release (Criminal Code, s. 515(6)(a)(i)). Mr. Okeke had been unable to contact any potential sureties while he was in custody, and he accordingly presented a bail plan in which he would be released without a surety and would live in a shelter while supervised by the Toronto Bail Program.

[3] On August 4, 2020 Justice of the Peace T. Rotondi ordered Mr. Okeke’s detention under the secondary and tertiary grounds. Her main concern was that the proposed bail plan would not provide for adequate supervision.

[4] Mr. Okeke now brings a bail review application under s. 520 of the Criminal Code and presents a new bail plan in which he would now be supervised by a surety. The Crown acknowledges that the existence of this new bail plan constitutes a material change in circumstance and that I must accordingly reconsider the issue of Mr. Okeke’s detention afresh: see R. v. St-Cloud, 2015 SCC 27. However, the Crown’s position is that I should still uphold Mr. Okeke’s detention under the secondary and tertiary grounds.

[5] For the reasons that follow, I am not satisfied that Mr. Okeke can be released under the proposed new bail plan without unduly jeopardizing public safety, and I am accordingly ordering his continued detention under the secondary ground. This makes it unnecessary for me to consider whether his detention would also be justified under the tertiary ground, although I will briefly comment on the Justice of the Peace’s tertiary ground analysis.

1) Factual background

[6] Mr. Okeke, who is now 23 years old, came to Canada from Nigeria in 2013 as a university student majoring in computer science at the University of Windsor. He graduated with a B.C.S. degree in the spring of 2018 and moved to Toronto for several months while working as a computer programmer.

[7] At some point around that time Mr. Okeke began experiencing auditory hallucinations. He explains in his affidavit that:

The main symptom I experience is what I understand to be command hallucinations: I hear voices that tell me things about the people around me, and that sometimes tell me to do things

His mental health problems appear to have led to him losing his job and returning to his family in Nigeria, where he sought medical attention and was prescribed an antipsychotic medication, Risperidone. When Mr. Okeke returned to Canada in February 2019 to take up a new job with a Windsor software company he stopped taking his medication because by that time his symptoms had abated.

a) The March 2019 Windsor incidents

[8] On March 23, 2019 Mr. Okeke was charged with a number of criminal offences after he went to another man’s home and accused him of having sexually assaulted Mr. Okeke’s former girlfriend. It was alleged that Mr. Okeke had assaulted the complainant and some of his roommates and damaged their property. When he was arrested Mr. Okeke apparently told the police that the voices in his head had told him that the complainant had raped his ex-girlfriend and that the voices had directed him to commit the assaults.

[9] Mr. Okeke was held overnight for a bail hearing in a police station detention unit. When an officer brought food to his cell during the night Mr. Okeke pushed his way out into the hallway, which led to his also being charged with escape lawful custody. During this latter incident Mr. Okeke apparently commented that he “would attempt suicide by cop”.

[10] Mr. Okeke was released on bail, but on March 25, 2019 the police were called to the Windsor Regional Hospital after he was observed walking around the hospital lobby in an agitated and confused state. He told the police that friends had dropped him off at the hospital but he could not say why he was there, and also complained that he had been “raped in jail”. The officers decided to apprehend Mr. Okeke under the Mental Health Act.

[11] The Windsor charges were eventually withdrawn after Mr. Okeke completed mental health diversion. In his affidavit Mr. Okeke states that while the Windsor charges were before the court he was re-prescribed Risperidone, which “helped a great deal” although he continued to still hear voices in his head “to a lesser extent than when [he] had been arrested in March”.

b) The March 2020 York Region incidents

[12] In his affidavit, Mr. Okeke explains that although he continued to take Risperidone as prescribed, his “mental health deteriorated over the course of 2019”, and in November he returned to Nigeria to be with his family. He came back to Canada in February 2020 and began a training program for a new job as an agent with a Markham insurance company. Mr. Okeke’s evidence is that at this time he was still taking Risperidone but was also continuing to hear voices.

[13] In mid-March Mr. Okeke’s work training program was suspended due to the COVID-19 pandemic and he experienced what he describes as “a mental health breakdown which did not clear”. On March 21, 2020 York Regional Police officers were called to a rooming house in Markham in response to a complaint that Mr. Okeke was trying to get into the room of one of his female housemates. The officers found Mr. Okeke in a confused state. Among other things, he told the officers, apparently untruthfully, that he had coronavirus, AIDS and hepatitis B, that he had been raped “by everyone in the house” and by the Windsor police, and that he had been trying to get into his housemate’s room because “she was horny”. He also told them that he wanted them to shoot him and “end it all”. The officers decided to apprehend Mr. Okeke under the Mental Health Act and take him to the hospital.

[14] The circumstances that led to Mr. Okeke being released from hospital are unclear on the record before me. However, on March 24, 2020 YRP officers were called to a Markham grocery store in response to a complaint that Mr. Okeke was sexually harassing a female store employee. By the time the police arrived the store manager had already removed Mr. Okeke from the store and he had left.

[15] The next day Mr. Okeke called the police himself and they attended his residence. They again found Mr. Okeke in a confused state. He told them he had received a stolen phone from two escorts that he wished to return, and also stated that he was “frequently raped by his roommate, but would not elaborate”. The police did not take any action at this time

[16] The following day – March 26 – the police were again called to Mr. Okeke’s residence by an assault report. They learned that Mr. Okeke had accused one of his housemates of stealing from him and had proceeded to choke the complainant and punch him in the head. Mr. Okeke was arrested for assault and taken to the 2 District police station in Richmond Hill, where he was held for a video bail hearing. While he was being transported to the station Mr. Okeke urinated in his pants, so at the station he was given a white boilersuit to wear over his soiled clothes.

c) Mr. Okeke’s March 27, 2020 attack of PC Varao

[17] Mr. Okeke was held overnight, and after a video bail hearing the following afternoon was released from 2 District station shortly before 3:00 pm. Mr. Okeke’s attack of the police officer that resulted in the current charges occurred approximately an hour later in the parking lot of a nearby shopping mall on Yonge Street.

[18] The mall security video shows how the incident unfolded. PC Andrew Varao was parked in his cruiser in the parking lot of the Hillcrest Mall, which because of the COVID-19 store closures was otherwise mostly empty. At 3:39 p.m. another vehicle drove into the lot with Mr. Okeke pursuing it on foot. He can be seen on the video to be running hard and still wearing the white boilersuit he had been given at the police station. Once he was midway through the parking lot Mr. Okeke broke off chasing the other vehicle and walked towards PC Varao’s parked cruiser.

[19] When he got to PC Varao’s cruiser he approached the driver’s side and punched the officer through the open window. He then opened the driver’s door and PC Varao got out. They exchanged words, and Mr. Okeke then took off his boots and approached PC Varao with his fists raised while the officer backed up in a defensive posture and took out his extendable baton. The video shows that Mr. Okeke is a large and powerfully-built man who is considerably taller than PC Varao.

[20] As Mr. Okeke approached, PC Varao struck him once on the left arm with his baton, while continuing to back up. Mr. Okeke then began throwing punches at the officer, one of which connected with PC Varao’s head and knocked him to the ground. As the officer tried to get up Mr. Okeke kicked him and knocked him back down, and then repeatedly punched him in the head. After briefly walking way Mr. Okeke then returned to where PC Varao was lying and picked up the baton the officer had dropped. He proceeded to use the baton to beat PC Varao, striking the officer seven times in the head.

[21] Mr. Okeke then walked away again and PC Varao got back to his feet, at which point Mr. Okeke returned and renewed the assault. He pushed PC Varao, who stumbled backwards and fell back down. Mr. Okeke then stood over him and appears on the video to be unsuccessfully trying to take the officer’s gun from his utility belt. However, Mr. Okeke then backed off without the gun and PC Varao got back to his feet. A short while later Mr. Okeke turned and walked to the parking lot exit, at which point several more police vehicles arrived and other officers arrested him at gunpoint.

[22] PC Varao was badly hurt, suffering a fractured skull and a number of other injuries. He was hospitalized for several days and spent several months off work experiencing concussion symptoms, but by early September 2020 he had substantially recovered and was able to return to work on modified duties.

d) Mr. Okeke’s evidence about his present mental state

[23] Mr. Okeke’s evidence in his bail hearing testimony and in his bail review application affidavit is that since his arrest in March 2020 he has been receiving psychiatric care at the Central East Correctional Centre and is now taking two different anti-psychotic drugs, Risperidone and Olanzapine. He maintains that this new medication regime has proved effective, and that since around June 2020 the voices in his head have stopped. He pledges that if he is released on bail he will be diligent about continuing to take his medication, stating in his affidavit:

I do not want to return to the mental state I was in in March, and I firmly believe that continued medication compliance will enable me to remain mentally stable.

2) The Justice of the Peace’s bail decision

[24] Mr. Okeke’s bail hearing in the Ontario Court of Justice proceeded before Justice of the Peace T. Rotondi. Since Mr. Okeke is alleged to have committed the March 27, 2020 offences very soon after he was released on bail on the assault charge against his housemate, he bore the onus of justifying his release. The Justice of the Peace heard evidence and submissions on July 28, 2020 and reserved her decision until August 4, 2020, when she provided written reasons that she summarized orally in court.

[25] On the primary ground, the Justice of the Peace concluded that even though Mr. Okeke has no family ties to Canada the risk of his leaving the country to avoid trial could be addressed by other means short of detention, such as by requiring that he surrender his passport. She accordingly found that Mr. Okeke had met his onus on this ground.

[26] However, the Justice of the Peace concluded that Mr. Okeke had not met his onus in relation to the secondary and tertiary grounds. With respect to the secondary ground, she stated:

Without daily and ongoing supervision to ensure that he is taking his medication and does not lose control, as has been alleged on several occasions where he was hearing voices that told him that everyone was against him. This caused unprovoked, violent and dangerous behaviour that put innocent people at great risk.

The plan does not satisfy that there is not a substantial likelihood that he will put the public at risk if released. His past behaviour which resulted in a number of police involvements were results of assaults that also involved striking innocent victims in the head area. With his strength and the tendency to strike in the most vulnerable area of a person’s body puts the public at risk.

He has been taking his medication while in custody under direct supervision. The plan presented does not provide the type of supervision required to ensure he stays on his medication and does not endanger the public.

[27] With respect to the tertiary ground, the Justice of the Peace noted that the four listed factors in s. 515(10)(c)(i) to (iv) of the Code tended to favour detention. She found that the Crown’s case was “strong in the actus reus” insofar as Mr. Okeke’s attack on the officer had been captured on video and he had been arrested at the scene, such that there is no real question about his identity as the assailant. She also considered the charge of attempted murder to be very serious and noted that if convicted Mr. Okeke will face a lengthy term of imprisonment. Finally, the Justice of the Peace found the circumstances surrounding the offence to be “very disturbing”, noting that “[t]he incident was unprovoked and vicious”. In her view, “[t]he mitigating factors of [Mr. Okeke’s] mental health issues may be taken into consideration at the trial”.

3) Analysis

a) The new proposed bail plan

[28] Mr. Okeke’s new proposed bail plan would have him released on a surety bail with one surety, a university friend named Al-Amin Balogun, who is prepared to pledge $5,000, which is approximately half of his savings. Mr. Balogun, who is also from Nigeria, works as an information technology analyst for a medical technology company in Mississauga and shares an apartment in Mississauga with a roommate. He works five days a week from 7:00 a.m. to 5:00 p.m., and is currently working remotely from home because of COVID-19.

[29] Mr. Balogun is prepared to let Mr. Okeke stay with him at his apartment for a short time after his release and to try to help him find nearby accommodations of his own, but is unable to have Mr. Okeke live with him in the long term. In his affidavit, Mr. Balogun states:

I will always know where the Applicant is living. My intention is to see the Applicant in person every day, even after we find him his own place to live. If for some reason I cannot see him in person I will speak with him on the phone.

He states further:

Should he be released under my supervision, I am prepared to monitor the Applicant’s compliance with his medication regime. I am also prepared to assist him in finding mental health supports and treatment in the community, including to assist him in filling his prescriptions, and to find a family doctor and other medical supports.

b) The secondary ground

[30] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. explained (at paras. 86-88):

First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct (“commit a criminal offence”) or an interference with the administration of justice.

Second, in connection with the specified circumstances encompassed by the clause “including any substantial likelihood that the accused will, if released from custody, commit…”, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

[31] In R. v. Syed, 2020 ONSC 2195 at para. 10, Harris J. noted that the secondary ground:

… requires an examination of both the potential frequency of criminal offences and their seriousness. The likely commission of minor offences will not be a major issue on the secondary ground. On the other hand, a lower likelihood of very serious offences against the person will constitute a much more significant impediment to an accused’s release on bail.

Moreover, as I observed in R. v. Aden, 2019 ONSC 2043 at paras. 21:

In any case where the accused is charged with serious offences … there will be obvious concerns about public safety and the protection of the public if he or she is released. However, the relevant question is not whether these concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors. …

[32] In the case at bar, there seems to be a strong link between Mr. Okeke’s mental illness and the likelihood of his committing further violent offences if released on bail. There is no evidence that he had any history of violence before he began experiencing auditory hallucinations in 2018, and as discussed above his prior acts of violence, both in March 2019 and a year later in March 2020, all seem to have occurred during times when he was obviously unwell and displaying clear signs of disordered thinking. While Mr. Okeke’s account of the auditory hallucinations he was experiencing during these periods must necessarily rest on his own evidence, there appears to be substantial independent evidence confirming that he was indeed in a mentally disordered state at these times.

[33] The connection between Mr. Okeke’s mental illness and his risk of future violence cuts both ways in the secondary ground analysis. On the one hand, most bail plans rely to some extent on creating incentives that will induce rational defendants to comply with the terms of their release. Mr. Okeke is less likely to feel the “pull of bail” if he returns to a mentally disordered state that prevents him from rationally weighing the consequences of his actions. Moreover, the evidence in this case indicates that when Mr. Okeke is unwell he experiences “command hallucinations” which, as he put in in his testimony at the bail hearing, “lead to an aggression in me thinking that everyone was against me”.

[34] In short, there is a real concern that Mr. Okeke’s mental illness will motivate him to lash out at people he believes have wronged him, and that in his mentally disordered state he may believe that such violence is justified. Since Mr. Okeke is a very large and powerfully built man who has the physical ability to inflict significant damage, the prospect of his acting violently in the future raises very substantial secondary ground concerns.

[35] I do not agree with Mr. Rieger’s suggestion that linking Mr. Okeke’s mental illness to his potential for future dangerousness impermissibly trades on “the stereotype that individuals who are mentally ill are more likely to be dangerous than others”: R. v. Skyers, 2011 ONSC 3450 at para. 44. While “the mentally ill are not inherently dangerous”[^1] as a group, there is strong evidence that Mr. Okeke’s specific illness has caused him to act violently in the past. The concern that he might do so again in the future is based on this individualized evidence, not on false stereotypes about the dangerousness of mentally ill people in general.

[36] However, the evidence in this case also supports the conclusion that Mr. Okeke is only dangerous when he is unwell, and that addressing the secondary ground concerns in this case is ultimately a matter of adequately managing his mental illness. Mr. Okeke seems to have been receiving effective medical treatment for his illness while he has been in custody. Accordingly, if a bail plan can be crafted that provides reasonable assurance that he will continue to receive effective treatment if he is released, his detention will in my view no longer be necessary for the protection of the public and public safety.

[37] As I see it, there are two distinct concerns that need to be addressed by a release plan. The first is that Mr. Okeke’s mental state will deteriorate because he fails to properly take his current medication, either on purpose or by accident. The second is that his mental state will deteriorate because his current medication regime for some reason stops being effective. This is a real concern, since the evidence indicates that Mr. Okeke’s mental condition and his responses to his medication have not remained stable over time. In particular, the most recent violent incidents in March 2020 seem to have occurred while he was still taking Risperidone, which had apparently controlled Mr. Okeke’s symptoms when it was first prescribed to him in 2018 and early 2019 but seems to have diminished in its effectiveness over time.

[38] When assessing these concerns, I am greatly hampered by the lack of any medical evidence. In particular, I have no good information about how quickly Mr. Okeke’s mental condition is likely to deteriorate if he stops taking his current medication or misses a dose. The lack of information about what happened after Mr. Okeke was apprehended under the Mental Health Act on March 21, 2020 is also a problem. On the record before me, all I know is that by March 24, 2020 Mr. Okeke was no longer being hospitalized. This suggests that his mental condition may have improved while he was hospitalized and then rapidly deteriorated again after his release, but on the evidence before me I can do no more than speculate about what may have happened or how these apparent changes may have been affected by adjustments in his medication.

[39] Moreover, even if I accept Mr. Okeke’s evidence that he “do[es] not want to return to the mental state [he] was in in March”, the record strongly suggests that once Mr. Okeke starts to become unwell he loses the ability to recognize what is happening to him and take appropriate action. It is significant and concerning that in both March 2019 and March 2020 Mr. Okeke did not seek medical treatment when his mental condition seems to have begun to significantly deteriorate. I do not fault him for this, since I think it is likely that his inability to recognize and act on his own symptoms is itself a symptom of his illness. However, it means that I cannot place much weight on Mr. Okeke’s assurance that he is “committed to maintaining [his] mental health and stability if [he is] released from custody.” This is not because I doubt Mr. Okeke’s present sincerity, but simply because I do not think that any assurances he provides while he is well can be counted on to bind him if he again becomes unwell.

[40] In my view, for the proposed surety release plan to adequately address these concerns it would have to provide reasonable assurances both that Mr. Balogun will be able to verify that Mr. Okeke is taking his medication properly, and that he will be in a position to observe the possibly subtle changes in Mr. Okeke’s behaviour and affect that could indicate that his mental condition is starting to deteriorate. Unfortunately, I do not think that the proposed plan would enable Mr. Balogun to discharge either of these responsibilities effectively.

[41] One significant problem with the release proposal is that there is no concrete plan for where Mr. Okeke would actually live or how he will support himself. Mr. Balogun proposes that he will to try to find Mr. Okeke an apartment or temporary AirBnb lodging that is close to his own apartment in Mississauga, with Mr. Okeke’s family in Nigeria apparently “assisting” in paying the rent. Mr. Okeke also testified at the bail hearing that he has “some savings in his account”, and states in his affidavit that he “plan[s] to look for work upon [his] release”, or possibly attend graduate school. However, it is unclear on the record before me how much Mr. Okeke will actually be able to afford to pay in rent, or how he will support himself if he cannot find work quickly, which may be especially difficult for him if the COVID-19 pandemic continues to worsen. Mr. Okeke has provided a letter from the Canadian Mental Health Association indicating that the CMHA will provide some unspecified “support” to Mr. Okeke’s efforts to find housing, but it is not clear what the CMHA will actually be able to do for him, particularly since the letter is from the York Region office and states that if Mr. Okeke chooses to “reside in a different region, appropriate referrals will be made for his support”. Since the proposed bail plan is for Mr. Okeke to reside in Peel Region, it seems that all the CMHA can actually offer him at this point is a promise to refer him to a different office or agency after his release.

[42] For all of these reasons I am not satisfied that the plan to have Mr. Okeke live somewhere near Mr. Balogun will necessarily prove feasible. This may in turn affect Mr. Balogun’s ability to exercise meaningful direct supervision over Mr. Okeke.

[43] More generally, even if suitable accommodation for Mr. Okeke can be found near Mr. Balogun’s own residence, the amount of direct supervision Mr. Balogun will be able to provide will still be very limited. Mr. Balogun works long hours, and while he is now working from home because of the COVID-19 pandemic this may well change before Mr. Okeke’s trial can be held, particularly since the pandemic is likely to result in a backlog of cases in the criminal courts. Mr. Balogun states in his affidavit:

My intention is to see the Applicant in person every day, even after we find him his own place to live. If for some reason I cannot see him in person I will speak with him on the phone.

In my view, even if Mr. Balogun were able to follow through on his plan to see Mr. Okeke on a daily basis – which is questionable – this would not be enough to address the secondary ground concerns in this case. Mr. Okeke is currently taking his medication twice a day, so even if Mr. Balogun sees him daily he will not be able to monitor whether Mr. Okeke is taking his medication properly and on schedule. As noted above, I have no evidence before me about how quickly Mr. Okeke’s mental situation might destabilize if he were to miss even a single dose.

[44] More generally, I am not satisfied that paying daily visits or having telephone calls with Mr. Okeke would allow Mr. Balogun to accurately assess his friend’s mental condition and determine whether his current medication is still effectively controlling his symptoms. While I do not necessarily think that an acceptable bail plan would have to include round-the-clock supervision by a surety, I think that something more than the very limited supervision Mr. Balogun can offer to provide is essential.

[45] The uncertainty about Mr. Okeke’s living situation if he were released on bail also raises other secondary ground concerns. Before his arrest Mr. Okeke was apparently living in a rooming house, and two of the incidents that led to the police being called in March 2020 involved him assaulting or harassing his housemates. If Mr. Okeke’s mental health were to deteriorate again this would potentially put the people living in close proximity to him in danger, and I cannot meaningfully assess the extent of this danger or determine whether it has been reasonably addressed by the bail plan without knowing anything about what Mr. Okeke’s actual living situation will be like.

[46] Mr. Rieger acknowledges these imperfections in the proposed bail plan, but notes that since Mr. Okeke has no family ties to Canada he has few if any other options when it comes to finding a surety. He notes that ss. 493.1 and 493.2(b) of the Criminal Code, which were added in 2019, now provide:

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

[47] I do not think these new provisions substantially change the analysis here. In my view, s. 493.1 simply reiterates the key animating principle of restraint that justices and judges have always been supposed to apply ever since the introduction of the 1972 Bail Reform Act: see R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 at paras. 4, 29; R. v. Zora, 2020 SCC 14 at paras. 6-7, 24-26. In Zora, supra, Martin J. referred to s. 493.1 and noted (at para. 26):

Restraint has a constitutional dimension, a legislative footing, and is not only recognized in case law, but was also recently expressly reinforced by the amendments that came into force on December 18, 2019.

However, s. 493.1 expressly directs justice and judges to apply the principle of restraint “while taking into account the grounds referred to in subsection … 515(10)”. It does not mandate the release of a detainee in a reverse onus situation where there are substantial secondary ground concerns that have not been adequately addressed by the proposed release plan.

[48] Likewise, while I agree that Mr. Okeke’s mental illness brings him within the scope of s. 493.2(b), I do not think that this new provision authorizes me to order his release on a bail plan that I do not think adequately protects the public. As Martin J. discussed in Zora, supra, at paras. 26, 79-80, ss. 493.1 and 493.2 are both directed primarily against “the imposition of excessive and onerous conditions” on disadvantaged persons that “effectively set the accused up to fail”. They do not change the requirements of s. 515(6), which provides that in a reverse onus situation the judicial officer “shall order, despite any provision of this section, that the accused be detained in custody” unless the accused has met his or her onus of justifying his or her release. The unfortunate reality is that even when the principle of restraint is properly applied, some disadvantaged and vulnerable people will still have to be detained because they are unable to present a release plan that adequately addresses the specific s. 515(10) concerns that arise on the facts of their particular cases. In my view, that is the situation here.

c) The tertiary ground

[49] In view of my conclusion that Mr. Okeke has not met his onus of justifying his release under the secondary ground, it is not strictly necessary for me to address the tertiary ground. However, I will comment on one aspect of the Justice of the Peace’s tertiary ground analysis.

[50] In her written reasons, the Justice of the Peace focused her tertiary ground analysis on the listed factors in s. 515(10)(c)(i) to (iv), and commented:

The mitigating factors of [Mr. Okeke’s] mental health issues may be taken into consideration in the trial.

If the Justice of the Peace meant by this that she thought Mr. Okeke’s mental health issues to have no bearing on the tertiary ground analysis, this was an error. The possibility that Mr. Okeke may be able to raise a NCR defence at trial is directly relevant to at least one of the listed statutory factors, namely, “the apparent strength of the prosecution’s case” (s. 515(10)(c)(i)). More generally, it bears on the overarching question of whether “a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice”: R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64 at para. 41. As Wagner J. (as he then was) explained in St-Cloud, supra at para. 79 (emphasis added):

[A] reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. … [A] reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. The person contemplated by s. 515(10)(c) Cr. C. therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility.

Accordingly, the evidence suggesting that Mr. Okeke may have attacked PC Varao because of a delusion caused by his mental disorder is in my view highly germane to a proper tertiary ground analysis.

[51] It is also worth noting that the tertiary ground analysis must also be informed by the conclusions a judicial officer reaches in relation to the secondary ground. As Trotter J. (as he then was) explained in R. v. Dang, 2015 ONSC 4254 at para. 58, the strength of the proposed release plan is a relevant factor in the tertiary ground analysis:

A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).

[52] In the case at bar, I think a reasonable and reasonably well-informed member of the public would view Mr. Okeke’s release on bail very differently if it were clear that he would be under supervision that is likely to ensure that he remains effectively medicated and is therefore unlikely to experience a further mental health breakdown that could cause him to act violently. However, my conclusion that Mr. Okeke’s current proposed bail plan falls short providing this assurance makes it is unnecessary for me to address this point further.

4) Disposition

[53] In the result, Mr. Okeke’s bail review application is dismissed.

The Honourable Justice Dawe

Date: October 22, 2020

[^1]: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 at para. 35.