HER MAJESTY THE QUEEN – and – B.A.

COURT FILE NO.: CR-18-14785

DATE: 2021-09-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.A.

Defendant

COUNSEL:

Chris Walsh and Amber Pashuk for the Federal Crown

Kim Schofield and Melina Macchia for the Defendant

HEARD: September 1 and 15, 2021

ruling on bail review application

C. Boswell J.

I. OVERVIEW

[1] B.A. was arrested in Edmonton, Alberta on March 9, 2018. Several days later he was flown to Ontario to face a 111-count indictment. The charges against him involve possession of carfentanil for the purpose of trafficking and possession of a cache of restricted or prohibited firearms.

[2] B.A. was released on a $100,000 surety recognizance by Justice of the Peace C. Allison on June 1, 2018. Half of the $100,000 surety was required to be deposited in cash. The terms of his release included, amongst other things, that he reside with his mother, F.A., and that he not be outside of the residence except for medical emergencies or while in the company of a surety. His sureties were his mother and his sister, S.A1.

[3] B.A. breached the terms of his recognizance on June 18, 2018. He went with his mother to visit an uncle. He and his uncle, who was not one of his sureties, went together to a corner store to buy cigarettes. The police happened to have been conducting surveillance on B.A. at the time. He was arrested for breach, given that he was outside of his mother’s residence and not in the company of a surety. As a result of the breach, he went back into custody and has remained in custody to the present time.

[4] B.A. applied for a review of his detention under s. 520(1) of the Criminal Code, on April 17, 2020. His application was heard by Justice Leibovich over two days. Justice Leibovich denied the application in a comprehensive ruling released on April 23, 2020 and reported as 2020 ONSC 2472.

[5] A trial date looms. It is set to commence before a judge alone on November 15, 2021.

[6] B.A. brings this second application under s. 520(1) of the Criminal Code, for a review of his detention.

II. THE GOVERNING PRINCIPLES

The Animating Charter Rights

[7] The messaging from the Supreme Court has been repeated and clear: pretrial detention is the exception. The Canadian bail system strongly favours release. Indeed, the default presumption is that an accused person should be released at the earliest possible opportunity and on the least onerous terms. See R. v. St-Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; R. v. Myers, 2019 SCC 18; and R. v. Zora, SCC 2020 14.

[8] The position of the Supreme Court is informed by the Charter rights that animate the Canadian bail system. The first, found at s. 11(d), is the “golden thread” that stitches its way through the Canadian criminal justice system: the presumption of innocence. The second is more pointed: s. 11(e) provides that every accused person has the right not to be denied reasonable bail without just cause.

[9] As I will explain below, B.A.’s constitutional right to make full answer and defence is also engaged in the circumstances of this case. The right to make full answer and defence is an integral part of an accused person’s s. 7 right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. See, for example, R. v. Seaboyer; R v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577. The principles of fundamental justice are the basic principles that underlie our notions of justice and fair process. They provide a guarantee of procedural fairness, “having regard to the circumstances and consequences of the intrusion on life, liberty or security.” See Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at para. 19.

The Grounds for Continued Detention

[10] As noted, s. 11(e) of the Charter guarantees the right to reasonable bail unless just cause is established for continued detention. Parliament has assisted in identifying the grounds that may amount to just cause for continued detention in any given case. They are found at s. 515(10) of the Criminal Code and are conventionally referred to as the primary, secondary and tertiary grounds. The Supreme Court has found these grounds to be constitutionally compliant. See R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711 and R. v. Hall, 2002 SCC 64. The Court has observed that these grounds justify pre-trial detention in only a narrow set of circumstances and only where necessary to ensure the proper functioning of the bail system. See R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, as above at para. 40.

[11] The bail system does not function properly if those on release abscond, commit further offences or interfere with the administration of justice while on release. Moreover, a properly functioning bail system does not undermine the public’s confidence in the administration of justice.

[12] In the result, detention is justified on the primary ground where necessary to ensure an accused person’s future attendance at court. It is justified on the secondary ground where necessary for the safety and protection of the public. And it is justified on the tertiary ground if it is necessary to maintain public confidence in the criminal justice system.

[13] All three grounds for continued detention are engaged in this application.

Jurisdiction

[14] B.A. has already had a bail hearing. He was released on stringent terms. He breached them within three weeks and found himself back in custody.

[15] B.A. has already had a review of his detention. It was rejected. He brings this application under s. 520 of the Criminal Code for a further review.

[16] It is well settled that s. 520 does not confer an open-ended discretion to vary prior detention orders. See R. v. St. Cloud, as above, where the Supreme Court instructed that the jurisdiction to hear an application under s. 520 is limited to the following three circumstances:

(1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case;

(2) where the reasons for the detention order contain an error in law; or

(3) where the detention order is clearly inappropriate.

[17] Defence counsel assert that the court’s jurisdiction to hear and determine B.A.’s application is triggered by the first of these three circumstances. They contend that there is admissible new evidence that shows a material and relevant change in the circumstances that were present at the time of the hearing before Justice Leibovich.

[18] In St. Cloud, Justice Wagner, now Chief Justice Wagner, imported the well-known test for assessing the admissibility of fresh evidence on appeal established in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. He cautioned, however, that the test needed to be modified in the bail review context.

[19] The Palmer test has four requirements:

(1) The “fresh” evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and,

(4) 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.

[20] The first three requirements are not in issue here. But the fourth – the material change requirement – is of central significance. Chief Justice Wagner addressed it as follows:

Finally, the fourth Palmer criterion should be modified as follows: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) Cr. C. The new evidence must therefore be significant. (St. Cloud, para. 137).

[21] The St. Cloud definition of “material change” is consistent with earlier jurisprudence of the Supreme Court. See, for instance, Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 at para. 21 where the court described a material change as one that, if known at the time of the previous order, would likely have resulted in different terms.

[22] Whether B.A. has adduced admissible new evidence constituting a material and relevant change in circumstances is the core issue in dispute in this application. His counsel assert that he has made out a material change that not only triggers the court’s jurisdiction to hear his application, but also justifies his release. He relies on the following changes as being material and relevant: (1) the presence of stronger sureties; (2) the presence of enhanced electronic monitoring; (3) the engagement of security personnel to conduct constant surveillance on the front and rear of his residence to ensure he does not leave, except in accordance with any applicable terms of release set by the court; and (4) the impact that the COVID pandemic has had on his ability to prepare for trial and to make full answer and defence to the charges against him.

[23] The Crown demurs. Crown counsel argue that the plan of release now proposed is only marginally different than that rejected by Justice Leibovich. More to the point, they argue that the new proposal fails to satisfactorily address the concerns that grounded Justice Leibovich’s decision to continue B.A.’s detention. In the result, they urge the court to conclude that B.A. has failed to meet the material change threshold. Alternatively, if he does meet that threshold, his proposed plan of supervision remains insufficient to attenuate concerns on each of the three grounds for continued detention.

Onus

[24] It is common ground that B.A. bears the onus to establish that his continued detention is not justified on the primary, secondary or tertiary grounds. In most cases it falls to the Crown to justify continued detention. That onus shifts in certain circumstances, one of which arises where the accused is alleged to have committed offences while at large on a recognizance, which is the case here, given B.A.’s admitted breach of his initial release order.

[25] Having set out the principles that govern the court’s consideration of this application, I propose to work through it in the following way. First, I will set out the circumstances of the alleged offences. Next, I will provide an overview of the plan of release proposed to Justice Leibovich and the findings he made in rejecting the sufficiency of that plan. I will then outline the release plan now proposed to the court and highlight the differences between it and the one proposed to Justice Leibovich. Finally, I will assess whether the new plan meets the material change threshold and, if so, whether it satisfies any concerns the court may have on any of the primary, secondary and tertiary grounds.

III. THE CIRCUMSTANCES OF THE ALLEGED OFFENCES

The Basics

[26] M.A. was, as of September 20, 2017, the registered owner of a detached residence located at 1809 Liatris Drive, Pickering. M.A. rented the upper part of the residence to Y.P. The residence had a basement apartment. The Crown alleges that M.A. rented that apartment to B.A.

[27] In the early morning hours of September 20, 2017, Y.P. called 911 to report that the carbon monoxide alarm was sounding in the locked, basement apartment. Firefighters responded and forced their way into the basement, where they found what appeared to be a drug lab.

[28] The police obtained a warrant to search the apartment. Their search yielded 42 kilograms of carfentanil, 31 vacuum sealed, semi-automatic handguns, two rifles, extended magazines and ammunition.

[29] Justice Leibovich made the following observations about carfentanil, gleaned from the expert report of Waterloo Regional Police Service Detective Constable Ian Young, which was filed by the Crown during the hearing before him:

1. Carfentanil is a synthetic opioid that was originally intended as a large animal tranquilizer and is believed to be 10,000 times stronger than morphine;

2. Carfentanil powder can be sold on the street as other commodities like fentanyl, heroin and cocaine, or in pressed pill form resembling OxyContin, Percocet, Xanax and other medications. This creates a high risk of overdose or even death for the user, as they are unaware of what drug they are consuming; and

3. …The price of the drug will vary depending on the perceived quality of the product and the amount available in the city or region at any given time. The price is also dependent on the quantity sold. In [DC Young’s] experience, the carfentanil sells for the price of fentanyl or high-quality heroin at the following price ranges: $30-$50 per .1 gram, $200-$240 per gram, $2,700-$4,000 per ounce, $100,000-$120,000 per kilogram. The amount seized in this case could therefore have a street value between $4,200,000 to $16,784,800...

[30] The 42 kg of carfentanil seized from 1809 Liatris Drive is apparently the single largest seizure of carfentanil in Canadian history.

[31] M.A. was arrested and charged with possession of carfentanil for the purpose of trafficking in it, as well as more than 300 firearms offences. He told the police that he rented the basement apartment to someone named Waseem Khan during the month of September 2017. The police obtained a copy of the lease agreement from M.A.’s wife. Attached to it was an Ontario driver’s license, which the police determined to be a fake. Y.P. did, however, identify the picture of the man on the license to be consistent with the basement tenant.

[32] B.A. was subsequently identified, at least from the Crown’s point of view, as the basement tenant. Fingerprints lifted from items seized by the police from the basement apartment matched his fingerprints, which are in the AFIS system.

[33] The police eventually located B.A. in Edmonton Alberta. He was arrested there on March 9, 2018 and transported to Oshawa several days later. A search of his apartment conducted by police subsequent to his arrest resulted in the discovery of additional fake identification, B.A.’s Pakistani passport and about $180,000 in cash.

[34] Although he was originally charged jointly with M.A., their trials were severed in February 2021. M.A. re-elected to have his trial before a judge alone. It proceeded over two weeks in March 2021.

[35] B.A.’s trial was scheduled to commence November 15, 2021 before a jury. He recently re-elected to proceed before a judge alone, still commencing November 15.

The Strength of the Crown’s Case

[36] While the court’s vantage point on a bail application is always a limited one, it appears that the Crown has a formidable case against B.A.

[37] The Crown’s case linking B.A. to the basement apartment on Liatris Drive falls into four categories: (1) fingerprints; (2) DNA; (3) purchase receipts; and (4) text messages allegedly exchanged between B.A. and M.A.

[38] Justice Leibovich made the following observations regarding the evidence against B.A., which I adopt for the purposes of this ruling:

(a) B.A.’s fingerprints were found on the vacuum-sealed packaging of two guns and on baking trays that were filled with drying carfentanil;

(b) B.A.’s DNA was found on two other vacuum-sealed guns and also inside a discarded latex glove that was covered with caffeine powder. That same type of powder had been mixed into the carfentanil;

(c) Carfentanil was also found drying in plastic tubs. Account records from a Visa card in B.A.’s name reflect that he purchased three identical plastic tubs, with identical SKU numbers, from a Walmart store a short drive from 1809 Liatris Drive;

(d) A cell phone was seized from M.A. at the time of his arrest. The police conducted a warranted search of it. They discovered that the phone had communicated regularly, between July 12, 2017 and September 20, 2017, with phone number (647) 544-3120, which the police later determined was registered to B.A.’s mother. The two phones communicated over an instant messaging application called “Whatsapp”. The communications included discussions about the basement apartment and “stuff” located in the washroom and out in the open. The plastic totes holding carfentanil were located by the police in the washroom;

(e) Additional Whatsapp messages were located on a phone seized from B.A.’s vehicle at the time of his arrest. They include a conversation he had with a party whose identity is unknown. The conversation occurred in late February 2022, just over two weeks prior to B.A.’s arrest. The user of B.A.’s phone texted, “Ya man jus contemplating if I should leave this country for good.” Several minutes later the user texted the same recipient, “It’s super critical 15 yrs + critical.” He goes on to discuss his hope that Bitcoin will go to $50k because then he’d be set for life. He indicated that he had “150 Btc”.

IV. THE FAILED RELEASE PLAN

The Particulars of the Plan

[39] Recall that B.A. was originally released on a surety bail that required him to live with his mother in her residence in Ajax. He was on house arrest; required to remain in his mother’s residence except for medical emergencies or when in the company of a surety.

[40] The plan proposed to Justice Leibovich included the following revised terms:

(a) B.A. would be released on strict conditions. He would deposit $100,000. His sureties would be his sister, S.A2, and his brother, D.A. They each were prepared to pledge $30,000 on his behalf;

(b) B.A. would reside with S.A2, on a house arrest condition, subject to any court-ordered exceptions, such as medical emergencies or to attend at his counsel’s office; and,

(c) GPS monitoring would support the whole enterprise, with monitoring being done by Recovery Science Corporation.

The Particulars of the Rejection

[41] The Crown conceded, in April 2020, that the onset of the COVID-19 pandemic constituted a material change sufficient to trigger the court’s jurisdiction to review B.A.’s detention order under s. 520 of the Criminal Code. This concession was consistent with evolving jurisprudence at the time.

[42] Justice Leibovich heard, but rejected, B.A.’s application. His reasons for doing so are set out at paras. 46-66 of his ruling released April 23, 2020.

[43] In terms of the primary ground, Justice Liebovich considered a number of factors that supported B.A.’s position, including:

• a strong surety;

• a $100,000 deposit;

• GPS monitoring;

• the seizure and retention of his travel documents; and,

• the global restrictions on travel related to the COVID-19 pandemic.

[44] At the same time, he observed that there were a number of factors that worked against B.A.’s position, including:

• B.A. is facing a potential life sentence and has indicated in the past an intention to abscond;

• He is facing a strong Crown case;

• When arrested, B.A. was in possession of fake identification; and,

• There is some evidence that he may have access to a significant amount of digital currency.

[45] On balance, Justice Leibovich found that B.A. had met his onus on the primary ground, though just barely.

[46] B.A. had less success, however, with respect to the secondary and tertiary grounds. Justice Leibovich found that his continued detention was justified on both.

[47] In terms of the secondary ground, Justice Leibovich concluded that detention was justified for reasons which included the following:

• B.A. has a prior, related criminal record and was subject to a weapons prohibition at the time of the alleged offences;

• B.A. has been entrenched in a lucrative criminal lifestyle for an extended period of time;

• The Crown’s case is a strong one;

• While S.A2 presented as a strong surety, she could not monitor B.A. around the clock. Justice Leibovich was concerned that he may start rebuilding his business; and,

• The evidence as a whole tended to suggest that B.A. is not prepared to follow direction.

[48] In terms of the tertiary ground, continued detention was strongly indicated, according to Justice Leibovich. His reasons included the following:

• The offences are extremely serious. He described the seizures from 1809 Liatris Drive as “a community’s nightmare”;

• The Crown’s case is a strong one;

• B.A. has a related criminal record and has already breached a prior release order; and,

• COVID-19 concerns tended to point towards release but not compellingly so given the absence of evidence that B.A. was at higher risk for contracting the disease or overcoming it.

[49] It was Justice Leibovich’s concluding view that a reasonable person, properly informed of the philosophy of the Canadian bail system and the Charter values that animate it, would lose confidence in the administration of justice if B.A. were to be released. His continued detention was ordered.

V. THE NEW PLAN

[50] Almost seventeen months have passed since the dismissal of B.A.’s last application for a review of his detention. In the meantime, the pandemic has raged on. B.A.’s trial has been unable to proceed in light of COVID-related restrictions on conducting jury trials. He has continued to languish in a number of different remand facilities. As his trial finally approaches – now set to be heard before a judge without a jury – his counsel express frustration that they are not able to access him for the purpose of trial preparation.

[51] A new plan of release is proposed; this one considerably stronger than the one put forward before Justice Leibovich.

[52] There is a modest shuffling of sureties, but the real additions to the plan are enhanced electronic surveillance and the introduction of physical surveillance.

The Sureties

[53] Each of B.A.’s three siblings is offered up as a surety.

[54] The proposal is that B.A. will reside full-time with his sister, S.A1, and her husband, A-M.S., at their home located at 36 Ainley Road, Ajax. They have a two year old son and another child due in late October 2021. S.A1 is self-employed. She operates a business catering to the Muslin community. The fall is off-season for her. Her busy season is in the spring, leading up to Ramadan. She is prepared to pledge up to $79,000.

[55] D.A. resides in Ajax with his mother, about a five minute drive from his sister, S.A1.’s, home. He too is self-employed, running his own HVAC business. He will offer whatever support is necessary, as and when required. He is prepared to pledge up to $15,000.

[56] S.A2 is once again offered as a surety, though not a residential surety under the current plan. She lives in Etobicoke. She is employed as a trial co-ordinator in the Ontario Court of Justice, working out of Old City Hall. She expected to have to return to work imminently, but as of the hearing of this application, it was unclear whether she would be continuing to work remotely and, if so, for how long. At any rate, she has significant holiday time owing to her between now and the end of the year. She is ready, willing and able to assist her sister in monitoring or transporting B.A. whenever necessary. She is prepared to pledge up to $30,000.

[57] A strict house arrest provision is proposed. B.A. is to remain in his residence at all times, other than for medical emergencies, to attend court or to attend pre-scheduled appointments with his legal counsel. He is to be accompanied by a surety at all times when he is outside of the residence. Advance notice of any appointments with counsel is to be provided to the officer in charge of this investigation, DC Scott Green.

Electronic Surveillance

[58] Electronic monitoring is once again being offered. Again, the monitoring is to be conducted by Recovery Science Corporation (“RSC”). One of the owners of RSC, Stephen Tan, testified on the application. He explained that the plan in this instance would be to utilize a system he refers to as an “inverse inclusion zone”. In effect, it is actually an exclusion zone set up around the perimeter of the surety residence.

[59] Some release orders include exclusion zones. For instance, a releasee might be ordered not to attend within the city limits of, say, Hamilton. In that event, an electronic exclusion zone would be established around the City of Hamilton and an alarm would trigger if the ankle bracelet entered that excluded area.

[60] In this instance, the excluded area will be defined as anywhere within a zone established around the perimeter of S.A1’s home. As I understand it, the current technology limits RSC to establishing that perimeter at about 200 feet outside of the residence. Mr. Tan indicated, however, that they soon expect to reduce that to 100 feet or perhaps as little as 60 feet.

[61] At any rate, the purpose of establishing an exclusion zone around S.A1’s residence is to ensure that an alert is triggered almost immediately if B.A. makes an unauthorized exit from the residence.

[62] As has been pointed out repeatedly, electronic monitoring has certain limitations. First, while it provides evidence about where a person is, it cannot provide any information about what the person is doing. Second, it cannot prevent a breach. It can only provide evidence that a breach has occurred.

Physical Surveillance

[63] What is especially different about this application is that B.A. proposes to retain a private investigation firm, Klatt Investigations, to conduct round-the-clock, physical surveillance of his sister’s residence.

[64] Mr. Klatt testified on the application. He said he will retain sufficient security guards to ensure that one is posted in the driveway at the front of the residence and one in the rear yard at all times. The guard at the front will be responsible for keeping a visitors’ log, recording the identification of anyone who attends at the residence and when. Photographic identification will be required.

[65] Should B.A. attempt to leave his sister’s residence in breach of any court-ordered conditions, he will be arrested.

[66] If B.A. makes a scheduled visit to his lawyers’ office, the security guards will follow, to ensure that surveillance is maintained. One guard will remain inside the lawyers’ office as B.A. meets with counsel. The other will remain outside the front of the building.

[67] They will similarly continue surveillance on B.A. when he attends court.

[68] They will make sure that there is one surety in the residence with B.A. at all times.

[69] In the event of any breach, they will promptly notify the officer in charge.

[70] While Mr. Klatt said that his firm is prepared to conduct physical searches inside the residence, he conceded that they will not be able to monitor computer use, phone calls or conversations inside the home. They are not able to stop people from coming or going and they are not able to search people coming into or leaving the property.

[71] According to Mr. Klatt, the provision of this security will cost about $72,000 per month. He is to be paid up-front for the first month and then up-front three days before the first of any subsequent month. If he stops being paid, he will notify the officer in charge. His forces will remain on the job until the system has had sufficient time to react.

[72] An unusual feature of this arrangement is that B.A. will be paying for the surveillance. It requires his ongoing consent. If that consent is revoked, the officer in charge will be promptly advised.

VI. ANALYSIS

[73] B.A. is a poor candidate for release. He is charged with a litany of extremely serious offences. The case against him is a formidable one. He has a prior criminal record for related offences. He is undoubtedly a flight risk. When previously released on bail on these charges he breached after only 18 days. And he has a record of disciplinary issues while in remand facilities awaiting his trial, raising questions about his governability.

[74] Nevertheless, I am going to release him pending the completion of his trial. The following reasons explain why.

The New Plan is a Material Change

[75] I begin with the question of jurisdiction.

[76] As I noted earlier, B.A.’s counsel submits that there are four changes in circumstances reflected in the new plan of release. These changes are, they say, both relevant and material, in the sense that they would likely have made a difference to Justice Leibovich had they been included in the earlier plan of release.

[77] One of the changes involves what I would describe as a shuffling of sureties. If that were the only change, I would agree with Crown counsel that it would not be material. Justice Leibovich was not unsatisfied with the quality of the sureties proposed in April 2020. Indeed, he specifically found S.A2 – then proposed as the residential surety – to be “strong”.

[78] Other jurists have held that a change in sureties does not automatically amount to a material change in circumstances. See, for instance, R. v. Hassan, 2015 ONSC 4535. In R. v. Ferguson, [2002] O.J. No. 1969 (S.C.J.), Justice Hill said the following, at para. 17:

Simply re-shuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[79] The surety plan proposed on this occasion is admittedly somewhat stronger than that proposed in April 2020. The current plan is for B.A. to be in the presence of a surety at all times, whether in his residence or outside of it for pre-scheduled visits to his counsel. Moreover, it severely restricts the exceptions to the condition of house arrest. That said, the change in sureties, on its own, does not in my view call into question the continued validity of Justice Leibovich’s reasons for detention. The expressed concerns that B.A. will not follow the terms of his release and may engage in further criminality remain. Moreover, the adjustment to the proposed sureties does nothing to attenuate the tertiary ground concerns expressed by Justice Leibovich.

[80] I reach the same conclusion about the increased intensity of the proposed electronic monitoring. Justice Leibovich’s concern was that GPS monitoring can provide data about where B.A. is, but it can give no data about what he is doing. The proposed change reduces the time lag between a breach and an alarm, but beyond that it adds little to the plan that was presented to the court 18 months ago.

[81] I appreciate that the proposed plan must be viewed as a whole to determine if it constitutes a material change. The whole may be greater, as they say, than the sum of its parts. I am satisfied that, on the whole, the new plan does constitute a material change in circumstances. The whole, of course, includes the change in sureties and the enhanced electronic monitoring – features that, on their own, are not sufficient to reach the material change threshold. It is the presence of the following two additional features that push the current plan of release across the threshold.

[82] First, B.A. has offered the unusual, if not unique, proposal of round-the-clock physical surveillance.

[83] Second, B.A. is two months away from the commencement of his trial on very serious criminal charges. His lawyers are not able to access him sufficiently to adequately prepare for trial. He has a constitutional right to make full answer and defence. That right is arguably being infringed in the present circumstances.

[84] The proffered release plan is not foolproof. I don’t think a foolproof release plan has been invented yet. This one does not address all of the concerns raised by Justice Leibovich – principally concerns about what B.A. might get up to while inside his residence. But the secondary ground is all about risk management. The onus on B.A. is to present a plan of supervision sufficient to reduce the risk of recidivism – and to public safety more generally – below the level of “substantially likely”. If the plan for 24/7 physical surveillance does not do so, I do not know what would.

[85] The tertiary ground is all about ensuring continued public confidence in the administration of justice. The charges against B.A. are undoubtedly egregious. But the Supreme Court has made it clear that there is no category of offence that is ineligible for release. When considering whether detention is necessary to maintain public confidence in the justice system, the court must take into account all of the prevailing circumstances and the all of the proposed conditions of release.

[86] In my view, the prevailing circumstances have changed in a material way. Moreover, the stringency of the proposed conditions of release has also changed in a material way. B.A. has, in the result, met his onus to adduce admissible new evidence that constitutes a relevant and material change in circumstances.

[87] Having found that the court has jurisdiction to hear this application under s. 520 of the Criminal Code, I will spend some time drilling down on the three recognized grounds for continued detention to explain why I am satisfied that B.A.’s release plan attenuates existing concerns about his release.

The New Plan Attenuates Primary, Secondary and Tertiary Ground Concerns

The Primary Ground

[88] The primary ground for continued detention (s. 515(10)(a) of the Criminal Code) is concerned with ensuring that B.A. is present when the curtain rises on his trial. The bail system fails when accused persons abscond after their release.

[89] There is a genuine flight risk in this case.

[90] If convicted, the Crown will be seeking a life sentence.

[91] Recall that a fake driver’s license was attached to the lease agreement provided to the police by M.A.’s wife. It had B.A.’s picture on it, but the name Waseem Khan. Other fake identification was found during a search of his residence following his arrest.

[92] B.A. may have significant funds at his discretion. There is some evidence that he has more than 150 Bitcoins at his disposal. Recall that the forensic analysis of a cell phone seized from B.A.’s vehicle at the time of his arrest revealed a text conversation between the user of B.A.’s phone and an unidentified party on February 2, 2018. During the conversation, B.A. said he had 150 Btc and needed it to go to 50k so he’d be set for life.

[93] Bitcoin is notoriously volatile. It is trading, at the time of this ruling, at over $40,000, meaning that 150 Bitcoins would be valued at about $6 million.

[94] I am quite alive to the reality that B.A. may well have the incentive and means to disappear if released.

[95] On the other hand, the following factors serve to sufficiently attenuate any risk of flight:

(a) B.A. was previously on release and made no attempt to abscond;

(b) He has had to surrender his travel documents to the police;

(c) He will be required to be in the presence of one or more of his sureties at all times. Though he might certainly sneak out when they are asleep or otherwise occupied, he will be subject to electronic monitoring which will set off an alarm almost immediately should he leave his residence for an unauthorized purpose; and,

(d) He will, moreover, be subject to 24/7 physical surveillance. Any geographic breach should be immediately detected and responded to.

[96] I am satisfied that any concerns on the primary grounds are sufficiently allayed by the proposed plan of release.

The Secondary Ground

[97] The secondary ground for continued detention (s. 515(10)(b) of the Criminal Code) engages the court in an assessment of whether continued detention is justified for the safety or protection of the public. The court is directed to examine all of the surrounding circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[98] The “substantial likelihood” threshold has been the subject of a fair bit of judicial and academic attention.

[99] In R. v. Morales, as above, former Chief Justice Lamer instructed that the focus of s. 515(10)(b) is a narrow one. Just cause to deny bail does not exist just because there is a chance that an accused person might commit further offences if released. Instead:

Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. (Para. 39).

[100] Assessing whether there is a “substantial likelihood” of the commission of further offences requires the court to make predictions about future dangerousness, often through the use of propensity reasoning. Such predictions are invariably inexact. But the “substantial likelihood” threshold does not require exactness. Instead, it has been described as a slightly enhanced balance of probabilities standard. See Trotter, Mr. Justice Gary T., The Law of Bail in Canada, 3^rd ed. Toronto: Carswell, 2020 (loose-leaf updated 2019, release 1).

[101] The threshold “refers to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.” See R. v. Manasseri, 2017 ONCA 226 at para. 87.

[102] A cluster of factors must be considered when assessing future dangerousness and whether the substantial likelihood threshold has been met. The nature of the charged offences, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations.

[103] If the court determines that there is a substantial likelihood of recidivism that will endanger the safety of the public, then the accused must demonstrate that he has a plan in place that will manage the risk to the point that the likelihood of further offences occurring is no longer substantial.

[104] The evidentiary record makes it readily apparent, in my view, that there is a substantial likelihood that B.A. will commit further offences or interfere with the administration of justice if released on bail. I reach that conclusion for reasons that include the following:

(a) B.A. has already been released on bail in relation to the index offences. He breached within three weeks. Any suggestion that he has “learned his lesson” is disingenuous. The “lesson” in issue is that a breach will lead to a return to custody. That lesson was undoubtedly clear to B.A. when he was initially released;

(b) B.A. was subject to a s. 109 weapons prohibition at the time he was arrested. The charges against him involve more than 100 weapons-related offences;

(c) B.A. has a growing portfolio of institutional misconduct, generally involving violence. I am alive to the facts that remand facilities are unpleasant, that they are congregate living facilities for some of the less nice members of society and that inmates must follow a certain code of conduct to get by on a day to day basis. That said, the growing number of incidents of misconduct on B.A.’s record tend to support the Crown’s assertion that he is ungovernable;

(d) There is evidence, as Justice Leibovich observed, that tends to support the conclusion that B.A. has been entrenched in a lucrative, yet dangerous, criminal lifestyle for a considerable period of time. He has a prior record for possession of controlled substances for the purpose of trafficking dating to 2014. He is charged with a similar offence here; and,

(e) The Crown has a formidable case tying him to the basement apartment at 1809 Liatris Drive and, more particularly, to the almost three dozen firearms located in that residence and the arresting amount of carfentanil. A person capable of obtaining and trafficking that many illegal firearms is a person very much entrenched in criminality. And a person capable of manufacturing and selling 42 kg of carfentanil is similarly one who is deeply entrenched in the illegal drug trade. I share Justice Leibovich’s concern that the circumstances give rise to a heightened risk that B.A. will reach out to some of his many contacts and revive his operations.

[105] As I have alluded to, however, I am satisfied that the plan of release now proposed by B.A. sufficiently attenuates the risk to public safety that, although it is not entirely eliminated, it falls below the threshold of “substantial likelihood”.

[106] The following features of the plan tip the risk below the threshold:

(a) B.A. will be on a strict, lockdown house arrest. He will be permitted out of the residence for only two reasons: (1) medical emergencies; and (2) to meet with counsel;

(b) He will be required to be in the presence of one or more of his sureties at all times;

(c) He will be prohibited from using any telecommunications device, including a cell phone and an internet-equipped computer. Obviously there remains some risk that he will get his hands on a cell phone or a computer when no one is watching him. But I have confidence in his sureties that they will do everything in their power to ensure that he does not breach his conditions of release;

(d) Klatt Investigations, or their sub-contractors, will keep a log of people coming and going. They will not be in a position to search bags or pockets, so it is conceivable that someone could smuggle a phone or other contraband to B.A. That said, they will be keeping a careful log of anyone who attends the residence. The risk of identification and detection is sufficient in my view to reduce the risk of this sort of thing happening to an acceptable level; and,

(e) B.A. will not be able to leave the residence without triggering an alarm and without being observed by the posted guards. His movements will be closely tracked. I appreciate that there may be some concern that Klatt Investigations is beholden to B.A. because he is paying for their services. There may be an incentive to overlook a breach, given that the contract will come to an abrupt end in the event of a breach. That said, I found Mr. Klatt to be an earnest witness and one I am confident is committed to the task, which is to maintain constant surveillance on B.A. I am confident that, despite the arguable conflict of interest, Klatt Investigations will adhere to the spirit of the arrangement and will report any observed breach.

[107] In the result, I am satisfied that any secondary ground concerns are sufficiently allayed that there is no longer a substantial likelihood of re-offence or of interference with the administration of justice. Continued detention on the secondary ground is no longer justified.

The Tertiary Ground

[108] Accused persons get released on bail every day. Most members of the public understand that bail is a common feature of the criminal process, even if they are not fully informed of the common law and Charter rights that animate the bail system in Canada.

[109] The vast majority of judicial interim release orders are made with little fanfare and in largely unremarkable circumstances. In some instances, however, the circumstances are more striking. In the face of very serious charges and a strong and compelling Crown case, the release of an accused person on bail may attract more attention and may cause reasonable members of the public to lose confidence in the administration of justice.

[110] The aspiration of the tertiary ground (s. 515(10)(c) of the Criminal Code) is to maintain confidence in the administration of justice. It provides that continued detention is justified:

if…necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[111] In R. v. St. Cloud, as above, the Supreme Court provided a summary of the principles that should guide the court’s consideration of the tertiary grounds. They include:

(a) The tertiary ground is not a residual ground for detention that applies only where the first two grounds for detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused;

(b) The tertiary ground is not restricted to rare cases or exceptional circumstances or only to certain types of crimes;

(c) The four listed factors listed in s. 515(10)(c) are not exhaustive. The court may consider other relevant factors based on the circumstances of any given case;

(d) The court must not order detention automatically even where the four listed circumstances support such a result. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances;

(e) No single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified;

(f) After balancing all relevant circumstances, the ultimate question to be asked is whether detention is necessary to maintain confidence in the administration of justice. To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused; and,

(g) A reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[112] There is no question that, in the circumstances of this case, a consideration of the four factors listed in s. 515(10)(c) points towards continued detention. As St. Cloud makes clear, however, those four factors are not to be assessed in a manner entirely untethered to the balance of the circumstances of the case.

[113] A reasonable person, properly informed of the presumption of innocence, the right to reasonable bail and the Supreme Court’s clear direction that detention is the exception and not the norm, may still approach the release of a person like B.A. with some trepidation. He or she would no doubt insist on a solid explanation as to why B.A. is being released despite the abundance of primary, secondary and tertiary ground concerns. Such an explanation exists here.

[114] First, the reasonable member of the public would understand that B.A. is not being released to come and go as he sees fit. He is being released on some of the most stringent conditions imaginable. He will be subject to constant surveillance on three levels: by his sureties, by GPS monitoring and by professional security guards. The risks of flight and re-offence are accordingly minimized.

[115] Second, the reasonable member of the public will appreciate that B.A. has a right to defend himself against the serious charges levelled against him by the state. He or she will understand that B.A. has a right to attend trial fully prepared to meet the Crown’s case against him. And he or she will further understand that his right to do so is being significantly impaired by current pandemic-related restrictions that seriously undermine defence counsel’s efforts to meet with, prepare and take instructions from their clients who are in custody.

[116] It has always been the case that preparing for trial is made more difficult when an accused person is in custody. Sometimes that fact cannot be avoided. Specifically, where pre-trial detention is justified according to law. In the past, counsel have been able to make do through contact by phone and by meeting with their clients in the institutions where they are being held. COVID-19 has undermined both of those means of making contact.

[117] Until recently, B.A. was being held at the Quinte Detention Centre in Napanee, some 228 km away from his counsel’s office. One of B.A.’s counsel, Melina Macchia, swore an affidavit on August 26, 2021 in support of this application. She deposed, amongst other things, that:

(a) Quinte did not have videoconferencing available to facilitate contact between counsel and client;

(b) Phone contact was difficult to arrange; and,

(c) Personal attendances of counsel at the institution were highly impractical.

[118] B.A. was transferred to the Toronto East Detention Centre (“TEDC”) on or about September 1, 2021. The reason for the transfer was to facilitate access between B.A. and his counsel. TEDC is a facility with approximately 330 inmates over 12 ranges.

[119] Brittany Cassidy is a receptionist in defence counsel’s office. She swore an affidavit on September 15, 2021 in support of this application. She said that difficulties communicating with B.A. persist. In particular:

(a) Counsel visits are facilitated by the institution but they must be conducted behind glass due to COVID-19 concerns;

(b) Videoconferencing meetings are not presently being accommodated;

(c) Disclosure had to be arranged through the security office. Calls she made to that department on September 3 and 7, 2021 were not answered or returned. On September 8, 2021 counsel managed to speak to B.A. through an Access: Defence call. At that time, she was informed that B.A. had not yet received access to a disclosure package sent to the him at the institution on September 3, 2021;

(d) She spoke to Sergeant Lawson in the security department on September 10, 2021 and was told that disclosure could be sent to their office for processing. Sergeant Lawson confirmed that in-person visits could only occur in two rooms and behind glass; and,

(e) An Access: Defence call was scheduled for September 10, 2021 at 1:00 p.m. B.A. was not brought on the line. A further Access: Defence call was scheduled for September 13, 2021 at 3:40 p.m. Again, B.A. was not brought on the line.

[120] B.A. testified that he has told by Sgt. Lawson that he needed to ask line staff for access to the disclosure package delivered to the institution by his counsel. He said that, following Sgt. Lawson’s advice, he made daily requests of line staff for access to the disclosure, but was put off for varying reasons each time he asked. By the time of this hearing on September 15, 2021 he had yet to be provided with that disclosure.

[121] Sergeant Lawson testified as part of the Crown’s case in response to this application. He said that TEDC has four laptops dedicated to the use of inmates who wish to review electronic disclosure. These laptops are not, he said, commonly in use. He would expect B.A. to have no difficulty accessing a laptop to review disclosure.

[122] He also indicated that TEDC has a video suite on the range where B.A. is being held. Contrary to what Ms. Cassidy was told, he said it is available to be used for counsel/client meetings when not being used for court. That generally means between 4:00 p.m. and 6:00 p.m. or between 6:00 p.m. and 8:00 p.m. during the week, plus all day on weekends.

[123] Sgt. Lawson was aware, through this application, that B.A. is complaining about an inability to access his disclosure. He said this is the first he has heard of any difficulty. B.A. has not asked him, he says, to review disclosure.

[124] He said that his office makes the arrangements for counsel visits. They have two rooms in which visits can take place. The rooms are private, but meetings must be through glass due to COVID concerns. If documents have to be passed from counsel to client they have to be passed to an officer to give to the client.

[125] In his view, there should be no problem with counsel being able to arrange to meet with B.A. to prepare for trial, barring any unforeseen circumstances.

[126] I am satisfied, having listened to the evidence on the application and having heard counsel’s submissions, that defence counsel are having genuine difficulty accessing B.A. for the purpose of trial preparation. Their concerns are consistent with accounts that I have heard from defence counsel throughout the pandemic.

[127] My conclusion on this issue should not be taken as a criticism of TEDC or any other remand facility. They have worked very diligently to protect inmates and staff from contracting the COVID-19 virus. I found Sgt. Lawson to be an earnest witness and I believe he genuinely does his best to facilitate contact between counsel and their clients.

[128] Having said that, the reality is that COVID-19 has had a significant impact on defence counsel’s ability to communicate with B.A. and certainly on their ability to meet with him.

[129] There are really only three means by which counsel can communicate with an inmate at TEDC: by telephone; by videoconference; or in person.

[130] B.A. has access to a telephone in the day room on his range. But it’s usefulness to him is minimal. First, he is not the only inmate who wants to have access to the phone. Second, access to the dayroom has been limited throughout COVID. Third, the dayroom is not a private area. It is not well-suited to privileged communications between a client and his legal counsel. Moreover, it is an entirely insufficient platform for the purposes of trial preparation.

[131] “Access: Defence” is a teleconferencing system created and managed by the Ministry of the Attorney General. Its goal is to provide defence counsel with a convenient means of booking calls with their in-custody clients, thereby avoiding personal attendances at correctional institutions. I accept Ms. Cassidy’s evidence that their office has not had success communicating with B.A. by way of Access: Defence calls. Again, those calls are, in any event, not a sufficient means to facilitate trial preparation.

[132] Sgt. Lawson testified that there is a video suite located in B.A.’s range. It is used for video court appearances during court hours on weekdays. Sgt. Lawson said it is available for booking by lawyers to communicate with their clients at other times. He identified blocks between 4:00 p.m. to 6:00 p.m. and 6:00 p.m. to 8:00 p.m. on weekdays and anytime on weekends.

[133] In my view, meetings by videoconference from TEDC do not provide an adequate platform for trial preparation. I say that principally for the following two reasons:

(a) I accept that Ms. Cassidy was told, when she attempted to arrange a videoconference meeting with B.A., that meetings of that nature are not presently being accommodated at TEDC. At the very least there appears to be some confusion about whether such meetings are available; and,

(b) Even if available, there are narrow windows in which such meetings might be arranged. Those windows are subject to competition amongst inmates for the available time. And they are subject to the dynamic custodial environment. There are many reasons why, during the course of any given day, the movement of inmates within the institution might be restricted. Videoconferencing presents a possible, but in my view, unreliable means of communicating between B.A. and his counsel.

[134] Finally, there is the option of in-person meetings. Again, given the current circumstances and COVID-related restrictions, I am not satisfied that in-person meetings between counsel and B.A. at TEDC offer an adequate forum for trial preparation.

[135] TEDC has 330 inmates and only 2 rooms for counsel to meet in person with their clients. Those rooms are not exclusively used for solicitor-client meetings however. They are multi-purpose rooms, frequently in use for audio court appearances during court hours. The availablilty of those rooms for counsel’s use is quite limited in my view. Moreover, the imposition of a glass barrier makes trial preparation – particularly on a case like this one – very difficult.

[136] Apart from the limited availability of the interview rooms and the undoubted competition for them, their accessibility is subject to the vicissitudes of a correctional institution struggling with a deadly pandemic. Lockdowns are common, whether for health or security reasons. The movement of inmates through the institution has been curtailed throughout the pandemic, for obvious reasons.

[137] Having regard to all of the prevailing circumstances, I am satisfied that B.A.’s ability to properly prepare for his trial is significantly impaired under the current conditions.

[138] B.A., like any accused person, is entitled to a fundamentally fair trial. That right includes the right to make full answer and defence, a right recognized at common law, codified in s. 650(3) of the Criminal Code and, for the past forty years, entrenched in s. 7 of the Charter as one of the principles of fundamental justice. See R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 at para. 17. See also R. v. Rose, [1998] 3 S.C.R. 226 at para. 98 where the majority described the right in the following terms:

The right to make full answer and defence manifests itself in several more specific rights and principles, such as the right to full and timely disclosure, the right to know the case to be met before opening one's defence, the principles governing the re-opening of the Crown's case, as well as various rights of cross-examination, among others. The right is integrally linked to other principles of fundamental justice, such as the presumption of innocence, the right to a fair trial, and the principle against self-incrimination.

[139] The right to make full answer and defence does not entitle an accused person to those procedures most likely to result in an acquittal. It entitles the accused person, however, to procedures which are fair and which enable the accused to defend against and answer the Crown’s case. See Dersch v. Canada (Attorney General), 1990 3820 (SCC), [1990] 2 S.C.R. 1505

[140] This is a bail application. Counsel’s submissions were focussed on the jurisprudence surrounding the court’s jurisdiction and the application of the three grounds for continued detention. They did not address in argument the contours of the right to make full answer and defence as a principle of fundamental justice. And they did not address, at least not head on, whether the pandemic-related impairment of defence counsel’s access to their in-custody client constitutes an encroachment on that right. In the result, this is not the case for the court to determine that issue in any comprehensive way.

[141] I will go so far as to say, however, that there is a real appearance of unfairness to B.A. in the current circumstances. He faces a 111-count indictment. If he is convicted of the charged offences, the Crown will be seeking a life sentence and they will be looking for an order forfeiting to the Crown any Bitcoin that B.A. may be determined to own, provided they can find and seize it. The stakes are high, to say the least. Yet B.A. is being detained in conditions that make trial preparation extremely difficult.

[142] I may not be in a position to conduct the analysis necessary to reach a conclusion about whether B.A.’s s. 7 Charter right is being infringed in the circumstances. But such a conclusion is not necessary here. There is, at the very least, an appearance of unfairness in the prevailing circumstances. That unfairness is a factor that must be considered in the context of an analysis of the tertiary ground.

[143] I would make one further observation. The aspiration of any trial is to discover the truth. The Canadian justice system is grounded in the adversarial system. The premise of the adversarial system is that the truth is most likely to be discovered when opposing litigants are able to present their cases with zealous self-interest and able to challenge their opponents with equal zeal.

[144] The efficacy of the adversarial model depends, in no small way, on the ability of each side to properly prepare for trial. This is one of the reasons why fulsome disclosure is so important in both the criminal and civil contexts. It follows that the adversarial model is undermined when one litigant is significantly handicapped in its ability to prepare for trial. When the model is compromised, the risk increases that the court will not arrive at a result that is just and fair.

[145] All things considered, I am satisfied that a reasonable person, properly informed of the philosophy of the legislative provisions that govern our bail system and the Charter values that animate it, would be concerned about ensuring that B.A.’s right to a fair trial is preserved. And he or she would be satisfied that B.A.’s release is subject to some of the most stringent conditions imaginable. He or she would not, in my view, lose confidence in the administration of justice by reason of the release of B.A. pending the conclusion of his trial.

[146] Detention on the tertiary ground is no longer justified.

VII. TERMS OF RELEASE

[147] In the result, B.A.’s detention order is vacated. He is to be released on the following terms and conditions:

Sureties

(a) This will be a surety bail in the amount of $100,000. There will be three sureties, including:

(i) S.A1, in the amount of $55,000;

(ii) S.A2, in the amount of $30,000 and,

(iii) D.A., in the amount of $15,000.

Residence

(b) B.A. will be subject to house arrest. Specifically, he is to reside full-time with his surety, S.A1, at 36 Ainley Road, Ajax Ontario. He is to remain inside that residence at all times save for:

(i) Medical emergencies relating to himself or a member of his immediate family;

(ii) To travel to and from and to attend pre-scheduled appointments with his legal counsel. He must notify the officer-in-charge, DC Scott Green or his designate (905-261-4355 or 3452@DRPS.ca) of the dates and times of any such appointments at least 24 hours in advance; or,

(iii) To travel to and from and to attend court appearances as and when scheduled.

(c) B.A. is to be in the presence of at least one of his sureties at all times, whether inside his residence or when outside of the residence for one of the limited, permitted purposes.

(d) B.A. is to be amenable to the rules and discipline of S.A1’s household.

(e) B.A. is to surrender any passport or other travel documents in his name to the officer in charge, or his designate.

Electronic Monitoring

(f) B.A. shall, at his own expense, be subject to GPS Monitoring by Recovery Science Corporation (“RSC”) by way of the installation of an ankle bracelet within 24 hours upon his release from custody and he shall:

(i) Enter into RSC’s participant agreement and comply with its terms;

(ii) Wear the GPS ankle bracelet at all times;

(iii) Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;

(iv) Comply with RSC’s leave notification and battering charging requirements;

(v) Consent to all RSC leave notifications being emailed directly to the Durham Region Police Service;

(vi) Co-operate fully with RSC staff;

(vii) Consent to login credentials being provided to the Durham Region Police Service by RSC for the purposes of obtaining current, historical and GPS location information at any time; and,

(viii) Consent to RSC providing information to the sureties upon their request for the purposes of current location and location history.

(g) The GPS monitoring shall include the establishment by RSC of an exclusion zone surrounding 36 Ainley Road, Ajax, Ontario at a distance of no more than 200 feet.

Physical Surveillance

(h) B.A. shall be subject, at his own expense, to physical surveillance, 24 hours per day, 7 days per week. The surveillance is to be conducted by Klatt Investigations;.

(i) B.A. is to enter into a written agreement suitable to Klatt Investigations that provides, at a minimum, for:

(i) The posting of security guards around-the-clock at the front and rear of 36 Ainley Road, Ajax, Ontario;

(ii) The authority of Klatt Investigations to create and maintain a log of anyone attending at 36 Ainley Road;

(iii) The authority of Klatt Investigations to continue their surveillance on B.A. at any time he is outside of the residence at 36 Ainley Road;

(iv) The authority of Klatt Investigations to conduct spot searches of B.A.’s bedroom within 36 Ainley Road;

(v) The authority of employees or contractors of Klatt Investigators to arrest B.A. in the event he does not comply in all respects with this release order and to detain him pending his transfer into the custody of officers of the Durham Regional Police Service, or any other peace officer;

(vi) The obligation of Klatt Investigations to report to the officer in charge, or his designate, without delay, any breach by B.A. of the terms of this release order, any attempt by B.A. to terminate the agreement with Klatt Investigators or any failure of B.A. to abide by the terms of the agreement with Klatt Investigations, including any failure to abide by the payment terms.

(j) Klatt Investigations shall provide a copy of the written agreement with B.A. containing, at a minimum, the terms set out in the foregoing paragraph to the officer in charge forthwith upon its execution and, in any event, within 24 hours of his release.

No contact

(k) B.A. must not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with Y.P. or M.A., except through legal counsel for the purpose of preparing a defence.

(l) B.A. must not attend 1809 Liatris Drive, Pickering, Ontario.

Weapons and permits

(m) B.A. must not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

(n) B.A. must not apply for any authorization, license or registration certificate for any weapon as defined by the Criminal Code.

Drugs/substances

(o) B.A. must not possess or consume any unlawful drugs or substances (as defined in the Controlled Drugs and Substances Act) except with a valid prescription in his name.

Cell phones and Internet

(p) B.A. must not possess or use any cell phone, pager or personal digital assistant.

(q) B.A. must not possess or use any computer or any other device that has access to the Internet or other digital network EXCEPT for Recovery Science Corporation equipment installed as a part of Electronic Monitoring through that company, or when in the direct and continuous supervision of a surety or his legal counsel.

Termination

(r) This release order will terminate at the completion of the evidence portion of B.A.’s trial. He shall, at that time, surrender himself into custody.

C. Boswell J.

Released: September 22, 2021