Application granted. The Indigenous accused is to be released on bail, subject to stringent conditions, on the tertiary grounds for pre-trial custody in excess of 90 days and concerns surrounding the COVID-19 pandemic in jails.
Indigenous Law Centre – CaseWatch Blog
This matter is a detention review hearing pursuant to s 525 of the Criminal Code. The 32 year old accused from Musqueam First Nation has been in pre trial custody for ten months. His custody relates to multiple alleged offences, including breaking and entering. As per the Gladue factors, his life reflects the intergenerational legacy of the horrific historical treatment of Aboriginal peoples in this country. The accused has a lengthy criminal history.
Counsel for the accused provided new evidence combined with a change in circumstances that warrants a re-visiting and reassessment of the restrictive and supervised treatment program at VisionQuest as a viable and proportionate alternative to the accused’s continued detention. It has culturally relevant programming and a high level of supervision.
The overarching question before the Court is whether the continued detention of the accused until his trial(s) is still justified on one or more of the three grounds specified in s 515(10) of the Criminal Code (R v Myers, 2019 SCC 18). The Court is satisfied that a release plan requiring the accused’s participation in VisionQuest’s isolated residential treatment program combined with strict mobility restrictions would be a culturally responsive and appropriate application of the Gladue factors in this particular case.
There also remains the question of the COVID-19 pandemic. Much of the case law that has developed thus far on this subject deals with the tertiary ground for detention. There are an increasing number of cases which have held that the risk of infection posed to inmates while incarcerated in detention centers awaiting trials is also a valid factor when considering the secondary ground for detention specified in s 515(10)(b) of the Criminal Code (R v TK, 2020 ONSC 1935).
The government is well aware of the risks involved and has implemented a number of measures designed to reduce the spread of the infection in jails. In this particular case Court already concluded that the accused’s proposed release plan satisfactorily addresses public safety concerns, however, COVID-19 concerns would have tipped the balance in favour of interim release rather than continued detention on secondary grounds. Although the break and enter offenses are serious, no physical violence was involved.
The accused is a drug addict with a criminal history of property crimes fuelled by his addiction. That addiction and most, if not all, of the disadvantages he has suffered in life are the product of the sad social problem that is the legacy of the mistreatment of Aboriginal peoples in Canada.