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COMPELLING APPEARANCE, DETENTION AND RELEASE - Judicial interim release or bail - Review of

Thursday, December 03, 2020 @ 6:22 AM  

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Application by the Crown for a review of an order that granted the respondent bail pending trial. The respondent was charged with two counts of first-degree murder, attempted murder and conspiracy to commit murder. Video showed a masked gunman, alleged to be one of the respondent’s co-accused, shoot the first victim and SS near their motor vehicle. A separate video showed a masked gunman shoot into the motor vehicle of the second victim. The victims were associated with organized crime families. The Crown theory was that the respondent conspired with the co-accused to murder the two victims, was involved in procuring GPS tracking devices and conducting surveillance on the victims and provided the vehicles used in the commission of the offences. The Crown did not allege the respondent was present at the shootings. Both co-accused fled to Mexico. The respondent was initially denied bail on primary and secondary grounds. The second bail judge found the strength of the Crown’s case was materially weakened since the first bail hearing and COVID-19 represented a material change in circumstances. He concluded a new hearing was warranted. The respondent was 28 years old at the time of the second bail hearing with no pre-existing health conditions.

HELD: Application allowed. The respondent was ordered detained pending trial. The second bail judge erred in finding there was a material change in the circumstances due to a change in the strength of the Crown’s case. The new evidence referred to by the second bail judge regarding the purchase of the tracking devices was not a material change. The second bail judge failed to consider the COVID-19 pandemic in the context of the existing findings of the first bail judge. By failing to consider how COVID-19 was relevantly material before deciding to hear the bail application afresh, the second bail judge erred in law. The evidence related to the respondent’s health and conditions in the institution could not reasonably have been expected to have affected the first bail judge’s concerns on the primary or secondary grounds, whether taken alone or in combination with the proposed plan of release. The second bail judge erred in law in conducting a new bail hearing. Dissenting reasons were provided.

R. v. J.A., [2020] O.J. No. 4760, Ontario Court of Appeal, B. Miller, I.V.B. Nordheimer and J.A. Thorburn JJ.A., October 21, 2020. Digest No. TLD-November302020008