In a recent Ontario decision, the court ordered the release of an accused finding, in part, that the COVID-19 pandemic constituted a material change in circumstances to his original detention order.
The accused had been charged with three counts of possession of a credit card (which he knew had been obtained by the commission of an offence) and ten counts of possession of identity documents relating to seven different individuals, contrary to Canada’s Criminal Code. He was also charged with uttering a counterfeit $50 bill and two counts of possession of methamphetamine and fentanyl for the purpose of trafficking.
A detention order was made on January 16, 2020.
The accused sought a review of the detention order, which was heard on May 19, 2020.
The accused asked that he be granted bail on terms that he reside with his daughter, that he be required to remain in that house at all times other than certain specified exceptions, and that he be required to abide by other conditions as set by the court, and that there be no surety required.
The Crown counsel argued that the application should be dismissed so as to continue the detention on the basis that if released there was a substantial likelihood the accused would revert to the commission of crimes.
The accused submitted that the current COVID-19 pandemic constituted a material change in circumstances, that there was a material change in terms of new evidence as to a new plan for release, and that the justice did not give sufficient reasons in denying bail.
The Crown counsel conceded that the COVID-19 pandemic constituted a material and relevant change in the circumstances of the case, particularly where the original show cause hearing occurred in January, well before the extent and impact of the pandemic was understood.
The court began by stating that the new plan of release in which the accused would live with his daughter, and the proposed term confining him to that residence other than for specific exceptions, qualified as a material and relevant change in circumstances.
The court also noted that the charge of uttering the counterfeit $50 bill had been, or would be, withdrawn, which meant that one of the three charges had disappeared as a consideration. The court found that this was a further change in material circumstances.
In relation to the COVID-19 pandemic, the court stated:
“In my opinion, the Crown’s concession that the COVID-19 pandemic constitutes a material and relevant change in the circumstances of the case was entirely appropriate. I point to R. v. Morgan, 2020 ONCA 229 where our Court of Appeal took judicial notice of the general health risks, and of the accepted recommended preventative measures, although not in circumstances relating to bail. It seems to me that the current pandemic circumstances are also important as a change in circumstances in another way, in that the current closure of courts for in-court hearings necessarily means a delay in the determination of the [accused]’s criminal responsibility. Neither counsel was involved in the show cause hearing and I understand are only involved in this case, at least so far, for purposes of this detention review. Neither could tell me whether the [accused] currently has a preliminary hearing scheduled, or has waived it, or what stage the proceedings in his case have reached. It seems clear to me that he will not be able to get a court date as soon as he otherwise would have, by virtue of the delays caused by the COVID-19 situation, as exacerbated by the backlog that has accumulated since the cessation of in-court hearings in mid-March 2020.”
The court therefore found that it had the authority to conduct a review of the detention order and to interfere with it if satisfied it was appropriate to do so.
After reviewing the circumstances of the alleged offences and the situation of the accused, the court concluded that the accused should be released on a number of conditions, including that he live with his daughter.
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