COURT FILE NO.: 4821/21
DATE: 2021/03/31
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her Majesty the Queen
AND: James Poupore
BEFORE: The Honourable Justice T. Maddalena
COUNSEL: Ismar Horic, for the respondent Crown; Andrew Domacina, for the applicant
HEARD: March 25, 2021
ENDORSEMENT
[1] This is a review under s.520 of the Criminal Code from the detention order made by Justice of the Peace Pearson, dated December 24, 2020.
The Position of the Applicant
[2] Firstly, the applicant submits Justice of the Peace Pearson made an error in law since unknown to the court, and both counsel, the applicant could not participate meaningfully in his bail hearing due to technical difficulties on his phone on the day of hearing. He claims the denial of principles of natural justice.
[3] Secondly, the applicant alleges that Justice of the Peace Pearson erred in law in relying on the applicant’s COVID-19 diagnosis to detain him.
[4] The applicant submits he tested positive for COVID-19 on December 10, 2020 and was directed to quarantine until December 24, 2020. He further submits that he was tested for COVID-19 upon his admission to the Niagara Detention Centre. He received the results of that test after his bail hearing on December 24, 2020. The result of the test was negative. The applicant thus alleges an error in law since the detaining justice reasoned on December 24, 2020 that he posed a risk to the public due to COVID-19.
[5] In the alternative, the applicant alleges a material change since he no longer is positive for COVID-19.
[6] Thirdly, the applicant alleges that he will spend more time in pretrial custody than he will serve if convicted and sentenced on all the outstanding charges before this court.
[7] Lastly, the applicant submits he is proposing a stronger plan of release and this is a significant material change in circumstance.
The Position of the Respondent
[8] The respondent states as follows:
Her Worship detained the Applicant on secondary grounds and stated that “Exposing the public to COVID-19 is extremely dangerous. It is putting the public at risk and the safety of the public at risk.” The Respondent concedes that it is unclear whether Her Worship was concerned about the Applicant’s lack of compliance with his quarantine or whether Her Worship considered his positive diagnosis for COVID-19 as a secondary ground concern if he were to be released on bail. While it was likely the former, due to the ambiguity the Crown concedes that a bail de novo should take place.
The respondent further argues the above concession is as to threshold only. The respondent also states that the applicant has not met his onus, and continued detention is necessary on the secondary grounds.
The Law
[9] In the case of R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328, the Court held that s.520 of the Criminal Code does not confer on the reviewing judge an open-ended power to review the order respecting the detention or release of the applicant.
[10] The Court held the legal test permitting a reviewing judge to intervene is the three-fold test as follows:
If the initial justice erred in law;
If the initial justice’s decision was clearly inappropriate and that the justice gave excessive weight to one relevant factor or insufficient weight to another; and
New evidence is tendered which shows a material and relevant change to the circumstances of the case.
Analysis
[11] Firstly, with respect to the allegation that the applicant could not properly hear, this court does not find that there was an error in law made by Her Worship Justice of the Peace
Pearson.
[12] The hearing on December 24, 2020 was conducted remotely with the applicant at the Niagara Detention Centre. In one instance on the transcript, the court specifically asked the applicant if he can hear and the applicant’s response is “I can”[^1]. It is acknowledged that there were some parts of the transcript where the applicant was shown as “inaudible”, but clearly the applicant was aware and did participate in his hearing. There was no denial of justice to the applicant.
[13] Secondly, on the issue of COVID-19, it is clear the presiding justice detained the applicant on the secondary grounds. It is also clear that COVID-19 was one of the reasons, however the detention was not based solely on COVID-19 reasons.
[14] In fact, it is clear from a reading of the transcript, that the main reasons for the applicant’s detention were due to the applicant’s numerous serious breaches of several court orders after his arrests. In addition, his very lengthy criminal record was also a significant factor in his detention.
[15] This was compounded by the fact that the applicant was out and about in the community in clear breach of court orders when he should have been in quarantine due to the positive COVID-19 diagnosis he received on December 10, 2020.
[16] It is clear to this court from the reasons for detention that the presiding justice would have detained the applicant even absent the COVID-19 diagnosis.
[17] The justice of the peace clearly outlined in her reasons, in detail, the current matters that brought the applicant before the court. In summary, in July 2020 the applicant was at Shoppers Drug Mart in Toronto. He was arrested and charged with theft under. By September 17, 2020 the applicant was released from custody by entering into a recognizance of bail which included various conditions. One such condition was not to communicate with Olivia Morgante. By September 21, 2020 in direct breach of the court order, he took Ms. Morgante’s vehicle without her consent. Ms. Morgante reported this to police. Police were able to confirm he was in breach of a condition and a warrant was issued for his arrest.
[18] While being out at large by November 15, 2020 the applicant attended the residence of Kasey Crompton. It is alleged the applicant, without provocation, punched Ms. Crompton with his fist three to four times to her face. It is further alleged the applicant placed his forearm on her throat attempting to choke her. Crompton was able to get away and telephone police. On November 15, 2020 the applicant was arrested and charged with assault, as well as possessing a prohibited weapon. The applicant was on a ten-year firearms prohibition order which was set to expire December 4, 2024.
[19] Again, by November 16, 2020 the applicant was released a second time on his own recognizance. One of the terms was to report to the John Howard Society Bail Supervision Program. He was to actively participate in an anger management program as well as substance abuse rehabilitation programs as directed by the Bail Supervision Program. He did none of this.
[20] By December 21, 2020 the applicant attended at Dollarama at Victoria Avenue, Niagara Falls. The applicant is alleged to have stolen some items and when the salesclerk attempted to stop him, he assaulted her, fled and hid under a wooden deck of a private residence. In attempting to escape from police, he further damaged the wooden lattice of the deck of the private residence. He was eventually captured by police and, as a result, was charged with robbery, assault, and mischief to property under $5,000.
[21] While being transported to the holding cells, the applicant announced he had tested positive for COVID-19 and was, therefore, directed to self-quarantine until December 25, 2020. He had been directed to a quarantine hotel in Welland at the time he tested positive. Despite all of this, he was out and about in the community ignoring and breaching court orders. As a result of his actions described as “selfish and reckless” by the detaining justice of the peace, a number of others were also directed to self-quarantine including the victim of the assault, as well as six officers in uniform capacity with the Niagara Regional Police who were directly involved with the applicant. The applicant was additionally charged with contravention of the Emergency Management and Civil Protection Act. The court was correct to detain this applicant on the secondary grounds. There were no errors in law made by the justice of the peace.
[22] Further, the detaining justice reviewed the very lengthy and concerning criminal record commencing in 2007 through to 2020, which includes numerous failures to comply with court orders, failures to appear, failure to comply with probation orders, as well as breaking and enter, assault causing bodily harm, and numerous drug convictions.
[23] The matters before the court are serious. The applicant has a very lengthy history of failure to comply with court orders.
[24] Her Worship Justice of the Peace Pearson made no error in detaining this applicant on the secondary ground. The likelihood of the applicant committing further offences is strong and, therefore, for the protection and safety of the public he must be detained.
[25] Further, all charges could result in a lengthy jail sentence. Proportionality must be weighed against the greater likelihood of further offences if the applicant is released.
Material Change in Circumstance
[26] The applicant submits he now has a new plan and should, therefore, be released on his own recognizance, report his address and to report weekly to the Niagara Regional Police. The applicant submits he is now sober and now plans to seriously seek treatment for his drug addiction if released, even though he has not done so anytime in the last 10 years. He submits that a drug treatment program at CASON will not accept him for treatment unless he is released. He plans to enroll in a group program at CASON. This would be a once a week attendance and later he plans to enroll in out-patient treatment programs.
[27] This court has no confidence in the applicant’s ability to follow through on this plan. Just a short time ago, that is in December 2020, he could not even follow some very simple reporting requirements with the John Howard Society. Now, the John Howard Society will no longer accept him into their program and are no longer willing to supervise him. At this point, this court finds that the applicant has no real plan in effect. In fact, this plan is much less supervisory than the previous plan with the John Howard Society. His current plan is doomed to fail. Given the applicant’s many breaches and failure to follow very simple basic court orders and reporting requirements, this court has absolutely no confidence in this plan. The presentation of this current plan does not constitute a material change in circumstance. Further, even though the applicant has tested negative for COVID-19 after his detention hearing, I do not find that this is a material change in circumstance. It is clear that even absent COVID-19, the applicant would have been detained on the secondary ground.
Conclusion
[28] This court finds no error in law and no material change in circumstance.
[29] The application is dismissed.
Justice T. Maddalena
Maddalena J.
Date: March 31, 2021
[^1]: See transcript, page 26, line 21