STEPHAN RAHEEM-CUMMINGS APPLICANT v. HER MAJESTY THE QUEEN, 2020 SKQB 342

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2020 SKQB 342 Date: 2020 12 23 Docket: CR M-RG-00352-2020 Judicial Centre: Regina BETWEEN: STEPHAN RAHEEM-CUMMINGS APPLICANT -and- HER MAJESTY THE QUEEN RESPONDENT Counsel: Bob P. Hrycan for the applicant J. Paul Malone for the respondent CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released July 24, 2023. (A copy of the corrigendum is appended to this corrected judgment.) FIAT DECEMBER 23, 2020 MITCHELL J.

OVERVIEW [ 1 ] Stephan Raheem-Cummings [applicant] applies under s. 520 of the Criminal Code , RSC 1985, c C-46 for a review of the decision made on September 9, 2020 by a judge of the Provincial Court of Saskatchewan [Bail Judge] sitting at Regina, Saskatchewan ordering the applicant to remain in jail pending trial on various criminal charges against him. [ 2 ] The applicant currently faces various drug related charges under the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], as well as firearm charges under the Criminal Code .

He is a resident of Ontario, and as a person of colour is a member of a racialized minority in Canada. The City of Regina Police Service formally laid these charges against the applicant following his arrest on July 25, 2020. Since that time, he has been on remand at the Regina Correctional Centre [RCC]. [ 3 ] Subsequently, on October 9, 2020, the applicant commenced this application under s. 520 of the Criminal Code , asserting that the Bail Judge erred by denying him bail on the secondary and tertiary grounds set out in ss. 515(10) (

b) and (

c) of the Criminal Code . He advances the following four grounds in his Notice of Motion: a. That the Bail Judge erred by failing to apply s. 493.2 of the Criminal Code in a remedial manner and declined to assess the applicant’s criminal record and particular circumstances in

the context of his membership in a vulnerable group despite the cogent statistical evidence presented at the hearing; b. That the Bail Judge erred by declining to assess what conditions could be reasonably practicable for the applicant to comply with,which is fundamental to the remedial operation of s. 493.2 of the Criminal Code; c.

That the Bail Judge erred by relying on R v Borde (2003), (ON CA), 172 CCC (3d) 225 (Ont CA) as authority forthe proposition that the factors identified in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] apply only to Aboriginaloffenders and not offenders from racialized communities, and d. That the Bail Judge conducted the bail hearing as if it were a sentencing hearing and applied a presumption of guilt to the accused. [4] These reasons explain why I have concluded that this application should be allowed.

Applying the standard of reviewrelevant to applications of this kind set down in R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 [St-Cloud], I find that the Bail Judgeerred in his decision denying the applicant bail pending trial. Accordingly, for reason that follow, I direct that he be released on theconditions set out at the conclusion of these reasons for decision.

LEGAL PRINCIPLES GOVERNING BAIL AND BAIL REVIEWS [5] At the outset, it is useful to review briefly the fundamental principles which govern bail and bail review applications. [6] All persons in Canada who are alleged by the state to have committed criminal or quasi-criminal offences are presumedto be innocent of those offences unless, and until, the Crown establishes their guilt beyond a reasonable doubt in a fair and public hearingbefore an independent and impartial tribunal. The presumption of innocence is the foundational principle of our criminal law and obtainsconstitutional sustenance by virtue of s. 11(

d) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [7] The constitutionally guaranteed presumption of innocence also informs the constitutional protection afforded to allaccused persons enshrined in s. 11(

e) of the Charter not to be denied reasonable bail without just cause. [8] Over the past five years, the Supreme Court of Canada has issued half-a-dozen important judgments respecting thelegal regime surrounding bail in Canada.

These judgments are: St-Cloud; R v Oland, 2017 SCC 17, [2017] 1 SCR 250; R v Antic, 2017 SCC 27, [2017] 1 SCR 509 [Antic]; R v Myers, 2019 SCC 18, [2019] 2 SCR 105 [Myers]; R v Penunsi, 2019 SCC 39, 435 DLR (4th) 65;and R v Zora, 2020 SCC 14 [Zora]. [9] Most recently, in Zora, Martin J. for the court recounted how these Charter protections influenced more contemporarydevelopments in the legal regime supporting Canada’s bail system.

She stated at paras. 20 as follows: [20] From a constitutional perspective, most bail conditions restrict the liberty of persons who are presumed innocent and impose a riskof further criminal liability on those persons because of the failure to comply offence under s. 145(3). Therefore, the setting of bailconditions must be consistent with the presumption of innocence and the right not to be denied reasonable bail without just cause under s.11(

e) of the Charter (see Antic at para 67; R v Tunney, 2018 ONSC 961, 44 CR (7th) 221 at para. 36).

Section 11(

e) protects both theright not to be denied bail without “just cause” and the right to bail on reasonable terms and conditions (R v Pearson, (SCC), [1992] 3 SCR 665 at 689; R v Morales, (SCC), [1992] 3 SCR 711 at 735; Antic at paras 36-41). The s. 11(e)right is “an essential element of an enlightened criminal justice system” that “entrenches the effect of the presumption of innocence atthe pre-trial stage of the criminal trial process and safeguards the liberty of accused persons” (Antic at para 1).

The presumption ofinnocence is “a hallowed principle lying at the very heart of criminal law… [that] confirms our faith in humankind” (Antic at paras 66-67(a), quoting R v Oakes, (SCC), [1986] 1 SCR 103 at 119-20; see also R v Myers, 2019 SCC 18 at para 1). Thepresumption of innocence is only satisfied in the bail process when the requirements of s. 11(

e) are met (Pearson at 688-89; Morales at748). As described by Andrew Ashworth and Lucia Zedner, the presumption of innocence and the protection of liberty rights mean that”the state should presume each person to be harmless . . . therefore it is in principle wrong to take coercive measures against people forpreventive reasons unless there are very strong justifications for doing so” (Preventive Justice (2014) at 53). The Charter thereforeprotects accused persons from unreasonable terms and conditions of bail. [10] Out of these decisions emerge two principal themes.

First, judicial release is the norm, and detention is the exception.Second, our criminal law should favour the earliest possible release from detention on the least onerous conditions. [11] Moreover, continued detention following arrest is limited to a narrow set of circumstances, namely where detention isnecessary to ensure the proper functioning of the bail system. See: R v Pearson, (SCC), [1992] 3 SCR 665 at para 58(QL) and Antic at para 40.

It is well known that circumstances of this kind are marshalled into three categories referred to conventionallyas the primary, secondary and tertiary grounds for detention. [12] Justice Martin elaborated on how the statutory regime under the Criminal Code relating to bail should operate, at para.21 of her judgment in Zora, as follows: [21]

Section 515 of the Code governs how judicial officials are to exercise their discretion to grant bail, establishes the legal forms ofbail, and requires that the conditions of bail are only as onerous as necessary to address the risks listed in s. 515(10): being, the risk ofthe accused not attending court, harm to public protection and safety, and loss of confidence in the administration of justice. Subsections515(1) to (3) codify the “ladder principle”, a principle premised on restraint, which “requires that the form of release imposed on anaccused be no more onerous than necessary” (Antic at para 44).

A judicial official is only permitted to impose a more onerous form ofrelease “if the Crown shows why a less onerous form of release is inappropriate” (Antic at para 47). Therefore, the default form ofrelease for an accused charged with an offence, other than the very serious offences listed in s. 469, is release on an undertaking withoutconditions (s. 515(1)). Under s. 515(2)(a), if the Crown shows that an accused should not be released on an undertaking withoutconditions, the judicial official should consider releasing the accused on an undertaking with conditions.

[ 13 ] For purposes of review under s. 520 of the Criminal Code , the governing principles are those identified by the Supreme Court in St-Cloud . In St-Cloud , Wagner J. (as he then was) taught us that s. 520 does not grant a reviewing judge an open-ended power to substitute his or her decision for that of the bail court judge. Nor, typically, is such a hearing a de novo review. See: St-Cloud at paras 118-120.

Rather, as identified in St-Cloud at para 121, a reviewing court may only intervene in the following three circumstances: a. if the challenged decision is based on an error of law; b. if the decision was “clearly inappropriate”; or c. if there is evidence that demonstrates a material and relevant change in the circumstances of the case. See also: Zora at para 64 . [ 14 ] On this application under s. 520 , special regard must be had for s. 493.2 of the Criminal Code . This particular provision was recently enacted by

An Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to make consequential amendments to other Acts , SC 2019, c 25 (assented to June 21, 2019). It reads as follows: 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 in obtaining release under this Part. [ 15 ] As a new enactment, this provision is presumed to be remedial in nature by virtue of s. 12 of the

Interpretation Act , RSC 1985, c I-21 . See: R v E.B. , 2020 ONSC 4383 at para 22 [ E.B. ]; Gladue at paras 25-26 ; and Bell ExpressVu Limited Partnership v Rex , 2002 SCC 42 at para 26 , [2002] 2 SCR 559 . [ 16 ] The plain objective sought to be achieved by s. 493.2 is to address two systemic problems with our current system of bail.

First, there is an apparent over-use of pre-trial custody as identified in Myers at para 26 where the court noted that “on any given day in Canada nearly half of the individuals in provincial jails are accused persons in pre-trial custody”. [ 17 ] Second, there is the well-documented and unfortunate reality that some historically disadvantaged groups are over- represented in the criminal justice system generally, and the remand population particularly. Indigenous individuals, for example, account for approximately one quarter of the adult remand population. See: Myers at para 26 ; and Zora at para 79 .

Indeed, in R v Summers , 2014 SCC 26 at para 67 , [2014] 1 SCR 575 , the court had earlier referred to statistics which showed that “Aboriginal people are more likely to be denied bail and make up a disproportionate share of the population in remand custody”. [ 18 ] Additionally, racialized individuals, particularly those who are African-Canadian are also represented disproportionately in the criminal justice system.

See, for example: R v Golden , 2001 SCC 83 at para 83 , [2001] 3 SCR 679; E.B. at para 26 ; R v Jackson , 2018 ONSC 2527 at paras 40-48 , 46 CR (7 th ) 167 [ Jackson ]; R v Elvira , 2018 ONSC 7008 at para 22 ; R v Dykeman , 2019 NSSC 361 at para 11 ; and R v “X” , 2014 NSPC 95 at para 197 . For an extended consideration of this issue, see: Maria C.

Dugas, Committing to Justice: The Case for Impact of Race and Culture Assessments in Sentencing African Canadian Offenders , 2020 CanLIIDocs 1843 . [ 19 ] In Zora , Martin J. at para. 79 underscored the undue burden bail conditions often impose upon vulnerable members of the community. She stated: [79] A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations ([Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention , by A. Deshman and N.

Myers (2014) (online)] CCLA Report, at pp. 72-79)]. Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonable abide (see, e.g., Schab [ R v Schab , 2016 YKTC 69 , 35 CR (7 th ) 48], at paras 24-5; Omeasoo [ R v Omeasoo , 2013 ABPC 328 , [2014] 5WWR 598], at paras 33 and 37; R v Coombs , 2004 ABQB 621 , 369 AR 215 at para 8 ; M.B. Rankin, “Using Court Orders to Manage Supervise and Control Mentally Disordered Offenders: A Rights-Based Approach” (2018), 65 C.L.Q. 280).

Indigenous people, over-represented in the criminal justice system are also disproportionately affected 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 Aboriginal People in Canada” (2017), 95 Can. Bar.

Rev. 325; Ewert v Canada , 2018 SCC 30 , [2018] 2 SCR 165 at paras 57-60 ; also s. 493.2, as of December 18, 2019 ). [Emphasis added] [ 20 ] Not surprisingly, because of its recent provenance, s. 493.2 has received little judicial scrutiny. In addition to E.B. , my research unearthed the following authorities which are particularly informative: R v Ismail , 2020 ONSC 5519 ; R v Ugyuk , 2020 NUCJ 27 [ Ugyuk ]; R v Muminawatum , 2020 MBQB 75 [ Muminawatum ] ; and R v Oakes , 2020 QCCS 2579 .

At the hearing of this application, counsel for the applicant advised that his research yielded no reported case in which a Saskatchewan court has considered the application of s. 493.2. Neither did mine. [ 21 ] It is important to emphasize that the addition of s. 493.2 to the Criminal Code was not intended to supplant or “supercede” the operation of s. 515(10). See: E.B. at paras 42-43 .

Rather, it serves as a lens through which the three grounds for assessing whether bail ought to be granted, should be considered and applied in circumstances where the applicant is a marginalized, racialized, or otherwise vulnerable member of society. See, for example: Ugyuk at paras 46-48 .

RELEVANT FACTUAL BACKGROUND A. The Allegations [ 22 ] At present, the applicant faces numerous charges spread over three separate informations. The first information charges the applicant and a co-accused with one count of possession of cocaine for the purpose of trafficking contrary to the CDSA . This offence was alleged to have been committed on July 24, 2020. [ 23 ] The second information charges the applicant with one count of possession of cocaine for the purpose of trafficking, and one count of possession of fentanyl for the purpose of trafficking both contrary to the CDSA .

The final count charges possession of currency exceeding $5,000 obtained from trafficking contrary to ss. 354 and 355 of the Criminal Code . These offences, too, were alleged to have occurred on July 24, 2020. [ 24 ] The third information charges the applicant with three counts of possession of a firearm while prohibited to do so contrary to s. 117.01 of the Criminal Code , and one count of failing to comply with a probation order contrary to s. 733.3 of the Criminal Code .

Like the others, these offences are alleged to have occurred on July 24, 2020. [ 25 ] These charges against the applicant have their genesis in an extensive investigation conducted by the Regina Police Service [RPS] into alleged drug trafficking activities of another individual. RPS’s drug unit had begun surveillance on this person in June 2020 after receiving credible information from a confidential source that he was trafficking in large amounts of cocaine.

In the course of this investigation, RPS obtained judicial authorizations permitting its officers to track the target’s activities through his vehicles, as well as his cell-phone. [ 26 ] On July 24, 2020, investigative officers tracked the target to the parking lot of the Home Depot store located in east Regina. He parked his vehicle close to Earl’s restaurant. Police then observed another vehicle bearing an Ontario license plate enter the parking lot. A black male, who is later identified as the applicant, comes out of the restaurant and enters this vehicle.

He drives the vehicle a short distance and parks it beside the passenger side of the target’s vehicle. The applicant exits his vehicle with what is described as a white bag and enters the target’s vehicle. Very shortly after, the applicant exited that vehicle with a white bag, returned to the Ontario vehicle, opened its trunk, and, after closing it, returned to the restaurant. [ 27 ] When the applicant left the restaurant with two other persons, a police officer attempted to arrest him.

The applicant immediately began to flee; however, he tripped and fell, injuring his left shoulder and suffering some lacerations. Once on the ground, the applicant co-operated with the police. An officer formally arrested the applicant, advised him of his Charter rights, and cautioned him. [ 28 ] Subsequently, the police searched the Ontario vehicle which they had observed the applicant driving. In the course of this search, the police discovered two hidden compartments located in the back of the driver and front passenger seats which they determined to have been professionally installed.

Hidden in those compartments police discovered 18 bottles each of 473 milligrams of codeine; large quantities of both cocaine, and fentanyl, as well as approximately $20,000 in cash. Police also discovered a SIG Sauer P938-9 millimetre pistol, as well as ammunition. B. The Applicant’s Background [ 29 ] The applicant is 28 years old. He is African-Canadian. Prior to his arrest, he was gainfully employed, and resided in Toronto, Ontario with his girlfriend, Ms. Mikayla Garvey. The applicant and Ms. Garvey who is 24 years old, have known each other since 2016, and began dating in approximately 2018. Ms.

Garvey who is prepared to act as a surety for the applicant, travelled from Ontario to be present in court at the hearing of this bail review application. [ 30 ] The applicant has struggled with drug addiction in the past. He began taking drugs, particularly cocaine, when he was approximately 16 years of age. At that time, he entered the Portage Treatment Facility located at Elora Gorge, Ontario attempting to address his problem.

It would appear from his criminal record about which I will say more later in these reasons, that the applicant has not entirely conquered his addiction. [ 31 ] As well, the applicant is asthmatic, a serious and chronic respiratory condition for which there is no cure. In this time of the COVID-19 global pandemic, individuals who suffer with this condition are exposed to greater medical risks than those members of the general population who do not. C. The Applicant’s Criminal Record [ 32 ] The applicant’s criminal record was filed in court. It is not disputed.

It commenced in 2008 with the last conviction entered against him in September 2019. It consists of the following convictions: Youth Convictions: DATE OFFENCES SENTENCE 2008-02-06 Possession of a

schedule I substance under the CDSA Failure to Comply with a Recognizance 1 year probation on each count, concurrent.

2009-01-28 Robbery with a firearm Possession of a prohibited or restricted firearm with ammunition 200 days & 100 days community supervision on each charge concurrent, 12 months probation & a mandatory prohibition order. 2009-01-29 Failure to comply with a recognizance Armed robbery Possession of property under $5000 14 months, 7 months community supervision, 12 months probation on each charge, concurrent.

Adult Convictions: DATE OFFENCES SENTENCE 2012-05-14 Aggravated Assault Flight causing bodily harm while pursued by a peace officer 12 months (12 months pre- sentence custody), 12 months concurrent & mandatory prohibition order. 2016-11-23 Failure to comply with an undertaking 14 days pre-sentence custody 2019 -09-16 Possession for purpose of trafficking Dangerous operation of a conveyance causing bodily harm 8 months (11 months pre- sentence custody) & mandatory weapons prohibition 8 months concurrent & 5 year prohibition from operating a motor vehicle. D.

The Bail Judge’s Decision [ 33 ] As mentioned, the applicant’s bail hearing took place on September 9, 2020. The Bail Judge delivered brief oral reasons for dismissing the application immediately following its conclusion. [ 34 ] He began by noting that the applicant bore the onus of demonstrating why his continued detention was not justified. However, the Bail Judge determined that the applicant had failed to satisfy this burden. He based his decision on the operation of the secondary and tertiary grounds set out in ss. 515(10) (

b) and (

c) of the Criminal Code in the circumstances of this application. [ 35 ] Respecting the secondary ground, the Bail Judge held that the applicant’s continued detention was justified for the “protection or safety of the public”. He pointed to the applicant’s criminal record as a relevant consideration. In particular, he referred to the “epidemic of drug abuse that is occurring in Regina, across – the Province of Saskatchewan and, indeed, across Canada, even during COVID-19, and the dangerous prevalence of firearms use [ sic ] to assist those engaged in drug trafficking”.

See: Transcript of Show Cause Hearing, dated September 9, 2020 [Transcript] at page T26, lines 21-24. [ 36 ] Respecting the tertiary ground, the Bail Judge focussed on the various firearms charges the applicant currently faces. In light of these charges, of which the applicant is currently presumed to be innocent, the Bail Judge concluded that the applicant’s continued detention “is necessary to maintain confidence in the administration of justice as a reasonable person would not understand his release”.

See: Transcript, at page T26, lines 27-29. [ 37 ] The Bail Judge highlighted the following factors in support of his conclusion respecting the tertiary ground: (1) the apparent strength of the Crown’s case; (2) the gravity of the offences with which the applicant stands charged; (3) the circumstances surrounding their commission, “including that a firearm was – was used”; and (4) the applicant faces a lengthy jail term upon conviction for these offences.

See: Transcript, at page T26, lines 31-34. [ 38 ] Finally, the Bail Judge gave short shrift to the fact that the applicant suffered from asthma and was currently detained in a provincial correctional centre during a global pandemic. He tersely stated that he did not think “[the applicant’s] particular health issues tip the balance in his favour”. See: Transcript, at page T26, lines 36-38. ANALYSIS A.

Basis for Review [ 39 ] In Zora at para 64 , Martin J. stated that decisions respecting bail made “in the bustle of a busy bail court with limited information can, and when necessary should, be fine-tuned through bail review.” She reaffirmed the three circumstances identified in St- Cloud at para 121 where a reviewing court may intervene, to be the appropriate analytical framework under which this fine tuning should be conducted. Again, those three circumstances are: a. if the challenged decision is based on an error of law; b. if the decision was “clearly inappropriate”; or

c. if there is evidence that demonstrates a material and relevant change in the circumstances of the case. [ 40 ] In his Application for Bail Review, counsel for the applicant presents four grounds respecting why the Bail Judge’s decision to deny bail to the applicant is wrong. Collectively, these grounds allege various errors of law committed by the Bail Judge. [ 41 ] Additionally, however, there is a “material and relevant change in circumstances” occasioned by the fact that Ms.

Garvey is willing to act as a surety and, along with the applicant’s family, to post a bond of $10,000 in order to secure the applicant’s release. See: Affidavit of Mikayla Garvey sworn October 7, 2020 at paras. 12-13 [Ms. Garvey’s Affidavit]. This is information which was not presented to the Bail Judge at the initial bail hearing. Consequently, a de novo review of the applicant’s request for bail is appropriate regardless of any error, legal or otherwise, committed by the Bail Judge.

See: St-Cloud at para 138, and E.B. at para 20 . [ 42 ] In my respectful view, there is a basis under two of the three St-Cloud criteria to revisit, and to revise, the Bail Judge’s refusal to grant bail to the applicant. I address each of them below in turn. 1. Error of Law [ 43 ] At the hearing, counsel for the applicant focussed on the Bail Judge’s failure to weigh s. 493.2 when considering his client’s circumstances. In my respectful view, the Bail Judge erred in his

interpretation of this remedial provision, and its relevance to the application before him. [ 44 ] In the course of the show cause hearing, counsel for the applicant emphasized now well-documented evidence of systemic injustices committed against African-Canadians by the justice system. Of course, judicial notice may be taken of this reality as Nakatsuru J. did in Jackson at paras 81-92 , for example.

However, at the show cause hearing, counsel went further and filed a recent study demonstrating this reality, most notably a report released by the Ontario Human Rights Commission in November 2018 entitled “A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service” [OHRC Interim Report]. At the hearing of this application, counsel also filed a lengthy

article from the November 4, 2020 edition of the Globe and Mail newspaper, entitled “Bias behind bars: A Globe investigation finds a prison system stacked against Black and Indigenous inmates”. [ 45 ] It is true that at the show cause hearing, the Bail Judge did acknowledge s. 493.2 . Indeed, he brought it to the attention of counsel. The following exchange then took place: THE COURT: Well, maybe I can help you here. As I understand 493.2(a), that applies to Aboriginal accused, and 493.2(

b) refers to other vulnerable populations. So is your argument that because – or that he is another – he is part of another vulnerable population? MR. HRYCAN: Yes. THE COURT: And, hence, I should take that into account during the bail hearing? MR. HRYCAN Yes. THE COURT: Okay. Now, you’ve presented some interesting statistics from Ontario. MR. HRYCAN: M-hm. THE COURT: He is charged in Saskatchewan. MR. HRYCAN: M-hm. THE COURT Do you have any comparable statistics or comments pertaining to Saskatchewan? MR. HRYCAN: We don’t have a comparable black community in Saskatchewan – THE COURT: Right. MR.

HRYCAN: -- in relation to what they have in Ontario. So there are fewer statistics. I cannot provide you those. However, I can walk you through the circumstances of this surveillance, which I think raise some questions about how they identified Mr. Raheem-Cummings. Transcript, at pages T10, line 12 to T-11, line 3 [ 46 ] Later in the course of the hearing, a further exchange between the Bail Judge and counsel for the applicant respecting the operation of s. 493.2 ensued.

I reproduce its conclusion below: THE COURT: So your point really is he – your client remains part of vulnerable group that is still overpoliced – MR. HYRCAN: Yes. THE COURT: -- despite past sentences? MR. HRYCAN: Yes. THE COURT: Okay. I get it. [Transcript, at T15, lines 24-33.]

[ 47 ] In his short oral decision, however, the Bail Judge made no reference whatsoever to s. 493.2 of the Criminal Code or explain why, in his opinion, he did not need to consider it, or it did not apply. [ 48 ] At the hearing of this application, Crown counsel submitted that the Bail Judge did all that was required of him. He referred to s. 493.2 , and from his comments to counsel for the applicant, clearly understood its import.

Additionally, Crown counsel emphasized that there was no evidence that the applicant’s arrest on these charges was motivated by racial profiling. [ 49 ] With respect, these submissions diminish the significance of s. 493.2 to adjudications of applications for judicial interim release. In my opinion, the Bail Judge erred by not addressing the relevance of this provision to the applicant’s circumstances for the following reasons. [ 50 ] First, I point to the text of s. 493.2 (b), itself.

It states that when making a decision respecting bail, a “judge shall give particular attention to the circumstances of…accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release” under

Part XVI of the Criminal Code . It is mandatory. Plainly, this provision requires not only a bail judge at first instance, but I as a judge on an application under s. 520 , to weigh the particular circumstances of an offender such as the applicant who is African-Canadian and a member of a vulnerable community overrepresented in the criminal justice system.

The Bail Judge failed to do this in his brief oral decision. [ 51 ] Second, the exchanges between the Bail Judge and counsel for the applicant, extracts of which I have reproduced above, show that the Bail Judge appears to be of the view that s. 493.2 has only localized application. In his opinion, its operation is relevant only to those jurisdictions where there is a large African-Canadian population. Saskatchewan, apparently, is not one of those jurisdictions. With respect, this is an error of law. [ 52 ] The Bail Judge has given an impoverished

interpretation to a provision of a Federal statute which is intended to be remedial in nature. It cannot be gainsaid that African-Canadians experience racist treatment in the Canadian criminal justice system. As already noted, this has been well-documented, and the Supreme Court has acknowledged this reality. Racism of this kind is not confined solely to certain provinces such as Ontario, Québec, and Nova Scotia, for example.

Regrettably, it extends to all areas of this country, including our own. [ 53 ] Third, the Bail Judge also appears to suggest that because the applicant has previously been convicted of some serious criminal offences – albeit as a young person – this somehow obviates the need for any consideration of s. 493.2 . This, too, is an error of law. [ 54 ] Although the applicant’s past convictions cannot be ignored, it must be remembered that he comes before the court on an application for judicial interim release presumed to be innocent of the charges with which he is currently charged.

That must be the starting point for any consideration of such an application. [ 55 ] E.B. which involved an application under s. 520 illustrates this fact well. There, the applicant, a 42-year-old man of African-Canadian and Indigenous heritage, possessed an extremely lengthy criminal record. By the bail review judge’s own count, it was comprised of 67 convictions, 25 of which were for failing to comply with court orders. See: E.B. at para 45 .

As counsel for the applicant noted at the hearing of this matter, this was not “an optimal record” for purposes of applying for bail. [ 56 ] Yet, Schreck J. released him, and relied upon s. 493.2 when doing so. At para 59 of E.B. , he stated: [59] The foregoing discussion should not be taken to mean that the applicant’s antecedents are not a cause of significant concern. They clearly are, even when subjected to the type of contextual examination I believe s. 493.2 requires.

There is no question that the applicant has a long history of failing to abide by court orders and that he had repeatedly engaged in criminal conduct, including serious crimes of violence.

However, giving particular attention to the applicant’s circumstances as an Indigenous accused and one who belongs to a vulnerable and overrepresented population means that I should not simply write him off as “just a recidivist”, as he was referred to by one of the judges who sentenced him in a decision provided to me by counsel. [ 57 ] Fourth and finally, in my view, evidence of racial profiling respecting an offender’s arrest is not a trigger to the operation of s. 493.2 at the bail stage.

While such evidence may be relevant to the legality, and constitutionality, of the arrest itself, it is not a pre-condition for the operation of s. 493.2 . This

section is to be considered whenever the offender before the court falls within the parameters of either ss. 493.2 (

a) or (

b) of the Criminal Code . [ 58 ] Accordingly, for these reasons, I conclude with respect that the Bail Judge erred in law by failing to give any weight, let alone adequate weight, to s. 493.2 in the circumstances of this applicant. Consequently, I must intervene pursuant to s. 520 because of this error. 2. Material Change in Circumstances [ 59 ] At the hearing, counsel for the applicant presented new information which was not available to the Bail Judge. In my view, this information qualifies as a “material change in circumstances” as described by Wagner J. in St-Cloud at paras 127-137.

This means that as t he reviewing judge, I may “consider all the circumstances of the case, focusing in particular on the circumstances specified in [ s. 515(10) of the Criminal Code ]” and “undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified”. See: St-Cloud at para 138. [ 60 ] This “material change” relevant on this s. 520 application involves two significant post-show cause hearing developments. The first I have already alluded to. Ms.

Garvey, the applicant’s partner, has undertaken to act as his surety and, together with other members of the applicant’s family, including his mother, has offered to post a bond in the amount of $10,000 as security. See: Ms. Garvey’s Affidavit. [ 61 ] The second “material change” is a written agreement between Recovery Science Corporation [RSC] and the applicant in

which RSC agrees to provide electronic monitoring for the applicant, should he be successful on his application under s. 520 . At the hearing, counsel for the applicant filed various documents relating to this proposed arrangement. One of those documents – “Overview of Criminal Programs” – describes RSC in para. 1, as follows: [RSC] is an Ontario corporation formed in November 2009.

Using technologies and associated software that we source from other companies, we have offered GPS monitoring since September 2012 and radio-frequency and alcohol monitoring since January 2010. [ 62 ] The document states that most of the cases in which RSC has provided court-approved electronic monitoring services have been in Ontario. However, it explained that it had also provided the same service in other provinces including Saskatchewan.

See: “Overview of Criminal Programs” at para. 7. [ 63 ] Of particular interest is the description of the “key components” of RSC’s programs which is found at para. 8 of this document. It reads: 8.

The key components of our programs are that: a. the accused is responsible for all costs; b. the accused permanently and irrevocably authorizes us to share information with law enforcement authorities and the court; c. we cooperate fully with law enforcement authorities, tailoring reporting protocols on a case by case basis in accordance with their preferences and instructions; d. beyond reporting violations, we offer law enforcement officers a range of options for receiving information from us, including regular compliance reports, proactive reporting of irregular activity, surveillance assistance, crime scene correlation, on demand current or historical location information, and direct access to our GPS monitoring software; e. before terminating service for non-payment or any other reason, we will provide the police with four weeks’ notice that monitoring will be terminated, or such further time as they may require, so that they have sufficient time to take steps to revoke or vary the governing order as they see fit; and f. we will provide the Crown with evidence to support a revocation, breach or variation proceeding at no cost to the Crown, including expert testimony, if required. [ 64 ] At the hearing, Crown counsel, to his credit, acknowledged that should the applicant succeed on this application and be released on conditions, he was satisfied with the GPS monitoring service provided by RSC.

He submitted it should be included as one of the conditions of any release, a position which counsel for the applicant shared. [ 65 ] As a result of these two factors – an error of law, and a material change in the circumstances – I, as the bail review judge, am authorized to review de novo the applicant’s continued detention and determine whether it remains justified. B. De Novo Review of the Applicant’s Detention [ 66 ] The Bail Judge ordered that the applicant be remanded on the second and tertiary grounds set out in s. 515(10) of the Criminal Code .

He concluded that there was no basis to remand the applicant on the primary ground, and this was not challenged by the Crown on this application. C. The Secondary Ground [ 67 ] Section 515(10)(

b) states that an offender’s pre-trial detention is justified where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. For present purposes, “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”.

See: R v Manasseri , 2017 ONCA 226 at para 87 [ Manasseri ] per Watt J.A. [ 68 ] As noted, the Bail Judge denied bail on the secondary ground principally on the basis of the applicant’s criminal record, and taking judicial notice of the “epidemic of drug abuse that is occurring in Regina, across the – the Province of Saskatchewan and, indeed, across Canada”: Transcript, at T26, lines 21-23. [ 69 ] To be sure, consideration of the applicant’s circumstances show that secondary ground concerns exist.

However, as the court stated in E.B. , “the relevant question is not whether secondary ground concerns exist but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors”: E.B. at para 61 quoting R v Tully , 2020 ONSC 2762 at para 23 . These “relevant factors” include, among others, consideration of s. 493.2 (b). [ 70 ] I acknowledge that the applicant’s prior criminal record cannot be dismissed.

While the bulk of it occurred when the applicant was a young person, it is apparent that he has already been convicted of serious offences including robbery, armed robbery, and possession of cocaine for the purposes of trafficking. Indeed, his most recent convictions came less than a year before these current charges occurred. Of these convictions, only three relate to the failure to comply with a court order or an undertaking, and two of them were entered when he was a young person. [ 71 ] I did not receive much detailed information respecting the applicant’s background.

As mentioned, the applicant is African-Canadian and, it appears, he has spent most of his life in Toronto, Ontario. Apparently, he graduated from a high school in that city, and was gainfully employed before his recent trip to Saskatchewan where he was arrested on these charges. At his initial bail hearing, and in the hearing of his s. 520 application before me, counsel for the application filed the OHRC Interim Report which

dramatically recounts the difficulties experienced by persons of colour, especially African-Canadians, at the hands of the Toronto PoliceServices, as well as other regional police services in Ontario. These considerations under s. 493.2 of the Criminal Code should beweighed, in my view, under the secondary ground. [72] The applicant’s proposed plan for release is a persuasive one. The applicant proposes that if released, he will live withhis current partner, Ms. Garvey at her residence in Brantford, Ontario. I have already noted that Ms. Garvey travelled from Ontario toattend the applicant’s bail review hearing.

Additionally, she has voluntarily agreed to act as the applicant’s surety, and along withmembers of the applicant’s family undertaken to post a bond of $10,000. I take these indicators as compelling evidence of a seriouscommitment on Ms. Garvey’s part to do her utmost to ensure that the applicant’s proposed release plan succeeds. [73] This plan also proposes that the applicant will be subject to a curfew, confining him to the residence he will share withMs. Garvey from 6:00 p.m. one day to 6:00 a.m. the following day. He will only be able to leave for employment purposes or medicalreasons.

As well, he will be further limited as to who he may associate with, and where he may lawfully go without seeking priorapproval of probation authorities. These various restrictions should adequately address the secondary ground concerns about releasingthis applicant. [74] To be sure, the applicant’s proposed plan is not without risk. Yet, this can never be guaranteed. In R v Morales, (SCC), [1992] 3 SCR 711 [Morales], for example, the Supreme Court accepted the impossibility of making exact predictionsabout an accused's potential for recidivism and future dangerousness: Morales at 738-739.

The law, however, does not requireclairvoyance. All it requires is a reasoned assessment, based on the best available information, of the probable risk the accused poses ifreleased: Morales at 739. [75] Having considered the applicant’s background; his prior criminal record both as a young person and as an adult; thecriminal allegations which he currently faces; the commitment of his surety, and the details of his proposed release plan, I conclude thatthere is not a substantial likelihood that the applicant will commit further offences if released from his current pre-trial detention. D.

The Tertiary Ground [76] The Bail Judge determined further that the applicant’s pre-trial detention was justified under the tertiary ground, aswell. In my respectful view, the applicant’s detention is not warranted on this ground, either. 1. Relevant Legal Principles [77] Section 515(10)(

c) holds that an accused’s detention is justified if it is necessary to maintain confidence in theadministration of justice.

This provision goes on to list four non-exhaustive factors that a court should consider when making thisdetermination: ss. 515(10)(c)(i)-(iv). [78] In Manasseri, Watt J.A. offered extensive guidance about the content and operation of this particular provision asfollows: [90] First, as in the case of the secondary ground, whether detention is or is not necessary on this ground is to be determined by aconsideration of all the circumstances, but in particular, the four factors Parliament has marked out for specific consideration in s.515(10)(c): R v Hall, 2002 SCC 64, [2002] 3 SCR 309 at para 40; R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 at para. 35. [91] Second, as in the case of the secondary ground, the use of the term “including” in relation to the listed factors negates anysuggestion that the listed factors are dispositive of an order of detention on the tertiary ground: St-Cloud at para 68. [92] Third, to determine whether detention is justified on the tertiary ground, a judge is to make his or her appraisal objectively, throughthe lens of the four factors Parliament has specified, and with particular focus on those factors: Hall at para 41; St-Cloud at para 35. [93] Fourth, detention can only be justified on the tertiary ground if the judge, having considered the listed factors and relatedcircumstances, is satisfied that a reasonable member of the community would be satisfied that denial of release is necessary to maintainconfidence in the administration of justice: Hall at para 41; St-Cloud at para 35. [94] Fifth, the term “public” in s. 515(10)(

c) refers to reasonable members of the public who are properly informed about the philosophyof the legislative provisions; Charter values; and the actual circumstances of the case: Hall at para 41; St-Cloud at para 74. [95] A “reasonable member of the public” is familiar with the basics of the rule of law in Canada and with the fundamental values of ourcriminal law, including those protected by the Charter. He or she knows the importance of the presumption of innocence and the right toliberty and that these are fundamental rights guaranteed by our Constitution.

The reasonable member of the public also expects, perhapseven more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time: St-Cloud at para 79. [96] A final point before turning to the specific factors requiring consideration under s. 515(10)(c). In Canada, pre-trial release of thosecharged with crime is the cardinal rule and detention, the exception: St-Cloud at para 70; R v Morales, (SCC), [1992] 3SCR 711 at 728.

That said, sometimes, as here, the onus of demonstrating release is shifted to an accused who is required to demonstratethat detention is not necessary on the primary, secondary or tertiary ground. [97] One of the factors that a judge is required to consider in gauging the influence of the tertiary ground is the apparent strength of thecase for the Crown. This requires consideration of the quality, and to some extent, the quantity of the evidence available to the Crown toprove its case.

This assessment must also take cognizance of the defence advanced by the accused: St-Cloud at paras 58-59. [98] The second factor – the gravity of the offence – is measured objectively on the basis of the maximum and any minimum sentencepermitted or required on conviction: St-Cloud at para 60.

[99] The third factor – the circumstances surrounding the commission of the offence – involves consideration of the nature of the offence, as for example its violent, heinous or hateful nature; its context, for example domestic violence or gang activity; the involvement of others; the extent of the accused's participation; and the vulnerability of the victim: St-Cloud at para 61.

The personal circumstances of the accused may also be relevant under the third factor including, in some cases, that the accused's trial will not be held until a much later date: St-Cloud at para 71. [100] The final listed factor – liability to a lengthy term of imprisonment on conviction – refers to the range of penalty available upon conviction, including any mandatory minimum: St-Cloud at paras 64-65. 2. Application of Principles to Applicant’s Circumstances [ 79 ] I turn first to a consideration of the factors listed in s. 515(10)(c).

Certain of those factors, but not all, militate in favour of continuing the applicant’s detention. To begin, from the information provided to me during the hearing, it appears that the Crown’s case against the applicant is strong. That said, it is unclear where in the hierarchy of drug dealers, the applicant falls. Is he a courier or a mule? Or is he simply a low-level distributor?

Regardless, he faces two charges of alleged possession of a drug for the purpose of trafficking which from the information presented at the hearing are credibly based. [ 80 ] Second, the offences of trafficking in cocaine and fentanyl, respectively, are serious offences, as the Bail Judge noted. This is a consideration which falls under the “continued detention” column. [ 81 ] Third, the applicant faces charges of possession of firearms. When denying the applicant bail, the Bail Judge stated that a firearm was used in the commission of these offences. He was wrong about that.

There was nothing in the transcript of the show cause hearing nor was any information presented at the bail review hearing to demonstrate that a firearm was used at all. It is true that during the search of the vehicle, a firearm was discovered secreted in one of the hidden compartments inside the vehicle. Yet, there is no evidence to indicate that a firearm played any role in the commission of these offences. This fact significantly minimizes the weight to be given to this factor enumerated in s. 515(10) (c)(iv). [ 82 ] It cannot be forgotten that even where the factors listed in s. 515(10)(

c) weigh in favour of detention; a detention order is not inevitable: St-Cloud at paras 66-69 and 87.

Ultimately, a judge must consider the four factors “together with any other relevant factors” to determine “whether, in the case before him or her, detention is necessary” to “achieve the purpose of maintaining confidence in the administration of justice”: St-Cloud at paras 69 and 87 . [ 83 ] In my view, a most relevant factor in this case which must be considered under the tertiary ground is this applicant’s chronic medical condition – asthma – which for purposes of assessing the potential impact of COVID-19 may have upon him is categorized as a “co-morbidity”, significant enough to place him within the high-risk category.

As well, this adverse impact must be addressed within the second wave of COVID-19. I believe I can take judicial notice of the fact that in this second wave, outbreaks of COVID-19 in Canadian penitentiaries and provincial correctional centres have been much more severe and deadly than they were during the first wave.

See, for example: “COVID-19 cases at Saskatoon Correctional Centre climb to 128” dated November 29, 2020 <https://www.cbc.ca/news/canada/saskatoon/spcc-cases-surpass-100-1.5821298> (19 December 2020). [ 84 ] It should not occasion surprise that during the first wave of COVID-19, its impact on an accused’s application for bail has been addressed in numerous decisions from across Canada. Generally, these various authorities fall into two categories. One line of cases views COVID-19 as a factor to be taken into account under the tertiary ground but is in no way determinative.

To cite only a few examples, these authorities include: R v Boudreau , 2020 SKQB 88 ; R v Bear , 2020 SKQB 109 ; and R v Lumley , 2020 ONSC 6292 [ Lumley ] . In Lumley , for example, the court quoted from R v Newman , 2020 ONSC 4879 , at para 21 where Molloy J. stated: “As many other judges have noted, the COVID-19 pandemic is not a ‘get out of jail free’ card. There are individuals who represent such a risk to the community that releasing them prior to trial would undermine public confidence in the justice system.” [ 85 ] The second line of cases is more generous.

These authorities afford COVID-19 and its specific impact on an accused, significant weight under the tertiary ground. See, for example: R v Shingoose , 2020 SKCA 45 at paras 44-50 ; and Muminawatum . In Muminawatum , the court said this at para. 60: 60 …I agree with the analyses that Covid-19 itself is not to be given special or significant weight; it is simply another factor in the mix of all factors to be considered in the s. 515(10) analysis.

For it to carry more weight there must be something unique in the circumstances, which must be put into evidence; likely about the accused’s health status or vulnerability, or a grave change in the threat or risk posed by Covid-19 at the inmate’s jail.

In any case, on a s.520 review, an accused would be well advised to credibly address the specific reason for his detention… [Emphasis added] [ 86 ] As mentioned, these authorities were all decided in the context of COVID-19’s first wave when much was unknown about this virus’ impact, and the inability to socially distance in penitentiaries and provincial corrections centres did not result in the medical emergencies currently being experienced in many of those institutions. Simply put, our country is in a different place today.

For these reasons, I place myself squarely in the camp of those judges who believe COVID-19 and its impact on prison populations is a significant factor to weighed under the tertiary ground.

Especially so in circumstance where, as here, the applicant’s medical condition puts him within a vulnerable group that is more likely to experience significant health complications and even require hospitalization if he contracts this virus. [ 87 ] In assessing whether an accused’s detention is necessary to maintain confidence in the administration of justice, the focus is on public confidence: R v Hall , 2002 SCC 64 at para 41 , [2002] 3 SCR 309 ; St-Cloud at para 72.

The yardstick for this assessment is the perception of “reasonable members of the community.” These are people who are dispassionate, thoughtful, well- informed, and possess a basic understanding of the rule of law, the fundamental values of our criminal law, and the rights guaranteed by the Charter , including the presumption of innocence, the right to reasonable bail, and the right to be tried within a reasonable time: St- Cloud at paras 72-87.

[ 88 ] Applying this standard, I conclude that a reasonable and well- informed member of the community who considers that the applicant is a member of a racialized group falling within s. 493.2 of the Criminal Code ; his proposed release plan which appears to be a strong one, and the disproportionate impact COVID-19 would have on this applicant because of his chronic health condition, he or she would not lose confidence in the administration of justice if the applicant is released into the community on strict conditions. CONCLUSION AND ORDER A.

Conclusion [ 89 ] Accordingly, for these reasons, I am satisfied that when applying the criteria set down in St-Cloud , and the factors codified in ss. 515(10) (

b) and (

c) of the Criminal Code the continued detention of the applicant pending his trial is no longer justified. I am, therefore, directing that the applicant be released on conditions set out below. [ 90 ] At the conclusion of the applicant’s bail review hearing, I asked both Crown counsel, and counsel for the applicant to provide to me a list of proposed conditions I might impose should I determine that the applicant be released from pre-trial detention.

I have now reviewed those submissions and have incorporated many of the proposed conditions into my order. [ 91 ] In structuring these release conditions, I have also had regard for the considerations which Martin J. in Zora at para 89 counselled judges to keep in mind when crafting bail conditions. I reproduce those considerations below: [89] In

summary, to ensure the principles of restraint and review are firmly grounded in how people think about appropriate bail conditions, these questions may help structure the analysis: • If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions ? If the accused is released without conditions, are they at risk of failing to attend their court date, harming public safety and protection, or reducing confidence in the administration of justice? • Is this condition necessary ?

If this condition was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice which would prevent the court from releasing the accused on an undertaking without conditions? • Is this condition reasonable ? Is the condition clear and proportional to the risk posed by the accused? Can the accused be expected to meet this condition safely and reasonably?

Based on what is known of the accused, is it likely that their living situation, addiction, disability, or illness will make them unable to fulfill this condition? • Is this condition sufficiently linked to the grounds of detention under s. 515(10) (c) ? Is it narrowly focussed on addressing that specific risk posed by the accused’s release? • What is the cumulative effect of all the conditions ? Taken together, are they the fewest and least onerous conditions required in the circumstances?

These questions are inter-related and they do not have to be addressed in any particular order, nor do they have to be asked and answered about every condition in every case. The practicalities of a busy bail court do not make it realistic or desirable to require that the judicial official inquire into conditions which do not raise red flags. What is important is that all those involved in the setting of bail use these types of organizing questions to guide policy and to assess which bail conditions should be sought and imposed. B.

Order [ 92 ] Taking all these factors into account, I order that the applicant be released from pre-trial detention at the RCC on the following conditions: 1. That the applicant keep the peace and be of good behaviour at all times; 2. That the applicant shall enter into a recognizance with Ms. Mikayla Garvey designated as his surety; 3. That the applicant shall deposit the amount of $10,000 cash bail; 4. That the applicant shall present himself to Probation Services within 24 hours of his release, and provide to them a copy of his release document; 5.

That the applicant shall report to Probation Services once per week, by telephone or as directed by the probation officer or their designate; 6. That the applicant shall at his own expense be subject to monitoring by Recovery Science Corporation [RSC] which shall include: (

i) entering into RSC’s Participant Agreement and complying with its terms; (ii) to be outfitted with RSC’s GPS monitoring device prior to his release and to wear it at all time; (iii) permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; complying with RSC leave notification and battery charging requirements; and (iv) cooperating fully with RSC staff. 7. That the applicant shall at all times reside with Ms. Mikayla Garvey at Suite “O” 232 Charing Cross Street, Brantford, Ontario and

not change that address without prior approval of his probation officer or the court; 8. That the applicant shall be confined to his approved residence from 6:00 p.m. each night to 6:00 a.m. the following morning; 9. That the applicant is permitted to leave residence for employment purposes, upon showing proof of employment; 10. That the applicant shall come to the door of his approved residence when asked to do so by a probation officer or designate, or a police officer who may be checking the residence and curfew conditions of this order; 11.

That the applicant shall submit to a search without warrant of his person, any vehicle, or residence he may own, operate, control or possess by any police officer who has reasonable grounds to suspect that the applicant is in breach of a condition of this order regarding the illegal use, possession or control of drugs. 12. That the applicant shall not possess or consume illicit drugs that have not been prescribed for him by a medical doctor or other medical professional; 13.

That the applicant shall not have in his possession at any time for any purpose any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive device, or things intended for used as a weapon as defined under the Criminal Code ; 14.

That the applicant shall not have in his possession any cell phone, smart phone, police scanner or other mobile electronic communication device except he may possess and use one cell phone that is registered in his name while he is in his residence and he may possess and use a cell phone during the course of employment for employment purposes; 15. That the applicant is permitted exceptions to these conditions for the purposes of scheduled court appearances; scheduled appointments in writing with legal counsel of record; scheduled medical or dental appointments in writing, and medical or dental emergencies; 16.

That save for the applicant’s or his surety’s own medical emergencies, the applicant shall not use or direct someone else to use a telephone - cellular or landline; 17. That the applicant shall have no visitors while under the terms of this release unless that visitor is delivering necessities of life and then only for the time strictly necessary for the delivery of those necessities; 18. That the applicant shall have no contact with any witnesses or co-accused except through legal counsel; 19. That the applicant shall attend all scheduled court appearances, and 20.

That the applicant shall travel as soon as practicable from the RCC to the approved address in Ontario with his surety, Ms. Mikayla Garvey. J. G.G. MITCHELL KING’S BENCH FOR SASKATCHEWAN Citation: 2020 SKQB 342 Date: 2020 12 23 Docket: CRM-RG-00352-2020 Judicial Centre: Regina

BETWEEN: STEPHAN RAHEEM-CUMMINGS APPLICANT -and- HER MAJESTY THE QUEEN RESPONDENT Counsel: Bob P. Hrycan for the applicant J. Paul Malone for the respondent CORRIGENDUM TO THE FIAT OF DECEMBER 23, 2020 MITCHELL J. JULY 24, 2023 [1] The docket number on my fiat dated December 23, 2020, 2020 SKQB 342, is incorrect. It should read as follows: CRM-RG- 00352-2020. J. G.G. MITCHELL