R. v. B. T. D., 2020 NSSC 165

SUPREME COURT OF Nova Scotia Citation: R. v. B. T. D., 2020 NSSC 165 Date: 20200525 Docket: 497545 Registry: Halifax Between: Her Majesty The Queen v. B. T. D. LIBRARY HEADING Restriction on Publication – sections 517 & 520(9) of the Criminal Code Judge: The Honourable Justice Peter P. Rosinski Heard: May 13, 15, 20 and 21, 2020, in Halifax, Nova Scotia Written Decision: May 25, 2020 Subject: Bail review pursuant to s. 520 Criminal Code

Summary: B.T.D. was on release in the form of a recognizance for offences alleged: in March 2018 (aggravated assault and assault with a weapon etc.); and in April and May (breaches of no contact order with complainant of March 2018 offences); and on December 18, 2019 in relation to his possession, handling and storage of a semi-automatic rifle with an illegal overcapacity magazine, and his possession of four different kinds of ammunition in his home, while not being a holder of documents permitting his possession of same, and in violation of an express prohibition in his recognizance (varied May 16, 2018).

His existing bail was revoked, and he was denied bail by a Provincial Court Judge on those charges and on December 18, 2019 charges. B.T.D. sought a review of that bail decision. B.T.D. proposed to be released again with a surety pledging very substantial monies.

B.T.D. argued a material change in circumstances arose as a result of: 1. the continuing presence of Covid 19; 2. that his surety had pledged substantially more money, and B.T.D. himself had pledged money; and 3. because he was potentially a suitable candidate for publicly funded electronic monitoring (by GPS ankle bracelet) which had become available only since May 1, 2020.

Issues: 1. Has there been a material change in circumstances allowing this court to act in the capacity of initial decision-maker regarding the release of B.T.D.?

a) Is the continuing presence of Covid 19 a material change in circumstances?

b) Has the pledge by the same surety of substantially more money, and some money by B.T.D. effected a material change in circumstances?

c) Is the availability, as of May 1, 2020, of publicly funded electronic monitoring a material change in circumstances? 2. If there is a material change in circumstances, should the court as the initial decision-maker, release B.T.D.? Result: 1. Although the continuing presence of Covid 19 is not a material change in circumstances in relation to B.T.D. individually, and thus not relevant to section 515(10)(

b) CC (protection and safety of the public), and arguably not relevant to section 515(10)(

c) CC (maintaining the confidence of the public), the court is of the view that it should presume it to be a material change in circumstances in relation to both subsections, given the undeveloped state of the jurisprudence, and the general admonition from the Supreme Court of Canada in R v St Cloud , 2015 SCC 27 that courts not unnecessarily rigidly assess offender’s suitability for bail. The pledge of more money by the same surety (and some by B.T.D.) does not in the circumstances amount to a material change in circumstances.

The availability of publicly funded electronic monitoring since May 1, 2020 arguably could constitute a material change in circumstances in relation to an individual accused (in spite of its passive role as a location reporting device), if it can be said that it could have been significantly relevant to the Provincial Court’s examination of the circumstances (relevant to either section 515(10)(a), (

b) or (

c) CC ), before assessing B.T.D.’s suitability for release. The court is of the view that it should presume it to be a material change in circumstances in relation to both subsection 515(10) (

b) and (

c) CC . Therefore, the court went on as the “initial decision-maker” to consider B.T.D.’s suitability for release. 2. The proposed surety is unreliable and likely to be ineffective. B.T.D. is not likely to be dissuaded from breaches of his release conditions, and commission of further criminal offences by the “pull of bail” or concern that the surety not suffer any potential forfeiture of the pledged monies. Given the matrix of factual circumstances presented in evidence, B.T.D. cannot be relied upon to scrupulously follow all the court imposed conditions of his release.

The combination of: his being in possession of various forms of ammunition, magazines, the Ruger semi-automatic rifle, and I infer other firearms, while prohibited by the existing recognizance, and without the legal authorization to acquire or possess any of these items, which suggests he has ties to weapons and ammunition trafficking channels; his claim that he has been targeted with recent property damage and been shot at in November and December , 2019; his unstable mental state in the context of arguably intimate partner violence and the presence of young children; and his lack of a reliable and effective surety, leads the court to conclude that he has not convinced the court he should released either on the secondary or tertiary grounds of section 515(10) CC .

Therefore, he is ordered to remain in detention pending his trials.

SUPREME COURT OF Nova Scotia Citation: R. v. B. T. D., 2020 NSSC 165 Date: 20200525 Docket: 497545 Registry: Halifax Between: Her Majesty The Queen v. B. T. D. Restriction on Publication – sections 517 & 520(9) of the Criminal Code Decision – Bail Review Judge: The Honourable Justice Peter P. Rosinski Heard: May 13, 15, 20 and 21, 2020, in Halifax, Nova Scotia Counsel: Sarah Kirby, Crown Attorney Nicholaus Fitch, Defence Attorney By the Court: “This proceeding was brought and determined during the Covid 19 pandemic, after the Chief Justice of the Nova Scotia Supreme Court suspended regular court operations.

A publication ban is continued pursuant to section 517(1) and section 520(9) Criminal Code . However, in the interests of justice, these reasons may be circulated and used by counsel for other court proceedings. Appropriate redactions in regard to the name of the accused and surety along with the specific details of the offences must be respected.” Introduction [ 1 ] B.T.D. is detained in custody on charges arising on December 18, 2019, and as a result of the consequent revocation of his bail arising from earlier charges. He brought a Notice of Review pursuant to

section 520 Criminal Code [“ CC ”] in order to be released. [ 2 ] I am not satisfied that he should be released pending his trials.

Procedural history

i) The most recent charges [ 3 ] B.T.D. is most recently charged on an 11-count information arising from Provincial Court. Each of the alleged offences are alleged to have been committed on December 18, 2019. [1] [ 4 ] B.T.D. was arrested that day. [ 5 ] In brief, the police attended at his home with a search warrant. They announced their presence by calling him on the phone. Before opening the door, he was seen to have thrown a fully loaded Ruger .22 calibre semi-automatic rifle (with a foldable stock, an illegal overcapacity 25 round magazine and a flashlight taped to the stock) out of the second-story window.

Inside his home the police found: • 3 x 12-gauge shotgun shells located in bedroom number two; • 9 x .22 calibre bullets located in bedroom number three; • 8 x .223 calibre bullets located in bedroom number three; • 1 x .223 calibre bullet located in bedroom number one; • 7 x unknown calibre (but the same size/stamp as in the SKS magazine clip in kitchen) located in bedroom number three; and a • SKS (a Soviet semi-automatic carbine) magazine clip with 7 x 7.62 calibre bullets in it located in kitchen. [ 6 ] No other firearms were located in the home.

Photos of the home interior (a toddlers’ bed; a playpen; stuffed animals; a child- sized mini trampoline; a child-sized deck chair; a potty; a pool floaty; children’s books and toys as well as a play structure in the yard) and other evidence strongly suggest the regular presence of young children. [ 7 ] B.T.D. and JW are parents to a two-year-old baby daughter, A. Ms. W has an older daughter (approximately seven years of age when she was allegedly present at the home during the alleged criminal offences that occurred there on March 13, 2018).

B.T.D. and KS are parents to a four-year-old daughter, K. [ 8 ] In the two weeks before his December 18, 2019 detention in custody, he had been advised by two different child protection workers that, until further and formal notice from the Department of Community Services, he was not permitted to have any contact with his daughter K, and only supervised access (with JW’s consent) to A. ii) The disputed denial of bail and bail revocation [ 9 ] On December 18, 2019, B.T.D. was also subject to earlier bail conditions extant since May 16, 2018. [ 10 ] On December 27, 2019 the Honourable Judge William Digby, denied him bail on the 11-count information having regard to the secondary and tertiary grounds in section 515(10)(

b) and (

c) CC . [ 11 ] Judge Digby also stated according to the transcription of his decision (p. 51) that “this is a reverse onus situation under the provisions of section 524(8) CC ”. The subsection, extant until December 18, 2019, makes express reference to subsection (3), which he found applicable to B.T.D.

Both counsel were alive to the issues of bail regarding the new charges and whether bail should be “revoked” for those earlier charges. [ 12 ] I am satisfied that he concluded that there were reasonable grounds to believe that B.T.D. had committed an indictable offence while B.T.D. was released on the recognizance. Inferentially, I am satisfied that Judge Digby cancelled the existing recognizance, and ordered B.T.D. to be detained, as he did not (after being given a reasonable opportunity to do so), show cause why his detention in custody was not justified within the meaning of subsection 515(10).

In other words, Judge Digby “revoked” his release status (recognizance) on those outstanding charges pursuant to s. 524(8) CC . [2] The position of the parties The Crown

[ 13 ] The Crown argued in its May 11 written submission: “The change in circumstances asserted by the defence is the fact of the Covid 19 pandemic, the proposed surety’s increased pledge amount, and B.T.D.’s willingness to submit to electronic monitoring. The Crown’s position is that Judge Digby’s decision to deny bail to B.T.D. was the right decision on December 27, 2019 and is the right decision now. The Crown submits that the facts claimed by the defence as “changes in circumstances” are not significant, or relevant to the determinations made by Judge Digby.

Accordingly, the Crown respectfully submits that this Honourable Court should decline to review the bail denial and dismiss the defence application. In the alternative, if this Honourable Court decides that the preconditions exist for the exercise of its power of review, the Crown submits that the defence ‘s proposed release plan would not adequately protect the public nor would it maintain the public’s confidence in the administration of justice.” The Defence [ 14 ] Mr.

Fitch argued in his May 7 written submission that there has been a material change in circumstances as a result of: 1. the Covid 19 virus since March 22, 2020 when a state of emergency was declared in Nova Scotia; 2. B.T.D.’s proposed surety, P.K.S., who was a proposed surety before Judge Digby and pledged $35,000, is now prepared to increase the pledged amount substantially; 3. B.T.D. himself is prepared to pledge $5000, and 4. B.T.D. proposes to be electronically monitored, if granted release. [ 15 ] Mr.

Fitch also points out that B.T.D. has been in (protective) custody since December 18, 2019, which in and of itself will encourage him not to reoffend. The relevant statutory provisions [ 16 ] B.T.D. is before this court seeking to be released once again. His bail (recognizance) in relation to the earlier offences was “revoked” and he was detained on that basis; he was also denied bail and detained in relation to the December 18, 2019 offences. [ 17 ] B.T.D. seeks review of Judge Digby’s decision not to grant him bail on his December 18, 2019 charges pursuant to

section 520 CC ; he also seeks review of Judge Digby’s decision to revoke his bail on his earlier charges. The onus is on B.T.D. to establish to the court’s satisfaction that he should be released – he must demonstrate that a material change in circumstances justifies the court engaging in a bail review, and if so he must establish for me in the capacity of initial decision maker that he has met the pre-conditions of sections 515(10)(

b) and (

c) to be released pending his trials. [ 18 ] As stated by Justice Trotter, in The Law of Bail in Canada (3rd Edition), Thomson Reuters Canada 2017 (Looseleaf, updated to 2019), at the beginning of

chapter 11 – The Revocation of Bail: [3] “In some ways, the revocation of bail resembles a bail review. Both entail a reconsideration of the accused’s release status. The major difference is that the mechanism in

section 524 is engaged solely by virtue of the individual’s behaviour while at large.

Section 524 entails some consideration of the propriety of the original release decision, but only in the sense of whether the initial decision remains tenable in light of recent events. In other words, bail revocation is not meant to be a mechanism by which to launch a collateral attack on the original order. This is important because, as outlined in

Chapter 8 (Bail Reviews), on a review, the onus is on the party (Crown or accused) proposing to alter the status quo. At a revocation hearing, once the original form of release is cancelled, the onus falls upon the individual to justify his or her continued release status.” [ 19 ] In relation to his detention on the December 18, 2019 charges, B.T.D. is entitled to a review pursuant to

section 520 CC . [ 20 ] The pre-December 18, 2019 Criminal Code provision which permitted reviews of the revocation of bail was section 524(13) , which caused such reviews to be governed by

section 520 CC . The December 18, 2019 amendments included section 524(10), which similarly reads: “An order made under subsection (4) or (5) respecting an accused other than the accused referred to in paragraph (1)(a), is subject to

review under sections 520 and 521 as if the order were made under

section 515.” [ 21 ] The new bail review provisions do not substantially differ from their immediate predecessors. Therefore, generally speaking, the jurisprudence that relied upon the earlier provisions remains applicable. The relevant jurisprudence [ 22 ] Because the provisions of the Criminal Code do not provide express guidance regarding the appropriate procedures and considerations in bail reviews, that guidance must be gleaned from the jurisprudence. In R v St.

Cloud , 2015 SCC 27 , the unanimous reasons of the court per Wagner J (as he then was) included: 1 The repute of our criminal justice system rests on the deeply held belief of Canadians that the right to liberty and the presumption of innocence are fundamental values of our society that require protection. However, that repute also depends on the confidence citizens have that persons charged with serious crimes will not be able to evade justice, harm others or interfere with the administration of justice while awaiting trial.

The risk that one of these events might tarnish the repute of the justice system was recognized by Parliament in enacting s. 515(10) (

a) and (

b) of the Criminal Code , R.S.C. 1985, c. C-46 (" Cr. C. "), under which the interim detention of an accused may [page336] be ordered where that is necessary to ensure the attendance of the accused in court or to guarantee the protection or safety of the public. … 6 This appeal is the first time this Court has been called upon to determine the extent of the power provided for in ss. 520 and 521 Cr. C. to review decisions with respect to detention or to interim release.

Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr. C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene. 7 In the case at bar, the respondent, Jeffrey St-Cloud, was charged with aggravated assault under s. 268 Cr. C. The justice of the peace who heard the initial application for release found that detention [page338] was necessary on the basis of s. 515(10) (

b) and (

c) Cr. C. The justice who heard the respondent's second application for release on completion of the preliminary inquiry found that his detention was still justified under s. 515(10)( c ). The respondent then applied under s. 520 Cr. C. for a review by a Superior Court judge, who determined that detention was not necessary under s. 515(10) (

c) and ordered the respondent's release. The Crown is appealing that decision to this Court. 8 For the reasons that follow, I would allow the appeal. The detention of the respondent is necessary to maintain confidence in the administration of justice. I will explain why. … (4 ) Conclusion on the Application of Section 515(10)(

c) Cr. C. 87 I would summarize the essential principles that must guide justices in applying s. 515(10)(

c) Cr. C. as follows: • Section 515(10)(

c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((

a) and ( b )) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. • Section 515(10)(

c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes. • The four circumstances listed in s. 515(10)(

c) Cr. C. are not exhaustive. • A 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.

• The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis. • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice.

This is the test to be met under s. 515(10) ( c ). • 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. • This 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. 88 In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. 89 Having completed the

interpretation of s. 515(10)(

c) Cr. C. , I will now consider the power [page367] of review of superior court judges, which enables them to vary release or detention orders made under s. 515(10)( a ), (

b) or (

c) Cr. C. … 91 This is the first time this Court has considered the scope of ss. 520 and 521 Cr. C. Not all lower courts in Canada are agreed on the nature of this review process. Some consider it an appeal, which means that only an error of law or principle will provide a basis for a "review". Others take the view that they have full discretion to vary the initial order even in the absence of an error. This approach is sometimes described as a " de novo " hearing, although, as Justice Trotter points out, a true de novo hearing is conducted as if there were no previous proceedings: p. 8-13.

Finally, other courts treat the review under ss. 520 and 521 Cr. C. as a hybrid remedy. In their view, the

section authorizes the accused and the prosecutor to present new evidence to show a change in circumstances, and to raise an error of law or principle by the justice to justify a review of the initial order. 92 For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C. do not confer an open-ended discretion on the reviewing judge to [page368] vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order. …

(5) Conclusion: The Review Provided for in Sections 520 and 521 Cr. C. Is a Hybrid Remedy 120 On the basis of the wording of ss. 520 and 521 Cr. C. , a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review. 121 It will be appropriate to intervene if the justice has erred in law.

It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10) (

c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C. , the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.

(6) Material Change in Circumstances 122 Sections 520(7) and 521(8) Cr. C. provide for the tendering of new "evidence or exhibits". Section 520(7) reads as follows: 520.

(7) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (

b) the exhibits, if any, filed in the proceedings before the justice, and

(

c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, Section 521(8) is essentially identical to s. 520(7). 123 The question is what is admissible as new evidence? … 128 In Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, at p. 775, this Court established the following criteria that mustbe met for evidence to be considered "new evidence" on appeal:

(1) The 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 affectedthe result. (Reproduced in R. v. Warsing, (SCC), [1998] 3 S.C.R. 579, at para. 50.) 129 In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutesnew evidence for the purposes of the review provided for in ss. 520 and 521 Cr. C.

Given the generally expeditious nature of the interimrelease process and the risks of violating the rights of the accused, and since [page381] the release hearing takes place at the very start ofcriminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. Ireiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr. C. 130 The first criterion - due diligence - exists to ensure finality and order, which are values that are essential to the integrity of thecriminal process: R. v.

G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19, quoting R. v. M. (P.S.) (1992), (ONCA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411. The appellant relies on these same values to limit what constitutes new evidence in thiscase. However, the pre-trial detention of accused persons - like their release - is, by its nature, very often "interim" and not final. 131 Moreover, despite the importance of these values, this Court has also stated that the due diligence criterion should not be applied asstrictly in criminal matters as in civil cases: Palmer, at p. 775, quoting McMartin v.

The Queen, (SCC), [1964] S.C.R.484, at p. 493. The weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality ofthe circumstances: R. v. Price, (SCC), [1993] 3 S.C.R. 633, at p. 634; see also Warsing, at para. 51. In G.D.B., this Courtstated that "an appellate court should determine the reason why the evidence was not available at the trial": para. 20. A generous andliberal

interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principlesdeveloped by this Court. 132 I am therefore of the opinion that a reviewing judge may consider evidence that is truly new or evidence that existed at the time ofthe initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the "due diligence"criterion from Palmer must be [page382] understood in the context of the review provided for in ss. 520 and 521 Cr. C.

The nature of therelease system and the risks associated with it demand no less. 133 I wish to be clear that such new evidence is not limited to evidence that was unavailable to the accused before the initial hearingbecause, for example, the prosecutor did not disclose it to the accused. It is possible that the prosecutor will give the evidence to theaccused only at the very last minute before, or very shortly before, the initial hearing.

Depending on the circumstances of a given case, itcould be unreasonable and unfair to say that if the accused does not use such evidence at the initial hearing, he or she will be precludedfrom adducing it on a subsequent application for review, that is, after his or her counsel has had the necessary time to analyze it andweigh the advantages and disadvantages of using it.

In each case, the reviewing judge will have to determine whether the reason why theaccused did not tender such pre-existing evidence earlier was legitimate and reasonable. 134 This requirement to show a reason that was legitimate and reasonable means that it will be open to the reviewing judge to refuse toadmit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or wherethe accused is alleged to have tried to use the review to engage in judge shopping. In this way, the conception of new evidence in thecontext of ss. 520 and 521 Cr.

C. reflects both the need to ensure the integrity of our criminal justice system and the need to protect therights of accused persons in proceedings that are generally expeditious. 135 As to the second Palmer criterion, the evidence obviously does not have to "bea[r] upon a decisive or potentially decisive issue in thetrial": p. 775. It will suffice if the evidence is relevant for the purposes of s. 515(10) Cr. C. Where, more specifically, the third groundfor detention under s. 515(10)(c) - the one at issue here - is concerned, I note that the justice must consider "all the [page383]circumstances".

The second Palmer criterion will therefore rarely be decisive in the context of an application for review under ss. 520and 521 Cr. C., since the range of "relevant" evidence will generally be quite broad. 136 The third criterion - that the evidence "must be credible in the sense that it is reasonably capable of belief" (Palmer, at p. 775) - mustbe interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular of s. 518(1)(

e) Cr. C., which provides

that "the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case". 137 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. 138 If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10) (

c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified. The Palmer criteria, modified as I have just done, must not be applied in a manner that delays or needlessly complicates the release process.

As I explained above that process, by its very nature, generally requires an expeditious and flexible procedure. The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice. 139 In conclusion, a reviewing judge can intervene where relevant new evidence is tendered, where an error of law has been made or, finally, where the decision was clearly inappropriate. [My italicization added] [ 23 ] As noted in St.

Cloud , a bail review may take place where: • Judge Digby erred in law or his decision was “clearly inappropriate” that is, if he gave disproportionate weight to a relevant factor or disproportionately insufficient weight to another (I am satisfied neither of these grounds allow me to revisit Judge Digby’s conclusions); • or if there is “relevant new evidence” reflecting a material and relevant change in circumstances (see para. 128). In such circumstances, I may institute myself as the “initial decision-maker”. [4] [ 24 ] The questions that present themselves to the court are as follows: 1.

Has the door been opened to permit me to proceed as an initial decision-maker? [ 25 ] While I am strongly inclined to conclude that in the circumstances here Covid 19 is not “new evidence”, and that it is questionable whether the availability of publicly funded electronic monitoring, only since May 1, 2020, is “new evidence”, I find it most appropriate in light of the developing jurisprudence, and the admonition from the Supreme Court of Canada in St.

Cloud that “ the criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice”, to presume that I may act as the initial-decision maker. 2.

If so, based on the representations made by counsel and the evidence presented, is B.T.D. an appropriate candidate for release, and if so, what is the most minimal level of liberty deprivation consistent with the governing legislation and binding jurisprudence? [ 26 ] His continued detention has not been shown to be unjustifiable. [ 27 ] I conclude this bearing in mind the court’s references in R v Antic , 2017 SCC 27 , to the “ladder principle”- ie. that each rung from the least onerous to most onerous forms of release has been individually considered and rejected, before moving to a more restrictive form of release.

Consequently, sureties should not be required unless all less onerous forms of release have been rejected by the court. [ 28 ] In

summary, the court in Antic stated: 67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing: (

a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail. (

b) Section 11(

e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms. (

c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1). (

d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous

grounds": Anoussis, at para. 23. This principle must be adhered to strictly. (

e) If the Crown proposes an alternative form of release, it must show why this form is [page539] necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention. (

f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms. (

g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate. (

h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(

d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. (i)When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is [page540] under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay.

The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. (

j) Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. 5 They must not be imposed to change an accused person's behaviour or to punish an accused person. (

k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud . 68 Of course, it often happens that the Crown and the accused negotiate a plan of release and present it on consent. Consent release is an efficient method of achieving the release of an accused, and the principles and guidelines outlined above do not apply strictly to consent release plans. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one.

Joint proposals must be premised on the statutory criteria for detention and the legal framework for release. [My italicization added] [ 29 ] Notably, in Antic , the Crown bore the burden. I bear in mind that in this case B.T.D. bears the onus, per section 515(6) CC . [5] Has there been a material change in circumstances? [ 30 ] The Crown argued that there has been no material change in circumstances sufficient to trigger the power to review.

It urges the court to examine what circumstances were presented to Judge Digby and ask whether a material and relevant change in circumstances now exists ( R. v AAC , 2015 ONCA 483 ). [ 31 ] The defence has argued the following constitute relevant and material changes in circumstances: 1. the presence of the Covid 19 virus since March 22, 2020, when a state of emergency was declared in Nova Scotia. 2.

B.T.D.’s proposed surety, P.K.S., who was a proposed surety before Judge Digby and pledged $35,000, is now prepared to increase the pledged amount substantially (he suggested in his testimony that he would pledge half the value of his mortgage-free home, valued at between 300,000 and $400,000). 3. B.T.D. himself is prepared to pledge $5,000. 4. B.T.D. proposes to be electronically monitored, if granted release (he requests the ability to attend at work possibly with a curfew, but is prepared to submit to house arrest with a no-work exception).

[ 32 ] Before I may conclude there are material and relevant changes in circumstances which permit me to act as the initial decision- maker, I must be satisfied that each of the criteria set out in St. Cloud at paragraphs 132 – 138 have been established. Let me then examine the proposed material changes in circumstances. 1-is the Covid 19 pandemic, and the resultant state of emergency in Nova Scotia a new, relevant and material, change in circumstances? [ 33 ] It is not in relation to B.T.D., as no material linkage has been established between the impact of Covid 19 on B.T.D. and the considerations in

section 515 CC . I will go on to explain this, but I will also in the alternative presume a material change in circumstances, and engage the process with me as the initial decision-maker. [6] [ 34 ] Let me briefly set the context with a reference to Justice Edwards’ April 22, 2020 decision in R v Boast , 2020 ONSC 2684 : [7] 27 Little more than six weeks ago the issue of the COVID-19 pandemic was not a part of the bail review jurisprudence.

Since then there has been a significant number of cases reported on the Canadian Legal Information Institute ("CanLII") from this court, as well as a few decisions from the Court of Appeal. 28 What is clear from a review of the jurisprudence from the Court of Appeal is that the mere mention of COVID-19 does not equate to an automatic release from jail. Each case must be reviewed on a case-by-case basis. 29 In R. v. Morgan , M51470 (C67536) (Ont.

C.A.), Trotter J.A. dealt with an application for bail pending appeal and came to the conclusion that given the Appellant's criminal record and the nature of the offences charged, that the Appellant posed a significant risk of committing further offences if released on bail. 30 The facts in Morgan stand in contrast to the facts in R. v. Kazman , 2020 ONCA 251 , where Harvison Young J.A. dealt with an application for bail pending the accused's appeal to the Supreme Court of Canada.

In Kazman , the appellant had no prior criminal record and given the nature of the conviction there was no concern with respect to public safety or flight risk. Of particular significance in Kazman , was the appellant's health conditions which were "well documented in the record" and demonstrated that given the appellant's age he was within a "vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19".

Ultimately, because of the particular circumstances of the case, Harvison Young J.A. granted bail pending appeal to the Supreme Court of Canada. 31 A review of the jurisprudence that has developed over the last six or seven weeks leaves little doubt that COVID-19 has been considered a material change of circumstance and a relevant consideration, particularly under the tertiary ground for detention. This is amply demonstrated in the first case referenced in CanLII, R. v.

J.S. , 2020 ONSC 1710 , a decision of Copeland J., who found that there was a greatly elevated risk posed to detained inmates from the coronavirus as compared to being at home on house arrest, and that this was a factor that had to be considered in assessing the tertiary ground. [My italicization added] [ 35 ] The prerequisites for so-called “new evidence” cited in St. Cloud are: 1. “The first criterion - due diligence - exists to ensure finality and order, which are values that are essential to the integrity of the criminal process…A generous and liberal

interpretation of the meaning of "new evidence" in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this Court…I am therefore of the opinion that a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the "due diligence" criterion from Palmer must be [page382] understood in the context of the review provided for in ss. 520 and 521 Cr.

C. ” 2. “As to the second Palmer criterion, the evidence obviously does not have to "bea[r] upon a decisive or potentially decisive issue in the trial": p. 775. It will suffice if the evidence is relevant for the purposes of s. 515(10) Cr. C. Where, more specifically, the third ground for detention under s. 515(10) ( c ) - the one at issue here - is concerned, I note that the justice must consider "all the [page383] circumstances". The second Palmer criterion will therefore rarely be decisive in the context of an application for review under ss. 520 and 521 Cr.

C. , since the range of "relevant" evidence will generally be quite broad.” 3. “The third criterion - that the evidence "must be credible in the sense that it is reasonably capable of belief" ( Palmer , at p. 775) - must be interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular of s. 518(1)(

e) Cr. C. , which provides that “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”.” 4. “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.” [ 36 ] The Crown relies upon cases that articulate reasoning such as in R v Ledesma , 2020 ABCA 194 (May 11, 2020). In

summary, its reasons offer an alternative to the trend in Ontario – namely, that for an offender to claim the Covid 19 circumstances are a material change in circumstances, they must show a personal linkage to the

section 515 CC considerations and whether the “new evidence” calls into question the continued validity of the reasons for the earlier detention of that individual.

[37] Although there is a distinction between the

section 679 considerations for post- conviction bail pending appeal and the section515 CC pre-conviction considerations in relation to alleged offenders, the assessment of what is a “material change in circumstances” iscommon to both. Justice Rowbotham stated: Has There Been A Material Change in Circumstances Since November 26, 2019? 14 A material change is one capable of leading to a different assessment of one or more of the factors in section 679(3): R v Baltovich, (ON CA), [2000] OJ No 987 at para 6, 47 OR (3d) 761 (CA).

The assessment of whether a change is sufficientlymaterial involves an examination of whether the new circumstances call into question the validity of the reasons for the earlierdetention: R v Ledesma, 2019 ABCA 60 at para 44. … 15 Mr Ledesma submits that there have been two material changes in circumstance: the adjournment of his appeal and the risks posed bythe COVID-19 pandemic. Delay as a result of the adjourned appeal 16 Mr Ledesma's appeal was scheduled to be heard April 8, 2020.

It was adjourned in February and will be heard on November 12,2020. … 17 Mr Ledesma maintains that the delay in the appeal hearing constitutes a material change in circumstances since my earlier decision. 18 A significant period of delay can constitute a material change in circumstances. In Baltovich, the first application judge who deniedrelease, was influenced by the fact that the appeal was expected to be heard within six months. Due to an application for fresh evidence,the appeal was delayed for several years and when the second application for release was heard, the appeal was still approximately ayear away.

The second application justice determined that the delay amounted to a material change in circumstances. 19 In Oland, the Supreme Court cited Baltovich with approval and explained that when balancing the tension between enforceability andreviewability, appellate judges should be mindful of the anticipated delay in deciding an appeal, relative to the length of sentence: Olandat para 48. … COVID-19 Pandemic 22 At the trial level, the jurisprudence is not consistent as to whether concerns regarding the COVID-19 pandemic constitute a materialchange in circumstances.

A number of cases have found that the COVID-19 pandemic is a material change in circumstances justifying abail review under

section 520 of the Criminal Code: see R v Budlakoti, [2020] OJ No 1352 (SCJ) at para 13; R v CJ, 2020 ONSC 1933 atpara 6; R v Jeyakanthan, 2020 ONSC 1984 at para 27; R v JS, 2020 ONSC 1710 at para 5.

In some cases, the Crown has conceded thatthe current risk posed by the COVID-19 crisis is a material change in circumstances: see Jeyakanthan at para 27; R v TK, 2020 ONSC1935 at para 42. 23 On the other hand, Lema J held that without a linkage to public protection, concerns related to COVID-19, do not constitute a materialchange in circumstances: R v CKT, 2020 ABQB 261 at para 19; R v SAH, 2020 ABQB 264 at para 6. 24 The past two months have also generated appellate authority considering judicial interim release pending appeal in light of concernsrelated to the COVID-19 pandemic: see R v Kazman, 2020 ONCA 251; R v Shingoose, 2020 SKCA 45; R v Myles, 2020 BCCA 105; R vOmitiran, 2020 ONCA 261; R v Bear, 2020 SKCA 47; R v Stojanovksi, 2020 ONCA 285; and R v Jesso, 2020 ONCA 280.

The appellatecourts emphasize the obvious difference from applications decided by trial courts: the presumption of innocence is no longer at play. 25 To my knowledge, Bear is the only appellate authority to date that considers whether concerns about the pandemic amount to amaterial change in circumstances sufficient to reconsider a previous decision under

section 679. Mr. Bear appealed his convictions ofassault and sexual assault. His first application for judicial interim release was refused on the basis of the first and third criteria. Theapplicant was 41 years old and had no underlying medical conditions. When he applied for a reconsideration of his release, Jackson JAheld that there had been no material change in circumstances on the first criteria (the merit of the appeal) and bail was refused on thatbasis.

Although unnecessary, Jackson JA went on to address the applicant's argument that COVID-19 was a material change incircumstances that affected the public interest criteria. She found that the applicant did not present sufficient evidence that distinguishedhis circumstance from that of the general inmate population. 26 After reviewing a number of lower court decisions, Jackson JA considered the important difference between judicial interim releasebefore and after conviction.

She remarked at para 14 that: "The loss of the presumption of innocence as a result of having been convictedaffects the analysis of whether continued detention is in the public interest." With reference to her earlier decision in Shingoose, shereasoned at paras 15-16: COVID-19 presents challenging issues for a court hearing an application under s. 679. A balanced approach is required in order torespond to these issues. At the very least, an applicant for release pending appeal must be able to particularize the effect of COVID-19on his or her situation: see R v Shingoose at para 48.

Thus, in R v Myles, 2020 BCCA 105 [Myles], cited in Shingoose at paras 46-47,Justice DeWitt-Van Oosten refused release to the applicant because she lacked the "evidentiary foundation, particular to Mr. Myles, fromwhich to make an informed assessment ..." (at para 40). This principle applies equally to an application to review a previously refusedapplication for release under s. 679.

As in Myles , and unlike in Shingoose , Mr. Bear has not provided the Court with any information or evidence that separates him from the inmate population with respect to the effect of COVID-19. During his hearing before me, held by way of a conference call, Mr. Bear indicated that he is 41 years old and his overall health is good, apart from some back pain. He is justifiably concerned about COVID-19 for personal reasons concerning his future and that of his family.

Unfortunately, however, his concerns in that regard would apply to the whole of the inmate population without distinction. 27 In my view, this is the correct approach. In relation to this application, Mr Ledesma has not provided the court with any evidence about the potential effect of COVID-19 on himself. He is 33 years old. There is nothing in his affidavit or in the affidavits of his mother that depose to any health risk. The affidavit of Dr Orkin is general, both in its description of COVID-19 and how it is spread, and in relation to prison conditions. He provides no information about Mr Ledesma.

The Crown noted that as of the date of its memorandum Correctional Service Canada reported there had been 18 negative tests at the Bowden Institution and no positive tests. 28 Mr Ledesma contends that there are further implications of COVID-19 that favour his release. As the entire community is basically subject to house arrest, the possibility of his re-offending is reduced and the court need not be as concerned with public safety. He also suggests that by releasing him, this is one more step in depopulating the prison. Neither of these arguments is persuasive.

As regards the depopulation argument, a court would need evidence on the strength of this argument and I had no evidence regarding the depopulation of the Bowden Institute. 29 On this record, I am not persuaded that there has been a material change in circumstances since I denied Mr Ledesma's release on November 26, 2019. 30 Even were I to accept that there had been a material change in circumstances, I would not have been persuaded to alter my earlier decision that his continued detention is necessary in the public interest.

Without evidence particular to Mr Ledesma's health risks, I could not adequately evaluate the public interest component. 31 The emerging trend, at least from the appellate authority cited at para 24 above, seems to be that an applicant for release must establish that, if detained, they are at a higher risk of infection, or at a higher risk of complications from infection, as compared to the general inmate population . 32 For example, Mr Kazman was convicted of various non-violent offences; fraud and money-laundering. His conviction was upheld on appeal.

He applied for judicial interim release pending his application for leave to appeal to the Supreme Court of Canada. He was 64 years old with underlying medical conditions (asthma, respiratory conditions and a heart condition). The Crown argued that there were no COVID-19 cases in the institution where Kazman was serving.

Harvison-Young JA reasoned that given Mr Kazman's health issues amidst the COVID-19 situation, and the limited bail period sought, Mr Kazman's detention was not necessary is in the public interest. 33 Similarly, the applicant in Shingoose was a 69 year old man with diabetes whose condition was worsening in custody. He applied for release pending the appeal of his conviction and sentence for impaired driving causing bodily harm. The applicant also relied upon the affidavit of Dr Orkin.

Jackson JA found it unnecessary to receive Dr Orkin's affidavit, finding instead that she could take judicial notice of "the pervasive threat of COVID-19 and its implication for someone like [the applicant] in the prison setting": para 44. She noted the similarities in the personal health and age of Mr Shingoose and Mr Kazman.

She granted bail. 34 In Omitiran , Myles, Stojanovski and Jesso concerns related to COVID-19 did not tip the balance in favour of release, as there was no evidence the applicant had any health concern beyond that of the general prison population. 35 In conclusion, I am not persuaded that there has been a material change in circumstances since November 26, 2019.

The application for judicial interim release is dismissed. [My italicization added] [ 38 ] Given its unique nature, at present and generally speaking, the implications of the Covid 19 pandemic for individual prisoners in Nova Scotian correctional facilities could constitute a material and relevant change in circumstances. I rely on the viva voce evidence given by Dr.

Lisa Barrett and Adam Smith, the Superintendent of the Central Nova Scotia Correctional Facility (CNSCF, aka “Burnside”), as well as the May 7 letter of John Scoville, Director of Correctional Services, specifically related to the Correctional Services provincial response to Covid-19. [8] [ 39 ] I am satisfied that in B.T.D.’s case, the present and reasonably foreseeable circumstances of the presence of Covid 19 in Nova Scotia is new evidence which was not available with due diligence on December 27, 2019.

However, I conclude, in relation to B.T.D.’s personal circumstances, it is not materially relevant for the purpose of s. 515(10) (

b) or (c), and therefore had Covid 19 been present (as circumstances are now) on December 27, 2019, it could not have affected the result. [9] B.T.D.’s risk of getting the virus is “very, very, very low” - no more than the “at large” population, and even if he got it, he is no more materially at risk than is the average person from its consequences. [ 40 ] I have evidence before me that the Correctional Services Division of the Nova Scotia Department of Justice made unprecedented efforts to depopulate correctional facilities as a result of concerns about Covid 19. [10] For example, on March 20 “Almost all inmates serving an intermittent sentence were placed on Temporary Absences… Lower risk inmates received Temporary Absences as they neared their earliest release days.” Dr.

Barrett testified that these decisions were made based on the advice of experts such as herself, who is a Clinician Scientist, Infectious Diseases, at Dalhousie University, and also is co-leader of the Province’s Emergency Response under the auspices of the Nova Scotia Health Authority, and is specifically tasked in relation to Nova Scotian correctional facilities. [ 41 ] While these decisions were not made by courts, they do indicate that our present scientific understanding suggests it is in the public interest to change to the way institutions are operated during the Covid 19 pandemic.

[ 42 ] In similar fashion, in appropriate cases this court must “factor in” the Covid 19 implications as we assess the suitability of the continued detention for individual persons in jail pending resolution of the criminal charges they face. Importantly however, merely opening the door to detained persons who seek bail review based on the continued presence of Covid 19 in Nova Scotia and perhaps other factors, is no guarantee of release. The court must still have regard to the considerations in

section 515 CC and the jurisprudence, as we assess the circumstances of each individual regarding their suitability for release. [ 43 ] I bear in mind that this is a reverse onus situation. [ 44 ] Let me briefly reference some of Dr.

Barrett’s evidence. [ 45 ] She testified extensively, and generally I accept her evidence, and specifically her qualifications to do so where she gave opinion evidence. [ 46 ] She has had intimate involvement with the ongoing supervision of the Covid 19 emergency response in relation to Nova Scotia correctional facilities. [11] Specifically, she is one of the two senior members of the Infectious Disease and Infection Control Guidance Committee, and has continuously been a member since March 11, 2020. [ 47 ] Staff who come and go from the facility are rigorously tested and required to wear protective gear and social distance. [ 48 ] She outlined some of the tenets she endorses: • whenever people are in close contact there is a higher risk to get and transmit the virus; • for new arrivals to jails, it is critical to look after those individuals (including conducting immediate testing, quarantining ,and monitoring) as well as the population around them (maintaining the existing inmates virus free with measures such liberal provision of soap/water, staff appropriately wearing gloves and masks, and social distancing, as well as cleaning high-touch and other sensitive surfaces/areas) • as much as possible ensure that people in the jail (including staff) do not mix. [ 49 ] She testified that if a new arrival inmate tests negative for the virus and is quarantined for 14 days, all other things being equal, there is a 98% chance that there is no risk of virus contamination.

When asked whether in present circumstances inmates are more at risk than persons in the outside community, she candidly stated that “no one really knows the answer”. [ 50 ] Given the measures presently in place in Burnside where B.T.D. is detained, she opines that the risk level for inmates and new arrival inmates is “very, very, very low at present”. [ 51 ] She stated there is no present plan for a relaxation of the measures in place at correctional facilities. [ 52 ] She acknowledged that some individuals are more at risk than others.

Those that are on immune suppressing medications, have conditions like asthma, diabetes etc., and are older. However, she pointed out that there is no evidence that such persons will get the virus more easily; but if they do, it is more likely they will have more serious consequences. [ 53 ] Let me next briefly address the evidence of Superintendent Adam Smith, which I have no hesitation in accepting as credible and reliable. [ 54 ] To be clear, the evidence I have heard from Superintendent Smith, which is supported by that of Dr.

Barrett, and the letter of Phil Scoville, is compelling to such a degree that I conclude where B.T.D.’s evidence differs from that of Superintendent Smith in particular, regarding the conditions within the Burnside institution, I accept the evidence of Superintendent Smith. [ 55 ] I found B.T.D.’s evidence generally not credible. Examples of why I came to this conclusion include: 1. the Crown asked him whether the Department of Community Services (DCS) had placed restrictions on his access to his daughter A before he was arrested?

He answered that there were restrictions because a friend of his, JM, had become severely intoxicated and had taken a kitchen knife and was cutting himself with it at B.T.D.’s home (JW was present at this time). Jody Rudderham child protection worker/social worker with the DCS responsible for the area in which B.T.D. was living at all material times, testified that as a result of information received on December 4, 2019, he opened an investigation into the child welfare of A. He was directed to attend the home and meet with the parents of the child A.

DCS records revealed that the child had been involved with DCS between February 2018 and January 2019. On December 5, 2019 he attended at the home. He believed he would find B.T.D. and JW and the child present. Instead police were present in relation to B.T.D.’s having to be taken for an assessment pursuant to the Involuntary Psychiatric Treatment Act , SNS 2005, c 42 as amended. He contacted JW who advised that she and the two children were no longer living with B.T.D. in the home, and that she had not been in a relationship with him since June 2019. On December 5, 2019 he spoke with B.T.D. at the home.

He advised B.T.D. that, as a result of his present mental health condition , he was not permitted to have any unsupervised access to his children until further notice by DCS. Mr. Rudderham also was able to speak to B.T.D.’s psychologist NM, who indicated she was in agreement with there being no unsupervised contact by B.T.D. with his children at this time. Mr. Rudderham confirmed to B.T.D. on December 6 that he was not to have unsupervised access to A. B.T.D. was upset and asked what if he didn’t agree with this restriction and who could he call.

He was given a supervisor’s telephone number. 2. in direct examination B.T.D. agreed that he does not have access rights to his four-year-old daughter K. Child protection worker/social worker Tammy MacAskill testified that on December 5, 2019 she was assigned to investigate the child welfare of K, whose mother is KS. There were concerns that B.T.D. was a risk to the child. She contacted B.T.D. on the phone on December 13. They had a lengthy conversation. During the conversation she described B.T.D. as: “he seemed paranoid” and “somewhat confusing” and “very distracted”.

B.T.D. said to her: “Will you call the police and tell them about my mental health… My phone is tapped – everyone is listening.” He said he had to go, and he would call her back regarding a face-to-face meeting . On December 17, 2019, she called him in

order to meet. She testified that “he didn’t know why I was calling him”. He made statements repeatedly that “he’s the boss… People are after him… Ninjas and police were in the shrubbery around his house with machine guns”. He became very agitated and angry and swore and raised his voice. Effectively he was telling her he did not have to abide by any conditions because “he is a boss”. In her opinion, he was paranoid, angry and unable to follow directions. She advised him he was not allowed to have any contact with K.

She advised KS and she was in agreement with this and told B.T.D.’s mother and him specifically that was her wish. 3. he testified in direct examination that he has “asthma” (his counsel argued that as noted by Dr. Barrett this was problematic because persons with asthma are considered more vulnerable to differential and more serious consequences from Covid 19 infection). He elaborated that it was acting up due to the “season change” and he had to put so many requests in to see a doctor in order to get a ventilator to help alleviate any material symptoms – “I was having trouble breathing”.

As evidence he displayed numerous requests to have medical attention (to get a puffer for his asthma) and complaints that he was not getting to see a doctor to get a prescription for a puffer (Ventolin) and was not getting the puffer once prescribed (the dates of those appeared to run from the first request February 16, 2020 to April 17, 2020 when he says he got a ventilator with approximately 200 dose capacity. In cross-examination he suggested that he had a family doctor, but he had recently retired as a result of becoming ill with cancer (his dad mentioned it to him the other night on the phone).

With further cross-examination, he was forced to admit that the last time he saw his family doctor for “asthma” and the last time he had been prescribed a puffer, was in 2014. He then conceded that his asthma had not been an issue between 2014 and 2020. In relation to his repeated claimed requests and complaints he made to see a doctor and get a puffer, although I generally reject his testimony that he was “ignored” in his requests to see a doctor, for some of that time I infer he was not seen by a doctor because correctional services staff did not give credence to his claim.

That seems understandable since according to his own testimony, he could not have provided them with a persuasive reason to believe that he had “asthma”.

This may also be because he has a prescription to ingest 3 g of marijuana by smoking (and other means he suggested), though he suggested that smoking cannabis did not trigger his “asthma”. [Superintendent Adam Smith, who is “over-all in charge” of the Burnside Correctional Centre, testified that inmates actually have “slightly quicker” access to a doctor because the institution has been depopulated; he also considered it “highly unlikely” that B.T.D. had to wait 60 days to see a doctor]; 4. in relation to the Burnside facility he testified that: a. there was only a little bit of soap available at the beginning, and he has been bugging guards for the last 2 to 3 weeks to get more [Superintendent Smith testified that inmates can have “any cleaning materials” upon request, and that they have presently stocked “thousands of bars of soap”.

He also noted that each inmate during this extraordinary time has been given an additional $20 a week canteen money which they could spend on whatever they want.] b. he has never seen an inmate wearing a mask [Superintendent Smith testified that inmates are not given masks – only if they are on a “droplet protocol”, and in that case they would be in the segregation unit, as opposed to “protective custody”.] c. he is “always refused” when he wishes to speak to his lawyer by telephone in one of the lawyer consultation rooms – correctional officers tell him to use the “range phone” [Superintendent Smith testified that at present there are 124 males and 13 females in Burnside, which has a capacity of 192 males and 48 females, not including nine separate cells in the arrivals/detention area.

There is no double bunking anywhere. He noted that they are following Dr. Barrett’s guidelines “to the letter”.

Since Covid 19 the institution has set up a specific system where offenders provide the telephone number for their lawyer which is verified by the institution and they then can call any time when they are on the living unit area where the phones are – he agreed there were no separate rooms presently available because of “technical issues”, including trying to keep staff and inmates socially distancing and because some lawyers who are not always at their offices, did not want their private telephone numbers given out to inmates.

The Superintendent advised that they have recently begun to allow inmates to use the unit rooms more often, and sometimes even the virtual court booth, to have private conversations with their counsels.]; d.

B.T.D. claimed that he only gets out twice a week “if lucky”, to the airing court which is a walled area without a roof allowing inmates outdoor time. [Superintendent Smith testified that in order to maintain social distancing standards, on a rotating basis, inmates are permitted into the airing court’s “every day”, and that entire unit N2 “range” where B.T.D. is housed are permitted outside in the mornings.] [ 56 ] Nevertheless, I will go on to consider B.T.D.’s detention (as if there were a material change in circumstances) as a first instance case of bail. [ 57 ] Having presumed that the present Covid 19 pandemic’s implications create the necessary triggering “new evidence” for me to enter into a review of bail as if I were the initial decision-maker, strictly speaking I need not go on to the other claimed bases of material changes in circumstances.

Nevertheless, I will add a brief reference to those grounds. [ 58 ] The remaining claimed “material change” factors are: 1. the same surety proposed on December 27, 2019, coming forward again but with a greater pledge of security; 2.

B.T.D. himself is prepared to pledge some security; 3. and the proposed electronic monitoring of B.T.D. [ 59 ] I note that according to Erik Nielsen Director of Correctional Services the availability of publicly funded electronic monitoring, only became available for persons seeking bail during the preceding two weeks, (approximately May 1, 2020) and presently there are only approximately 30 such ankle bracelets available for both sentenced and remanded persons-approximately 23 are presently in use (as of May 13, 2020) . Although there are counter-arguments that can be made respecting this issue (see eg.

R v Ma , 2015 ONSC 7709 at paras. 54-57 ; R v Hammoe , 2016 ONSC 1790 , at paras. 51-63 ; R v KH , 2020 ONSC 2709 , at paras. 36-47 ), on balance, I am inclined to presume this a new material and relevant change in circumstances. [12]

[60] On the other hand, I am of the view that the greater pledge of security by the same surety, and B.T.D. himself now pledgingsecurity, are not material and relevant new circumstances – see for example Justice Casey Hill’s comments in R v Ferguson, [2002] OJNo. 1969 (SC) that: “Simply re-shuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a materialchange in circumstances.

Only where it can be said that the commitment and nature of the newly proffered suretyship materially callsinto question the continued validity of the reasons for detention can it be reasonably be said that the submitted material change incircumstances is relevant to the existing cause of detention.

For example, in R v Baltovich, (2000) (ON CA), 131OAC 29 at para. 33 Rosenberg JA, considered the post-detention changes in surety availability to be significant enough to constitute amaterial change.” [61] More recently see R v KK, 2019 ONSC 704, (which was pursuant to the Youth Criminal Justice Act, which has its own regime)at para. 10, where the court stated: “The law is clear that the new sureties proposed cannot be simply a ‘reshuffling of the deck’ asJustice Hill put it, but must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention:R v Amagyei, 2018 ONSC 7544 at paras. 14-17” and at para. 21 : “The material change in circumstances criterion for an accused personshould not be applied mechanically or rigidly.

There is far too much at stake. Justice Doherty held a number of years ago that the bailreview provisions "favour flexibility and re-evaluation of the accused's bail status over finality of any particular order made affecting thatstatus." R. v. Saracina (1989), (ON SC), 47 C.C.C. (3d) 185 (Ont.S.C.), at p.187.” A re-examination of B.T.D.’s detention [62] I am considering the newly amended provisions of

section 515 - effective December 18, 2019. In that regard, I do take note ofsection 515.1, entitled “declaration of surety”, which would appear to be an effort to avoid sureties having to testify. Nevertheless, thenew statutory amendments do not prohibit the defendant from presenting proposed sureties to give viva voce evidence. Neither is theCrown prohibited from insisting on its right to cross-examine a proposed surety, whether the defendant presents them for directexamination or not. This right to challenge proposed sureties accords with the duty to afford the Crown fair process. Generallyspeaking, as with other discretions they exercise, courts should not without substantial good reason(

s) interfere with their discretion toinsist upon cross-examining proposed sureties.[13] [63] Although I acknowledge the understandable critiques of those who lament an environment where a court is faced with alwayshaving sureties required to testify, such as in Justice DiLuca’s reasons in R v Tunney, 2018 ONSC 961-as B.T.D.’s case demonstrates,cross-examination can be vital in exposing superficially unavailable yet highly significant information.

In that regard, see also incontrast to the reasons in Tunney, those in R v AF, 2020 ONSC 2880 at paras. 33-38. [64] The evidence presented at the bail review consisted of documentary exhibits, photographs, the transcript of the December 27,2019 bail hearing; and viva voce testimony from Dr Lisa Barrett, MD, Superintendent Adam Smith, Jody Rudderham, TammyMacAskill; and from P.K.S. and B.T.D.; and the May 7, 2020 letter from Phil Scoville.

In addition, the Crown made representations in itswritten briefs which generally were not materially disputed by B.T.D.[14] [65] Since they were recently amended, I include all of

section 515: 515

(1) Subject to this section, when an accused who is charged with an offence other than an offence listed in

section 469 is takenbefore a justice, the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence,without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence,why the detention of the accused in custody is justified or why an order under any other provision of this

section should be made. Release order with conditions

(2) If the justice does not make an order under subsection (1), the justice shall, unless the prosecutor shows cause why the detention ofthe accused is justified, make a release order that sets out the conditions directed by the justice under subsection (4) and, as the case maybe, (

a) an indication that the release order does not include any financial obligations; (

b) the accused's promise to pay a specified amount if they fail to comply with a condition of the order; (

c) the obligation to have one or more sureties, with or without the accused's promise to pay a specified amount if they fail to complywith a condition of the order; (

d) the obligation to deposit money or other valuable security in a specified amount or value, with or without the accused's promise topay a specified amount if they fail to comply with a condition of the order; or (

e) if the accused is not ordinarily resident in the province in which they are in custody or does not ordinarily reside within 200kilometres of the place in which they are in custody, the obligation to deposit money or other valuable security in a specified amount orvalue, with or without the accused's promise to pay a specified amount by the justice if they fail to comply with a condition of the orderand with or without sureties. Imposition of least onerous form of release

(2.01) The justice shall not make an order containing the conditions referred to in one of the paragraphs (2)(

b) to (

e) unless theprosecution shows cause why an order containing the conditions referred to in the preceding paragraphs for any less onerous form ofrelease would be inadequate.

Promise to pay favoured over deposit

(2.02) The justice shall favour a promise to pay an amount over the deposit of an amount of money if the accused or the surety, if applicable, has reasonably recoverable assets. Restraint in use of surety

(2.03) For greater certainty, before making an order requiring that the accused have a surety, the justice shall be satisfied that this requirement is the least onerous form of release possible for the accused in the circumstances. Power of justice - sureties

(2.1) If, under subsection (2) or any other provision of this Act, a judge, justice or court makes a release order with a requirement for sureties, the judge, justice or court may name particular persons as sureties. Appearance of the accused

(2.2) If, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the accused shall appear personally but the justice may allow the accused to appear by videoconference or, subject to subsection (2.3), by audioconference, if the technological means is satisfactory to the justice. When consent required for audioconference

(2.3) If the accused cannot appear by closed-circuit television or videoconference and the evidence of a witness is to be taken at the appearance, the consent of the prosecutor and the accused is required for the appearance of the accused by audioconference. Factors to consider

(3) In making an order under this section, the justice shall consider any relevant factors, including, (

a) whether the accused is charged with an offence in the commission of which violence was used, threatened or attempted against their intimate partner; or (

b) whether the accused has been previously convicted of a criminal offence. Conditions authorized

(4) When making an order under subsection (2), the justice may direct the accused to comply with one or more of the following conditions specified in the order: (

a) report at specified times to a peace officer, or other person, designated in the order; (

b) remain within a specified territorial jurisdiction; (

c) notify a peace officer or other person designated in the order of any change in their address, employment or occupation; (

d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any specified conditions that the justice considers necessary; (

e) abstain from going to any place or entering any geographic area specified in the order, except in accordance with any specified conditions that the justice considers necessary; (

f) deposit all their passports as specified in the order; (

g) comply with any other specified condition that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and (

h) comply with any other reasonable conditions specified in the order that the justice considers desirable. Condition prohibiting possession of firearms, etc.

(4.1) When making an order under subsection (2), in the case of an accused who is charged with (

a) an offence in the commission of which violence against a person was used, threatened or attempted, (a.1) a terrorism offence, (

b) an offence under

section 264 (criminal harassment), (b.1) an offence under

section 423.1 (intimidation of a justice system participant), (b.2) an offence relating to the contravention of any of sections 9 to 14 of the Cannabis Act, (

c) an offence relating to the contravention of any of sections 5 to 7

[…]