r v. WADE RIVER ADAMS, 2020 QCCQ 8905

R. c. Adams 2020 QCCQ 8905 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD « Criminal and Penal Division » No: 760-01-099295-203 DATE: December 18, 2020 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

WADE RIVER ADAMS Accused ______________________________________________________________________ JUDGMENT ON APPLICATION OF REVIEW OF DETENTION WHERE TRIAL IS DELAYED PERSUANT TO s.525 Criminal Code ______________________________________________________________________ [ 1 ] In Myers [1] , the Supreme Court said in introduction what follows: [1] The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law.

Pre-trial detention is the exception, not the rule. (…) [4] In the case at bar, the Court is asked to determine the correct approach to a detention review under s. 525 Cr. C. , and to explain the place of such a review within the larger context of pre-trial custody in Canada. For the reasons that follow, I find that Parliament intended s. 525 to operate as a safeguard. This

section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.(…) [ 2 ] We can immediately evacuate one factor identified by Myers : is the detention of the accused at the time of the hearing such that it basically equals or surpass the expected sentence if he was to be found guilty? Both parties agree that this factor is not at play.

The accused is detained since his arrest on July 10 th 2020 and ordered detained since July 23 rd 2020. He is facing in all probabilities a sentence longer than his preventive detention so far. [ 3 ] Another factor codified at 525(4) translates with the wish of the Supreme Court to expedite the trial of individuals in remand. It is only since Me Leclerc is on record as his new attorney on November 27 th 2020 that the accused requests a preliminary hearing. For reasons unexplained, the accused didn’t move his case forward between his detention and that date, at least in Court.

Crown’s conduct is not at play for this delay. It is not yet a preoccupation here. [ 4 ] This being said, the grounds put forward for review is in part new evidence. [ 5 ] One ground concerns the health of the accused and the actual COVID-19 pandemic. Even though addressed at the first hearing, defense suggests that the matter now has an answer to the question that was left open by the original presiding judge. [ 6 ] Another ground is that we now benefit from a Gladue Report and a letter from the Mohawk Council of Akwesasne concerning the accused.

Both were not available at the original bail hearing. [ 7 ] Finally, additional cash deposit and sureties are offered. [ 8 ] Before addressing this new evidence, the Court will proceed to summarize the facts of the case and the initial order of detention rendered. [ 9 ] The six counts in the information will be listed in the analysis of 515(10) c). THE FACTS

[ 10 ] All counts originate from a single event that took place on July 9 th , 2020. [ 11 ] Around 7 h 30 pm, the Akwesasne Mohawk Police received a call for a disturbance on River Road. The call was identifying two individuals, the accused and Logan Cree (Cree). Reckless driving, exiting their respective vehicles and baseball bat were apparently at play. [ 12 ] The police went to the alleged scene, but did not locate anyone. [ 13 ] 20 minutes later, Cree appeared at the station in panic. He reported that the accused had shot at his vehicle with a firearm.

Another individual, "Tazz" Oakes (Oakes) was with Cree in the vehicle at the time of the shooting. [ 14 ] Police were able to observe multiple bullet impacts on the vehicle on the hood, the driver’s side front and the rear door. Three bullet casings were later found and seized on the road where Cree had said the shooting had taken place. [ 15 ] Cree had fled the scene at high speed after the shooting with the accused following them. The two vehicles stopped briefly, Cree exited the vehicle. Both Oakes and Cree had bats. They threw them.

They fled again and eventually got to the station. [ 16 ] Both Cree and Oakes filed statements. The next day, the vehicle identified by both plaintiff as being the one driven by the accused was located at his residence. He was arrested later on while driving away from his house. No ammunition or firearm were found in the car. [ 17 ] At the time of the hearing, Crown had no indication that the house had been searched. Only a warrant to search the car was mentioned. No additional evidence was brought by Crown on that subject.

The firearm was never located. [ 18 ] Defense elicited at the first hearing statements made to the police when they were on the scene. They were told that Cree’s car had tried twice to ram the accused’s one. However, the citizen telling them that information was reporting hearsay since this information had come to her by two other people. She refused to help the investigation and to give a statement. The other two individuals that she had named as her sources refused to offer information or a statement.

THE FIRST JUDGMENT [ 19 ] Crown seemed initially unsure under what grounds of 515(10) they were objecting to the release of the accused but finally proceeded on all three grounds. [ 20 ] Justice Doucet rendered an oral judgment. She concluded that the first ground did not apply, but rendered a detention order on both

section

b) and

c) of 515(10). [ 21 ] The judgment is not under review as such. Or for lack of better words, on appeal under

section 520 of the Code . Defense’s argument is that even though the judgment do not show errors, the new evidence in the context of review under s. 525 of the Code is such that the order should be modified and the accused set free on bail. THE GLADUE REPORT AND THE BAIL PLAN (DATED OCTOBER 28, 2020) [ 22 ] We learn that the accused is a 21 years old Mohawk from the Mohawk Territory of Akwesasne. [ 23 ] Born in Cornwall, Ontario, he was raised his first four years off the reservation in Tampa, Florida.

Both his parents Richard Adams (now deceased) and Tanya Barilko are status band members of Akwesasne. [ 24 ] The report reveals that the Adams side of his family was involved in smuggling and that the family decided to relocate on the reserve after the accused’s older step brother Justin Adams became involved with the law. [ 25 ] The accused was able to establish roots and create bonds with both the community and family and is described by a family friend as "respectful, easy going, caring and a generous young man". [ 26 ] However, from a young age, he watched his father and older brothers taken away by police on numerous occasions for smuggling related charges.

This led him to believe that the police were the "bad guys", a notion that transpired from various traumatic intergenerational events that included his grandparents being residential school survivors and the daily struggles of being an Aboriginal living in a police state between borders on the Akwesasne Mohawk Territory. [ 27 ] A traumatic event took place in July 2009 : his father disappeared and was never seen again.

It created speculations of ties to notorious criminal organization around Montreal. [ 28 ] This led the accused to bottle up and mask his emotions. [ 29 ] Disputes followed afterwards between his mother and the Adams family concerning his father’s properties and assets. The accused was caught in the middle, with his mother stating that the Adams began to oust him from them. It eventually led to their eviction from their house. [ 30 ] Then, a custody battle erupted and was filed by his Adams grandmother (Jollene) for both his younger brother X and him. His

mother retained custody of both. [ 31 ] The accused nevertheless continued to maintain a neutral relationship between both families. [ 32 ] His sister Krysta was met. She expressed the negative disturbances created by the smuggling life style and that both wished to break the cycle. [ 33 ] Two recent events are of mention : − on January 4, 2020, the accused was involved in a car accident. He lost control while driving and hit a tree on the side of the road. He escaped with minor injuries.

However, his passenger, his childhood best friend, died instantly; − the accused had a difficult time afterwards, being banned from the funeral service. He began meeting a local psychiatrist to help him out with the grief and recovery process; − then, on January 17 th , 2020, the accused was found unresponsive at home. He was critically ill, was hospitalized and induced in coma for 5 days and slowly recuperated from severe infections and brain swelling.

He was released on February 3 rd , 2020 in the care if his mother (he had been living with his girlfriend Billie Jackson before that). [ 34 ] The report continues with the accused being interested in receiving traditional healing services, having reached out to a community member that operates a local healing group. [ 35 ] The report does not offer systemic or background factors affecting Aboriginal people in Canadian society in general or the specific history of the community. However, judges are supposed to take judicial notice of this reality.

It doesn’t offer neither how it would have impacted the personal circumstances of the accused. [ 36 ] Finally, due to his health problems in relation to the hospitalization in January, the report voices concern of both the accused and his family with the risk of him contracting COVID-19 while incarcerated and the complications that could follow. [ 37 ] It concludes with what follows as the Bail Plan for the accused : The following rehabilitative, restorative and culturally specific healing recommendations are presented to the Quebec Courts of Justice for consideration: • That Wade be granted bail to return to the community of Akwesasne and to live with his surety, Billie Jackson at [...] Akwesasne, QC. • That Wade be granted bail in order to resume his outpatient counseling for grief and loss, namely at Office of the Family Advocate through the Saint Regis Mohawk Tribe located at 71 Margaret Terrance Memorial Way, Hogansburg NY, Phone: 518-358-2272; • That Wade be granted bail in order to participate in a Men’s Talking Circle, namely at Standing the Trees Brick Up and Sapling ta Cedar with the Seven Dancers Coalition located at 1569 St R., 37 Hogansburg NY, Phone 518-358-2916: A wholistic approach to heal the wounded spirit in a culturally sensitive manner; • That Wade be granted bail to continue his education at T.R.

Leger School of Adult, Alternative and Continuing Education at lohahi:io Akwesasne Education and Training Institute located at 16 lohahi:io Road, Akwesasne, QC, Phone 613-575-2754; • That Wade be granted bail in order to continue his property management business; • That Wade meet with the Gladue Aftercare Caseworker Brittany Skidders of Akwesasne Community Justice Program located at 15 Akwesasne St, Akwesasne, QC, Phone 613-575-5000 ext. 2405 to receive aid, assistance and referral support with completing the recommendations made in this bail report.

ADDITIONNAL EVIDENCE CONCERNING THE BAIL PLAN [ 38 ] For reasons left unexplained at the hearing, it is no longer proposed that the accused would reside with Billie Jackson. She is also not proposed as a surety. [ 39 ] The accused would live with his mother and 14 years old brother X. He would share a bedroom with him. [ 40 ] The mother, Tanya Barilko, was heard. She is willing to receive the accused at home. She is employed as a counselor at the St- Régis Mohawk Tribe. Due the COVID, she alternates with co-worker at the office and normally works there 2-3 hours a day from Monday to Friday.

She is at home the rest of the time. [ 41 ] She had offered initially at the first bail hearing a cash deposit of $1 500 which is now increased to $3 000. She is also willing to sign for a further $3 000 without deposit. [ 42 ] She fully understand that she is at risk of losing her deposit should her son breach his conditions. Should that be the case, she would not hesitate to call the police and report him. [ 43 ] The accused is also proposing a surety of $3 000 without deposit.

REVIEW OF 515(10) c) [44] The Court is not acting as a review Court under s. 520 as already mentioned. [45] However in the context of the Gladue Report, and for the reasons that will follow, the Court will review 515(10)

c) in order toproperty address the issue of this new evidence. [46] The first thing to consider is that s. 515(10)

c) is worded clearly and does not require exceptional or rare circumstances to apply. [47] As for its four components, they will be analysed one by one. [48] The first is the apparent strength of the prosecution’s case. How should the Court determine the apparent strength of theprosecution’s case? [49] The Supreme Court addressed this issue in St-Cloud[2] at paragr. 57 to 59 and provides guidance : [57] An interim release hearing is a

summary proceeding in which more flexible rules of evidence apply. As a result, some of theevidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess the strength of theprosecution’s case at such a hearing: “The expeditious and sometimes informal nature of a bail hearing may reflect an unrealisticallystrong case for the Crown” (p. 3-7). [58] Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’scase.

On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and thejustice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability ofscientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must considerthe quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancingexercise.

For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidencemay be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case. [59] On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence at the initialhearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may noteven raise one before trial.

If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and ifthere appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of theprosecution’s case.

As the Quebec Court of Appeal noted in a relatively recent decision, “it would be unfair to allow the prosecution tostate its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests”: R. v.Coates, 2010 QCCA 919 , at para. 19. [50] The argument of the defense is that first, the case will rely only on the version of the two alleged victims as to the circumstancesof the infractions.

Secondly, the identification of the accused as the perpetrator is by eyes only with both of them. [51] The Court is alive to the often argued frailties of eyewitnesses’ identification and the inherent risks associated. The Court ofAppeal has dealt with this issue on numerous occasions. To name a few recent ones: Amiri c. R., 2018 QCCA 417, Bui c. R., 2019QCCA 417, Belleville c. R., 2018 QCCA 960 and Coonishish c. R., 2018 QCCA 1453. [52] However, we are here faced with people who knew each other beforehand and live in a small community. The Court of Appeal(Garneau c.

R., 2019 QCCA 27) has recognized the difference with eyewitness identification between strangers and people familiar witheach other. The latter applies here.

Otherwise said, Crown’s case does not rely only on a bystander who happened to be on the scene of acrime and can barely identify an accused as the perpetrator. [53] As to the credibility of their narrative, it should be left with the trial judge as instructed in St-Cloud. [54] The first conclusion is that the apparent strength of the prosecution’s case is present. [55] The second component is the objective gravity of the offences. [56] The first count, discharging firearm with intent, is liable to a maximum imprisonment of 14 years with a minimum punishment of5 years.

Counts 2 and 3 concern pointing a firearm at each alleged victim and are liable for a maximum term of 5 years. The same 5years apply to count 4 which is possession of a firearm without holding a licence. Count 5 concerns unauthorized possession of arestricted weapon in motor vehicle liable for a maximum of 10 years. Lastly, count 6 (possession of restricted or prohibited firearm withammunition) is liable for a maximum of 10 years, with a minimum punishment of 3 years. Crown stated however that the minimumwould not apply following the Supreme Court decision in R. c.

Nur, 2015 RCS 15. [57] In comparison with other offences in the Criminal Code, we can only conclude that the objective gravity of the offences istherefore present. [58] The third component is the circumstances surrounding the commission of the offence. [59] The accused is the sole perpetrator. He obviously had access to a firearm and ammunition. The discharge of the firearm thatfollowed was on a public road in the community with the inherent risks that bystanders or other vehicles could appear on the scene. Fiveof the bullets impacted the car.

It was nothing short of a miracle that none of the two occupants were hit, wounded or worse and also thatno stray bullets caused harm to innocent third parties or damages to their properties. [60] Needless to say, such circumstances should never happen in any community or to any individuals and is a factor to consider at all

stages of the proceedings. [61] The fourth and last component is if the accused is liable for a potentially lengthy term of imprisonment. [62] The reasoning is explained at paragraphs 62 to 65 in St-Cloud. Applied here, the facts of the case, at this stage of proceedings,have sufficient merit to a claim of much more aggravating than mitigating circumstances. This can only tip the balance of sentencing inthe upper scale of appropriate sentences for similar offences[3]. [63] Furthermore, one of the counts brings a mandatory minimum sentence of 5 years.

One could argue that the mandatory provisionwill or could be the object of constitutional challenges. Even factoring in that the accused would succeed pursuing this avenue, he wouldstill face a sentence that will bring detention. Considering all scenarios, the principles at play and the nature of the accusations, we canconclude that the accused is liable for a potentially lengthy term of imprisonment. [64] In sum, all of the four listed components specifically identified by the Supreme Court at 515(10)

c) as part of all thecircumstances apply her. The conclusion is that detention of the accused is necessary to maintain confidence in the administration ofjustice, having regard to these components as well as to all the circumstances. [65] This was also the conclusion of Justice Doucet. [66] Is now the Gladue Report sufficient as new evidence to modify that conclusion? GLADUE REPORT PRINCIPLES AT BAIL HEARINGS [67] While the application of a "Gladue Report" is well documented in the context of sentencing in light of

section 718.2(

e) of theCode and the Supreme Court’s decisions in Gladue[4] and Ipeelee[5], its application at the bail hearing was subject to

interpretation. [68] In 2018, Justice Galiatsatos of our Court made a comprehensive survey of decisions addressing the issue to incorporate or not theGladue principles in the analysis of a bail hearing[6]. He concluded, as with other decision that he had canvassed, that Gladue principlesshould apply at bail hearing, albeit in a different way than at the sentence hearing (paragr. 115-116) while keeping in mind that theseprinciples cannot put aside the criteria of 515(10) or to ignore the analysis of the grounds of

a) b) and

c) in order to promote correctivejustice. [69] Afterwards, Parliament enacted in December 2019

section 493.2 of the Code that reads as follows regarding bail : 493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (

a) Aboriginal accused; and (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged inobtaining release under this Part. [70] Shortly after, the Supreme Court rendered Zora[7].The following excerpts are relevant : [79] A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations (CCLAReport at pp. 72-79). Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which theycannot reasonably abide (see, e.g., Schab, at paras. 24-5; Omeasoo, at paras. 33 and 37; R. v.

Coombs, 2004 ABQB 621, 369 A.R. 215, atpara. 8; M. B. Rankin, “Using Court Orders to Manage, Supervise and Control Mentally Disordered Offenders: A Rights-BasedApproach” (2018), 65 C.L.Q. 280). Indigenous people, overrepresented in the criminal justice system, are also disproportionatelyaffected by unnecessary and unreasonable bail conditions and resulting breach charges (see, e.g., R. v. Murphy, 2017 YKSC 34, at paras.31-34 ; Omeasoo, at para. 44; CCLA Report, at pp. 75-79; J. Rogin, “Gladue and Bail: The Pre-Trial Sentencing of AboriginalPeople in Canada” (2017), 95 Can. Bar. Rev. 325; Ewert v.

Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 57-60; also s. 493.2, asof December 18, 2019). The oft-cited CCLA Report provides the following trenchant

summary: Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on thehomeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfewsthat interfere with employment and daily life.

Numerous and restrictive conditions, imposed for considerable periods of time, are settingpeople up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise acrime. [p. 1] [71] Needless to say, it flows that the circumstances of an Aboriginal accused is now at play at bail hearing. [72] Incidentally, Justice Galiastsatos was again seized with the same issue in Quannaaluk[8]. He commented as follows : [73] In The Law of Bail in Canada, Trotter J.A. explains that Parliament unmistakeably refers to “Gladue-type” considerations in s.493.2(a).

Nevertheless, while the indigenous experience must be taken into account, many unanswered questions remain as to how said experience will impact on the bail decision.[12] [73] He concluded as follows : [77] Ultimately, the Gladue-type considerations must be considered within the parameters of the existing s. 515(10) framework(including the principle of restraint), which provides sufficient flexibility to take these issues into account. In other words, the twoexercises are not mutually exclusive or incompatible.

[78] Despite the indisputable importance of the Gladue principles, it goes without saying that interim release will not - and should not - be automatic for Aboriginal accused. As with sentencing, there will be less distinction at the bail stage between Aboriginal and non- Aboriginal accused persons where the offence is serious and violent, and when the accused has criminal antecedents and a poor history of compliance with conditions. Even a broad

interpretation of s. 493.2(

a) C.C. does not require the Court to compromise the safety of the public by releasing a dangerous accused. [ 74 ] These concerns, as others, are still unresolved for many. It will not be useful to canvass again all decisions rendered since the enactment of 493.2.

To make a long story short, the main difficulty with how is often how to reconcile concepts of sentencing after an accused has been found guilty and incorporate them at a stage where the accused is presumed innocent. [ 75 ] A few considerations nevertheless prevail [9] : − causal link between the historic and systemic factors and the perpetration of the infraction is not required; − Gladue was wrongly interpreted by many when they affirmed that the principles of Gladue did not apply to serious crime. [ 76 ] How then can we properly factor in Gladue at the bail hearing? [ 77 ] The Court is of the opinion that the circumstances of the accused are to be looked and analysed in the context of his moral blameworthiness.

Here is why. [ 78 ] The present file presents many analogies with the recent Ontario Court of Appeal decision in Altiman [10] : [ 79 ] The accused is an Aboriginal. Highly intoxicated, he ran a red light at high speed and collided with another vehicle. He killed two occupants and injured severely the two others. [ 80 ] However, the accused had no priors and the sentencing judge described the crime as an "out of character" conduct. [ 81 ] His profile is quite similar to the accused: both are quite young with Altiman being 31 and married with three children.

Both do not have significant priors: Altiman had none and we have just one for the accused (for reckless driving). Finally, both were accused of a serious crime. It could also be said that at first glance, the crime of the accused seems to be also out of character . [ 82 ] It was accepted in Altiman that chronic alcoholism was present in the lives of most of his grandparents. It was also a significant problem for both his father and stepfather: However, it was not a problem for his mother who constantly reminded her children of the dangers of alcohol abuse.

It followed that the accused was a non-drinker and associated with people sharing the same values. [ 83 ] This profile is also similar to the accused in the sense that we don’t have any indication that his mother was active in the smuggling activities of the Adams family or promoted that lifestyle. And the accused distanced himself from these activities as described in the report. [ 84 ] In the end, the majority in Appeal in Altiman reduced the 10 years sentence imposed, but not due to Gladue principles. [ 85 ] Here is how they express themselves : [77] Mr.

Altiman is an Aboriginal offender, which requires considering as part of the sentencing analysis the principles found in s. 781.2(

e) of the Criminal Code . In R. v. F.H.L, 2018 ONCA 83 , 360 C.C.C. (3d) 189, this court attempted to synthesize those principles, as elaborated in Gladue and Ipeelee. In F.H.L., at paras. 38-40 , this court summarized the proper approach to the application of the s. 718.2(

e) principles: The law, reviewed above, is clear. In order to be relevant to sentencing, an offender’s Aboriginal background need not be causally connected to the offence(

s) for which a sentence is being imposed. In what circumstances, then, will an offender’s Aboriginal background influence their ultimate sentence? The answer is “not so easily ascertained or articulated”: R. v. Whitehead, 2016 SKCA 165 , 344 C.C.C. (3d) 1, at para. 60 . Clearly, the mere assertion of one’s Aboriginal heritage is insufficient – s. 718.2(

e) does not create a “race-based discount on sentencing”: Ipeelee, at para. 75 . Although Aboriginal offenders are not required to “draw a straight line” between their Aboriginal roots and the offences for which they are being sentenced, more is required “than the bare assertion of an offender’s Aboriginal status”: R. v. Monckton, 2017 ONCA 450 , 349 C.C.C. (3d) 90, at para. 115 . It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society.

While courts are obliged to take judicial notice of those factors, they do not “necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel”: Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176 , 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, at para. 54. The correct approach may be articulated as follows.

For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case.

This approach finds support both in Ipeelee and decisions of this court. [78] In dealing with the role played by systemic and background factors in the analysis, this court stated, at para. 47: Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83 . They are only relevant to assessing the “degree of responsibility of the offender”, and to considering whether non-retributive sentencing objectives should be prioritized.

Accordingly, Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73 . What Gladue and Ipeelee

recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59 . A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78 ; R. v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, at para. 44 . As this court recognized in Kakekagamick, at para. 42: To be clear, s. 718.2(

e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(

e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. [79] In considering the first factor dealing with moral blameworthiness, s. 718.2(

e) does not require an automatic reduction of a sentence or a remission of a warranted period of incarceration simply because the offender is Aboriginal: Ipeelee, at para. 71 . Instead, the

section directs the sentencing judge “to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case”: Ipeelee, at para. 75 .

Part of that inquiry involves ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender’s moral culpability: Ipeelee, at para. 73 . […] [85] The key point is that the Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender’s moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus.

By the same token, Gladue reports filed to assist the sentencing judge in this task should not stray from the requisite focus on the circumstances of the offender. […] [104] The sentencing judge held that Mr. Altiman’s moral blameworthiness was high because “it was his choice to drink to excess and then drive a motor vehicle They then offered the following [11] : [110] I do not see the circumstances of Mr. Altiman as an Aboriginal offender altering that conclusion.

Ipeelee requires ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender’s moral culpability: Ipeelee, at para. 73 . In the case of Mr. Altiman, there is no doubt that chronic alcoholism was present in the lives of most of his grandparents, who had attended residential schools. It was also a significant problem for both his father and step-father. […] [114] Accordingly, based on the record before this court, I do not see the circumstances of Mr.

Altiman as an Aboriginal offender diminishing his moral culpability so as to require any further reduction in his custodial sentence in order to satisfy the fundamental principle of proportionality. [115] Nor do I see anything in the record that would suggest the sanction of incarceration for the offences of impaired driving causing death and bodily harm would not be appropriate given that Mr. Altiman is an Aboriginal offender. There is nothing in the letters written in support of Mr.

Altiman or elsewhere in the sentencing record that would indicate that the Aboriginal communities in which he has lived and with which he still maintains very strong ties hold different world views or values when it comes to sentencing for the offences of impaired driving causing death and bodily harm. The sentencing judge did recommend, in accordance with the Gladue report, that Mr.

Altiman serve the custodial part of his sentence in a facility that has programs for Aboriginal offenders, a recommendation with which I agree and adopt. [ 86 ] The Appeal Court than factored in the fact that the accused had no priors. They concluded that it had not sufficiently impacted the original sentence of 10 years. It was therefore reduced to 7 years. [ 87 ] The Court holds that the same reasoning applies to the accusation of discharging a firearm. The infractions are not discussed in our Gladue Report .

However, we can infer that their community in Akwesasne is a much appalled by such behaviour as any other Canadian communities as already said. [ 88 ] Transferring now by analogy these principles at the stage of bail, the Court fails to see any factors that would diminish the moral responsibility or blameworthiness of the accused in regard of the alleged crimes. [ 89 ] We can also go back now to the analysis of 515(10)

c) above. The crime is still serious and results from the sole initiative of the accused. The only conclusion is that we don’t have any factors that could or would diminish the moral blameworthiness of the accused at this stage in the commission of these infractions [12] . [ 90 ] In many decisions, we find the comment that a Gladue Report or Aboriginal status cannot equal an automatic reduction of sentence. By analogy, it cannot either equal an automatic bail release just for these reasons.

A Gladue Report has to be analysed in light of the above before it can be deemed new evidence susceptible to maybe review the original order. [ 91 ] Therefore, the analysis of this new evidence brings the conclusion that the detention order on the third ground of 515(10)

c) remains unchanged and that there is no reason to alter the original conclusion of Justice Doucet. [ 92 ] Concerning the second ground at 515(10) b), defense argue that the likelihood of the commission of others offences is normally tied to the priors of the accused, which are almost non-existent here. [ 93 ] The Court cannot interpret the argument otherwise than an indication that Justice Doucet would have erred on that ground and that it justifies review.

[94] We can address it briefly. in Mallaley[13], referring to 515(10) b), the Court wrote as follows : [17] On the plain wording of this subsection, the sole basis for detention under the secondary ground is the “protection or safety ofthe public”: R. v. Morales (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98 (S.C.C.) at paras. 38-39; R. c. Pearson, (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99 (S.C.C.) at para. 55.

Within the directive to protect the public, a judgewill have to examine the second clause in the provision: whether there is a substantial likelihood of the commission of other offences ifthe accused is released. But substantial likelihood is a subset and not the touchstone of secondary ground analysis. [18] It may be thought that this distinction is splitting hairs; there is no real difference between the two. That may be true dependingon the circumstances. But it will not always be true. A hypothetical illustrates the distinction.

An accused with a long unbroken criminalrecord for shoplifting may pose a substantial likelihood of shoplifting again. If the likelihood of committing criminal offences is thebottom line standard, this accused should not be released on bail. Yet such an accused is not, properly understood, a threat to the safety ofthe public. The distinction could be the difference between detention and release. [19] If evaluated in isolation, the substantial likelihood formulation serves only to quantify the probability of further offences beingcommitted.

It does not measure the nature or seriousness of those offences and, in failing to do so, does not weigh the true risk to thepublic. The law is clear that the seriousness of a likely offence is a necessary step in the secondary ground analysis: R. v. Young 2010ONSC 4194 (Ont. S.C.J.) at paras. 20-21. [95] Justice Doucet expressed not only the seriousness of the offences, but also that the accused by his own admission has easy accessto firearms that he owns on the American side of the Reserve.

And should he be ordered to relinquish possession during the procedures,they would have to be remitted with American authorities. [96] She voiced afterwards that the circumstances warranted detention for protection or safety of the public. [97] There is no ground to revisit this conclusion.

THE HEALTH OF THE ACCUSED, COVID ANDADDITIONNAL SURETIES [98] Defense concedes that Justice Doucet addressed the health history issues of the accused and also the fact that COVID was at playfor inmates as much as with any other citizens. [99] However, she mentioned that even if jurisprudence tells that COVID may be taken in consideration in certain situation that wasnot the case here for lack of information. [100] Defense is of the opinion that should Justice Doucet had known what follows, her decision might have been otherwise. In anycase, the Court should now consider it. [101] This evidence is Dr.

Horn’s letter (EX-2). It brings a new light in the situation of the accused. The relevant part reads as follows. Presently he is incarcerated and there are concern about him contracting the COVID virus. His underlying asthma and pneumonia withARDS has most likeIy caused scarring of his lung tissue.

Based on the current science, this scarring and the asthma are significantconditions which put him at risk to develop severe infection including death should he contract the COVID virus. [102] Defense argues that the decision of Justice Lavoie of the Superior Court in Couture[14] should receive application in regard ofthe following excerpts : [24] Notre Cour a récemment rappelé que la pandémie de COVID-19 constitue un facteur qui peut être pertinent quant à l’analysedu troisième motif de détention[8] et avoir une incidence sur l’octroi d’un cautionnement, et ce, dans des cas exceptionnels, alors quesévit une contagion connue et rapportée par les autorités carcérales à l’intérieur des murs d’un établissement, ou que la preuve démontre que l’accusé est plus à risque qu’un autre[9]. […] [32] Tel qu’indiqué par la jurisprudence, il n’est pas suffisant de soulever comme seul motif la possibilité de contracter laCOVID-19 afin de retrouver sa liberté.

La pandémie que l’on connaît actuellement ne doit pas chambouler l’analyse qui doit être faitedans le cadre d’une révision de détention.

Les personnes qui posent un risque substantiel pour la sécurité du public ne peuvent pas êtreremises en liberté sur la base que la détention peut constituer un risque accru pour eux. [33] D’ailleurs, dans l’affaire Sappleton, la Cour a exigé une preuve en deux volets, c’est-à-dire les caractéristiques précises quant à la santé de la personne accusée et la situation particulière à l’établissement carcéral[12]. [103] They also argue J.S. of the Superior Court of Justice of Ontario[15] : [18] In my view, the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on housearrest 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 keepinmates 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. [ 104 ] It is to be noted that J.S. was a review pursuant to s. 520 of the Code . The original detention had been ordered solely on the third ground. Notwithstanding the COVID issue, the reviewing judge noted that the main concern under the tertiary ground by the original judge " was that the surety proposed at the initial bail hearing Mr.

S’s mother, alone was not a sufficient plan in light of her illness." Other sureties were proposed at the hearing and accepted with the reviewing justice coming to the conclusion that these concerns were now addressed and justified bail [16] . He then continued with COVID as already quoted above. [ 105 ] First distinction, we are not only concerned with the tertiary ground. [ 106 ] Second, the decision of Justice Doucet was not based on insufficiency of sureties.

In that context, offering more cash deposit or a signature without deposit for further sums than originally proposed is a non-issue and cannot be seen as new evidence susceptible to justify review of the decision in our circumstances. [ 107 ] As to COVID, both J.S. and Nelson recognizes that COVID in itself cannot be considered the sole factor. It has to be balanced with the other tertiary grounds factors ( J.S ., paragr. 20 ). However, Nelson did not conclude with granting bail. [ 108 ] Both were also rendered at the early stages of the pandemic.

It is interesting to note that later, on October 20 th , 2020, these early stages decisions were discussed by the same Superior Court of Ontario, with direct reference to Nelson [17] : [55] The defence relies on two cases where the risk of the spread of Covid in Canadian custodial institutions was highlighted: R. v. J.R., 2020 ONSC 1938 ; and R. v. J.A., 2020 ONSC 2312 . The judges in those cases accepted that the pandemic constituted a material change in circumstances, opening the door to a review. I accepted that argument as well: R. v. Osman, 2020 ONSC 3472 at para. 16 .

Those cases also highlighted the prospect that in a custodial situation there was heightened risk of transmission. At the time not all judges of this Court and the Ontario Court of Justice agreed: see, for example, R. v. Nelson, 2020 ONSC 1728 ; R. v. Jeyakanthan, 2020 ONSC 1984 . [56] J.R. and J.A. were decided on April 15 and 16, 2020, respectively. That was at an early stage in the pandemic. Since that time there have been incidences of Covid in Ontario’s custodial institutions, but fears of large numbers of inmates becoming infected have simply not been borne out.

The measures taken by the custodial authorities – including releasing many low-risk prisoners and using isolation measures – appear to have significantly limited the pandemic’s impact. According to the latest Information Note from the Ministry of the Solicitor General, as of October 2, 2020 there were no cases of Covid among inmates and staff at Maplehurst. There had been 6 cases among the inmates and 1 case among the staff. These cases were resolved using isolation measures. [57] In other words, I am not satisfied that Mr. Shahid is at extra risk of contracting the infection while he is in custody.

Further, there is no evidence that Mr. Shahid’s medical conditions place at greater risk of morbidity if he contracts Covid 19. The correctional authorities have the responsibility to make sure that Mr. Shahid’s medical conditions are attended to and there is no evidence that they have not done so. I agree with Quigley J. in R. v. Bell, 2020 ONSC 3962 at para. 83 : Persons who present a substantial likelihood of endangering the public by committing offences or interfering with the administration of justice will likely remain in detention.

Accused persons who were previously un-releasable will likely remain un-releasable. [ 109 ] At the very least, the two decisions submitted don’t carry the persuasive weight wished by defense. [ 110 ] On this issue, the Court wishes to point out immediately that it cannot rely on the information contained in the Gladue Report addressing COVID at Bordeaux.

They reflect situations that already dates from a few months and are based from media coverage. [ 111 ] Turning back now to the situation prevailing at Bordeaux [18] , we don’t have any evidence other than the accused’s testimony. [ 112 ] To his honor, Me Leclerc informed the Court that he tried to know what was going on with COVID at Bordeaux, but that nothing special came out of it.

In fairness, it seems that he was given generic answers that everything was OK with not much else as to any details. [ 113 ] The accused can tell as follows : − he had a cell mate for a short period but now has a cell by himself; − inmates have to wear masks to attend their meals; − approximately 60 inmates are present for meals and they sit 8 per table (the dimension of the tables was not specified); − inmates are not required to wear masks otherwise; − social distancing is almost never present between inmates; − guards do wear masks, but do not respect social distanciation. [ 114 ] Apart from that, we have no indication that the accused was sick with COVID, presented symptoms or suffered from other illnesses and did not receive appropriate care.

Neither are we informed that an inmate or a guard in his immediate vicinity has contracted COVID or did not receive proper care or that a spreading of cases had been brought up to his attention in other sectors.

[ 115 ] This being said, the Court adopts the reasoning of Justice Cournoyer of the Superior Court, as he was then, in R. c. Videz- Rauda [19] : [70] Cela dit, la gestion des risques posés par la pandémie appartient d’abord et avant tout aux autorités correctionnelles et non aux tribunaux. [71] À

titre d’exemple, l’état de santé de l’accusé n’a pas d’impact sur la détermination de la peine qui doit être imposée sauf « [l]orsque les services carcéraux ne sont pas en mesure de répondre au besoin particulier qu’engendre l’état de santé d’un délinquant » [28] . [72] Comme l’explique la Cour d’appel dans l’arrêt R. c.

Chicoine , le juge qui détermine la peine n’a « pas le pouvoir d'aménager les modalités d'incarcération, lesquelles sont gérées par les administrations responsables de l'application des lois et règlements carcéraux » [29] . [73] Il ne saurait en être autrement du juge qui doit décider si un prévenu doit être détenu dans l’attente de son procès. […] [77] L’obligation qui incombe aux autorités correctionnelles est de faire preuve de diligence raisonnable par la mise en place de mesures raisonnables afin d’empêcher la transmission et la propagation du virus.

L’échec des mesures mises en place n’établit pas nécessairement le caractère déraisonnable de celles-ci. [78] Les autorités publiques de la planète apprennent à gérer au quotidien un virus létal qui se manifeste sous des formes jusqu’alors inconnues. [79] Selon le droit constitutionnel et administratif canadien, il n’appartient pas aux tribunaux de se substituer aux choix des autorités correctionnelles. [ 116 ] We can infer that appropriates measures are in place to protect the accused. This was crown’s position and argument and the Court agrees.

Crown had also argued that the medical opinion was not conclusive concerning the scarring of the lung tissues. That it has been proven or not is not a decisive factor in the analysis or its conclusion. It would be the same either way, which is that this new evidence does not warrant to review the detention order. CONCLUSION [ 117 ] Considering the above, the hearing has not brought up that the accused’s preventive detention so far or the length of his trial are to be considered as grounds for review. [ 118 ] The new evidence and other arguments put forward, once analysed, did not show cause either for review.

FOR ALL THESE REASONS THE COURT REJECT the application of the accused to have his detention reviewed. MAINTAIN the original order of detention pronounced by Justice Doucet. __________________________________ RICHARD MARLEAU, J.C.Q Me Hélène Langis Counsel for criminal and penal prosecutions For the Prosecutor Me Alain Leclerc For the accused Date of hearing: December 11 th , 2020