R. v. Clarke, 2021 ONSC 4249
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ALEXANDER CLARKE
Paul Zambonini, for the Crown
Ariel Herscovitch and Charles Lamy, for the accused
HEARD: June 3, 2021
1Alexander Clarke is charged in an indictment that on September 20, 2019, he committed the offences of robbery with a firearm, conspiracy to commit armed robbery, unlawful confinement, and committing an indictable offence while wearing a face mask. On July 31, 2020, at the end of a contested judicial interim release hearing, he was ordered detained by a justice of the peace on both the secondary and tertiary grounds. On December 14, 2020, McWatt J., as she then was, dismissed the accused’s application for a review of the detention order. Mr. Clarke brought a second application to review his detention on the basis of alleged material changes in his circumstances.
2I heard this second application on June 3, 2021 and dismissed it at the end of the hearing, with reasons to follow. These are those reasons.
THE CHARGES
3The accused is alleged to be one of two masked men who entered and robbed Team 1 Staffing, an employment agency at 1575 Lawrence Avenue in Toronto, at approximately 11:30 a.m. on September 20, 2019. The robbery was captured on surveillance video. The man alleged to be Mr. Clarke intercepted the manager of Team 1 outside the office, pointed a handgun at her, held it to the back of her head or her neck, and marched her down the hall into the office along with his confederate. In the remainder of this recitation of the facts, I will refer to the man alleged to be Mr. Clarke as Mr. Clarke, with the understanding that his identity remains in issue. Once inside, the robbers corralled the staff in a room, ripped out the phones, and demanded money, while Mr. Clarke waived and brandished his gun. As the other robber began going through the personal possessions of the staff, Mr. Clarke took the manager into a back office and had her remove $15-20,000 from a drawer. While his attention was divided between the manager and the employees in the other room, Mr. Clarke dropped a white plastic bag with blue writing on it onto the floor. Mr. Clarke then placed the money that the manager had removed from the drawer into a bag she provided to him. The robbers fled with the money, as well as some phones and other personal items they took from Team 1 employees. Mr. Clarke left the white plastic bag behind when he left. The bag was recovered by the police and Mr. Clarke’s fingerprint was found on it.
4At the time of the robbery, Mr. Clarke resided in an apartment with his mother and brothers. Video recordings seized from his apartment building revealed that he left his apartment about an hour and a half before the robbery. He was carrying a white plastic bag with blue writing on it and wearing black trousers and distinctive running shoes that resembled the trousers and shoes worn by the robber alleged to be him. When the police searched his apartment, they recovered $7,000 in cash, a camouflage baseball hat, and blue bandanas that resembled the hat and bandana worn by the same robber when committing the robbery.
THE ACCUSED
5Mr. Clarke, who is 34 years of age and has one child, has a very serious criminal record, consisting of the following offences:
January 17, 2007 – robbery – suspended sentence in addition to eight months of pre-sentence custody, six months of probation, and a s. 109 prohibition order
May 21, 2009 – two counts of robbery – two years’ less one day imprisonment on each count concurrent, three years of probation, and a s. 109 prohibition order
October 10, 2014 – one count of armed robbery using a restricted or prohibited firearm and three additional counts of robbery – a sentence of eight years less two years for pre-sentence custody, resulting in a total sentence of six years’ imprisonment, three years of probation, and a s. 109 prohibition order
October 23, 2014 – two counts of fraud, one count of assault with intent to resist arrest, and one count of fail to comply with a recognizance – a total sentence of 11 months
6The 2014 convictions consist of two bank robberies committed on February 8, 2011; a robbery of a payday loan office on February 14, 2011; a robbery of a pharmacy on March 10, 2011; and a takeover-style robbery of a payday loan office that was very similar to the alleged robbery, albeit involving a knife rather than a gun, on February 14, 2011. At his sentencing hearing, Mr. Clarke assured the Court that he was “definitely going to take this time to rehabilitate myself and utilize whatever resources, whatever I can out there to better myself. … I’m in my thirties and I’m determined to break the cycle that I got myself involved in. I really don’t want to continue on this road.” The accused was on parole in relation to these offences when he was alleged to have committed the current charges.
7At the initial judicial interim release hearing in this matter, the presiding justice of the peace was told that in 2017, the accused became involved with the Forgiveness Project, a small group that runs programming for young people in custody using different types of arts and platforms to unpack cycles of anger and get the young people onto the right path. The accused has been used in the group’s programs to speak, tell his story, and lead honest conversations. He was considered to be a valuable asset to the group, and they were prepared to have him back if he was released and to supervise him when he was with them.
THE INITIAL JUDICIAL INTERIM RELEASE HEARING
8As I have noted, the justice of the peace detained the accused on the secondary and tertiary grounds on July 31, 2020.
9With respect to the secondary ground, the justice of the peace noted that the accused proposed a plan of supervision involving five sureties who, she found, were well-meaning and productive members of society, together with electronic monitoring and the support of the Forgiveness Project. The sureties pledged a total of $152,000. The justice of the peace noted, however, that the onus was on the accused; that the best predictor of future behaviour is past behaviour; that the accused has a serious criminal record, including a prior conviction for failure to comply with a recognizance; that the accused had broken his promises to some of the proposed sureties before; that the alleged, very serious offences were committed while the accused was on parole for earlier, very serious offences; and that no plan of supervision will prove effective and ultimately successful if the accused is either unwilling or unable to comply. Taking all the circumstances into account, she concluded that there was a substantial likelihood that the authority of the proposed sureties would once again be undermined by Mr. Clarke, and that her lack of trust in Mr. Clarke’s promise to obey any court order exceeded her confidence in the sureties’ authority and ability to supervise him successfully.
10With respect to the tertiary ground, the justice of the peace made reference to “the four pillars” listed in s. 515(10)(c) of the Criminal Code, R.S.C. 1985, c. C-46, and noted in particular that the Crown’s case is strong; that the allegations are very serious, involving a robbery with a firearm in the middle of the day; that undoubtedly the victims suffered trauma and the possibility of significant mental and emotional injury; that gun violence plagues Toronto; and that upon conviction, the offences would attract a significant term of imprisonment. She also referred to the considerations she had already mentioned in relation to the secondary grounds.
THE FIRST BAIL REVIEW
11On his bail review before McWatt J., the accused argued that the justice of the peace made two errors of law and that there had been a material change in circumstance.
12The alleged errors in law were: (1) that the justice erred in finding that detention was warranted on the secondary ground only because Mr. Clarke's behaviour, in breaching a previous bail, undermined the same sureties offered up at his bail hearing for this robbery; and (2) that the justice erred in law in failing to recognize that COVID-19 was an issue to be considered by her on the tertiary ground. McWatt J. found that neither error had been made. With respect to the first alleged error, she said that the justice’s findings supported the conclusion that Mr. Clarke had to be detained because there was a substantial likelihood that he would reoffend in a manner that would endanger the protection and safety of the public. With respect to the second alleged error, she said that the justice conducted an analysis and accepted that COVID-19 was an issue to be considered by her on the tertiary ground, but that she found that the COVID-19 pandemic did not change her tertiary ground analysis and her decision to detain the accused.
13The alleged material change in circumstance was the filing by the accused of an affidavit of an alibi witness in his bail review material ten months after his arrest. McWatt J. concluded that this was not a material change in circumstance because counsel for the accused had mentioned the witness to the justice at the initial bail hearing, but deliberately chose not to disclose any details about the alibi at that time.
THE SECOND BAIL REVIEW
14On this second bail review, the accused again argues that there is a material change in circumstance. This time he says that: (1) the strength of the Crown’s case has changed; and (2) there is now a heightened risk of COVID-19 in the Toronto South Detention Centre (“TSDC”), where he is detained.
15The first argument is unusual. It does not relate to the strength of the evidence that the Crown has available to it to prove the charges. Instead, it concerns the significant length of time that the accused will have been in custody by the time his trial concludes, a matter that could not have been anticipated at the initial bail hearing or at the first bail review, and which will give rise to an unreasonable delay claim under s. 11(b) of the Canadian Charter of Rights and Freedoms. More specifically, the accused’s trial is scheduled to begin on May 24, 2022. By then, he will have spent 31 months in custody. This exceeds the presumptive ceiling of 30 months recognized by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. The accused argues that the potential success of his s. 11(b) Charter application produces “a material reduction in the strength of the Crown’s case”, which, in turn, “creates a material change of circumstances, and necessitates a de novo bail hearing.”
16The second argument is that the current status of the COVID-19 pandemic and its impact on individuals in custody at the TSDC constitutes a material change in circumstance. Specifically, Mr. Clarke says that the current risk that COVID-19 poses to him is substantively and materially greater than the risk posed to him at the time of his bail hearing.
ANALYSIS
17I begin by considering whether there is a material change in circumstance that necessitates a de novo bail hearing. I will first consider the COVID-19 issue.
1. COVID-19
18The accused’s argument runs as follows. In late July 2020, at the time of the initial bail hearing, there were no active cases of COVID-19 at the TSDC. Since then, there have been three active outbreaks, the last being in March 2021. As of April 15, there have been a total of 207 reported cases at the TSDC and there were five active cases. The accused states, “The spectre of an outbreak is no longer a mere hypothetical [as it presumably was in July 2020], but a present and imminent threat.” This, he argues, is a material change in circumstance. I do not agree.
19I note, first of all, that the Ontario government declared a state of emergency arising from the COVID-19 pandemic on March 17, 2020. It did not go unnoticed by the courts in Ontario, which essentially shut down. To describe “the spectre of an outbreak” in custodial institutions as merely hypothetical four months after the shutdown is a bit fanciful. Far from hypothetical, the risk was perceived by everyone in the justice system as very real, and very worrisome.
20But more importantly, it can safely be said that the TSDC has done an admirable job in combatting the spread of the virus in its facility. There is no evidence that Mr. Clarke has been exposed to COVID-19. And oddly enough, although the COVID-19 vaccine has been made available to inmates at the TSDC,1 Mr. Clarke’s affidavit is silent as to whether he has been offered an opportunity to be vaccinated or has, in fact, been vaccinated. When I raised this question during oral argument, counsel made no effort to secure an answer from his client, who was present at the hearing. There was, of course, no vaccine available at the time of the initial bail hearing.
21In R. v. J.A., 2020 ONCA 660, at para. 55, the Court stated:
The COVID-19 pandemic constitutes a material change warranting a new bail hearing where the circumstances of the pandemic are “relevantly material” to this respondent in these circumstances. The effect of COVID-19 must be “significant” in the sense that when considered along with the other evidence on the bail proceeding, it could reasonably be expected to have affected the result. [Citations omitted.]
22In the circumstances I have outlined, an increased risk of Mr. Clarke contracting COVID-19 in the TSDC has not been shown, and therefore no material change of circumstance that would warrant a new bail hearing in relation to the danger of COVID-19 to Mr. Clarke has been established.
2. A Change in the Strength of the Crown’s Case
23Before assessing this argument, I will set out a bit of history. The accused was arrested on October 3, 2019. He retained Alan Lobel as counsel. A preliminary hearing was scheduled for June 8-10, 2020, but these dates were vacated on May 4, 2020 at the request of the accused in order to permit Mr. Lobel to pursue a resolution of the case. In correspondence with Crown counsel, Mr. Lobel indicated that the accused would confirm that he was waiving his s. 11(b) rights “as it relates to the next adjournment request”. Since the accused did not file transcripts of the Ontario Court appearances on this review, I do not know whether there was such a waiver or, if there was one, what period it covered.
24As I have noted, the accused had a bail hearing in July 2020 and was ordered detained on July 31, 2020. Following the bail hearing, Mr. Clarke discharged Mr. Lobel and shortly thereafter retained Hilary Dudding. I do not know if a preliminary hearing was ever scheduled again, or what took place with respect to any plea negotiations, but on January 7, 2021, the accused waived his right to a preliminary inquiry. What I therefore do know is that had it not been for the adjournment of the preliminary inquiry requested by the accused, he would probably have been ordered to stand trial seven months earlier than he was.
25When the accused appeared in this court, he was advised that trial dates were available in April and May of 2022. However, Ms. Dudding was involved in another serious matter that was not going to conclude until mid-May and, as a result, a trial date of May 24, 2022 was fixed.
26Jordan establishes that delay (minus defence delay) that exceeds the 30-month ceiling is presumptively unreasonable, but the Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. Undoubtedly, the closing of the courts as a result of the pandemic will be a much-litigated candidate for exceptional circumstances. However, the accused says that it will have no traction in this case because, according to him, no COVID-19 concerns were taken into account when his trial date was set. I am doubtful that the pandemic was not a consideration in fixing Mr. Clarke’s trial date. It almost certainly had an impact on the dates that were available for jury trials. But even if the accused is correct, at the very least the pandemic would have made it very difficult to advance the trial date if concerns about delay had subsequently been raised. However, I am content to proceed without placing any significance on the possibility that the trial judge will take into account the presence of exceptional circumstances.
27The real stumbling block for the accused in relation to an unreasonable delay application is the seven months lost as a result of the defence-requested adjournment of the preliminary inquiry. If this is characterized as defence delay, the presumptive ceiling will not be reached until long after this trial is over. But counsel for the accused makes an ingenious argument, relying on para. 65 of Jordan.
28In Jordan, when discussing defence delay, the Supreme Court stated, at para. 64, that beyond defence unavailability, “it will of course be open to trial judges to find that other defence actions or conduct have caused delay”. Then, at para. 65, the Court stated:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
29The defence would have it that Mr. Clarke’s request that his scheduled preliminary hearing be cancelled in order to permit him to consider a proposed resolution of his case, resulting in months of delay while he changed counsel and, for whatever reason, the effort at resolution foundered, should be characterized as “defence actions legitimately taken to respond to the charges [which] fall outside the ambit of defence delay.” I acknowledged during oral argument that this position was arguable, and that it was not for me to tie the hands of the trial judge by deciding the issue. But I need not be blind to the unappealing nature of this argument. If it were accepted, it would certainly discourage Crown counsel and judges from granting similar leeway to accused persons. That would be in the interest of no one. It would result in both unnecessary court hearings and wasted court time. While I will not prejudge the argument, I cannot avoid viewing it as a longshot. But the question remains – does the potential in this case for a successful s. 11(b) application amount to a material change in circumstance?
30Needless to say, not every change in circumstance warrants a new bail hearing; only a material change does so, otherwise the threshold would be meaningless. But what is a material change in circumstance? That issue was discussed in J.A., at paras. 25-26. The Court of Appeal stated:
25 Where new evidence is submitted to demonstrate a material change in circumstances, that evidence should be considered together with the considerations that underpinned the first bail judge’s refusal of bail to determine whether the alleged change in circumstance is both material and relevant to the case at hand such that a hearing de novo is warranted: Whyte, at para. 26; R. v. A.A.C., 2015 ONCA 483, at para. 56; and St-Cloud, at para. 121.
26 If the alleged change in circumstance is one that could reasonably be expected to have affected the result in this case, the reviewing judge is authorized to conduct a new hearing and conduct a fresh analysis on the bail application as if he or she were the initial decision-maker: St-Cloud, at para. 138.
31In this case, the determinations that detention was necessary on the secondary and tertiary grounds were not close calls. The evidence strongly supported detention. With respect to the secondary ground, McWatt J. stated, on the first bail review:
Her Worship’s findings supported the conclusion that Mr. Clarke had to be detained because there was a substantial likelihood that he will reoffend in a manner that would endanger the protection and safety of the public. Her analysis was clearly capable of grounding such a finding. (R. v. Jaser, 2020 ONCA 606 at paras. 66 and 67).
32With respect to the tertiary ground, McWatt J. stated that there were no errors made by the justice, that the justice considered the entire matter appropriately, and that Mr. Clarke was justifiably detained.
33Bearing in mind the weighty considerations that underpinned both the refusal of bail to Mr. Clarke by the justice and the dismissal of his first bail review application by McWatt J., and the very tenuous delay argument raised by the accused on this application, I can only conclude that the alleged change in circumstance is very far from one that could reasonably be expected to have affected the result in this case. It is not a material change in circumstance. Accordingly, I am not authorized to conduct a fresh analysis of the bail application as if I were the initial decisionmaker.
34Finally, I note that in order to simplify the hearing of this application, despite the bifurcated nature of a bail review when a material change in circumstance is alleged, counsel made all of their submissions together. As a result, I have heard full argument both on the question of whether a material change in circumstance has been established, and, assuming it has, on whether the accused should be released. In addition to the circumstances of the offence and the accused that I have already discussed, Mr. Clarke asserted in his submissions that he has made a concerted effort to turn his life around and engage in activities for the betterment of himself and his peers. He also placed before me a revised plan of release. He now proposes a recognizance with four sureties in the total amount of $62,500, full house arrest, and close supervision by individuals who can, collectively, be present with him at all times.
35As admirable as the accused’s stated commitment to change may be, if he is able to live up to it this time, and as positive an indication as his volunteer work is, they do not come close to tipping the balance. The accused has shown himself to be a dangerous man who has repeatedly put the safety of the community at risk. He has also shown himself to be ungovernable. There is a substantial likelihood that he will commit a further serious and violent criminal offence if released, despite the quality of his release plan. He has failed to establish that his detention is not necessary either for the protection or safety of the public or to maintain confidence in the administration of justice, having regard to all the circumstances.
DISPOSITION
36For these reasons, the application is dismissed. The accused will be detained in custody on the secondary and tertiary grounds pending his trial.
Dambrot J.
RELEASED: June 11, 2021
CITATION: R. v. Clarke, 2021 ONSC 4249
COURT FILE NO.: CR-21-00000155-00BR
DATE: 20210611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
ALEXANDER CLARKE
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: June 11, 2021