Overview
An application for a review of the accused's detention pursuant to s. 525 of the Criminal Code. The defence sought to have the accused released to a residential surety. The application is ultimately denied on the secondary and tertiary grounds largely due to the severity of the allegations and the lack of supervision available in the proposed bail plan.
SUMMARY: An application for a review of the accused's detention pursuant to s. 525 of the Criminal Code. The defence sought to have the accused released to a residential surety. The application is ultimately denied on the secondary and tertiary grounds largely due to the severity of the allegations and the lack of supervision available in the proposed bail plan.
Ontario Superior Court of Justice
Toronto, Ontario
[REDACTED] J.
Heard: April 30, 2020.
Judgment: May 5, 2020.
Court File No.: CR-20-60000023-00BR
[2020] O.J. No. 2008 | 2020 ONSC 2775
RE: Her Majesty the Queen, Respondent, and [REDACTED], Defence/Applicant
Counsel
[REDACTED], for the Crown.
[REDACTED], for the Defence/Applicant.
RESTRICTION ON PUBLICATION: Information contained herein is subject to a publication ban pursuant to s. 517 and s. 486 of the Criminal Code. The foregoing ban does not apply to publication of these reasons in full in law reports not to a discussion of the underlying principles in other publications without reference to the particulars of the charges or person details in relation to an accused person.
AMENDED REASONS FOR DECISION
-- DETENTION HEARING
[REDACTED] J.
1 On July 30, 2019, [REDACTED] was arrested by Toronto Police and has been in custody since that time. He faces multiple charges including sex trafficking, possession of a firearm, threatening and assault. He was brought before me -- via a telephone conference hearing with counsel present -- for a hearing to review the necessity of his further detention pursuant to s. 525 of the Criminal Code. I shall refer to the alleged victim of these incidents as "[REDACTED]".
2 The accused seeks to be released on a recognizance subject to what are described as house arrest terms. This is his first bail hearing. By reason of the nature of the charges and [REDACTED] history, both parties agree that this is a reverse onus case.
Background facts and evidence
3 The following is a very brief summary of the factual allegations as regards [REDACTED]. This summary is, of course, a summary of allegations and does not represent findings of fact. [REDACTED] remains subject to the presumption of innocence as do all of the co-accused charged along with him. A total of four accused persons are swept up in a single consolidated information containing a total of 41 charges. [REDACTED] is also facing possession for the purpose of trafficking charges which, for the time being at least, are charged on a separate information.
4 The common denominator between each of the co-accused persons is their alleged involvement with the exploitation of [REDACTED] and their dealings with one of the co-accused, [REDACTED]. There is no allegation that [REDACTED] knows or has had any dealings with the other three co-accused [REDACTED]There is a fifth individual -- [REDACTED]-- who has only recently been arrested. The Crown advises that it intends to add [REDACTED]to the same consolidated information and to seek a joint trial of all charges. I shall return to that question below.
5 For the sake of clarity, I shall divide the incidents underlying the various relevant charges into three groups.
6 In May and the first part of June 2019, [REDACTED]had been in a relationship with [REDACTED]for a period of time. [REDACTED] was eighteen years of age. The details of the allegations as against [REDACTED] are not before me nor have they yet been added to the consolidated information facing [REDACTED]. [REDACTED] is not alleged to have had any part in the actions giving rise to the charges faced by [REDACTED] or [REDACTED] regarding those incidents. This is the first group of incidents.
7 Near the end of this relationship with [REDACTED], [REDACTED] met [REDACTED] and it is alleged that [REDACTED] then trafficked [REDACTED] to [REDACTED] and [REDACTED] who in turn trafficked her as a prostitute to various clients out of multiple hotels. In addition to the trafficking and related allegations, other incidents involving [REDACTED] as the victim are alleged to have occurred during this time frame. The trafficking and other incidents are the subject-matter of the charges against [REDACTED] and [REDACTED] and [REDACTED]. Once again, [REDACTED] is not alleged to have played any part in them. This second group of incidents spans the period of time between June 20, 2019 through June 28, 2019.
8 [REDACTED] managed to escape from [REDACTED] and [REDACTED] after a short while. She is alleged to have called [REDACTED] for help. It is further alleged that [REDACTED] sent a Lyft car to pick [REDACTED] up and bring her to [REDACTED] house. The next day, [REDACTED] introduced [REDACTED] to [REDACTED] and brought her to his house. It is alleged that between June 28 and July 2, 2019, [REDACTED] beat [REDACTED], threatened her with a firearm on more than one occasion including threatening to kill her if she went to authorities, arranged with [REDACTED] to advertise the sexual services of [REDACTED] on-line and then forced to provide [REDACTED] those services, taking from her all of the money paid to her by clients. This is the third group of incidents.
9 [REDACTED] and [REDACTED] are jointly charged in Counts 28 through 41 of the consolidated information. The charges include human trafficking (s. 279.01), receiving a benefit arising from trafficking (s. 279.02), procuring (s. 286.3), advertising sexual services (s. 286.4), various firearms-related offences (s. 91(1), s. 87, s. 85, s. 92(1), s. 88(1) and s. 86(1)), threatening (s. 264.1(1)(a)), and assault (s. 266).
10 [REDACTED] contacted her CAS case-worker but was afraid to see police because of the threats she had received. A ruse was concocted so that [REDACTED] and [REDACTED] would not suspect that [REDACTED] had in fact gone to police. Police came [REDACTED]’s house and apprehended [REDACTED] on the pretext of a (non-existent) outstanding warrant. Thereafter, [REDACTED] provided police with a fulsome three-hour video statement on July 3, 2019. This statement forms a significant part of the foundation of the various charges made against [REDACTED].
11 Police did not arrest [REDACTED] or [REDACTED] right away. Instead, they pursued their investigation with a view to arranging a simultaneous take-down of all of the suspects implicated in the alleged exploitation of [REDACTED]. Photographs of bruises on her left arm, right shin and left and right thighs were taken. [REDACTED]s presence at some of the hotels where she said she had been taken to work was confirmed and the identity and location of the other suspects was verified.
12 [REDACTED] was ultimately arrested on July 30, 2019. A search incidental to arrest revealed that he possessed three cell phones, $870 in cash and 6.6 g of crack cocaine. A warrant was obtained to search his residence. This was executed the next day. [REDACTED] was found in the residence and arrested at that time. No firearm was found during that search. Approximately 45 g of a substance believed to be crack cocaine was found in the residence. A subsequent test of that substance revealed it to be an amphetamine derivative. Cash and multiple cell phones were also found during this search. [REDACTED] faces additional charges (on a separate information) of possession of cocaine for the purposes of trafficking. The information has not -- as of yet -- been amended to reflect the results of the clinical analysis of the substance found in his residence.
13 [REDACTED] proposed [REDACTED] as surety. [REDACTED] provided her evidence by way of affidavit and viva voce testimony at the hearing of this application.
14 At thirty years of age, [REDACTED] is six years [REDACTED] junior. She is married but separated from her husband. She is a permanent resident of Canada having immigrated from Jamaica in 2016.
15 [REDACTED] met [REDACTED] in Jamaica through a mutual friend when she was 18 or 19 years of age. [REDACTED] was there visiting family. She kept in touch with him thereafter. After moving to Canada, she saw [REDACTED] more often. Prior to his arrest, she would speak to him every second week or so. [REDACTED] would sometimes call her and he would drop in to see her every month or so. She did not visit him however. In fact, [REDACTED] did not know where [REDACTED] lived and has never been to his residence. She knew him as a barber but did not know how he supported himself. Prior to offering herself as a surety, she had no idea of his involvement in any of the matters giving rise to the charges against him nor of his prior criminal record. [REDACTED] does not know anything of [REDACTED] friends or social connections.
16 [REDACTED] has a six-year-old son and lives with him in a two-bedroom basement apartment in Mississauga. She expects to move from that apartment when things return to normal after the pandemic. She works as a residential personal support worker for a number of private clients in Toronto. Her visits to each client are generally about an hour in duration and she visits several clients in their homes each day. She commutes to and from her various appointments via public transit. Her working day generally extends from 7 a.m. until 5 p.m. Monday to Friday plus every other Saturday, although she may work more or less than this in any given week.
17 The proposed release plan would see [REDACTED] being required to live with [REDACTED] in her Mississauga apartment. He would not be permitted to leave except as permitted by his surety and in her presence or as permitted by the court. No persons would be allowed to visit him unless she is present and consents and [REDACTED] would be subject to no-contact orders vis-Ã -vis the complainant and his co-accused.
18 [REDACTED] proposed to conduct random checks upon [REDACTED] to verify his compliance with the release terms via video calling on an iPad that she intended to acquire and provide to [REDACTED]. She said that she would not tell him of the time of the calls in advance. She proposed calling him randomly while travelling between client visits or when commuting to or from work (in Toronto) from her home (in Mississauga). She proposed to pledge $3,000 as part of the release plan. This exceeds her current savings (of approximately $2,000) and represents a significant amount to her given her earnings of approximately $25,000 per year.
19 [REDACTED] acknowledged that she would have no way of knowing if [REDACTED] had people over while she was away at work.
20 The Crown introduced [REDACTED]’s record of prior convictions into evidence. These include possession of a Schedule 1 substance (March 2006), Assault (May 2006), fail to comply with probation terms (April 2007) and two further counts of possession of a Schedule 1 substance (March 2016). Prior sentences have included short custodial terms plus pre-sentence custody (the longest being 110 days) plus probation.
Issue to be determined
21 Has [REDACTED] discharged his burden of demonstrating that his continued detention is not justified on one of the grounds mentioned s. 515(10) of the Criminal Code?
Discussion and analysis
22 This is the first time the matter of [REDACTED]’s detention has been brought forward for review by a judge. There are no prior judicial decisions involving [REDACTED]’s detention to be considered nor is there any requirement to establish a change of circumstance.
23 The presumption of innocence and the right to bail enshrined in the Charter preclude an approach that treats pre-trial detention as the default answer. Detention before trial is the exception and not the rule in our system. The reverse onus that applies in some cases -- including the present one -- may shift the evidentiary burden but it does not change the underlying question being examined.
24 Section 515(10) of the Criminal Code establishes the limited circumstances in which the detention of an accused person prior to trial is justified. [REDACTED]’s detention can be justified "only" on one of the three grounds listed. Of those three grounds, the second and third alone are at issue in the present case. There is no suggestion of primary ground concerns sufficient to warrant further detention.
Secondary Ground Concerns
25 Section 515(10)(b) of the Criminal Code provides that detention is justified where it is "necessary for the protection or safety of the public, including any victim of or witness to the offence ... having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice".
26 I find that the secondary ground concerns that exist in this case satisfy the standard of "necessary" and of "substantial likelihood" required by s. 515(10)(b) of the Criminal Code and that the applicant accused has not satisfied me that the release plan, even subject to amendments that I may make to it, is able to mitigate those concerns adequately.
27 What are those concerns? [REDACTED] is alleged to have made specific and direct threats to [REDACTED] without whose testimony most of the charges against him would likely cease to be viable. His record of criminal convictions spans a long period of time, although it must be stated that it contains lengthy gaps as well. While the charges [REDACTED] faces are a quantum level higher in terms of gravity and potential sanction when compared to his prior convictions, the prior convictions are nevertheless highly relevant to the current charges. He has a prior conviction for assault and faces further assault and threatening charges today. He has prior convictions for possession of narcotics -- including the two most recent of his prior convictions -- and now faces charges of possession for the purpose of trafficking. He has a conviction for breach of probation terms and the question of whether he will honour undertakings given in connection with his release is central to this application.
28 The secondary ground is never considered in a vacuum nor is perfect or absolute protection of society from any risk of further criminal activity or interference with the administration of justice the required standard. Such an approach would undermine the fundamental principle that pre-trial detention is not the default answer. What is required is a balanced examination of the risk presented by a particular accused person in light of the release plan proposed and an assessment of the degree of mitigation of that risk that can reasonably be achieved by it.
29 I have considered the release plan proposed and any amendments to it that I might reasonably make as a condition of release and I have done so with due regard to the starting point that detention is not the default answer.
30 When assessing the degree of risk mitigation offered by the proposed release terms, [REDACTED]’s past conviction for breach of probation terms -- admittedly a dated one (2007) -- does not start him off with full credit for demonstrated willingness to obey court orders or undertakings. That initial weakness in the release plan is compounded by the gossamer-thin web of supervisory measures proposed to secure compliance with release terms.
31 I fully recognize that sureties are not expected to act as virtual jailers or "super cops". The surety's most important role is to supervise, observe and report. The "supervise" function need not necessarily be 24:7 but it must be at a level which is consistent with the type of risk being considered. In [REDACTED]'s case, that risk includes trafficking in people and narcotics and potentially following through on threats made to a material witness in his case.
32 The proposed release plan provides minimal additional assurances that [REDACTED] will feel constrained by his circumstances to abide by any such rules imposed by his surety or the court. His relationship with [REDACTED] Ms. Givans appears to be a relatively distant one even if there are ties of friendship extending over several years. He is older than she and there is nothing in their history to suggest that their relationship would operate as any kind of brake upon his behaviour. I cannot conclude that he has the degree of respect or deference to [REDACTED] that might clothe her with some influence over [REDACTED]. [REDACTED] did not even know where he lived nor did she have any information about his criminal charges prior to coming forward to offer herself as a surety.
33 The release plan also provides only minimal assurances that breaches of release conditions would be detected at all or within a brief time period. [REDACTED] would be left entirely unsupervised for almost the entire day every weekday and one Saturday in two. [REDACTED] might detect a breach of release conditions by [REDACTED] or she might not, the latter outcome seeming the more probable. Breaches, should they happen to be discovered, may only be noticed with significant delay.
34 I have little doubt of [REDACTED]' sincerity or good faith but I have concluded that she simply lacks the capacity to impose successfully any material degree of supervision or control over [REDACTED] actions.
35 My conclusion with regard to the secondary ground is sufficient to dispose of this application. I shall, however, go on to consider the tertiary ground as well.
Tertiary Ground Concerns
36 Section 515(10)(c) of the Criminal Code directs me to consider whether the detention of the accused is "necessary to maintain confidence in the administration of justice, having regard to all the circumstances" including the four listed considerations being (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.
37 Of the four non-exhaustive criteria to be considered, it is only the first where there was any material debate at the hearing. The offences charged are self-evidently of the gravest sort, the circumstances of the offences -- allegations of human trafficking and the use of a firearm -- involve a young and vulnerable victim and the charges could lead to a very lengthy penitentiary term if borne out at trial.
38 The defence strongly urged me to conclude that the Crown's case is a weak one. In this regard, the defence placed heavy reliance upon the failure to find the weapon [REDACTED] is alleged to have possessed and the fact that the Crown's case for all of the charges (in the consolidated information at least) relies almost exclusively upon the as-yet untested testimony of [REDACTED].
39 While the Crown's case cannot be considered "overwhelming", it nevertheless remains a strong one as far as the strength of a case can be assessed at this early stage. The failure to locate the alleged firearm is a potential obstacle but certainly not a bar to proving the case.
40 It is not my role to play armchair quarterback with 20:20 hindsight in terms of dissecting the police investigation. A search on July 2, 2019 when [REDACTED] was apprehended by police might have turned up the firearm that she said that she saw in [REDACTED] possession at his home. Police chose instead to pursue their investigation in the hope of rounding up multiple persons suspected of having exploited [REDACTED]. My role is not to speculate about what evidence there might have been but to examine the type of evidence that there is.
41 There is nothing before me to suggest that [REDACTED] testimony is likely to prove weak or lack credibility. My task at this stage is not to engage in an extensive assessment of credibility nor is the Crown required to prove its case at this stage beyond a reasonable doubt. That is what the trial is for and a hearing of this sort is singularly ill-equipped (and is not intended) to undertake such an exercise.
42 What can be noted at this early stage is that [REDACTED] has provided a nearly three-hour long video statement to police reviewing her allegations in considerable detail. There is no evidence that the statement is particularly weak or contains material inconsistencies. Police have corroborated some aspects of her statement even if this corroboration does not directly involve [REDACTED]. There is no suggestion that Ms. [REDACTED]'s evidence, if believed, would be insufficient to support a conviction. There is no evidence of any deficiencies in that evidence that might detract from its potential weight. At this stage at least, the Crown case appears to be a strong one and the defence has certainly not discharged its onus of showing me why it is not. No evidence of positive defences has been raised for me to consider. I cannot simply presume that the Crown's reliance upon a single key witness is a critical shortcoming in and of itself at this early stage.
43 I conclude that a consideration of the four enumerated criteria in s. 515(10)(c) all lead in the direction of the conclusion that the continued detention of [REDACTED] is necessary to maintain public confidence in the administration of justice. That of course is not the end of the analysis. Section 515(10)(c) requires a consideration of "all of the circumstances" and not merely the four enumerated criteria. Following the directions of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27 (CanLII), [2015] 2 SCR 328, I must go on to review any other relevant circumstances. Ultimately, the decision can only be made after balancing all of the relevant circumstances including the four listed criteria.
44 I thus cast my net somewhat wider and consider the overall circumstances of the case and the accused person before me. The accused in this case is not a first-time offender nor is he a youthful offender. He is 36 years of age. His record of prior convictions includes convictions in 2006, 2007 and 2016 involving three separate convictions for possession of narcotics, one conviction for assault and a conviction for breach of probation order. The victim in this case is a vulnerable young woman who was eighteen years of age at the time of the alleged offences. The circumstances of the crimes alleged, and the degree and type of exploitation alleged to have been visited upon her are horrific. The impact of the crimes alleged here upon a victim in the position of [REDACTED] is almost unimaginable. The circumstances of the offences and of this alleged offender when weighed in the balance continue to tilt the balance inexorably towards the necessity for detention on the tertiary ground.
45 There are two additional considerations that the defence suggests must be considered and that may serve to tilt the balance the other way. First, it is suggested that the accused in this case is being subjected to a joint trial on a comprehensive indictment in circumstances that is unnecessarily prolonging the pre-trial detention compared to the delay that would be expected in the case of a separate trial. Second, it is suggested that the risk of the accused coming down with Covid-19 while in detention is a circumstance that ought also to weigh in the balance and lead towards a decision to fashion a reasonable alternative to detention instead in order to mitigate that infection risk. I am not persuaded that either argument has any merit or is supported by the evidence.
46 Examining the issue of pre-trial delay, it must be readily conceded that the time to trial of [REDACTED] case will undoubtedly entail delays that would not occur were he tried separately. The transcript of court appearances leading to the scheduling of the preliminary inquiry (currently scheduled to commence on June 29, 2020 and to be continued in September 2020) certainly demonstrates this point. With multiple counsel all having busy court calendars, the case was unable to be scheduled earlier despite vacancies in the court calendar that might have made this possible. The accused is an in-custody accused person (as is one other of the four accused persons currently on the consolidated information). The record makes it clear to me that scheduling has at all times proceeded having regard to the priority that trial coordinators quite properly accord in-custody cases and the earliest such date where all counsel could be present was obtained. It is also clear that the Crown has not been the limiting factor in obtaining dates -- the Crown has been available or been willing to make itself available for almost every date proposed.
47 It was suggested that the recent arrest of [REDACTED] raises the prospect of additional delay in getting to trial. The Crown indicates that it will likely seek to have [REDACTED] added to the same consolidated information. Of course, this raises the risk that the June 29, 2020 start to the preliminary inquiry may be in jeopardy. While that is certainly a risk, it is by no means a foregone conclusion and it would be speculative of me to attempt to handicap what delay may happen in future. There are numerous avenues open to eliminate or minimize any such delay.
48 The simple fact of the matter is that this is not a s. 11(b) Charter application nor is it reasonable to consider the question of pre-trial detention from the perspective of how fast the trial might be conducted were it conducted in a different way. The Crown is entitled to proceed in the manner it has done and has articulated cogent reasons for doing so. The complainant is a young woman who is alleged to have endured events that are among the most traumatic imaginable. The incidents at issue in the consolidated information all involve the same complainant and there is considerable common sense behind the idea of having a single preliminary inquiry and a single trial to minimize the number of times that she will be required to be examined on such traumatic events. As well, there are common issues of fact between the various incidents underlying the consolidated information that raise the prospect of inconsistent findings. The most obvious of these is the role of [REDACTED] who is alleged to be a common denominator between each of the three series of incidents underlying the charges.
49 For the time being at least this case continues to be on track. The preliminary inquiry is scheduled to be wrapped up within fourteen months of [REDACTED]s arrest -- well under the presumptive time limit established by Jordan. Even allowing for some future slippage in the time to trial as a result of the pandemic emergency, the total of pre-trial detention that can reasonably be anticipated in this case is not disproportionate to the range of sentences that could be anticipated were [REDACTED] to be convicted.
50 There can be no doubt that the current pandemic emergency is relevant to an "all the circumstances" assessment of the tertiary ground. "Relevant" does not imply "decisive" and it would be wrong to view the risk of Covid-19 as an all-purpose "get out of jail free" card.
51 It must be recalled that the risk of becoming infected by the virus that causes Covid-19 is not restricted to the population of Ontario's correctional institutions. The pandemic is in fact a global pandemic. We are all at risk of becoming infected by a virus whose facility of propagation coupled with potentially serious health impacts has earned it the pandemic designation. Indeed, [REDACTED] proposed release plan presents numerous potential infection risks that may be greater or lesser than the risks he faces while incarcerated given a surety who commutes multiple times per day via public transit to provide personal services to a number of individuals in their homes each day.
52 The question I must consider is not whether there is some risk or even whether that risk is somewhat higher or lower inside or outside a particular institution. The virus is abroad in the community today. It is still spreading despite very aggressive containment measures enacted in a host of jurisdictions including Ontario. There is not yet a vaccine and there may never be one. There are a number of therapies whose efficacy is still a matter of debate and study. This virus may be with us for years or it may mutate into something benign in short order. There is no way of knowing. None of us has an option of creating a permanent bubble to eliminate all risk of infection. At some point and over some period of time, a large number of people are going to be infected both inside and outside of correctional institutions.
53 The proper question to ask, in my view, is not whether there is risk inside an institution but whether the accused person is subject to a unique or acute level of health risk that a proposed release plan addresses adequately but that cannot or will not be addressed adequately while in detention.
54 There is simply no evidence of any such unique or acute risk in this case. [REDACTED] is still a young man and there is little to no evidence of any material pre-existing condition impacting his risk profile. There is some suggestion that he may have a genetic disease (sickle cell anemia). That evidence is far from satisfactory being found in a medical history form that does no more than record what [REDACTED] himself reported upon his admission to Toronto South Detention Centre. He has provided no affidavit of his own and the report indicates that [REDACTED] was told he had the condition when he was seven years of age. There is no indication that the condition has led to any symptoms at any time in his life or that he is now or ever has followed any course of treatment in consequence. There is no evidence that this condition -- if indeed he has it -- presents any serious risk to [REDACTED] were he to become infected with Covid-19.
55 I cannot find that the risk of Covid-19 cited by [REDACTED] alters my assessment of the tertiary ground in any material way.
56 In my view, and considering all of the circumstances, [REDACTED] has failed to satisfy me that his continued detention is not necessary considering the tertiary ground.
Disposition
57 For the foregoing reasons, [REDACTED] application to be released on the terms suggested by him is dismissed.
58 Post-script: I am advised that the June 29, 2020 preliminary inquiry date has been postponed until after July 6, 2020 at least. This does not impact my analysis above in any material way.
[REDACTED] J.
* * * * *
Addendum: This decision was revised and re-issued on May 12, 2020 by the addition of the publication ban reference on the first page hereof. No other changes were made.
