WARNING

An order restricting publication in this proceeding was made under s. 517
    of the
Criminal Code
and continues to be in effect. This section of the
Criminal
    Code
provides:

517(1)          If the prosecutor or the
    accused intends to show cause under section 515, he or she shall so state to
    the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)      if a preliminary inquiry is
    held, the accused in respect of whom the proceedings are held is discharged; or

(b)      if the
    accused in respect of whom the proceedings are held is tried or ordered to
    stand trial, the trial is ended.

Failure to comply

(2)      Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)      [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985,
    c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2020 ONCA 660

DATE: 20201021

DOCKET: M51556

Miller, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Applicant

and

J.A.

Respondent

David Friesen, E. Nicole Rivers and Eric W. Taylor, for
    the applicant

Leora Shemesh and Gary Grill, for the respondent

Christine Mainville and Eric Neubauer, for the
    intervener, Criminal Lawyers Association

Heard: September 8, 2020 by video conference

On
    appeal from the order of Justice Andrew J Goodman of the Superior Court of
    Justice, dated April 16, 2020, granting the respondents s. 522 application for
    bail pending trial, with reasons reported at 2020 ONSC 2312

Thorburn J.A.:

A.

OVERVIEW

[1]

This is a s. 680
Criminal Code
review of an order granting the
    respondent, J.A., bail pending trial.

[2]

The respondent is charged with two counts of first degree murder, one
    count of attempted murder, and one count of conspiracy to commit murder. The
    circumstances of the murders are as follows:

[3]

On March 14, 2017, the first victim, M.B., was murdered in the parking
    lot of a business owned by S.S. in Woodbridge, Ontario. The first victim was S.S.s
    girlfriend. The murder was depicted on video showing a masked gunman alleged to
    be one of the respondents co-accused, M.C., exit a black Jeep Cherokee and
    shoot at the first victim and S.S. while they were near their motor vehicle.

[4]

On May 2, 2017, the second victim, A.M., was murdered while in his motor
    vehicle outside his residence in Waterdown, Ontario. A masked gunman ran up to
    his vehicle and shot into the drivers side window and then fled in a burgundy
    Ford Fusion. His murder was also captured on video.

[5]

The murders appear to be related to organized crime, as the victims were
    associated with organized crime families.

[6]

The Crown does not allege that the respondent was present at the
    shootings. The Crown theory is that he conspired with the co-accused to murder
    the two victims, was involved in procuring GPS tracking devices and conducting
    surveillance of the victims and their families, and provided the vehicles used
    in the commission of the offences.

[7]

Because the respondent is charged with s. 469
Criminal Code
offences, he was automatically detained pursuant to s. 515(11) of the
Criminal
    Code
. The respondent had the onus to demonstrate why he should be released
    on bail, pursuant to s. 522(2) of the
Criminal Code
.

[8]

The first bail judge denied the respondent bail pending trial on the
    basis that he did not meet his onus on the primary or secondary grounds
    articulated in s. 515(10) of the
Criminal Code
: the primary
    ground, being that detention is necessary to ensure his attendance in court;
    and the secondary ground, that detention is necessary for the protection of the
    public.

[9]

With respect to the primary ground, the first bail judge considered the
    seriousness of the charges, the strength of the Crowns case, the respondents
    limited ties to the community, the fact that both of the co-accused had fled to
    Mexico, the respondents connection to drug trafficking, and his history of
    lying to his surety in a previous matter. He found that the respondent was a
    flight risk, and that the proposed plan did not effectively mitigate that risk.
    With respect to the secondary ground, the first bail judges primary concern
    was the ineffectiveness of the proposed plan for release, given the
    respondents history of lying and relationship with the proposed sureties.

[10]

The first bail judge also found that all four factors under the tertiary
    ground of public confidence in the administration of justice were triggered but
    held that he would not have detained the respondent solely on those grounds.

[11]

The respondent sought a s. 680 review of the first bail judges
    decision. The matter was referred to a panel. In short Reasons for Decision,
    this court upheld the first bail judges decision and concluded that, [The
    judge] reached reasonable conclusions about the strength of the case for the
    Crown and the fragility of the proposed plan of release, especially the
    adequacy of the supervision proposed.

[12]

Thereafter, the respondent sought a review under s. 522 from a second
    bail judge, claiming a right to a new bail hearing because there was a material
    change in circumstances including:

a)

New evidence that the respondent claimed materially weakened the Crowns
    case;

b)

The COVID-19 pandemic; and

c)

A new plan of release.

[13]

The second bail judge held that the strength of the Crowns case had
    materially weakened and COVID-19 represented a material change in
    circumstances. He therefore concluded that a new hearing was warranted, he conducted
    a new hearing and, although he found it was a close call, he released the
    respondent on bail.

[14]

The applicant Crown sought a panel review of the second bail judges decision
    to release the respondent on bail pursuant to s. 680 of the
Criminal Code
,
    on two grounds:

a)

The second bail judge made a palpable and overriding error of fact in
    concluding that the Crowns case had materially weakened since the first bail
    hearing; and/or

b)

The second bail judge made an error of law in determining that COVID-19
per
    se
constituted a material change in circumstances warranting a new bail
    hearing.

[15]

A panel review was ordered by Fairburn J.A. on July 2, 2020.

[16]

The preliminary inquiry has since concluded and the respondent concedes
    there is sufficient evidence to proceed to trial.

[17]

For the reasons that follow, I would set aside the order granting the
    respondent bail pending trial and substitute a detention order pending trial.

B.

ISSUES

[18]

The issues to be determined on this review are whether the second bail judge
    erred in concluding that:

a)

There was a material change in the strength of the Crowns case;

b)

The COVID-19 pandemic is a material change that warrants a new hearing
    in all cases; and

c)

A new bail hearing was warranted without the need to consider the
    existing findings of the first bail judge.

C.

The Law in respect of bail and bail review

The Bail Process for a Person Charged with a s. 469 Offence

Detention

[19]

A person charged with s. 469
Criminal Code
offences is subject
    to a detention order as provided for in s. 515(11). Thereafter, the accused may
    bring an application to show why detention is not justified pursuant to s. 522.

[20]

The detention of an accused can only be justified on one or more of the
    following grounds, set out in s. 515(10) of the
Criminal Code
:

(a)      Where the detention is necessary to ensure his or her
    attendance in court in order to be dealt with according to law;

(b)      Where the detention is necessary for the protection or
    safety of the public, including any victim of or witness to the offence, or any
    person under the age of 18 years, 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; and

(c)      If the detention is necessary to maintain confidence
    in the administration of justice, having regard to all the circumstances,
    including

(i)       the apparent strength of the prosecutions case,

(ii)      the gravity of the offence,

(iii)     the circumstances surrounding the commission of
    the offence, including whether a firearm was used, and

(iv)     the fact that the accused is liable, on conviction,
    for a potentially lengthy term of imprisonment or, in the case of an offence
    that involves, or whose subject-matter is, a firearm, a minimum punishment of
    imprisonment for a term of three years or more.

Bringing
    a Bail Review Application

[21]

An application to vary can be brought pursuant to s. 522 in three
    circumstances:

a)

Where the decision reflects an error of law;

b)

Where the decision was clearly inappropriate, such that the justice ...
    gave excessive weight to one relevant factor or insufficient weight to
    another; or

c)

Where there is a material change in circumstances:
R. v. St-Cloud
,
    2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121; and
R. v. Dempsey
,
    2001 BCCA 12, 153 C.C.C. (3d) 311.

[22]

Where an applicant concedes the validity of the bail decision but seeks
    a review on the basis of a change in circumstances, it is customary to bring a
    second bail application in Superior Court:
R. v. Whyte
, 2014 ONCA 268,
    119 O.R. (3d) 305, at para. 21;
R. v. Robinson
, 2009 ONCA 205, 95 O.R.
    (3d) 309, at para. 5.

[23]

In such cases, a court of first instance will review the effect of the
    new information on the issue of interim release:
Whyte
, at para. 21
    and
R. v. Boyle
, 2006 CanLII 42662 (ON CA), [2006] O.J. No. 5094
    (C.A.), at para. 3.

[24]

Where an applicant challenges the s. 515(11) denial of bail on the basis
    of the correctness of a bail decision, the proper course is to seek review by a
    court of appeal under s. 680 of the
Code
. This second procedure does
    not however, foreclose consideration of a change in circumstances on a s. 680 application.
    In such cases, the Superior Court of Justice and the Court of Appeal have
    concurrent jurisdiction to decide whether there has been a material change in
    circumstances warranting judicial interim release:
Whyte
, at para. 22.

[25]

Where new evidence is submitted to demonstrate a material change in
    circumstances, that evidence should be considered together with the
    considerations that underpinned the first bail judges refusal of bail to
    determine whether the alleged change in circumstance is both material and relevant
    to the case at hand such that a hearing
de novo
is warranted:
Whyte
,
at para. 26;
R. v. A.A.C.
, 2015 ONCA 483, at para. 56; and
St-Cloud,
at para. 121.

[26]

If the alleged change in circumstance is one that could reasonably be
    expected to have affected the result in this case, the reviewing judge is
    authorized to conduct a new hearing and conduct a fresh analysis on the bail
    application as if he or she were the initial decision-maker:
St-Cloud
,
    at para. 138.

Bail
    Review by a Panel of the Court of Appeal

[27]

Section 680 of the
Criminal Code
provides that a bail review is
    to be conducted by a panel of this court where directed by the Chief Justice or
    Acting Chief Justice. A review is warranted where it is arguable that the judge
    committed material errors of fact or an error of law in arriving at the
    decision, or that the decision was clearly unwarranted in the circumstances:
R.
    v. Oland
, 2017 SCC 17,

[2017] 1 S.C.R. 250, at paras. 61 and 64.

[28]

The panel conducting the review must show deference to the judges
    findings of fact but may substitute its decision for that of the judge below
    where the panel is satisfied that the judge erred in law or principle and the
    error was material to the outcome or, where it concludes that the decision was
    clearly unwarranted:
R. v. Oland
, 2017 SCC 17,

[2017] 1
    S.C.R. 250, at paras. 61, 64.

D.

ANALYSIS

(1)

The First Issue: Did the Second Bail Judge make a Palpable and
    Overriding Error in Finding there was a Material Change in the Strength of
    the Crowns Case?

Evidence of the Offences Adduced at the First Bail Hearing

[29]

The respondent and his two co-accused were charged with two counts of
    murder and conspiracy to commit murder. Both co-accused fled to Mexico.

[30]

The Crown claims the respondent assisted in obtaining and installing GPS
    trackers to monitor the victims and their families for weeks prior to the
    shootings, had ongoing communication with the co-accused, provided vehicles
    used in the commission of the crimes, and his cellphone could be traced to
    locations associated with the commission of these crimes at the relevant times.

(a)

The Purchase of GPS Tracking Devices

[31]

The evidence relied on by the Crown to support its theory that the
    respondent was involved in the purchase of two GPS trackers on March 10, 2017
    to monitor the victims and their families, includes the following:

a)

The respondents cellphone contained many calls and text messages to and
    from both co-accused, M.C. and D.T., during the period the tracker devices were
    purchased, installed and used, and the commission of these crimes;

b)

According to the shopkeeper who sold the GPS tracking devices, the
    devices were purchased by someone using the account name Mike Uppercut666.
    The phone number associated with the Mike Uppercut666 account was linked to
    the co-accused, M.C.;

c)

The name, Uppercut666 is listed among the contacts in the respondents
    cellphone;

d)

On March 10, 2017, the day that two of the tracking devices were
    purchased, the respondent sent a text message to his co-accused D.T., at 1:16
    p.m.;

e)

A text message from the respondents phone to the co-accused D.T., at
    2:19 p.m. on the day of the purchase said 350 each always been dude
    said;

f)

The shopkeeper of the GPS devices said he made a deal with the customers
    using the Mike Uppercut666 account to sell the first tracker at $400 and
    additional ones for $350;

g)

Between 2:11 and 3:51 p.m. on the day of the purchase, the respondent
    and D.T. exchanged 13 calls or text messages near the shop were the devices
    were purchased;

h)

The two trackers were purchased at 3:52 p.m.; and

i)

Two minutes after the tracking devices arrived at D.T.s travel agency
    where the respondent worked, a call came from the respondents cellphone less
    than one kilometre away.

(b)

Communications with the Co-Accused and Cellphone Searches re
    Installation and Use of the Tracking Devices

[32]

The Crown alleges that the respondent and the two co-accused installed
    the tracking devices purchased on March 10, 2017 to monitor the activities of
    the victims families. The following evidence was adduced in support of that
    theory:

a)

The respondents cellphone contained Google Maps image search for the
    victim A.M.s mothers residence taken on March 7, 2017;

b)

On April 16, 2017 a GPS tracker was reactivated in the area of P.M.s
    residence. P.M. is the victim A.M.s brother;

c)

At 3:03 p.m., also on April 16, the respondents cellphone contained
    Google Maps image search for P.M.s residence; and

d)

Three days before A.M. was murdered, the respondents cellphone
    activated a cell site less than one kilometre from A.M.s residence. Five
    minutes later, the GPS device was activated approximately 700 metres from the
    victim A.M.s residence.

(c)

The Respondents Alleged Involvement with Vehicles Used in the
    Commission of Crimes

[33]

The following evidence was relied on by the
    Crown in respect of the vehicles used in the commission of these offences:

a)

The respondent lent two cars (a black Honda
    Civic and blue Infinity) to the co-accused;

b)

There was a text message exchange with the
    respondents co-accused, D.T. telling the respondent the boss asked him to
    register the Honda in the respondents name. The respondent did so. That
    vehicle was used several times in conducting surveillance of the victims before
    the murders;

c)

The respondent told police that he had sold the
    Honda in January 2017, but a witness told police that the respondent asked him
    to store the vehicle and gave him the car and a pre-filled bill of sale in July
    2017. In December 2017, the respondents co-accused, D.T. brought someone to
    the witness residence and sold him the vehicle using the pre-filled bill of
    sale;

d)

There was a text message to the respondent from
    the other co-accused M.C. about the need to repair the bumper of the Infinity
    and a Highway 407 bill for the Infinity was found in the respondents home at
    the time police searched his residence;

e)

On April 4, 2017 the respondents cellphone travelled to a cell site
    near D.T.s residence. Less than half an hour later, the co-accused D.T. texted
    Les boogie to the respondents cellphone;

f)

Thereafter, both the co-accused D.T. and the respondents cellphones
    used a cell site en route to Eastern Ontario to obtain the Ford Fusion. The
    respondents cellphone also contained a Google Maps search for the Gas Bar,
    where the Ford Fusion was picked up. The Ford Fusion was later used as the
    getaway car after one of the murders.

Testimony of the Police Officer at the First Hearing

[34]

In addition to the above evidence, during cross-examination of a police
    officer before the first bail judge, the officer testified that:

He [the shopkeeper] says the customer came to the store once
    and introduced himself and used a name Uppercut666.

According to the notes that he [the shopkeeper] has, this
    individual [the purchaser] was a white male.

[35]

The following exchange took place between the
    respondents counsel and a Staff Sergeant who was cross-examined about whether
    the respondent had purchased trackers in March 2017:

Q. Okay. Let me be more clear. Do you have any evidence that he
    walked inside of DoBuyDirect?

A. There is no video evidence of that.

Q. Do you....

A. And there's no witnesses to that.

Q. Okay. So the owner was interviewed.

A. Yes.

Q. And what you haven't told His Honour is that the owner
    described the people who bought the trackers.

A. Okay. I wasn't asked that, but we had interviewed the owner.

Q. Yeah.

A. And we had asked him if he could - as he said, he runs a
    shop, he deals with a lot of people, he couldn't  if he saw a picture of them
    again, he couldn't recognize who they were, he didn't think.

Q. At 20:26:55 of [the shopkeeper], is that the owner?

A. Yes.

Q. Okay. At 20:36:55, he says that he keeps notes on the
    activation date, the expiry date, plus the description of the person. Isn't
    that what he said?

A. Okay. That's what...

Q. Okay.

A. ...he said, yeah.

Q. Yeah, and he said some people pay by cash so there's no
    record.

A. Yeah.

Q. Okay. He says the customer came to the store once and
    introduced himself and used a name Uppercut666.

A. Yes.

Q. After that, other people used the name to make purchases?

A. Yes.

Q. According to the notes that he has, this individual was a
    white male.

A. Yes.

Q. Maybe his height.

A. Yes.

Q. Cannot recall his hair, but wasn't a lot taller than him,
    maybe an inch or two, had brownish or light brown hair, didn't think glasses.

A. Yes.

Q. Okay. He went on to re - to recall what he was wearing,
    correct, doesn't - probably wearing jeans. It was winter.

A. Yes.

Q. And doesn't remember anything about his voice.

A. Correct.

Q. All right. He's asked later on whether or not anyone who
    came to purchase it was something other than white, and he said no.

A. Okay.

Q. [The respondent J.A.] is not white.

A. Correct.

Q. All right. So you do not have a description from anyone from
    DoBuyDirect that [the respondent] went into the store and purchased anything.

A. Well, as I said, there was nothing on video. [The
    shopkeeper] didn't describe anything like that. But I do recall talking to [the
    shopkeeper] and he just - he said other people did come in and purchase them,
    again, couldn't describe - couldn't recall them, and there's nothing we could -
    we couldn't force him to, to make something up. We just asked him what he knew
    and what he could recall, and that was the best he did.

[36]

The
Staff Sergeant
acknowledged there was no
    direct evidence that the purchaser who physically went into the store and
    picked up and paid for the GPS devices was the respondent.

[37]

The Crowns position therefore did not materially change in terms of
    whether the respondent actually purchased the GPS trackers. What is important
    in any event, is not the position taken by the parties at first instance, but
    the evidence before the first bail judge, what conclusions he drew, and what he
    based those conclusions on.

The First Bail
    Judges Decision Regarding the Strength of the Crowns Case

[38]

The first bail judge held that the strength of the Crowns case
    consisted in the combined

effect of all of the evidence. In
    assessing the strength of the Crowns case, he concluded at paras. 15 and 16
    that:

The Crowns case for murder against [the respondent] is neither
    flawless or as utterly devoid of merit as is argued by his counsel. The
    evidence against [the respondent] is almost all circumstantial, but, as we tell
    juries every day, such evidence is of equal value as direct evidence. The
    inferences which the Crown will ask the jury to make are not far-fetched or
    illogical. A large part of the Crowns evidence comes from the careful analysis
    of data extracted from the accuseds cell phone. The seizure of that evidence
    will undoubtedly be the subject of a
Charter
challenge. I am not
    deciding that issue here. Some
Charter
challenges are successful and
    the evidence is excluded as a result of the breach; some are not.

The Crown does not suggest that [the respondent] was the person
    who actually shot both of the victims. Of course, that does not preclude his
    being convicted of being a party to the murders. There is evidence, however
    contested, of his providing assistance to his co-accused in the form of
    supplying automobiles, purchasing or negotiating for tracking devices used to
    locate the victims and their families, and conducting surveillance.

I agree with the submission of the Crown that much of defence
    counsels attack on the strength of the prosecutions case consists of the
    minute examination of points in isolation, while overlooking the combined
    effect of
all
of the evidence. [Emphasis in the original.]

[39]

Based on his review of all of the evidence as set out above, the first
    bail judge held that he would detain the respondent on each of the primary and
    secondary grounds.

[40]

That decision was upheld by this court, which found the first bail
    judges reasons about the strength of the case to be reasonable conclusions.

The Second
    Bail Judges Decision Regarding the Strength of the Crowns Case

[41]

In April 2020, the respondent sought a bail variation on the basis that
    there was a material change in circumstances. The respondent acknowledged that
    there was no error of law made by the first bail judge.

[42]

The second bail judge held that there was new evidence that was not
    tendered at the original bail hearing that weakened the Crowns case; namely
    evidence from the store owner who sold two of the GPS trackers that the
    purchaser of the trackers was white, while the respondent is half Filipino and
    half Black.

[43]

The second bail judge mistakenly held at para. 53 of his reasons that,
    [T]here was no evidence at the original bail hearing from or in respect of
    [the shopkeeper], the store owner where the trackers were purchased.

Analysis and Conclusion on the First Issue

[44]

The second bail judges conclusion that the first bail judge had not
    been provided with any evidence with respect to the shopkeepers observations
    is incorrect. It is clear from the testimony of the police officer before the
    first bail judge that the shopkeeper had told police in his police statement
    that he believed the purchasers of the trackers were white. Nor was there any
    evidence to the contrary.

[45]

The second bail judge therefore erred in concluding at para. 51 of his
    decision that I am persuaded that there is a material change in the
    circumstances due to a change in the strength of the Crowns case.

[46]

He went on to say, at paras. 58 and 59, that as a consequence of the
    material change, he was entitled to conduct a hearing
de novo
:

I am satisfied that the door is opened for a review by virtue
    of the two aforementioned material changes in circumstances, namely, the
    COVID-19 pandemic and the modification (or potential diminution) to the
    strength of the Crowns case.

[47]

I disagree that the Crowns case was materially weakened. The evidence
    at the first bail hearing was that the shopkeeper told police he believed the
    purchasers were white. The evidence at the second bail hearing was from the
    shopkeeper directly, stating that he was clear the purchasers were white. The
    second bail judge referred to this change as a potential diminution to the
    strength of the Crowns case and held that:

While reasonable inferences can be drawn, the circumstantial
    evidence adduced by the Crown at first instance is now supplemented by direct
    evidence that
may tend to affect the strength of the Crowns case
as
    to the identity of the purchaser of the trackers on the day in question.
    [Emphasis added.]

[48]

The new evidence is not a material change.

[49]

The first bail judge was clear that the strength of the Crowns case lay
    in the evidence
as a whole
. It was not a material change in
    circumstance that the respondent was not the physical purchaser of the tracker.
    This new evidence was only one small piece of the evidentiary puzzle. Other
    findings accepted by the first bail judge demonstrate that his decision was
    based on the Crowns wide range of circumstantial evidence linking the
    respondent to the murders. These other findings include:

·

The
    police officer testified that at the time the shopkeeper gave his statement to
    police, the shopkeeper said he believed the GPS tracking devices were sold to
    white men;

·

The
    respondents cellphone contained many calls and text messages to and from both
    co-accused, M.C. and D.T., during the period the tracker devices were
    purchased;

·

A
    text message from the respondents cellphone made reference to 350, the
    amount the tracking device was sold for;

·

The
    respondents cellphone contained Google searches of the victims and their
    families homes;

·

The
    respondents vehicles were used in the commission of the crimes; and

·

The
    respondent had ongoing communications with the co-accused around the time the
    crimes were committed.

[50]

In light of the evidence that was before the first bail judge, I find
    the second bail judge made a palpable and overriding error in finding that
    there was a material

change in respect of the strength of the Crowns
    case warranting a new bail hearing.

(2)

The Second Issue: Does the Existence of COVID-19 Constitute a Material
    Change in Circumstances Warranting a New Hearing?

The Positions of the Parties

[51]

The second bail judge also held that there was a material change in
    circumstances by virtue of the existence of the COVID-19 pandemic such that a
    new hearing was warranted (The effect of COVID-19 was not canvassed by the
    first bail judge as that hearing predated the COVID-19 pandemic.). After
    conducting a new hearing, although he said it was a close call, the second
    bail judge concluded that the respondent should be released on bail pending
    trial.

[52]

While the Crown concedes that COVID-19 can constitute a relevant
    material change, the Crown submits that in this case, it does not because: (a)
    the respondent was detained on the primary and secondary grounds not the
    tertiary ground; and (b) the respondents youth, health and the current
    conditions in the Stratford jail where the respondent would be housed are such
    that the COVID-19 pandemic is not "relevantly material":
Whyte
,
    at para. 26.

[53]

The respondent argues that in the case of all bail decisions rendered
    before the COVID-19 pandemic struck Ontario, the onset of the COVID-19 pandemic
    constitutes a material change in circumstances for all grounds for detention.
    As such, reviewing judges are permitted, as a matter of course, to conduct
    fresh bail hearings
de novo
. Therefore, there is no legal error in how
    the second bail judge approached the matter.

[54]

The respondent also argues that the Crown's suggestion of proving a
    medical history that would make one more susceptible to COVID-19 is impractical
    and, for many bail applicants, impossible to meet as many are marginalized
    individuals for whom access to medical records would present a significant,
    perhaps insurmountable hurdle.

Does the COVID-19 Pandemic Alone Constitute a Material Change?

[55]

The COVID-19 pandemic constitutes a material change warranting a new
    bail hearing where the circumstances of the pandemic are relevantly material
    to
this
respondent in
these
circumstances. The effect of
    COVID-19 must be significant in the sense that when considered along with the
    other evidence on the bail proceeding, it could reasonably be expected to have
    affected the result:
St-Cloud
, at para. 137 and
Whyte
,
at para. 26
.

[56]

As noted by the intervener, Aside from factoring into the overall
    balancing that must occur in all cases, [the pandemic] also has the potential
    to directly impact the analysis on the primary and secondary grounds for
    detention
depending on the circumstances of the case
 (emphasis
    added). Moreover, proportionality is an overarching consideration that can
    affect the grounds for detention by virtue of the s. 11(e)
Charter
right to reasonable bail:
R. v. Myers
, 2019 SCC 18, [2019] 2 S.C.R.
    105, at paras. 25, 50-51;
R. v. Elliot
, 2020 ONSC 2976, at paras.
    23-24.

(3)

What Factors are to be Considered before Deciding to Conduct a New
    Hearing?

[57]

On a s. 522 application such as this, the respondent has the onus to
    establish on a balance of probabilities that he should be released:
Criminal
    Code
, s. 522(2).

[58]

Any new evidence must be such that it is reasonable to think, having regard
    to all the relevant circumstances, that it could have affected the balancing
    exercise engaged in by the [first bail judge]. The new evidence must therefore
    be significant:
St-Cloud
, at para. 137. This means the second judge
    must consider the new evidence in the context of the findings of the first bail
    judge to see if the new evidence would have affected the balancing exercise
    engaged in by the first bail judge.

[59]

New evidence must therefore be examined having regard to the first bail
    judges findings on the factors relevant to the ground of detention in question.
    In the context of the primary ground, for example, these factors include: the
    nature of the offence and the potential penalty; the strength of the Crowns
    case; the respondents ties to the community; criminal record and history of
    compliance with court orders; the respondents behaviour prior to arrest; and
    the plan of release: The Honourable Justice Gary T. Trotter,
The Law of
    Bail in Canada
, 3rd ed. (Toronto: Carswell, 2020), at 3.2.

[60]

The second bail judge was therefore required to examine the new evidence
    in respect of the effect of the COVID-19 pandemic on this respondent in these
    circumstances in light of the first bail judges findings, in order to decide
whether
COVID-19 constitutes a change that is relevantly material such that it could
    reasonably be expected to have affected the result.

[61]

The second bail judge failed to consider the new evidence in the context
    of the existing findings of the first bail judge. Instead, he accepted that the
    COVID-19 pandemic in and of itself is a material change justifying a new bail
    hearing. He did so without regard for the findings of the first bail judge, and
    as a result, he failed to consider how COVID-19 was relevantly material
before
deciding to hear the bail application afresh. In so doing he made an error of
    law.

Can the COVID-19
    Pandemic Constitute a Material Change in Respect of the Primary or Secondary
    Ground for Detention?

[62]

The first bail judge detained the respondent only on the primary and
    secondary grounds and would not have detained the respondent on the tertiary ground
    alone.

[63]

The jurisprudence to date is clear that the pandemic is a factor to be
    considered when assessing the tertiary ground: public confidence in the justice
    system:
R. v. Morris
, 2020 ONSC 3526, at para. 22;
R. v. Kazman
,
    2020 ONCA 251, leave to appeal to S.C.C. requested, 39077;
R. v. S.M.
,
    2020 ONCA 427; and
R. v. Abdullahi
, 2020 ONCA 350, at para. 49.

[64]

I accept that, depending on the circumstances, the COVID-19 pandemic may
    also be a factor to be considered when considering the primary ground: that is,
    whether detention is necessary to ensure this accused's attendance in court.
    The pandemic may give rise to new considerations respecting an accuseds health
    and safety and his flight risk and thereby constitute a material change in
    circumstances in respect of the primary ground: see e.g.,
R. v. Grant
,
    2020 ONSC 2957;
R. v. Hastings
, 2020 ONSC 2083;
R. v. Morris
,
    2020 ONSC 3526; and
R. v. Cahill
, 2020 ONSC 2171.

[65]

I also accept that, depending on the circumstances, the COVID-19
    pandemic may be a factor to consider on the secondary ground, that is, whether
    the accuseds detention is necessary for the protection and safety of the
    public, including any substantial likelihood that if released, the accused will
    commit a criminal offence or interfere with the administration of justice: See,
    e.g.,
Cahill
, at paras. 27-30;
Elliott
, at para. 19.

Is the
    COVID-19 Pandemic Relevant and Material in this Case such that it Warrants a
    New Hearing?

[66]

The relevance and materiality of the COVID-19 pandemic requires a review
    of:

a)

The respondents age and health;

b)

The conditions at the institution in which the respondent would be
    detained;

c)

The effect of COVID-19, if any, on whether the respondent will attend
    court as required; and

d)

The effect of COVID-19, if any, on the threat posed to public safety by
    the respondents release.

[67]

As noted above, that evidence must be considered along with the findings
    of the first bail judge to determine whether the new evidence
could
    reasonably be expected to affect the conclusion reached by the first bail judge
.
    Only then is a new bail hearing conducted.

[68]

The first bail judges main concerns on the primary ground were the
    nature and seriousness of the offences and potential penalty, the strength of
    the Crowns case, the respondents limited ties to the community, his behaviour
    prior to arrest, and the inadequacy of the proposed release plan, given his
    history of lying to his surety in a previous matter. On the secondary ground,
    the first bail judges main concern was similarly the inadequacy of the
    proposed release plan.

[69]

The respondent
claims there is an increased risk to his
    life and health if he is detained in custody given the COVID-19 pandemic and
    the altered conditions in a detention facility, such as frequent lockdowns,
    administrative segregation, cancellation of visits from family and friends, or
    cancellation of programming which call into question any continued
    justification to detain. He also claims that under his new plan for release,
    supervision is enhanced with the addition of two new sureties and he is less of
    a flight risk given the pandemic.

[70]

On the primary ground, the respondent points to the revised release
    plan, the surrender of his passport and COVID-related travel restrictions to
    argue that the second bail judge correctly held that his flight is unlikely. On
    the secondary ground, he argues that the first bail judges concerns about the
    inadequacy of the release plan were addressed by the proposed plan, which
    involves additional sureties who have no family connection to him and
    restrictive conditions. He therefore claims the second bail judge made no error
    in finding that these were material changes that removed any lingering concerns
    on the primary or secondary grounds.

[71]

In my view, the evidence relating to the respondents health and conditions
    in the institution could not reasonably be expected to have affected the first
    bail judges concerns on the primary or secondary grounds, whether taken alone
    or in combination with the proposed plan of release.

[72]

The respondent was 28 years old at the time of the second bail hearing
    with no pre-existing health conditions.

[73]

According to Ms. Julie Ireland, Superintendent of the Stratford Jail
    where the respondent was and would be detained, the Stratford Jail has never
    had a confirmed case of COVID-19. The institution has only half of the inmate
    population it usually does, and most, including the respondent (while he was at
    the institution), are housed in single cells. Where new inmates are brought in,
    the institution follows a 14-day quarantine protocol in an intake unit before
    an inmate is put in the living unit.

[74]

While this situation is not ideal, the respondents youth and good
    health and the many steps taken by the Stratford Jail to maintain the safety of
    those in the Stratford Jail, are such that at present, the risk of contracting
    COVID-19 in the institution is low.

[75]

I accept that the COVID-19 pandemic represents a serious risk to health.
    Persons who are members of vulnerable communities such as those incarcerated
    are often exposed to greater risk of infection as they do not have the ability
    to move freely and self isolate. I also note that even those who are young and
    healthy are not immune from the risks associated with contracting the virus.

[76]

I do not suggest that for COVID-19-related health concerns to have a
    bearing on whether an accuseds detention is justified under s. 515(10), the
    accused must present evidence of particular risk. However, the absence of
    particular risk is relevant in assessing whether the evidence relating to the
    pandemic is relevantly material in this case.

[77]

Nor do I take lightly the respondents fears of contracting COVID-19.
    However, the present risk is low in the Stratford institution compared to the
    risk in the general community. If that situation changes, there may be a relevantly
    material change in circumstances.

[78]

Moreover, although the supervision plan was modified to include not only
    the respondents father but also the respondents former babysitter and her
    daughter as sureties, the second bail judge himself noted that they came
    across as somewhat naïve in their understanding of the applicants entire
    situation and neither had had extensive contact with the respondent in the
    period leading up to his arrest for these offences.

[79]

Nor does the new plan of supervision address the honesty issues of
    concern to the first bail judge.

[80]

The first bail judge noted that, while the respondent was on bail on
    other charges (later withdrawn), he failed to tell his parents of those drug
    charges, and afterwards, when his father agreed to be his surety, he allegedly
    told his father he was working late although his cell phone was located near a
    cell tower close to Hamiltons downtown. In addition, there is a recording that
    appears to have him telling his girlfriend he would lie to his father about
    where he would be. The first bail judge concluded that All of this suggests a
    willingness to disobey bail terms.

[81]

The first bail judge also considered the fact that electronic bracelets
    only advise the authorities once there is a breach; they do nothing to prevent
    the breach.

[82]

Lastly, the first bail judge held that While a term could be crafted
    requiring the surrendering of a passport or other travel documents, it would be
    naïve to consider that someone with some connection to drug trafficking and perhaps
    to organized crime could not circumvent the same. While the second bail judge
    held that travel restrictions resulting from COVID-19 made it unlikely that
    flight from eventual prosecution will reasonably come to fruition, he did not
    address the first bail judges concern about the respondents opportunities for
    illegal flight.

[83]

In sum, the risks to this respondents health and safety in the
    Stratford Jail pending trial and or the change to the strength of the Crowns
    case are not relevantly material to the primary or secondary grounds of
    detention such that they could reasonably be expected to have affected the
    result to detain the respondent, when considered in light of the totality of
    the first bail judges findings including the following:

a)

The respondent is charged with very serious offences;

b)

The strength of the Crowns case was such that the respondent should be
    detained on the primary ground (which decision was upheld by this court);

c)

The respondent has few links to the community; and

d)

The respondent has a history of misleading a surety.

[84]

The new evidence in respect of COVID-19 and its effect on this
    respondent, when viewed in the context of all of the other evidence respecting
    the primary and secondary grounds, does not constitute a material change in the
    respondents circumstances that could reasonably be expected to affect the
    decision to detain the respondent.

E.

CONCLUSION

[85]

I do not agree that the existence of the COVID-19 pandemic necessarily
    constitutes a material change in circumstance for every bail decision rendered
    before the pandemic struck Ontario. I accept however, that in a proper case,
    circumstances arising from the COVID-19 pandemic may amount to a material
    change in circumstance in respect of any of the grounds for detention such that
    a new hearing should be conducted. For that to be the case, however, the
    pandemic must reasonably be expected to have affected the result, bearing in
    mind the reasons given by the first bail judge for denying bail.

[86]

For the above reasons I find:

a)

There is no material change in the strength of the Crowns case;

b)

The existence of the pandemic alone creates no automatic right to a new
    hearing;

c)

The COVID-19 pandemic does not constitute a relevant
    and material change in the respondents circumstances that warrants a new
    hearing because, when looking at the new evidence in conjunction with the
    reasons of the first bail judge,
it could not reasonably be expected to
    have affected the result in this case
; and

d)

The second bail judge therefore erred in law in
    conducting a new bail hearing, wherein he decided to release the respondent.

[87]

I would therefore grant the application and detain the respondent
    pending trial.

J.A. Thorburn J.A.

I agree. B.W. Miller
    J.A.

Nordheimer J.A. (dissenting):

[88]

I have reviewed my colleagues reasons in which she would allow this
    review and grant a detention order. I disagree with her analysis and her
    conclusion. In my view, the application should be dismissed.

I: The decisions below

[89]

My colleague has set out the background facts and has reviewed the
    decisions of the first and second bail judges. I take issue with at least one
    aspect of her review.

[90]

My colleague is critical of the second bail judge for making what she
    asserts is a factual error when he said that there was no evidence at the
    original bail hearing from or in respect of A.K., the shop owner where the
    trackers were purchased. My colleague then extrapolates this asserted factual
    error into a palpable and overriding error respecting the second bail judges
    conclusion that there is a material change in the circumstances due to a
    change in the strength of the Crowns case.

[91]

In my view, my colleague places an unfair interpretation on what the
    second bail judge said. Read fairly, the second bail judge was saying that there
    was no direct evidence from the shop owner at the first bail hearing. All that
    the first bail judge had was a police officers recitation of what the shop
    owner had told the police. And I will add that the police officers recitation
    was clearly couched in terms that allowed for a conclusion that the purchaser
    of the tracking device was not necessarily a white male. As quoted by my
    colleague, the officer pushed back against the suggestion that it was clear
    from the shop owner that the purchaser was a white male. Indeed, my colleague
    quotes the officers evidence where he said, in response to that direct
    suggestion:

A. Well, as I said,
there was nothing on video
. [The
    shopkeeper] didn't describe anything like that. But I do recall talking to [the
    shopkeeper] and he just -
he said other people did come in and purchase
    them, again, couldn't describe - couldn't recall them,
and there's nothing
    we could - we couldn't force him to, to make something up. We just asked him
    what he knew and what he could recall, and that was the best he did. [Emphasis
    added.]

[92]

This point is of some importance because, as put before the first bail
    judge, there were three parts to the Crowns case against the respondent: (i)
    he supplied automobiles; (ii) he purchased or negotiated for the tracking
    devices; and (iii) he assisted in conducting surveillance. The shop owners
    evidence at the preliminary hearing essentially negated the second of those
    three parts. Notwithstanding that reality, the Crown maintains its position
    that a trier of fact could find that the respondent purchased one or more of
    the trackers.

II: The threshold: Was there a material change in circumstances?

[93]

The Crown asserts, and my colleague agrees, that neither of the alleged
    material changes in circumstances were properly characterized as such and that
    the second bail judge erred in so finding. I do not agree. I will deal with
    each of the asserted material changes.

(i)

The strength of the Crowns case

[94]

I have already pointed out the impact on the Crowns case of the direct
    evidence of the shop owner at the preliminary inquiry. The second bail judge
    characterized the effect as some diminution to the strength of the
    prosecution's case. I consider that to be an entirely fair characterization of
    what has taken place.

[95]

The small window, through which the Crown was attempting to advance its
    case, i.e., that the shop owners evidence was sufficiently vague as to allow a
    trier of fact to conclude that the respondent was involved in the negotiation
    and purchase of any of the trackers, was essentially closed by the owners
    direct evidence at the preliminary inquiry. While the Crown points to the fact
    that, for other reasons, the preliminary inquiry judge found the owner to be of
    dubious credibility, that does not really serve to rehabilitate the Crowns
    case on this point. At most, it leaves the Crown arguing to the trier of fact
    that the direct evidence of the owner, that would preclude the respondent from
    being one of the purchasers, should be ignored. Indeed, the Crown goes farther
    by suggesting that not only should the owners evidence be ignored, the trier
    of fact should reach the opposite conclusion, that is, that the respondent did
    purchase one or more of the tracking devices. The only foundation upon which a
    trier of fact could rely for that conclusion is the evidence that respondents
    cell phone was in the vicinity of the business when some of the trackers were
    purchased along with a text message from the respondent, to one of the other
    alleged co-conspirators, that referred, correctly, to the price for the tracker
    being $350.

[96]

In my view, while one can quibble over how much effect this will have on
    the strength of the Crowns case, one cannot criticize the second bail judge
    for concluding that it represented some diminution to the strength of the
    prosecution's case. Certainly, that conclusion cannot be said to be a palpable
    and overriding error of fact, as my colleague concludes. Rather, it simply
    represents a judgment call by the second bail judge. And it represents a change
    that was relevant and material as that term is understood in the context of
    bail reviews:
R. v. Whyte
, 2014 ONCA 268, 119 O.R. (3d) 305.

[97]

On this point, I would also note that the second bail judges view of
    the change to the Crowns case was shared by the preliminary inquiry judge. In
    a separate ruling during the course of the inquiry, the preliminary inquiry
    judge said:

Knowledge of the purchase is not the same as actually making
    the purchase. If there was evidence that he actually made the purchase,
it
    would strengthen the Crowns case
as it would put the defendant in personal
    possession of some of the trackers used to track the murder victim and his
    family. [Emphasis added.]

[98]

There is another aspect to this question, to which my colleague does not
    make reference, and that is that the first bail judge actually never made any
    finding regarding the strength of the Crowns case. He recited what the
    allegations were, but he never actually evaluated the strength of the Crowns
    case, notwithstanding that, insofar as the first bail judge considered the
    tertiary ground for detention, he was required to do so:
R. v. St-Cloud
,
    2015 SCC 27, [2015] 2 S.C.R. 328, at para. 58.

[99]

On the point respecting the tertiary ground, the first bail judge did
    say in his reasons that he found that all of the four factors under the
    tertiary ground are triggered: at para. 33. However, the first bail judge then
    went on to conclude that the tertiary ground, by itself, would not give rise to
    a detention order. It is not, therefore, clear what the first bail judges
    views were respecting the strength of the Crowns case. If the first bail judge
    thought that the Crown had a strong case, given the nature of the offences
    charged and the penalty they would give rise to (life imprisonment), it would
    be difficult to reconcile that fact with the first bail judges conclusion that
    detention would not be warranted on the tertiary ground.

[100]

Given that
    reality, it seems to me that there is no proper basis for second-guessing the
    second bail judges conclusion that this change was, in fact, material. To a
    large degree, the second bail judge had to consider this issue very much in a
    vacuum as it related to the first bail judges reasons. He was, therefore,
    entitled to reach his own conclusion on this point.

(ii)

COVID-19

[101]

The other
    material change in circumstances that was accepted by the trial judge was the
    current pandemic. The Crown takes issue with that conclusion by submitting
    that, while COVID-19 can be a relevant material change in circumstances in some
    cases, it was not in this case because (i) COVID-19 only properly affects the
    tertiary ground for detention and (ii) there was no evidence that the
    respondent had special susceptibility to, or risk for contracting, the virus.

[102]

In my view, the
    Crowns submission conflates two different questions and, unfortunately, my
    colleague does the same. Approached correctly, the first question in the
    analysis is whether the COVID-19 pandemic is a material change in
    circumstances. Assuming an affirmative answer to that first question, the
    second question is then whether all of the circumstances of the case, including
    the pandemic, directs the release of the accused person. Put another way, the
    answer to the first question opens the door to a review. The answer to the
    second question then goes to whether the detention order ought to be vacated.

[103]

In some
    situations, the impact of the pandemic might, by itself, alter the foundation
    for a detention order. To borrow the example used by the respondents counsel,
    a chronic shoplifter, who might properly be detained on the secondary ground,
    might nonetheless be released if she was, because of age or other physical
    conditions, especially at risk for serious harm if she contracted the virus.
    All of the circumstances would have to be taken into account and a balance made
    between the risk of the person re-offending and the harm that might befall the
    person while incarcerated.

[104]

That point leads
    me to say that I do not accept the Crowns position that COVID-19 relates
    solely to the tertiary ground because only that ground goes to the publics
    confidence in the administration of justice. The tertiary ground provides a
    route to a detention order where both the primary and secondary grounds are not
    engaged. For the tertiary ground to be engaged as a basis for a detention
    order, s. 515(10)(c) directs that detention order must be necessary to
    maintain confidence in the administration of justice.

[105]

However,
    confidence in the administration of justice is not only engaged in situations
    that fall under s. 515(10)(c). Similarly, confidence in the administration of
    justice does not relate solely to situations which require the remedy of a
    detention order. Confidence in the administration of justice underlies the
    entire bail system. It is an overarching principle that is engaged both in the
    making of detention orders and in the granting of release orders. Either way,
    the result must be one that instills confidence in the administration of
    justice: see, e.g.,
R. v. Myers
, 2019 SCC 18, [2019] 2 S.C.R. 105, at para
    53.

[106]

I would observe
    that concluding that release orders also engage public confidence in the bail
    system is consistent with the right to bail provided for in s. 11(e) of
    the
Canadian Charter of Rights and Freedoms
. While I accept that
    maintaining confidence may be engaged by requiring a detention order where the
    requirements of s. 515(10)(c) are met, it may equally be engaged by requiring
    that a release order be made where the continued detention of the accused
    person could erode public confidence in the administration of justice:
Myers
,
    at para. 50.

[107]

In my view,
    there can be no reasonable debate that COVID-19 impacts directly on the
    incarceration of individuals. At the same time, the publics confidence in the
    administration of justice will be impacted by the manner in which both
    correctional officials and the courts address that impact. And that engagement
    on this issue is not confined only to detention orders that were given based on
    the tertiary ground. It is engaged anytime a person is detained in circumstances
    where a release order is justified.

[108]

I find support
    for this conclusion in
Whyte
itself, as the court there accepted that
    trial delay was a material change in circumstance justifying a release order,
    despite the fact that, viewed strictly, the consideration that underpinned the
    first refusal of bail was the lack of a surety and the concern that the accused
    would interfere with the administration of justice. I find further support in
R.
    v. Dyce
, 2016 ONCA 397, at para. 2, where Watt J.A. wrote that [a]
    material change in the circumstances requires information that could alter the
    assessment of one or more of the statutory factors governing release pending
    appeal.

[109]

In that regard,
    I am of the view that COVID-19 constitutes a material change in circumstances
    with respect to every detention order that was made prior to the advent of the
    pandemic. COVID-19 changed the lives of every person in this country. Indeed,
    it has changed the lives of almost everyone on this planet. The appearance of
    the pandemic necessitated a review of every person who was being held in
    custody pending their trial, just as it necessitated a review of, and change
    to, the manner in which detention facilities dealt with incarcerated
    individuals, including the release of individuals who might not otherwise have
    strictly merited release in the traditional sense.

[110]

The impact of
    the pandemic does not mean that detention orders will not still be warranted.
    What it does mean is that the detention of every person needs to be reviewed,
    in light of the extraordinary situation that the pandemic poses, to ensure that
    the continued incarceration of a person pending trial will not result in a
    disproportionate impact. It also means that, going forward, the impact of the
    pandemic must properly be considered in every bail hearing when determining
    whether a detention order is warranted.

[111]

In my view,
    there can be no serious issue taken with the proposition that detention
    facilities are, by their very nature, places where persons will be at greater
    risk of contracting the virus, should it manage to get into such a facility.
    While the correctional officials have taken many steps to reduce that risk, the
    risk still exists. For example, correctional officers routinely move back and
    forth between public spaces and the detention facility. That reality means that
    there is an ever-present route for the virus to enter any detention facility.
    Further, the officers often cannot maintain physical distancing and still
    properly undertake their tasks. Consequently, the risk of a correctional
    officer contracting the virus and bringing it into the facility is a very real
    one.

[112]

And that is not
    the only route for the virus to enter a facility. The reality is that there is
    a consistent influx of new inmates into detention facilities. That reality
    provides another avenue for the virus to gain access to a detention facility,
    notwithstanding precautions that may be taken.

[113]

There are also
    obvious problems with maintaining physical distancing in such a facility among
    the inmates. While reducing occupancy to one inmate per cell is one necessary
    and effective step, that step does not alter the realities of inmates being in
    close proximity to each other at other times, such as for meals or when getting
    exercise (or at least movement) outside their cells. I note that this was the
    case in the Stratford detention facility where the respondent was housed.

[114]

I would also
    note, on this point, that, to the degree that some facilities have considered
    solving these concerns by requiring inmates to eat meals in their cells and
    exercise on an individual basis, those steps, while militating the risk of
    transmission of the virus, only increase the negative psychological impact of
    being incarcerated. Indeed, that general approach to incarceration comes perilously
    close to a state of facility-wide solitary confinement.

[115]

On this point, I
    reject the applicants submission that in order for COVID-19 to constitute a
    material change, the respondent has to demonstrate a special susceptibility to,
    or risk for contracting, the virus. I also disagree with my colleagues
    position that the absence of particular risk is relevant in assessing whether
    the evidence relating to the pandemic is relevantly material in this case.
    To place such a burden on an accused person seeking release is unfair for at
    least three reasons.

[116]

One is that bail
    hearings are often conducted directly after charges have been laid and, of
    necessity, on a rushed basis. There is little time to obtain and present
    evidence of the type that would be required to address the many issues that the
    pandemic presents.

[117]

Another is that
    it is impractical, as well as prejudicial, to impose an evidentiary burden on
    an accused person regarding a subject like COVID-19, given its medical
    complexity and its ever-evolving nature, especially recognizing that the vast
    majority of accused persons will not have access to the necessary resources to
    comply with that burden.

[118]

Yet another is
    that, as recent developments have proven, it is unrealistic to expect that any
    accused person will be able to lead evidence of a special susceptibility when
    the existing medical and scientific evidence cannot explain why some persons
    have a more serious reaction to COVID-19 than do others. While we know that the
    elderly, and persons with underlying conditions, may have a more serious
    reaction, we also know that some younger people (including persons as young as
    six and seven years old) have died from the virus. There is a great deal that
    we still do not know about this virus, so to require an accused person to
    provide evidence of the type suggested by the applicant is to impose on him or
    her an unrealistic, and unachievable, burden.

[119]

The other aspect
    of COVID-19 as a material change in circumstances comes from the reality that
    it brings with it an inevitable increase in the delay for cases proceeding to
    trial. This case is an example of that consequence. The preliminary hearing
    commenced in November 2019 but was only completed very recently. As of the date
    of this hearing, it had been two years since the respondent was arrested,
    leaving only six months remaining on the
Jordan
clock. On that
    point, I note that the Supreme Court of Canada has found that delay in getting
    a case to trial can, by itself, dictate a review of a detention order and the
    substitution of a release order:
Myers
, at paras. 50-54.

[120]

In the end
    result, I cannot find any error in the second bail judges conclusion that
    there were two material changes in circumstances in this case: a change to the
    strength of the Crowns case and COVID-19.

III: The nature of the second hearing

[121]

Given my
    conclusion that the second bail judge was correct in finding two material
    changes in circumstances, the issue then becomes how that finding impacts on
    the second bail judges approach to a review of the detention order.

[122]

The Crown
    contends, in essence, that even if a material change in circumstances could be
    shown, the second bail judge was not entitled to grant a release to the
    respondent, unless the material change in circumstances itself drove that
    result. In other words, the Crown contends that the second bail judge should
    have restricted his consideration of whether the respondents detention should
    be altered to only the consequences, if any, that arose from the material
    change in circumstances. The Crown goes on to say that since the respondent is
    not specially impacted by COVID-19, that material change in circumstances did
    not direct that he should be released. Indeed, the Crown appears to go further
    and suggest that, because there was no evidence that COVID-19 had any special
    or unique impact on the respondent, the second bail judge was not entitled to
    consider that material change in reaching his decision. Additionally, the Crown
    says that any weakening of the Crowns case would not warrant a release.

[123]

My colleague
    seems to agree with that limited scope for the authority of the second bail
    judge. I do not. More specifically, I do not agree that the function of the
    second bail judge is so circumscribed. In my view, that narrow approach conflicts
    with what the Supreme Court of Canada has had to say regarding the proper
    process to be followed in bail reviews. It is also inconsistent with the
    general principle, often enunciated but too often not respected, that release
     at the earliest opportunity and in the least onerous manner  is the default
    presumption in Canadian criminal law:
Myers
, at para. 1.

[124]

Once it is
    established that there has been a material change in circumstances, the second
    bail judge was entitled to conduct a fresh bail hearing, in other words, a
de
    novo
hearing. He was entitled, indeed I would say that he was obliged, to
    canvass all of the factors under s. 515(10) and make his own determination
    whether those factors, properly evaluated, including consideration of the changed
    circumstances, directed that the detention order should be continued. That does
    not mean that the second bail judge was entitled to ignore what the first bail
    judge had said nor the conclusions that he reached. But the second bail judge
    was not bound by those conclusions nor was he reviewing those conclusions in
    the appellate sense of that word. Rather, he was entitled to reach his own
    conclusions on the central issue, taking into account all of the evidence,
    including, for example, the revised plan of release. It is also of some moment,
    on this point, that we do not know if, or how, the pandemic would have affected
    the first bail judges view of the matter since his decision pre-dated the
    arrival of COVID-19.

[125]

I find support
    for my conclusion as to the proper approach in the views expressed in
St-Cloud
,
    where Wagner J. said, at para. 138:

If the new evidence meets the four criteria for admissibility,
    the reviewing judge is authorized to repeat the analysis under s. 515(10)(c)
Cr.
    C.

as if he or she were the initial decision maker
. [Emphasis
    added.]

[126]

This language
    does not allow for any ambiguity. It makes clear that the reviewing judge
    conducts a fresh hearing to repeat the analysis. It is also clear that the
    reviewing judge is not bound by the first bail judges view of the factors
    under s. 515(10) nor is he or she constrained to only considering the fresh
    evidence, i.e., the material change. This is made even clearer by the
    observation made by Wagner J. in the same paragraph that the reviewing judge
    must therefore consider
all of the circumstances of the
    case
. [Emphasis added.]

[127]

I would note
    that the conduct of a review as a fresh hearing appears to have been accepted
    as the proper approach in this courts decision in
R. v. A.A.C.,
2015
    ONCA 483, at para. 4.

[128]

Finally, on this
    point, I will say that any other interpretation of the review process would
    tend to undermine the constitutional right to bail and the overarching
    principle, to which I referred earlier, that the release of accused persons is
    the cardinal rule and detention, the exception:
St-Cloud
, at para.
    70.

[129]

The second bail
    judge conducted a fresh review of all of the circumstances, as I say he was
    entitled to do. He concluded that neither the primary ground nor the secondary
    ground required the continued detention of the respondent. He gave detailed
    reasons for those conclusions. No error has been shown in those reasons. I note
    that the Crown, once again, did not rely on the tertiary ground for a detention
    order.

[130]

The situation is
    different when it falls to this court to conduct a further review under s.
    680. We, unlike the second bail judge, are not entitled to conduct our own
    analysis and reach our own conclusions. Rather, we conduct an appellate form of
    review. Consequently, we are not entitled to weigh the factors differently or
    to substitute our view of those factors for those of the bail judge. Rather, we
    must find an error of law; a palpable and overriding error of fact; or that the
    decision under review is unwarranted, before we are entitled to intervene:
R.
    v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61. None of those
    tests are made out in this case.

[131]

I do not find
    any error in the second bail judges conclusion that there were insufficient
    facts to establish a proper basis for a detention order under the primary
    ground or the secondary ground. The case involves a young man, with no prior
    criminal record, who is a Canadian citizen, and who has clear ties to his
    community, including having a young daughter here. He has lived here most of
    his life, and he was gainfully employed.

[132]

On that point,
    the factual foundation for my colleagues conclusion that the respondent has
    few links to the community escapes me. I do not see how the respondent has any
    fewer links to his community that the majority of citizens do, as I have just
    set out above. I would also observe that the first bail judges conclusion, as
    cited and relied upon by my colleague, that the respondent has some connection
    to drug trafficking and perhaps to organized crime is a dubious one. The
    offences with which the respondent was charged, as they related to alleged drug
    trafficking, were withdrawn. The reference to the respondent's connection to
    organized crime assumes the validity of the Crown's assertions for which there
    is currently little evidence, direct or circumstantial. It could be fairly
    characterized as conjecture. Neither of these factors provides a sufficient
    basis for a detention order.

[133]

Further, to the
    degree that there were any concerns respecting the respondent, the second bail
    judge found that the proposed sureties were reliable, and the proposed plan of
    release (including electronic monitoring) was sufficient to address such
    concerns. It does not lie with us to substitute our views on those matters for the
    views of the second bail judge.

[134]

I would add to
    that the further reality that it does not advance any societal interest to
    unnecessarily add to the population of incarcerated individuals who are
    awaiting trial, given the pressures under which our detention facilities
    operate generally, but especially during the COVID-19 pandemic.
[1]

IV: Conclusion

[135]

I would dismiss
    the Crowns application.

Released: October 21, 2020 (B.W.M.)

I.V.B.
    Nordheimer J.A.

[1]
As the Supreme Court of Canada observed in
Myers
, at para. 26, Nonetheless, on any
    given day in Canada, nearly half of the individuals in provincial jails are
    accused persons in pre-trial custody.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaser, 2020 ONCA 648

DATE: 20201015

DOCKET: M51647

Doherty J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Raed Jaser

Applicant (Appellant)

Megan Savard and Riaz Sayani, for the applicant

Lisa Mathews and Xenia Proestos and
    James Clark, for the respondent

Heard: August 20, 2020 and by supplementary
    submissions on October 13, 2020 by video conference

Supplementary
    reasons to the judgment in
R. v. Jaser
, 2020 ONCA 606, released on
    September 24, 2020.

ADDENDUM

[1]

On August 20, 2020, I heard an application under
    s. 680 for an order setting aside an order made under s. 522 by OMarra J. of
    the Superior Court of Justice. Justice OMarra ordered the applicant (Jaser)
    detained pending his re-trial on four terrorist-related charges.

[2]

On September 24, 2020, I released reasons
    directing that subject to further submissions, referable to the terms of
    release, I was prepared to release Jaser on bail pending his re-trial. The
    parties agreed to reconvene on October 13, 2020 to make further submissions
    with respect to the terms of release.

[3]

On October 7, the Supreme Court of Canada heard
    the Crowns appeal from the order granting Jaser and his co-accused,
    Esseghaier, new trials. At the end of oral argument, the Court announced the
    appeals were allowed, the convictions restored, and the appeals remitted to the
    Court of Appeal for consideration of the other grounds of appeal. The Court
    indicated reasons for their disposition would follow.

[4]

As of today, Jaser stands convicted of the three
    counts on which the jury returned guilty verdicts. He is serving a life
    sentence on count 2. He has appealed those three convictions. His appeal on
    those three counts remains outstanding in this Court. Jaser is also subject to
    a new trial on count 1, the count on which the jury could not reach a verdict
    on his first trial.

[5]

In light of the Supreme Court of Canadas order
    allowing the Crown appeal and restoring the convictions, Jaser is no longer
    awaiting trial on count 2 (conspiracy to commit murder), the jurisdictional
    basis for the s. 522 bail application giving rise to this s. 680 application. Jaser
    is presently serving his life sentence imposed on count 2.

[6]

The Crown submits s. 679, the provision dealing
    with bail pending appeal, should govern. If Jaser seeks his release, he should
    bring a s. 679 application.

[7]

Jaser submits he is still awaiting his re-trial
    on count 1 and the s. 522 order made by OMarra J. remains alive as far as
    count 1 is concerned. Counsel argues I should make the order I had proposed to
    make under s. 680, but limit the order to count 1. She acknowledges if I do so,
    it would have no immediate effect on Jasers liberty. He would remain in
    custody pursuant to the convictions on counts 2, 3 and 4, unless he were to
    receive bail pending appeal or the convictions were to be quashed on appeal.
    Counsel submits, however, anything I might say about the terms upon which I
    would release Jaser on count 1 might assist a judge hearing a subsequent application
    for bail pending appeal on counts 2, 3 and 4.

[8]

I will not deal with the question of bail on a
    piecemeal basis. Jaser is in custody serving a life sentence. His entitlement
    to bail should be determined under s. 679, the provision which specifically
    addresses bail pending appeal.

[9]

The s. 522 bail hearing and the subsequent s.
    680 review were both predicated on a new trial having been ordered on all
    counts. That status quo has now changed. The question whether Jaser should
    obtain bail pending trial is now moot. Jasers application under s. 680 is
    dismissed without prejudice to his right to bring an application for bail
    pending appeal pursuant to s. 679.

[10]

As indicated in my earlier reasons, counsel for Jaser
    and Esseghaier agree the s. 517 ban on publication should be lifted. The Crown
    does not oppose this request. I will order the s. 517 publication ban lifted. I
    note Crown counsel advises there are other narrower publication bans in place,
    for example, there is apparently a publication ban relating to the identity of
    a police informant. Nothing I have said is intended to have any effect on
    non-publication orders other than the order made under s. 517. That order is
    lifted.

Doherty
    J.A.