COURT FILE NO.: CR-21-00000037-00BR

DATE: 20210128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEEANDRA PAPEQUASH

Defendant/Applicant

Brian Moreira, for the Crown

Leah Shafran, for the Defendant/Applicant

HEARD: January 28, 2021

JUSTICE S. NAKATSURU:

Introduction

1On December 18, 2020, the Justice of the Peace denied Deeandra Papequash bail. They¹ seek review of this denial of bail.

2Deeandra Papequash is facing four separate sets of charges. Setting out all the details of them is not necessary. Enough to say the charges involve assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before. On these charges, more than once. But when all the charges came again before the Justice of the Peace on December 18th after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the applicant again. He detained Deeandra Papequash on the secondary ground.

3I find the Justice of the Peace made a serious mistake in his decision. I also find there is a new and material change in the applicant’s situation.

A. ERROR OF LAW

Error of Law

4Deeandra Papequash is 34 years old. Mixed Cree and Saulteaux. A member of Key First Nation in Saskatchewan. They came to Ontario in 2011. A Gladue report which had been previously prepared, was given to the Justice of the Peace. In detail, the report speaks about- and there is really no other way to describe it- the horrible childhood endured by the applicant. Separated from their birth parents early. A victim of sexual abuse while living with relatives. Physical abuse when they reconnected with their biological mother. Discrimination at being a two-spirited person.

5As an adult, life did not get easier. Many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, and alcohol and drug addiction. Involvement in gang activity in Regina and time in jail; long periods of jail. Even during the time these offences before the court were allegedly committed, their life did not have much stability. Two of the offences are said to have been committed while the applicant was at a shelter. They have no work. They receive ODSP. The one bright spot seems to be their intimate partner. Though the applicant currently stands charged with assaulting her.

6Given Deeandra Papequash’s lived experiences as an Indigenous person, figuring out the question of their release required a careful application of the Gladue principles: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688. Respectfully, his Worship did not do this.

7Make no mistake, failure to consider Gladue principles at a bail hearing is a serious error of law. Just giving lip service to Gladue principles is as big an error. The only thing the Justice of the Peace said about it was:

“I understand that you’re of Native descent? That’s certainly a consideration.”

Nowhere in the decision is any Gladue analysis done. Nowhere is anything found in the Gladue report referred to. As counsel for the applicant pointed out, there seemed to have been no opportunity for the Justice of the Peace to even have read the 24-page Gladue report. He did not break to read it. His decision was given straight after submissions. Indeed, given some of the earlier comments made by the Justice of the Peace about his wanting to adjourn this contested bail hearing given the lateness of the hour in the afternoon, his Worship seemed more concerned about completing the docket than giving proper attention to Deeandra Papequash’s case.

8In R. v. Robinson, 2009 ONCA 205 at para. 13, the Ontario Court of Appeal emphasized the consideration of the Gladue factors at the bail stage:

Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.

9Even giving full recognition to the presumption that jurists know the law, I am satisfied that the Justice of the Peace did not apply the Gladue principles. This is an error of law.

B. MATERIAL CHANGE IN CIRCUMSTANCES

Material Change in Circumstances

10Deeandra Papequash has been living precariously. Sometimes in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. The applicant proposed living in a shelter while waiting for this housing.

11Now, this housing opportunity through the COTA organization is definitively available. A one bedroom awaits them at either 2 Kingston Road Unit 1 or 8 Kingston Road Unit 51. Upon their release, the applicant will temporarily live at 685 Greenwood Avenue, a transitional housing unit, until the lease for one of the Kingston Road units is signed. This offer is time limited. If the applicant does not move into the apartment within three weeks, COTA will no longer hold it for them.

12The Crown argues that this is not a material change in circumstances. At the bail hearing, defence counsel raised this housing opportunity and advised that after years on the waiting list, the applicant had made it to the top of the list and was “eligible” for stable housing in January. Thus, the Crown argues, the Justice of the Peace did take this factor into account so there has been no material change in circumstances that warrants a new look at bail.

13I do not agree. At the bail hearing this housing had not yet crystalized. Now it has. It is no longer a dream with hopes it would someday be fulfilled. The stable supportive housing is now real. Very real.

14And this housing offer will expire shortly. Thus, this urgency is new. It was never presented in this fashion to the Justice of the Peace.

15In my view, this material change is significant. It would have had some impact on the Justice of the Peace’s decision. Especially if he had properly done the Gladue analysis.

16Given my conclusions, the law permits me to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.

C. THE SECONDARY GROUND

The Secondary Ground

17The Crown and the applicant submit that this case turns on the secondary ground. Neither party disputes that Deeandra Papequash can be released on the primary and tertiary grounds. I agree.

18The applicant proposes a Bail Program release. Bail Program has approved them. Also, Bail Program does not stand alone. The applicant has a long history with a number of social service programs and organizations: Parkdale Queen West Community Health Centre; Sistering; the 519; Aboriginal Legal Services; and COTA. Each has given me an updated report on their dealings with the applicant and what they can do to help them if they are released.

19The Justice of the Peace was concerned about the applicant and the lack of a surety to supervise them. These are not unimportant concerns. But they must be considered in the context of the unique systemic and background factors that bring this accused before the court.

20The unavailability of a surety is not surprising. Deeandra Papequash suffers from a host of afflictions that people of Indigenous background commonly suffer from. These are the products of colonialism and discrimination. Their difficult childhood laid the foundation for their difficult adult life. I have no doubt that intergenerational trauma had a hand in their early abandonment as a child, their suffering of sexual abuse at the hands of relatives, and the poor and abusive parenting by their mother. These in turn have led to their addictions and marginalization. Deeandra Papequash is disconnected from their Saskatchewan community. What ties they have in Toronto have been frayed by their mental illness, their addictions, their lack of education and skills. In turn, this has led to a pattern of impulsive and anti-social behavior. The result? They have few friends or family with means or ability, willing to come forward as a surety. Even when there has been someone, these sureties did not seem to have been very good ones. One surety that the applicant had while on a previous release, is said to have acted badly by trying to extort money from them.

21Given the applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns.

22The criminal record must also be seen through a Gladue lens. The record is a bad one. There are breaches. There are similar assaultive offences. Obvious concerns about public safety are raised by the criminal record if the applicant is released on bail. That said, I can see how at least some of the prior convictions are related to the Fetal Alcohol Syndrome and the addictions. These impairments can originate from the dislocation and hardship caused by colonialism and residential schools. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record.

23A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the applicant’s weaknesses as well as strengths. They say jail is not a good place for someone like Deeandra Papequash. About that, I have little reservation.

24For someone with this history and present life circumstances, a better release plan than that the one proposed to me is unlikely. Thus, the question is: to help fix the problem of the over-incarceration of Indigenous people and yet meet the legal test for bail, is this enough?

25In my opinion, the important added piece is the housing that is now available. Such secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. To leave the chaos that engulfs their lives. Stable housing means stable people. Thereby reducing conflict with the law. Thereby better protecting the community.

26More specific to Deeandra Papequash’s case, it is not lost on me that two of the allegations happened in shelters. It is not lost on me that some of the allegations involve them carrying a knife. I know that having a safe place to live will help.

27Furthermore, what is being offered is more than just four walls to live within. Dr. Rowe, a community psychiatrist, explains that with the housing, there is support from the Assertive Housing First Team at COTA. The team offers wraparound supports for people with serious mental illness and criminal records. Along with the affordable housing, they support the residents by seeing them at least three times per week. They bring medications, help with budgeting, cooking, and cleaning, and getting them drug treatment, education, and jobs. Dr. Rowe has known the applicant for four years. In her opinion, the applicant is likely suffering from Fetal Alcohol Syndrome, PTSD, ADHD, a learning disability, and a Substance Abuse Disorder. Prior to her incarceration, she was working with some success to reduce the fentanyl in their system. This opportunity to get these wraparound services and stable housing cannot be held longer than three weeks as there is a long waiting list. Deeandra Papequash has never received such intensive wraparound services before.

28So let me say this to you directly, Deeandra Papequash. The Justice of the Peace did not have confidence in you. I can understand why. I am not naïve. Sure. There is a good chance you will face temptation and struggle to follow your bail conditions while on release. There is a good chance that you may lose your temper and act out. You have not fully confronted and dealt with the demons from your past. They continue to trouble you. So, you may breach your bail and commit further offences. That risk remains. But at the end of the day, I find that this risk is not a substantial one given everything that now exists to support you. You do well when your life is in a healthy balance. When there is a place to stay, you find meaning in your daily life, and you have a supportive partner.

29I place my confidence in you, Deeandra Papequash. By giving you this chance.

30Many Indigenous people lost their homes when the settlers first came to this country. Many children were taken from their homes and forced to live in residential schools. Even today, many Indigenous families live in dilapidated dwellings that are a national shame to call someone’s home. Even today, many urban Indigenous persons live without homes, in a shelter or on the street.

31When, after all this time, a safe, stable, and affordable home- a safe harbor where you can shelter and moor your life-is finally being offered to you, I will not let that chance slip by.

Disposition

32Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the applicant including no contact, treatment, and counselling.

Footnotes

1. 1“They/them” are Deeandra Papequash’s preferred pronouns.