REASONS FOR JUDGMENT ON BAIL REVIEW

TEMPORARY SUSPENSION OF THE COURT AND PROCEDURE ON THE HEARING

[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.

[2] The parties agreed that this bail review could proceed by way of a remote proceeding via Zoom and teleconference. The applicant, OShane Chisholm, attended by way of teleconference as did the surety who testified. A registrar and court monitor were present in the courtroom to maintain the court record. An order excluding witnesses and a publication ban were made. The applicant filed affidavits of the three proposed sureties and his affidavit. The parties provided written materials electronically by email and made oral submissions. Viva voce evidence was given by one of the three proposed sureties and an affirmation to tell the truth was administered.

THE CHARGES

[3] At the time of the original bail hearing, the applicant faced 12 offences being: participating in activities of a criminal organization, committing the indictable offences of trafficking cocaine and heroin in association with a criminal organization, possession of a firearm, fail to comply with a recognizance, careless storage of a firearm, possession of a prohibited overcapacity magazine, tampering with a serial number, obstructing justice, threatening death, intimidation and conspiracy to commit an indictable offence.

[4] This is a reverse onus case owing to the involvement of a firearm and the applicant’s previous violations of the court orders.

[5] The number of charges before the court on this bail review has been reduced. The applicant now faces multiple charges being trafficking cocaine and heroin with a criminal organization, participating in the activities of a criminal organization, failure to comply with a recognizance, non-compliance with prohibition orders, possession of a firearm, possession of a prohibited overcapacity magazine, possession of a firearm with serial number defaced and threatening bodily harm.

[6] The applicant asks the review court to vacate the detention order made by Justice of the Peace Fernandez on April 26, 2019. The applicant has been detained for over two years since September 28, 2018.

BASIC FACTS OF THE CASE

[7] The charges arise in relation to a project set up by the police to investigate criminal gang activity in Toronto. The project, called Project Patton, involved a lengthy wiretap investigation. The interceptions pertaining to the case before this court began on March 6, 2018. The investigation resulted in the arrest of some 100 people on June 21, 2018. The applicant was arrested months later on September 28, 2018. The wiretap communications as they related to the applicant disclose that he was involved in the activities of a criminal organization, a street gang that identified itself as the Five Point Generalz.

[8] The investigation also disclosed that the applicant was involved with the gang in the trafficking of cocaine and heroin and uncovered possession by the applicant of a firearm and a prohibited overcapacity magazine. It was an intercepted communication between the applicant and his girlfriend, Amanda Williams, that disclosed that the firearm was located in a dresser drawer in her home. The firearm was seized under the execution of a search warrant on Ms. Williams’ home. A charge was laid in relation to the defaced serial number on the firearm. The breach of recognizance charge arose from non-compliance with previous bail conditions and the prohibition order violations arose from prior weapons convictions.

[9] The applicant was charged with trafficking cocaine arising from 30 counts of cocaine trafficking and further charged with trafficking heroin arising from 24 counts of trafficking heroin, all of which occurred during the time of the wiretap interceptions. The threatening bodily harm offence was charged in relation to an incident where Ms. Williams reported being assaulted by the applicant. A wiretap interception captured the applicant threatening assault if she testified at his trial.

[10] The applicant has entries on his CPIC record before the court dated in 2011, 2015 and 2016. The convictions include failure to comply with a recognizance and in each of those years, firearm prohibitions were imposed. There are also convictions for drug trafficking, assault and breaking and entering. At the bail review hearing, Crown counsel advised there are additional charges from 2017 from Peel Region that include failing to comply with a recognizance, assaulting police/resisting arrest, obstructing justice for providing false names to the police and possession of a firearm in a vehicle.

THE SHOW CAUSE DECISION

[11] In his decision dated April 26, 2019, the justice of the peace denied bail on secondary and tertiary grounds.

[12] On the secondary ground, he found the plan of supervision insufficient. The applicant offered three sureties at the original bail hearing, his mother Valerie Chisholm, his father, Robert Chisholm and his mother-in-law, Grace Danville. The plan was that the applicant would reside with his mother and the other two sureties were to reside at their residences and assist the mother with supervision when required. Mr. Chisholm would be responsible to transport the applicant in his car when required.

[13] The justice of the peace found a lack of a concrete plan of supervision. He found there were insufficient arrangements to ensure close control over the applicant. Each of the sureties was employed away from their homes at the time so were each unavailable for certain periods during certain days of the week. They were to work as a team to ensure the applicant would always be supervised. The justice of the peace found that each of the sureties lacked knowledge and an adequate appreciation of the applicant’s current charges and criminal history.

[14] The justice of the peace considered the seriousness of the crimes which he found to be offences having a direct adverse impact on society at large. He noted that the applicant had faced an allegation that he obstructed justice by intimidating Amanda Williams to get her to drop the charges against him. He concluded that the bail plan did not address the court’s concern in ensuring the applicant would not re-offend or interfere with the administration of justice.

[15] On the tertiary ground, the justice of peace found the charges to be very serious and that the applicant if convicted would face a lengthy sentence. He found the fact that the circumstances surrounding the offence, involving a criminal organization, involvement in the drug trafficking activities of the organization, and involving possession of a firearm and prohibited device were aggravating factors. He also considered that the applicant had a criminal record that involved convictions on some offences similar to those before the court.

[16] The justice of the peace found the Crown had a strong case in that the discovery of the crimes followed upon a lengthy investigation that involved surveillance, intercepted communications and the execution of search warrants. In terms of the identification of the applicant’s voice on the interceptions, the justice of peace found that the Crown’s case was bolstered by the fact that the father attended a previous proceeding and identified his son’s voice on the wiretaps recordings played in court.

[17] In conclusion on the tertiary ground, the justice of the peace found a reasonable person’s confidence in the administration of justice may be undermined if the court declines to order detention having regard to all the circumstances of the case and further concluded that the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice.

GROUNDS FOR BAIL REVIEW

[18] There are three grounds on which a court on a bail review can hold a de novo hearing when asked to vary an order imposed at a show cause hearing: 

(a) where the justice has erred in law, 

(b) where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor, but not on the basis that the justice would have weighed the factors differently, or 

(c) where there is a material change in circumstance: [R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121, (S.C.C.)]. 

[19] A de novo hearing is not appropriate unless there is new evidence adduced at the bail review: R. v. St-Cloud, at para. [118]. Whether new evidence constitutes a material change of circumstances is governed by a flexible interpretation of the criteria for fresh evidence on appeal: [R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (S.C.C.); R. v. St Cloud, at paras. 127-129]. The Palmer criteria are well-known:

[19]

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) The evidence 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.

[20] The applicant seeks a review based on what he submits are five material changes in circumstances as follows:

• that the applicant faces fewer charges,

• that there has been a change in sureties with the inclusion of the applicant’s uncle Derrick Gray,

• that the applicant has suffered from medical conditions while in custody,

• that he has been incarcerated for over two years at Toronto South Detention Centre (“the TSDC”) part of which period has been served under conditions of COVID-19, and

• that due to COVID’s effect on holding jury trials, there is a substantial delay in commencing his trial as his original trial date of May 3, 2021 has been vacated and rescheduled to April 2022.

[21] The applicant also claims a further basis for a review being that the justice of the peace

• placed undue weight on the lack of knowledge and the opprobrium of the applicant’s criminal history.

CONCLUSION

[22] I find the applicant has not established a material change of circumstance on any of the five bases advanced.

[23] It is the case that the applicant faces fewer charges. He pleaded guilty to obstruction of justice and failure to comply with a recognizance for which he was sentenced to two years’ custody. He also pleaded guilty to uttering a threat for which he received a 30-day consecutive sentence. I do not, however, find that the removal of those charges results in a material change in circumstance. The most serious charges relating to involvement in a gang, drug trafficking and firearms remain to be prosecuted.

[24] Nor in my view does including the applicant’s uncle Derrick Gray as a proposed surety signal a material change in circumstance. Regarding the first Palmer criterion, there is no evidence that Derrick Gray was prevented from offering himself as a surety at the original bail proceeding. There appears to have been a conscious decision not to put himself forward. Mr. Gray had been a surety in the past, so this was not a foreign concept or an unknown role to him. Mr. Gray is simply a replacement for Robert Chisholm who is being proposed to play the same role of helping to supervise and drive the applicant around when necessary. The proposal of Mr. Gray represents what other courts have referred to as a “shuffling of the deck” of prospective jurors: [R. v. Ferguson, [2002] O.J. No. 1969 (Ont. S.C.J.)]

[25] Regarding the applicant’s medical conditions, at the request of defence counsel, a registered nurse employed at the TSDC prepared a summary of medical conditions on record for the applicant. The main conditions on record are a seizure disorder that developed first in November 2019, several months after the original bail hearing, and experienced as recently as March 27, 2021. There has not been a precise diagnosis for the condition. He has been prescribed medication. An EEG aimed at investigating the disorder was scheduled for April 16, 2021.

[26] In November 2019, also after the original bail hearing, the applicant was diagnosed with a spinal fracture at T5 and T7. On investigation, the applicant was found to be fully functional with a full range of motion in his left shoulder. He has suffered pain and has requested a suitable mattress to reduce his discomfort. The facility has ordered a new mattress, and apparently, one has not been delivered to him.

[27] I do not find that the applicant’s medical conditions present a material change in circumstance. Regarding his seizure condition, it appears from the record that the facility has been attentive to the condition. His condition has been investigated by the medical staff at the facility and he has been referred to a hospital when necessary. He receives prescribed medication and has been scheduled for further neurological investigation. I find as the court did in a case involving an accused suffering from a seizure while jailed at Maplehurst:

Although the medical treatment afforded to inmates generally and to the applicant specifically, at Maplehurst may not be perfect, the applicant has not shown that it is inadequate in his circumstances, or that it is deficient when compared to the medical treatment that would be available to him in the community should he be released.

[R. v. Angaze, [2020] O.J. No. 4368, at para. 35, (Ont. S.C.J.)]

[28] Regarding the compression fracture in his thoracic spine, the applicant has been attended to at TSDC on numerous occasions when he has made complaints. It appears that the fracture has not rendered the applicant physically dysfunctional. It seems to be a matter of discomfort caused by the pain. He requires a new mattress which appears he has not received. I suggest the applicant make renewed and persistent efforts to acquire the appropriate mattress.

[29] I do not find the applicant’s back pain condition constitutes new evidence sufficient to be considered a material change of circumstance. In a case involving an accused confined to a wheelchair at the TSDC suffering injuries from a gunshot wound, the court determined, as I do, that there is no compelling evidence that the applicant’s immediate medical needs are not being attended to at the TSDC: [R. v. Jama, [2020] O.J. No. 5301, at para. 29, (Ont. S.C.J.)].

[30] On the question of whether COVID-19 constitutes a material change of circumstance in this case, I suppose I might take judicial notice that there has in more recent times been an outbreak at the TSDC. But there is no data before me that discloses the current situation. There has been some news that vaccines are being administered at Ontario’s correctional facilities.

[31] It is accepted that the pandemic on its own does not automatically constitute a material change in circumstance. The fact that the number of cases in Ontario or within a correctional facility may be increasing is not evidence that there has been any corresponding effect on a particular accused: [R. v. J.A., 2020 ONCA 660, [2020] O.J. No. 4760 (Ont. S.C.J.) and R. v. H.K., [2021] O.J. No. 68 (Ont. S.C.J.)]. There is no evidence that the applicant is any more prone to contracting COVID-19 than other members of the community. I have not been presented with any evidence about the conditions at TSDC nor any effects of the virus on the applicant personally. There is no new evidence that would warrant consideration of COVID-19 as a material change in circumstance in this case.

[32] On the question of the delay in scheduling the applicant’s trial, this is an unfortunate result of the closing of the court to some proceedings and the reduction in the number of proceedings being held. This particularly affects the scheduling of jury trials. I recognize that the applicant has been in custody for over two years and that he will serve more time since his trial has been rescheduled for a year from now. Regrettably, this is a circumstance that confronts many inmates awaiting trial.

[33] The applicant’s counsel submitted that of the remaining five accused arrested under Project Patton who face trial, the applicant is the only accused who continues to be detained in pretrial custody. I have no evidence before me on their crimes or the strength of their plans of supervision and the capacity of those plans to prevent re-offence and interference with the administration of justice. This is a concern I have with the applicant.

[34] I find there are no material changes of circumstance with respect to any of the five factors identified, and below I conclude that the decision is not clearly inappropriate as the defence submits. Hence, there are no grounds for me to conduct a review.

[35] I find that the bail plan before the justice of the peace is substantially similar to the plan before me and that there is no material change with the reduction in the charges. If I were to conduct a review, I would share the conclusions expressed by the justice of the peace on the secondary ground on the insufficiency of the plan to prevent a substantial likelihood of re-offence and an interference with the administration of justice. I would also share similar findings on the s. 515(10)(c) factors regarding the seriousness of the offences, the prospect of a lengthy sentence, the strength of the Crown’s case and the circumstances surrounding the offence.

[36] On whether the justice of the peace’s decision is clearly inappropriate, I do not accept the defence’s submission that he placed undue weight on the lack of knowledge and opprobrium of the applicant’s criminal history. I find his assessment of the sureties to be quite in keeping with the very serious offences, the applicant’s substantial history with non-compliance and his other criminal antecedents. It was incumbent on the sureties in undertaking their supervisory duties to have a good grasp on the lifestyle, criminal history and the propensities of the person in their charge. A sound supervisory plan requires this.

DISPOSITION

[37] The inquiry ends with an absence of a finding of a material change in circumstance and the absence of a finding that the decision of the justice of the peace was clearly inappropriate. However, were I to have conducted a review I would have denied release on both primary and secondary grounds.

[38] The application is dismissed.

Allen J.

Released: April 16, 2021

COURT FILE NO.: CR-21-00000100-00BR

DATE: 20210416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

OSHANE CHISHOLM

REASONS FOR JUDGMENT

ON BAIL REVIEW