Reasons for Bail

R. v. J.S., 2020 ONSC 1710 (CanLII)

[1] Mr. S. brings a bail review pursuant to s. 520 of the Criminal Code. The review was heard by teleconference with consent of the parties. Mr. S. was not on the conference, but the sureties were present with defence counsel.

[2] The original bail hearing was a reverse onus because of the charges of possession for the purpose of trafficking of certain drugs. I note that the amounts of drugs involved, although clearly trafficking amounts if proven, are street level trafficking amounts, not higher level trafficking.

[3] The defence argues that the Justice of the Peace erred, and that there are also material changes in circumstances.

[4] The Crown opposes release. However, Crown counsel acknowledges that there are material changes in circumstances, both in terms of the new sureties presented, and in terms of the current risk situation posed by the coronavirus. Crown counsel indicated that he did not need to cross-examine the new sureties (and Mr. S.’s mother was cross-examined at the initial bail hearing).

[5] It is not necessary for me to decide if the Justice of the Peace erred, because I am satisfied that there are material changes in circumstances. There are two material changes: first, the new proposed sureties; and second, the new situation in relation to the Coronavirus which has developed in the past couple of weeks, after the decision of the Justice of the Peace.

[6] I note at the outset that the Crown only sought Mr. S.’s detention on the tertiary ground. Thus, there are no concerns raised under either the primary or secondary grounds. Mr. S. has no criminal record, and is a relatively young man, 20 years old.

[13] The tertiary ground requires a consideration of all of the circumstances, and is not limited to the four enumerated St-Cloud factors. An important consideration is the proposed plan of release. A reasonable and inform

[18] In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground.

[19] I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.

[20] This factor must, of course, be balanced with the other tertiary ground factors. In my view, in the circumstances of Mr. S., including the new proposed release plan, he has discharged his onus to show that his release on strict terms would not undermine public confidence in the administration of justice.

[21] The bail review application is granted. I order Mr. S. released on the following terms (subject to fine-tuning of wording as discussed in the teleconference, which I will confirm when I review and sign the order):