Court File and Parties

COURT FILE NO.: CR-20-7939

DATE: 20201102

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. R.A.

BEFORE: The Honourable Mr. Justice M. McKelvey

COUNSEL: Michelle Rumble, Counsel for the Crown/Respondent

Marcus Bornfreund, Counsel for the Defendant/Applicant

HEARD: October 15 and 16, 2020

RESTRICTION ON PUBLICATION

Pursuant to s. 517(1) of the Criminal Code no information given or representations made to the court or the reasons contained in this Ruling shall be published in any document, or broadcast or transmitted in any way before such time as the trial in this matter has concluded. For clarification, counsel are permitted to circulate this Ruling to other counsel for use in court. Publication and quotation of general principles from the case is permitted.

ENDORSEMENT RE: BAIL REVIEW APPLICATION

Introduction

[1] The accused has brought an application for a review of her detention order which was imposed on August 14, 2020. The basis for the application is that the accused asserts there has been a material change in circumstances since the bail hearing.

[2] The terms of the proposed release submitted by the applicant are as follows:

a) Reside with a surety and abide by the rules and discipline of the household;

b) Remain in residence at all times except for personal medical emergencies which require an ambulance or unless in the direct and continuous presence of a surety;

c) Do not contact or communicate directly or indirectly with a number of specified individuals;

d) Do not possess any controlled drugs or substances except pursuant to a valid prescription from a physician;

e) Do not possess any weapons as defined by the Criminal Code of Canada; and

f) Do not possess or apply for any firearms acquisition certificate and/or firearms license.

[3] For the reasons which follow I have concluded that the application should be dismissed.

Background

[4] This bail review arises out of charges which relate to two alleged home invasions. The first incident is alleged to have occurred on April 30, 2020 at approximately 5:00 a.m. The Crown asserts that at this time a group of suspects entered a home in Stouffville and proceeded to the bedroom where a couple was sleeping. The suspects assaulted the male adult while demanding money. They then rounded up all family members, including the husband and wife, their sixteen year old and twelve year old daughters, and their two year old son. The suspects subsequently loaded the entire family into a white van and drove them to another residence in Richmond Hill. The wife alleges that in the Richmond Hill residence she was struck in the head by what she believed to be a firearm. The family was later escorted out of the residence into a white van. The family was then taken to a church parking lot where they were dropped off.

[5] The second invasion is alleged to have occurred on June 10, 2020, in the late evening. The allegations again involve robbery and the use of firearms.

[6] With respect to the April 30,2020 incident, the accused faces four charges which include robbery with a firearm, kidnapping and conspiracy. With respect to the June 20, 2020 incident, the accused is charged with two counts including using a firearm to rob the victim and conspiracy to commit the indictable offence of robbery with a firearm by agreeing to break into a residence.

[7] Counsel for the accused on this application acknowledges that for purposes of the application, the Crown’s case against the accused is a strong one. I agree with that assessment. The accused was represented by another counsel at the original bail hearing. At that time her counsel in making submissions to the court stated,

The evidence that has been put before this court by video and by my friend’s synopsis…is very troubling. I think that’s the – the terminology I would use, very troubling, and at first blush without explanation would seem to be somewhat overwhelming.

[8] With respect to the April 30, 2020 incident, the Crown’s evidence is that the accused had rented two vehicles which matched the description of the vehicles linked to the kidnapping. There is also evidence that the location where the victims were taken was rented by the accused as an Airbnb.

[9] With respect to the June 10, 2020 incident, the accused was seen leaving her residence at around 8:40 p.m. Security video in the area of the home invasion shows what looks like the accused’s vehicle travelling towards the home where the invasion took place at around 11:00 p.m. The home invasion is alleged to have started at 11:23 p.m. At 12:07 a.m., the accused’s vehicle returns to her building and the accused is seen with a number of others carrying a blue bin that looks similar to the bin that was seen being removed from the site of the home invasion.

[10] Then on July 15, 2020, the same day the accused was arrested, a search warrant was executed at her residence and there were items found in her residence which included plastic zip ties, duct tape, two-way radios and a collapsible baton. The police also found a plastic tote that matches one that was seen at the location of the home invasion. Thus, while the case against the accused is largely circumstantial, I agree that the evidence against the accused is compelling.

The Position of the Parties

[11] The accused does not take issue with the decision rendered by the judge on the original application. In submissions, the accused, through her counsel, acknowledged that the original plan for release was not a good plan. The accused bases the current application on a material change in circumstances. The material changes alleged are as follows:

1. The accused maintains that the current plan of release addresses the shortcomings in the original plan. In this regard the accused suggests that the revised plan which contemplates house arrest and two sureties will ensure compliance with the terms of any release.

2. The accused submits that there has been a two month delay in getting medical assistance for proposed surgery on her breasts. The accused was originally scheduled to have the breast surgery performed on August 20, 2020, but this had to be postponed because of her detention in custody.

[12] There is no basis to detain the accused on the primary ground. This was conceded by the Crown on both the initial application and on this review. The accused argues that with the proposed terms of release, there is no basis to detain her on either the secondary or tertiary grounds.

[13] It is acknowledged that the nature of the charges faced by the accused give rise to a reverse onus. The reverse onus is based on the charge of robbery using a firearm as provided for in s. 515(6)(vii) of the Criminal Code, as well as the fact that she is alleged to be a party to an offence involving a firearm and was subject to a firearms prohibition as provided for in s. 515(6)(vii) of the Criminal Code.

[14] Thus, the onus is on the accused to show cause why her detention in custody is not justified.

[15] The Crown’s position is that there has been no material change in circumstances and for this reason alone, the Crown submits that the application should be dismissed. In the alternative, the Crown argues that the accused’s detention is justified on the secondary and tertiary grounds.

Has there been a material change in circumstances?

[16] The decision of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, makes it clear that the provisions of s. 521 of the Criminal Code which provides for a bail review do not confer on the reviewing judge an open ended power to review the initial order respecting the detention or release of the accused. At para. 121 of the decision, the court in St-Cloud notes that it will be appropriate to intervene in the following situations: (a) if the justice has erred in law; (b) where the impugned decision was clearly inappropriate; or (c) where admissible new evidence is submitted by the accused or the prosecutor and that evidence shows a material and relevant change in the circumstances of the case.

[17] In considering what new evidence is permissible, the court adopts with some modification the test set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), where the following criteria were established: (a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (c) the evidence must be credible in the sense that it is reasonably capable of belief; and (d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[18] With respect to the due diligence issue, the Supreme Court in St-Cloud notes that this requirement should not be applied as strictly in criminal matters as in civil matters. The Court states at para. 132,

I am therefore of the opinion that a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion from Palmer must be understood in the context of the review provided for in ss. 520 and 521 Cr. C. The nature of the release system and the risks associated with it demand no less.

[19] In the St-Cloud decision, the Supreme Court ruled that if the new evidence met the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) of the Criminal Code as if he or she were the initial decision maker.

[20] In the present case, the accused argues that there has been a material change in circumstances. He argues first that two new proposed sureties provide an enhanced level of supervision to ensure that a house arrest model of bail will be successful. The two new proposed sureties are Mr. K.P. and Ms. N.P. K.P. is the father of two children aged thirteen and eighteen, where the accused is the mother. The accused and K.P. lived together between approximately 2001 and 2009. Ms. N.P. is the mother of K.P. Together the two sureties have agreed to ensure that the accused is supervised on a 24/7 basis.

[21] There is good reason to question whether the substitution of the two new sureties constitutes admissible new evidence. In the cross-examination of K.P., he gave evidence that prior to the original bail hearing he spoke with the accused and volunteered to be a surety. This offer was not acted on. Ms. N.P. did not specifically volunteer to be a surety, but stated in her evidence that she would have agreed to be a surety at the original bail hearing if a request had been made. She was also in attendance at the original bail hearing.

[22] When questioned as to why these two individuals had not been proposed as sureties on the original bail hearing, the accused’s counsel was not in a position to give any explanation. He was not counsel at the original bail hearing. There was nothing in the evidence of any of the witnesses which would explain the failure to put forward these individuals as potential sureties at the initial bail hearing.

[23] The explanation for this current bail review application is found in the reasons of the justice who presided at the original hearing. Both the current application and the one before the original bail justice contemplated house arrest with constant supervision. However, the evidence on the initial application fell short of satisfying the court that the supervision could be effective. In his decision, the original bail justice stated as follows:

Now looking at all of these factors as a whole, considering that this is a reverse onus, I have talked about the secondary ground concerns given her history, I have talked about the tertiary ground concern. In my view, the plan that has been proposed does not meet the onus that the defence has in this case. I would have perhaps found favour with a bail proposal that is house arrest, 24 hour supervision, where she is with somebody who I am confident can be with her, and despite Mr. H.’s best intentions, it is my view that the reality is that he cannot be with her 24/7. He is her contemporary. It is not like he is a parent or someone who would have that kind of moral authority over her. He is a friend who is trying to do her a favour. I am not confident that there would be the level of supervision that I think would be necessary given the seriousness of this offence, the strength of the Crown’s case, the fact that it is a reverse onus. Unfortunately, Ms. A. has not met her onus here and she is going to be detained.

[24] The new sureties who have been proposed on this application were certainly available to be put forward on the initial bail application. Given the lack of an explanation for not putting these individuals forward initially, the argument in favour of admitting this fresh evidence is weak. Nevertheless, I have taken into account that the decision of the original bail judge suggested that had a plan with better evidence of supervision been presented he might have been more inclined to have found favour with a house arrest bail proposal. His reasons would reasonably be considered an invitation to submit a revised plan with enhanced supervision. I am also mindful of the need for some flexibility in considering the Palmer criteria for the admission of new evidence.

[25] The Ontario Court of Appeal recently dealt with an application seeking an order for review of an order which dismissed the accused’s application for bail pending a re-trial. In his decision in R. v. Jaser, 2020 ONCA 606, Doherty J.A. comments that the Supreme Court of Canada decision in St-Cloud adopts a, “flexible, more receptive approach to fresh evidence on bail reviews under s. 520 and s. 521”. He also notes that this approach, “reflects the inherently interim nature of bail decisions and accommodates Charter principles underlining the presumption of innocence and access to reasonable bail”.

[26] In R. v. Aden, 2019 ONSC 2043, [2019] O.J. No. 2439, Justice Dawe made the following comments in concluding that the test for admitting new evidence was met by the accused. He stated,

Finally, there is no suggestion in this case that the Applicant or his counsel made a deliberate tactical choice not to propose the Applicant’s mother as a surety at the initial bail hearing “to drag out the application for release” or in order to “engage in judge shopping” (St-Cloud, supra at para. 134). To the contrary, I am satisfied that his counsel was acting in good faith. He was faced with a difficult situation in which his client’s bail hearing had already been delayed for several days and where waiting for an interpreter would almost certainly result in further delay. In these circumstances, it would in my view be contrary to the spirit of St-Cloud for me to bar the Applicant from putting forward an improved release plan on his bail review application, particularly since – as discussed further below – the improvements in the plan are directly responsive to the specific concerns that led the Justice of the Peace to order the Applicant’s detention.

[27] While the circumstances in the case before me do not provide a compelling argument to admit new evidence I am satisfied that this application has been brought in good faith and in the context of a situation where it would be reasonable for the accused to believe that a revised plan justified a further consideration of her pre-trial detention. As in Aden, I have concluded that it would be contrary to the spirit of the St-Cloud and Jaser decisions to bar the applicant from putting forward an improved release plan on this bail review application where it addresses improvements which were specifically suggested by the judge at the time of the original bail hearing.

[28] As there would not appear to be any issue about the three remaining factors under Palmer, I find that the criteria for admission of new evidence have been satisfied in this case. As the new evidence meets the criteria for admissibility, I, as the reviewing judge am authorized the repeat the analysis under s. 515(10) of the Criminal Code as if I were the original decision maker and determine if the continued detention of the accused is justified.

Should bail be granted?

The secondary ground:

[29] Section 515(10)(b) of the Criminal Code provides that pre-trial detention will be justified when it is:

necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[30] It is the applicant’s burden on this application to show that her detention is not necessary on this basis.

[31] In the Aden decision the court referred to the decision of the Ontario Court of Appeal in R. v. Manasseri, 2017 ONCA 226, where 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.

[32] In the Aden case, Justice Dawe goes on to comment,

In any case where the accused is charged with serious offences, particularly offences involving firearms, 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.

[33] In the present case the proposed release contemplates that the accused will live with Mr. K.P. in his condo. Mr. K.P.’s mother will live separately in her own home but will be available as backup and will be in touch with her son on a daily basis. Mr. K.P. is currently unemployed and is not contemplating new employment in the future because of the pandemic. In his evidence at the bail review hearing, Mr. K.P. stated that he would take his role very seriously and would ensure that all terms of a bail were complied with. In cross-examination, however, he acknowledged that he does have responsibilities to the children. This involves taking the younger son to school and picking him up as well as getting groceries. He also drives the kids to their medical appointments and does other household chores.

[34] Mr. K.P.’s mother is a former bank manager for CIBC and also testified that she would act as a backup if necessary. She would not be living in the same premises as her son and the accused. She is prepared to pledge $50,000 as a surety. She stated that she had volunteered to act as a surety because the grandchildren have told her how much they miss their mother. To some extent Ms. N.P. seemed to have an unrealistic view of the accused. She initially described her as a “good person”. She was not aware of the accused’s previous convictions which later led her to acknowledge that she does have some concerns about the accused. That is why she wants the court to set some very strict conditions. In cross-examination when referred to some of the accused’s past convictions, Ms. N.P. testified that these cause her some concern about the defendant’s willingness to obey her.

[35] In some respects, Ms. N.P. did not appear to have a terribly close relationship with her son. She did not know, for example, if her son worked and stated that she has never asked.

[36] There is also a history of some friction between her and her son. In February of 2019, Ms. N.P. called police to her home. There apparently was an incident where her son was banging on the front door demanding to be let in. He was also honking the horn of his car in front of her house. This was all in response to her refusal to go and see a building her son wanted her to see. He was seeking his mother’s financial assistance in setting up a business. She agreed in cross-examination that her son had acted immaturely on this particular occasion.

[37] Also in cross-examination, Ms. N.P. acknowledged that she may not be able to prevent the accused from breaking the terms of her bail, but was quite firm in stating that if she became aware of anything she would not hesitate to call the police. When questioned as to how she would feel if the accused broke her terms of bail and she was called upon to honour her pledge of $50,000, she compared it to an investment in a stock which on occasion will go down.

[38] A very serious issue in this case is the accused’s criminal record. It is lengthy and concerning. It dates back to 2003 and runs until 2017. She has been convicted of numerous criminal charges. Many of these involve crimes of dishonesty. For example, in January of 2007, the accused was arrested for fraud and was brought to the police station. At the time of her arrest, the accused was in possession of various pieces of personal identification in the name of her sister. She claimed to be the person on the identification papers. On the following day she attended bail court and was released on a recognizance with conditions. The name on the recognizance was her sister’s name as the accused continued to claim this as her name.

[39] Her past convictions are spread over a lengthy time period. There were convictions for multiple offences in 2003, 2005, 2006, 2007, 2012, 2014 and 2017.

[40] Along with crimes of dishonesty, there are also convictions for assault with intent to resist arrest, obstructing a police officer, possession of property obtained by crime and trafficking in cocaine. There are also numerous occasions when she was convicted of failing to comply with court orders. In 2007 she was convicted of failing to comply with a probation order. In 2012 she was convicted on two separate occasions of failing to comply with a recognizance. She was also convicted in 2017 of failing to comply with a recognizance.

[41] It is significant that two of the bail breaches occurred when the accused was under house arrest conditions. It is also significant that on at least two occasions the accused has been found guilty of offences while on bail. The judge at the original bail hearing summarized the accused’s record of breaching bail as follows:

Ms. A. has a record, and she has a history of breaches. She most recently had a breach in 2017 when she was on a pretty serious charge. I do not know exactly what was read in at her guilty plea. I understand she pled guilty to that offence, but the fact is she breached her bail one way or the other. If it was only that, it would be one thing, but she has other breaches. She has a fail to comply in 2012, which is quite a long time ago, but nonetheless, it shows this history of non compliance with court orders. There is a second fail to comply in 2012 and there is also impersonation in 2005, which is quite a long time ago as well, but there is a demonstrated practice of not complying with bails, and there is also a fail to comply with probation in 2007. So all of those do not bode well for Ms. A.

[42] While the evidence of the two proposed sureties does provide an enhanced plan for supervision, this does not satisfy me that the accused has satisfied her onus on the secondary ground. Having suitable sureties is only part of the consideration for this Court. The other part is whether the person being released on bail is willing to comply with the conditions. In her evidence at the review hearing, the accused testified that the seriousness of the charges and the authority of the proposed sureties as well as her current medical condition and the current COVID-19 pandemic, together with the time she has been detained would motivate her to strictly adhere to a recognizance of bail. However, in my view the accused’s past history is a more reliable indicator of the risks associated with her release. These were extensively canvassed in her cross-examination by the Crown. In her evidence she made reference to an arrest in September of 2016 on charges of kidnapping and forceable confinement. She was released on a bail with house arrest conditions but acknowledged that she did not obey those bail conditions which led to her conviction in 2017 for failure to comply with a recognizance. Even one of the proposed sureties, Ms. N.P., acknowledged some concern about whether Ms. A would follow the terms of her probation and emphasized in her evidence that she would have no hesitation in contacting police in this situation. In R. v. Ibrahim, 2020 ONSC 2241, Justice Bird dealt with a similar situation. At para. 48 she comments,

The question is whether his proposed plan of release can adequately address those concerns. Despite the admirable intentions of Mr. Ibrahim’s mother and sister and their genuine commitment to make their best efforts to supervise him, I am not satisfied that they can effectively do so. The problem lies not with the proposed sureties but rather with Mr. Ibrahim.

I have reached the same conclusion in this case.

[43] During the course of the evidence on the bail review, Ms. N.P. advised that she was prepared to pay for electronic monitoring of the accused if the court felt that this would be a necessary requirement for bail. There was, however, no evidence presented on the review as to the type of electronic monitoring which would be available. I agree with the Crown’s position that electronic monitoring should not be taken into account in this case in the absence of any evidence as to the type of monitoring which is proposed, together with the details of how it would work and without any ability for the Crown to explore potential weaknesses in the system through cross-examination.

[44] This leaves the issue of the accused’s medical condition. In her supporting affidavit, the accused states that she requires capsulectomy surgery to address capsular contracture in the bilateral breasts resulting in severe pain and deformity. The evidence on the original bail indicates that the accused was scheduled to undergo remedial surgery on August 20, 2020. However, this surgery could not proceed in light of her arrest and detention.

[45] In his ruling, the judge at the original bail hearing commented on the medical issue as follows:

I also have to deal with Ms. A.’s medical condition. It is certainly not the best situation to be in if you find yourself in custody. She has problems that she needs a medical procedure for, and, look, the final word from Dr. M. is, he says that it is not urgent, and the other official from the institution says that she will get the help that she needs. Now it is a bit sanguine to hold those views. I think the reality is, that if you are in custody there are so many steps that need to be taken to get your medical conditions looked at, that is almost never as good as if you are out looking after it yourself, unless you are living on the street or something and you are always intoxicated and you cannot help yourself anyway. So I am not going to be naïve and say that she will get exactly the same care and attention that she would get if she was on her own out in the community, but the institutions have an obligation to take care of the medical concerns of their inmates, and it appears that the word is that they will do that. So I have considered that concern.

[46] Ms. Judy Santos gave evidence at the review hearing. She is the Deputy Superintendent of Programs at the Central East Correctional Centre. Her responsibilities include the provision of health care, although she is not directly involved in the provision of care to inmates at the institution. Ms. Santos testified that the Central East Correctional Centre has made a request for a medical appointment with the accused’s physician. She understood the request for an appointment was in connection with a consultation for surgery. Ms. Santos did not have details of the inmate’s condition nor the nature of the surgery contemplated as this information is protected by patient confidentiality within the institution. However, she did testify that her department would facilitate taking the accused to any medical appointments or to hospital if she needs surgery. Following surgery, she would arrange for a transfer of the accused to another detention facility if infirmary care is required. There is no infirmary unit at the Central East Correctional Centre.

[47] On cross-examination, Ms. Santos acknowledged that she did not know precisely when the request for a medial appointment had been made to the accused’s physician. However, taking into account all of the difficulties caused by the COVID-19 pandemic, I am not satisfied that the additional delay which has occurred since the original bail hearing has been caused by lack of due diligence by the institution. The timing of the institutions request would have been available to the accused by means of an inquiry with her attending surgeon. This is significant in my view because she bears the onus on this application.

[48] For the above reasons, I have concluded that the accused has failed to meet her onus of establishing that her detention is not justified under the secondary ground.

Has the accused met her onus on the tertiary ground?

[49] Section 515(10)(c) of the Criminal Code provides that an accused may be detained prior to trial when doing so:

…is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecutions case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment, or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[50] In a reverse onus situation the defendant bears the burden of establishing that her detention is not necessary on this basis.

[51] In considering the tertiary ground, the justice at the original bail hearing commented as follows:

The tertiary ground in this case is of concern, as I have said, and Ms. Rumble went through the factors that I have to consider in determining whether detention is necessary on the tertiary ground, and of course it has to do with our confidence in the administration of justice, having regard to all of the circumstances that present themselves. In looking at the factors, I have already talked about the strength of the Crown’s case, it is strong case, that is pretty clear. I have already talked about the gravity of the offences, very serious offences. The circumstances surrounding the commission of the offences, there were firearms used in these allegations, and there is ultimately a firearm recovered during the investigation. Now of course the evidence is not as strong that Ms. A. was actually in the residences when the home invasions took place, but it is clear, based on the allegations and the inferences that the Crown is going to ask the court to draw ultimately, that Ms. A., based on the allegations, was involved in the planning and execution of these robberies. And the final factor, whether there is a lengthy period of imprisonment involved, and whether if there is a firearm involved, there is a minimum punishment of imprisonment for a term of three years or more, which there is here. So the tertiary ground factors are all present in this case.

[52] I agree with the above analysis of the tertiary ground factors. The circumstances of the offences are extremely serious and include the alleged kidnapping and confinement of an entire family including three children at gun point. The evidence of the accused participation is circumstantial, but very strong. The circumstances of the charges involve the use of firearms and if convicted the Criminal Code provides for a sentence of up to life imprisonment.

[53] Some authorities have suggested that in considering the tertiary ground a court may consider the strength of the release plan as a relevant factor. This raises an issue about a significant overlap with the secondary ground. In the presence of a strong release plan the question which arises is how much weight should be given to a strong release plan and under what circumstances would detention be justified where the criteria under the secondary ground have been satisfied. In this case I do not have to address this issue given the concerns identified under the secondary ground.

[54] I have concluded that in light of all the circumstances that a reasonably well informed member of the public would not understand why the applicant should not remain in custody pending trial. The tertiary ground is therefore, in my view, also satisfied.

[55] For these reasons the accused’s application for bail review in this case is dismissed.

Justice M. McKelvey

Date: November 2, 2020