Court File and Parties

COURT FILE NO.: CR-20-00000379-00BR DATE: 20210108 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. H.K.

BEFORE: MICHAEL G. QUIGLEY J.

COUNSEL: Susannah Chung-Alvares, for the Defendant/Applicant Darren Hogan, for the Crown/Respondent

HEARD: December 20, 2020, via Teleconference Hearing

Endorsement

[1] On this application for detention review the applicant, H.K. (HK), seeks an order granting his release from custody pending his trial. This is the third time the detention of this applicant has been before the courts, the second time for review. I heard this application via a virtual teleconference hearing.

[2] At the conclusion of argument, I dismissed the application based on my finding that there was no material change in circumstances which would permit me to review the earlier decision of Monahan J. I gave brief reasons at the time, and advised I would more fully explain my reasons as soon as I was able to. These are my further reasons, and should be read together with the oral reasons delivered on December 20.

[3] HK and a co-accused, M.A.H., were arrested on August 10, 2019, at which time HK was charged with various firearms-related offences as well as breach of a court order. On October 9, 2019 after conducting a two-day bail hearing, Mulligan J. ordered that HK be detained. The applicant first sought a review of that detention order pursuant to s. 520 of the Criminal Code in May of 2020, nine months after the initial bail hearing.

[4] That detention review hearing, like this one, proceeded by audio conference due to the COVID-19 pandemic. On both hearings, HK participated from the Toronto South Detention Centre (“Toronto South”), where he is currently being held.

[5] On the initial review before Monahan J. heard on May 14 and 20, 2020, HK did not allege that Mulligan J. made any error in law or that her decision was “clearly inappropriate.” Instead, he argued that he should be released given three alleged material changes in circumstance at that time: (i) risk of harm given the onset of COVID-19; (ii) reduced privileges in custody; and (iii) the adjournment of his preliminary hearing that had been scheduled for April 2020. Monahan J. dismissed that detention review on May 27, 2020.

[6] On that review, like this one, the onus was on the Crown to show why HK’s continued detention in custody was justified, in accordance with s. 515(10) of the Code. The Crown’s position on that review, as it was on this review, is that there has been no material change in circumstances since the original detention order and that, even on a de novo analysis, given the nature of the offences involving the possession of loaded illegal firearms in a public place in Toronto, HK’s continued detention is warranted on both the secondary and tertiary grounds in s. 515(10).

[7] With the emergence of the COVID-19 pandemic between the time of Mulligan J.’s original bail hearing and May of this year when HK brought the first review, consistent with innumerable decisions in this province and others, Monahan J. found that the COVID-19 pandemic itself constituted a material change which required a fresh consideration of whether HK’s detention was justified.

[8] Justice Monahan considered the secondary ground, and whether there was a substantial likelihood that HK would commit further criminal offences if released. He found that the secondary ground concerns identified by the Crown could be addressed by an appropriate plan of release (My emphasis). However, consistent with Mulligan J.’s conclusion at the original bail hearing, Monahan J. found that HK’s father, I.K., continued to be completely unsuitable as a surety. As such, in the absence of an appropriate surety or plan of release that would adequately address the risk of HK reoffending, His Honour plainly felt he had no alternative other than to detain HK on the secondary ground.

[9] As for the tertiary ground, Monahan J. found that HK had a pre-existing medical condition that placed him at an increased risk if he were to contract COVID-19. Yet, in the absence of a suitable plan of release, he concluded that the public would be rightly concerned over the risk to public safety posed by HK’s release. On the record before him at that time, six months ago, Monahan J. found that HK’s continued detention was necessary to maintain public confidence in the administration of justice.

[10] On this detention review, brought six months after the last one, again HK claims there have been material changes in circumstance: (i) he is now proposing electronic monitoring as part of his plan; (ii) he has now been in custody for nearly 16 months; (iii) he faces significant delay as his preliminary hearing was rescheduled on account of the COVID-19 pandemic, for February 2021, 18 months after his arrest date; and (iv) the number of positive COVID-19 cases is rising in Ontario.

[11] Crown counsel again asserts that there has been no material change in circumstances since Monahan J.’s May 27 decision, and that even if there were, the circumstances of this case continue to favour detention on both the secondary and the tertiary grounds.

[12] In R. v. St.-Cloud, 2015 SCC 27, Wagner J. (as he then was) of the Supreme Court of Canada held there are three circumstances where it is appropriate for a higher court to exercise its discretion to review a lower court’s order respecting the detention or release of an accused: (i) where the lower court has erred in law; (ii) where the lower court’s decision was clearly inappropriate; and/or, (iii) where new evidence is submitted to show a material and relevant change in the circumstances of the case. The applicant here does not allege an error in law or that the previous decisions were clearly inappropriate.

[13] The Courts in R. v. St.-Cloud and Palmer v. The Queen laid out various criteria that must be met in order to meet the definition of “new evidence” admissible to establish a material change in circumstances. These include: (i) due diligence; (ii) relevance; (iii) credibility; and (iv) that the new evidence could reasonably have affected the result of the bail hearing.

[14] The Court in St.-Cloud confirmed that the reviewing court does not have open-ended discretion to vary the initial decision made by the Bail Justice or by a Justice on a subsequent review. The reviewing Justice must first determine if it is appropriate to exercise his or her powers of review. The Crown disputes that any of the four factors listed above constitutes a material change in circumstance relevant to the basis for which the applicant’s detention was upheld by Monahan J., and which would provide this court with jurisdiction to now review that order.

[15] I accept there is conflicting case law on the question, but I find that the proposal to now include electronic monitoring as part of the most recent plan, having not proposed this, not only as part of the initial bail hearing nor the first bail review, runs afoul of the criteria in R. v. St.-Cloud and R. v. Palmer addressing what “new evidence” will be capable of establishing a material change in circumstances.

[16] Sections 520(7) and 521(8) of the Code both provide for the tendering of new “evidence or exhibits,” including “(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor.” In St.-Cloud, Wagner J. addressed what constitutes new evidence for this purpose and thus amounts to a material change in circumstances. Justice Wagner adopted the "new evidence" on appeal criteria established in Palmer v. The Queen. In Palmer, the Supreme Court of Canada set out the following criteria:

(i) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial […] (ii) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (iii) The evidence must be credible in the sense that it is reasonably capable of belief, and (iv) 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.

[17] In accordance with the approach endorsed by Wagner J. in St.-Cloud, new evidence should not be limited to that which was plainly unavailable to the accused before the initial hearing:

I am instead of the opinion that the reason why detained persons may not always tender all possible evidence at their first hearing lies in the generally expeditious nature of the release process and in the consequences of that nature, namely the short time between arrest and hearing, a lack of representation for accused persons, and incomplete evidence at this stage. The interests of justice would therefore be undermined if courts acting under ss. 520 and 521 Cr. C. were to adopt a narrow view regarding the "new evidence" that can be admitted under those sections.

[18] A reviewing Justice must make a case-specific determination as to the legitimacy and reasonableness of the reason why the accused did not tender such pre-existing evidence earlier. In the circumstances of this case, this is the applicant’s third hearing addressing bail. Both the initial hearing and the first bail review lasted two days in each instance. The Applicant was arrested two months before his initial hearing and nine months before the first bail review. The applicant has been represented by counsel throughout. In my view, none of the circumstances noted by Wagner J., which might have prevented the applicant from presenting electronic monitoring on his two previous hearings, is present here.

[19] Subsequent bail reviews ought not to become a process of continuing to throw new things at the wall to see what sticks where those new things ought reasonably to have been a part of previous bail proceedings.

[20] The second alleged material change is that the applicant has now been in custody for nearly 16 months. There is no question and the Crown concedes that the passage of time, where significant, can constitute a material change in circumstances warranting a review of a detention order. However, the difference between the nine months having passed at the time of the last bail review since the initial bail hearing and the additional five months that have now passed since Monahan J. conducted his review does not constitute a significant change to the extent that, in the circumstances of this case, it constitutes a material change in circumstance.

[21] The third alleged material change relates to the rescheduling of the applicant’s preliminary inquiry. In the review before Monahan J. in May of this year, the applicant argued that the adjournment of his preliminary hearing that had been scheduled for April 2020 constituted a material change in circumstances. At the time of the bail review before Monahan J., no new date had been set and the delays and court closures due to the COVID-19 pandemic made any estimation as to when a new date might be set difficult.

[22] This currently restated ground appears to be little more than an attempt to relitigate the same issue raised at the first bail review, and cannot be considered a material change in circumstance. Moreover, unlike and as opposed to the circumstances at the last bail review, there is now some certainty to the timeline for moving this matter forward. The applicant’s preliminary inquiry is scheduled for five days commencing Monday, February 2, 2021.

[23] With that date in mind it seems highly likely that the matter can then move forward to trial in advance of the Jordan date in February of 2022. I would note as well, in rejecting the proposition that this is a material change, that the applicant’s preliminary hearing is less than two months away. That will be a better time to determine whether there is a material change in circumstance after that hearing once the strength of the Crown’s case has been tested.

[24] Finally, the applicant asserts that it is a material change in circumstances that the number of positive COVID-19 cases in Ontario is rising and that there has been a recent outbreak at Toronto South, where the applicant is in custody. At the first bail review Monahan J. accepted that the COVID-19 pandemic was a material change in circumstances that required a fresh consideration of whether HK’s detention was justified. R. v. H.K., 2020 ONSC 3275 Justice Monahan reached that conclusion in May of 2020 when cases in the province of Ontario and across the globe were rising.

[25] The applicant now seeks to make the same argument, albeit six months later as we are now experiencing the second wave. Although the circumstances might be somewhat different from May of 2020, it is plain these arguments were considered and rejected at the time. The respondent submits that there is not a substantial change in either the current situation or the argument to be made in response such that there has been a material change in circumstances, which would have had an impact on Monahan J.’s decision.

[26] Further, the preponderance of COVID-19 litigation that has taken place since the onset of the pandemic has held that the evidence of the impact of the pandemic that will be relevant, is evidence of its effect on the individual. The pandemic, in and of itself, does not automatically constitute a material change in circumstance. The fact that the number of cases in Ontario or even inside a correctional facility may be rising is not evidence that there has been any corresponding effect on HK. R. v. J.A., 2020 ONCA 660.

[27] On December 9, 2020 Toronto Public Health (TPH) declared an outbreak of COVID-19 at Toronto South Detention Centre. Since that time TPH has collaborated with Toronto South to assess the situation, ensure infection prevention and control measures were in place and to strengthen existing public health and infection prevention and control measures moving forward. At this time HK is not housed on a precautionary unit. That means that as of the date of this hearing, there were no reported positive or potential cases on his unit.

[28] Evidence of rising cases of COVID-19 in the province of Ontario is of concern for all residents of the province of Ontario, while evidence of rising cases inside a correctional facility will obviously be of concern to the inmates of that facility. Generally, however, that does not establish that it represents a material change in circumstances for HK specifically.

[29] This factor was also considered by Monahan J. Despite the presence of this factor, as referenced below, Monahan J. was not satisfied that the presence of the COVID pandemic in Toronto area correctional and remand facilities outweighed his concerns with the inadequacy of the plan of release, and continued HK’s detention on both the secondary and tertiary grounds. I find that the current COVID circumstances at Toronto South Detention Centre have not changed such that they constitute a material change, or such that they would have had an impact on the reasons for HK’s detention being upheld at that time by Monahan J.

[30] In conclusion on the threshold issue, I reject the applicant’s argument that there has been a material change in circumstances that would be necessary in order for me to have the jurisdiction to consider whether he should be detained or released, de novo.

[31] In my view, the applicant has failed to establish that any of the four bases presented constitute a material change in circumstances from those present when he last had a bail review before Monahan J. More specifically, there has been no material change to any of the circumstances underlying Monahan J.’s decision to detain HK on the secondary and tertiary grounds. In these circumstances this court has no jurisdiction to conduct a review of the detention order considered and upheld by Monahan J. on May 27, 2020.

[32] I would conclude these reasons by noting what Monahan J. had to say relative to the impact of the COVID risk at the last hearing, when he denied the applicant’s first application for detention review, based on secondary and tertiary ground considerations. He was not insensitive to that issue as it pertained to HK. He accepted, as do I, that HK faces a heightened medical risk if he were to contract the virus because he has had cancer, even though it is evidently in remission, but of course his cancer could return at any time. As well, the evidence showed that the staff at Toronto South are providing appropriate medical care to HK. He is receiving all medication, and he is able to access his follow-up appointments with his oncologist.

[33] I share the concern expressed by Monahan J. that if HK’s cancer were to reoccur, any cancer treatment that he might require could well impair his immune system, which could increase the risks associated with COVID-19. Nevertheless, he concluded as follows:

These are significant considerations in assessing whether HK’s continued detention is justified on the tertiary grounds. Nevertheless, for reasons described above, HK has failed to put forward a suitable plan of release. While informed members of the public would be concerned over HK’s continued detention in the context of a pandemic, they would also be troubled by the prospect of HK committing further offences and endangering public safety if he were released.

[34] The point is simple. While I agree with Monahan J.’s assessment that the applicant could potentially be released, he cannot be released when the plan of release is inadequate, as it is in this case, to ensure the safety of the public, and address the secondary and tertiary ground concerns. I accept that the tertiary ground carries less weight in the present pandemic circumstances, but that does not permit all detained persons to get out of jail, pandemic or not, when the safety concerns remain, the surety is not reliable, and the plan is accordingly inadequate, as it is here.

[35] While it will be evident from these reasons that the applicant’s present application is dismissed, as I advised at the conclusion of this hearing when I gave a brief oral decision with written reasons to follow, he should be permitted to bring another review application depending on what happens at the preliminary hearing, and a new assessment is made of the strength of the Crown’s case.

Michael G. Quigley J. DATE: January 8, 2021