Court File and Parties

COURT FILE NO.: 20-13475 DATE: 2020/12/17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Michael Kilbride Applicant

Counsel: Giuseppe Cipriano, Federal Crown Shira Brass for the Applicant

HEARD: December 17, 2020

Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.

Endorsement on Detention Review Application

A.E. London-Weinstein J.

Endorsement on Detention Review Application

1Mr. Kilbride is charged with trafficking in 2.6 grams of fentanyl, 6 grams of methamphetamine, 11 pills of hydromorphone and 2.6 grams of cannabis packaged in smaller bags and $690 in cash. A bail hearing was conducted on November 6, 2020 and Mr. Kilbride was detained on the primary and secondary grounds.

2He was arrested after community complaints of trafficking led to a project, known as Project Pusher aimed at arresting traffickers who sell drugs to vulnerable persons. The Crown seeks his detention in this hearing on the primary and secondary grounds.

The General Legal Framework:

The General Legal Framework

3In the last five years the Supreme Court has released three critical decisions dealing with the issue of judicial interim release: R. v. St.-Cloud, 2015 SCC 27, R. v. Antic, 2017 SCC 27 and R. v. Myers, 2019 SCC 18. In each of these decisions, the court has reiterated that justices presiding over bail applications must not lose track of the overriding principle which is that pretrial detention is the exception, while the earliest possible release on the least onerous terms is the default position.

4The presumption in favour of early release on the least onerous terms possible lies in the presumption of innocence as guaranteed by s. 11(d) of the Charter, and the right not to be deprived of reasonable bail without just cause as guaranteed by s. 11(e) of the Charter.

5The presumption of innocence is a cornerstone of our system of criminal justice. Given the importance of this presumption, the Supreme Court has stated that just cause to deny bail will only arise in a narrow set of circumstances and only where necessary to promote the proper functioning of the bail system. See R. v. Pearson, [1992] 2 S.C.R. 665 at para 58 and R. v. Antic at para 40.

6In s. 515(10) of the Criminal Code, Parliament has identified three grounds upon which pretrial detention is justified. The primary ground for denying bail relates to ensuring that accused persons attend court as required and do not abscond. The secondary ground for denying bail relates to protection of the public and the tertiary ground for denying bail relates to maintenance of public confidence in the administration of justice.

7Mr. Kilbride seeks a review of his detention order under s. 525 of the Criminal Code. Unlike a review conducted pursuant to ss520 or 521, this is not a review of any prior judicial order but, rather, a review of the detention itself. The question which the court must answer is whether Mr. Kilbride’s continued detention is necessary within the meaning of s. 515(10) of the Code, that is whether detention remains necessary on the primary, secondary and tertiary grounds. R. v. Myers, 2019 SCC 18 at paras 45 to 47.

Background and Evidence

8Mr. Kilbride had a previous bail hearing and was detained on the primary and secondary grounds. He is an addict and not surprisingly, he has an addict’s record. He has some 78 convictions on his record. He has numerous entries for failing to appear in court and he has prior entries for being unlawfully at large. He has outstanding charges in Nova Scotia. There are some 13 convictions for failing to comply with undertakings and recognizances as well as numerous entries for failing to comply with probation.

9Mr. Gordon Hudson, a manager at the Salvation Army testified in this review. Mr. Hudson has a master’s degree in psychology and has been involved with addictions services for a lengthy period of time. He met with Mr. Kilbride for 40 minutes some weeks ago, and was impressed with Mr. Kilbride’s commitment to begin learning how to live a clean life. He has accepted him into the Anchorage program for drug addiction treatment. The waiting list for this program is lengthy, and it is a residential program. Mr. Kilbride is 47 years old and has never received residential treatment of any kind to deal with his addiction.

10The program is a comprehensive one with three stages aimed at stabilizing the individual, teaching the individual how to deal with the underlying issues related to addiction, including trauma, and finally, equipping the individual with the skills which will be required to live a clean life in the community, including relapse prevention. This Anchorage program is the only one of its type which accepts persons who are arriving from jail while on bail and awaiting trial of their charges.

11The third, or transitional stage can take up to a year in length.

12No cell phones are permitted while in the program, participation in the individual classes is mandatory and abstinence is required. Mr. Hudson testified that he has access to an online portal where he reports to the police if an individual breaches any of the Anchorage conditions. He testified that he has no hesitation in breaching an individual, and in fact it is necessary to do so in order to protect the integrity of the reputation of his program. He testified that he had to report breaches to police on three occasions last week after a room search. I accepted his evidence on this issue. I found Mr. Hudson to be a credible witness who was frank about the success rate of his program and the strictness with which residents are monitored in order that the program can continue to enjoy success. Mr. Hudson was of the view, based on his 40 minute interview with Mr. Kilbride, that Mr. Kilbride has reached a point in his life where he is serious about his recovery. Candidly, Mr. Hudson admitted that he has been deceived in the past by persons who said they were willing to embrace recovery, but despite these exceptions, in my view, his years of experience in recovery work give him an advantage in making these types of assessments. I accepted his assessment of Mr. Kilbride’s willingness to embrace recovery.

13The facility is in the same geographic area where Mr. Kilbride is alleged to have been trafficking in narcotics. However, the facility where he is residing has cameras, the area is monitored and individuals who are residing at Anchorage are not permitted to linger in the front of the building or to interact with those who may be residents of the shelter. Mr. Hudson was aware that Mr. Kilbride is alleged to have trafficked narcotics in the area where Anchorage is located. Knowing this fact did not discourage him from receiving Mr. Kilbride as a resident, given the number of searches conducted, the cameras which are monitored 24 hours a day and seven days a week.

14Security checks are routine, as are room searches. In accommodation to the COVID-19 pandemic the facility is at half capacity and has 8 beds in use, as opposed to the usual 16. Staff and residents wear masks while not in their rooms. Daily temperature checks are conducted.

15Mr. Kilbride under the plan of release will be assigned a Canadian Mental Health worker to assist him as a support to his recovery at the Salvation Army, and going forward when he completes his recovery program. Mr. Kilbride suffers from depression. He has been prescribed suboxone.

Primary Ground Concerns

16In regard to the primary ground concerns, the existence of COVID-19 has ironically, diminished the risk that Mr. Kilbride will not return to court for his court appearances. Anchorage has a program, in conjunction with Legal Aid Ontario, Ottawa, which permits him to attend court remotely on his appearance dates. The CMHA worker, and his counsellors at Anchorage are also able to assist him in learning how to keep track of his court dates. I find it a reasonable inference for me to conclude that being sober will also increase his success in remembering his court dates and attending court, remotely at this time, and in person eventually, if the COVID-19 vaccine inoculation program unfolds as promised. I also consider it relevant that Mr. Kilbride has Ms. Brass assisting him with his case. Ms. Brass will keep in touch with Mr. Kilbride and communicate any court dates to him once a designation has been signed. It is apparent to me that Ms. Brass put a lot of planning and thought into arranging a bail plan for Mr. Kilbride which would address the primary and secondary ground concerns and I am satisfied that the support at Anchorage, being sober, and having diligent counsel offset any primary ground concerns which exist.

Secondary Ground Concerns

17In regard to the secondary grounds, I am satisfied on a balance of probabilities that there is not a substantial likelihood that Mr. Kilbride will commit additional criminal offences while released on bail. There are several reasons underlying my conclusion in this regard.

18I recognize that a drug addiction as longstanding as Mr. Kilbride is formidable. In fact, when one thinks of the struggles which will face Mr. Kilbride as he tries to navigate the world sober, after years of relying on chemicals to escape the pain of his reality, one cannot help but think that the task is so daunting that chances of success given his age and the length of his addiction are slim. And yet, as evidenced through the evidence of Mr. Hudson, even those who have longstanding drug issues do recover and go on to lead drug free lives.

19I rely on Mr. Hudson’s experienced assessment of Mr. Kilbride’s willingness to do what is necessary to recover. This evidence was presented second hand through Mr. Hudson, but I found it to be credible and trustworthy, although it is hearsay and I admitted it. In this regard, I have information regarding the willingness of Mr. Kilbride to participate in recovery, which the original bail judge found she did not have.

20The appraisal of the substantial likelihood of reoffence, and the related issue of the protection of the public requires that I consider a number of factors including the nature of the offence, the criminal record of the accused, and whether the accused was already on bail or probation at the time of the alleged offence. See R. v. Vairavanthan, [2006] O.J. No. 3053 (SCJ).

21Mr. Kilbride has a lengthy record, it is as I described reflective of his drug addiction. He has never previously received treatment. He is charged with hand to hand street level trafficking in a highly dangerous substance, that being Fentanyl. Even in the small amounts which Mr. Kilbride possessed of Fentanyl, the toxicity of that drug and the resultant danger it poses to the vulnerable in the community cannot be overstated. I accept that during the pandemic that deaths due to opioid overdoses have risen dramatically.

22However, I am satisfied that the root of Mr. Kilbride’s criminality lies in his addiction. While he has been directed in the past to take counselling as directed by his probation officer, he has never had residential treatment. No plan is perfect, and there is a risk that Mr. Kilbride may relapse while at Anchorage. As Mr. Hudson said, relapse is part of recovery and even people who are not newly sober like Mr. Kilbride, but those who have been sober for 20 years can slip. From a public safety perspective this is worrying. However, in assessing Mr. Kilbride’s risk to the community, he has the greatest chance of success in dealing with his addiction if he is able to avail himself of this residential program. In his case, recovery will enhance the safety of the public. And given the strengths of this particular program, and the safeguards in place to detect and report deviations from the strict rules of compliance I am satisfied that the secondary ground concerns are mitigated to a degree that I am satisfied on a balance of probabilities that the risk that Mr. Kilbride will commit additional criminal offences is a risk that is less than a substantial likelihood.

Conclusion

23In conclusion, I am satisfied that the primary and secondary ground concerns are met in this case. I did not rule on the tertiary ground issues. If I had to do so, I would conclude that the tertiary grounds favour release. The crown’s case appears strong, but it also appears as though there may be Charter issues with the case, including a delay in Mr. Kilbride being able to contact counsel, and a strip search. Those issues are for the trial judge. The offence is serious, although it is not the most serious of drug trafficking cases. It is not, for example a high level sophisticated trafficking scheme. Mr. Kilbride is alleged to have been a street level dealer. The circumstances surrounding the offence including whether a firearm was used. Mr. Kilbride is alleged to have preyed on others who are as vulnerable as he is, fellow addicts in the market area. This is not to his credit. And he is liable to a lengthy period of incarceration. However, I am concerned that Mr. Kilbride suffers from asthma and we are in the second wave of the COVID-19 pandemic. I am not being in any way critical of the OCDC, but I subscribe to the view that physical distancing and frequent handwashing which are protection against COVID-19 are not as readily available in the jail as they will be, for example, when Mr. Kilbride attends at Anchorage. Given my concerns about a poor outcome for Mr. Kilbride if he were to contract the virus, given his asthma, in my view this factor favours release. I note that the four listed factors in s. 515(10)(c) are not exhaustive, and in my view COVID-19 in this case is highly relevant to the balancing required. A reasonable member of the public, not a legal expert, would not lose confidence in the administration of justice due to his release to Anchorage. I note the comments of Justice Harvison Young in R. v. Kazman, 2020 ONCA 251 where she said at para 18: As the public authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.