Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2024 12 05 COURT FILE No.: TORONTO 4810 998 23 48110017
B E T W E E N :
HIS MAJESTY THE KING
— AND —
KAMRAN ZAFAR MUGHAL
Before: Justice Beverly A. Brown Heard on: December 5, 2024
Reasons for Decision Re Order pursuant to s. 723 of Criminal Code
Counsel: Mr. Iain Sunderland ............................................................................ counsel for the Crown Mr. Yonatan Eshetu ..................................................................................... for the defendant
Reasons for Decision
[1]
Introduction
The Crown in court today, Mr. Iain Sunderland, has not been involved previously with this case. The assigned Crown was unable to appear in court today.
[2]
Background and Facts
This matter appeared before the court on May 30, 2024, marked for a guilty plea. The information had been sworn on July 5, 2023. There were 13 counts in the information related to possession of stolen property over $5,000. And traffick in property namely motor vehicles valued at over $5,000, on various dates including June 13, 16, 20, 23 and 29 of 2023. The counts identified various complainants. At that time, the Crown proceeded summarily and Mr. Mughal entered a guilty plea to count 2 of that information, for the offence of Possession of a motor vehicle, of a value exceeding $5,000. The property of Enterprise Rent-a-car, knowing that all or part of it had been obtained by an offence punishable by indictment, contrary to s. 354(1) of the Criminal Code of Canada.
3The facts that were read in at that time pertained to a trafficking in stolen automobiles investigation, where officers believed that stolen vehicles at the rear of an address were being loaded into shipping containers that were being driven away on tractor trailers over various dates. The facts that were read in, which the court will refer to at this point in very brief summary, and admitted by the defence, pertained to many vehicles that were stolen and driven away from the same location at 1830 Ellesmere, Toronto. First, on June 14, 2023, there were 4 vehicles, one of which was a stolen Toyota Highlander that were loaded into the container and driven away. Then on June 16, 2023 further observations were made at the address while Mr. Mughal was present while 2 unidentified vehicles, and 2 identified stolen vehicles which were Toyota Highlander SUV vehicles, were loaded into the shipping container and driven away. Then on June 20, 2023, further observations were made in relation to 2 additional vehicles, being stolen Lexus RX 350 cars, were loaded in the shipping container and driven away by the tractor trailer. On June 23, two more unidentified stolen vehicles were loaded into the shipping container and driven away. Later another 2 unidentified vehicles were loaded into another shipping container. Mr. Mughal was present during the loading of these vehicles into the containers before they were driven away. When Mr. Mughal was arrested on the last date a key to the flatbed tow truck was found in a search incident to arrest, in his possession. The defence agreed that the additional facts, beyond those related to count 2 in the information, could be considered on sentence for the subject offence. The facts were admitted and Mr. Mughal was found guilty of the charge.
4At the time of the guilty plea, this court asked the crown about the values of the various vehicles that were involved in this case, the amount of the loss and the amount of any recovery of any of the vehicles. The Crown did not provide that information to the court.
5The Crown submitted that stealing motor vehicles are serious offences, especially now when there is a crisis in the GTA for stolen vehicles, that this drives up insurance premiums and involves a cost to everyone. The crown also submitted that this was a sophisticated operation. The Crown noted that this was a strong case for the Crown, with wilful blindness at minimum, related to the offence.
6The court was then advised by counsel that there was a joint submission of a 6 month conditional sentence for this offender and this offence. The accused has no record.
7The defence made submissions, including the fact that Mr. Mughal saw this as an opportunity to make a “quick buck”, it was a temptation, he regrets it, and he wants to pursue a career in automobile mechanics.
[8]
The Joint Submission and Court's Concerns
The court communicated its concern to counsel in relation to this joint submission being too lenient. The Crown who appeared before the court on this date was not the Crown who had carriage of the case and arrived at the joint submission with defence counsel. The court ordered that there be a pre sentence report prepared for Mr. Mughal, and that the assigned crown appear before the court, together with the defence counsel, on the future sentencing date. The court expected that the Crown would provide the answers to the questions put to the Crown, including the value of the vehicles involved in this case, the quantum of the loss, and the quantum of any recovery of vehicles. The court also expected, pursuant to the Criminal Code mandatory requirement, that victim impact statement(s) would be sought by the Crown and put before the court for consideration on sentence. Significantly, the court advised that it was giving counsel the opportunity of putting before the court any evidence, case law or other material that might assist the court in understanding why counsel had arrived at this joint submission. The court did this in compliance with the procedure set out by the Supreme Court of Canada in R. v. Anthony Cook, 2016 SCC 43.
9The case was put over to September 19, 2024, but unfortunately the case had to be adjourned arising from the fact that the pre sentence report had not been prepared. The case was then put over to December 3, 2024, to accommodate the schedule of the assigned Crown Mr. Gorda, defence counsel Mr. Eshetu, and the schedule of this court, to address the concerns of the court regarding the joint submission.
10On December 3, 2024, the Crown Mr. Gorda did not appear in court. The court learned that he was scheduled to do a trial in another court, and he did not contact the court as the court began its proceedings. This court requested that other provincial Crowns in the court take steps to contact Mr. Gorda and direct that he appear in this court. Later, during the time slot typically for a morning recess, Mr. Gorda finally appeared before the court.
11When the assigned Crown Mr. Gorda appeared, he was advised by this court that the court had selected this date based on his and defence availability. He indicated he was happy to deal with it to answer any questions of the court. The court advised that this was an opportunity for counsel to come to the court to explain why counsel had come to the joint submission, in relation to the Anthony Cook procedure. The court indicated previously its serious concerns regarding the joint submission, and repeated that it was giving counsel the opportunity to put before the court any material or case law that might assist the court in understanding the joint submission.
12The Court advised counsel that it assumed that the Crown would be putting before the court victim impact statement material. The court also stated that it had specifically requested information at the time of the guilty plea as to the loss sustained in the case. The court reiterated it was giving to counsel the opportunity to make additional submissions regarding the joint submission, as suggested in the procedure set out by the Supreme Court of Canada in Anthony Cook.
13The court was advised that all of the vehicles were recovered except for one vehicle. No values were given for any of the vehicles, despite the court’s questions in that regard. The court commented that the facts given to the court were scant. The Crown stated to the court that the court has to appreciate that the Crown read in the facts provided by the police synopsis, and with the amount of cases that the Crown must deal with the Crown dealt with this on a Crown pre trial. The Crown advised he was not making excuses. The Crown stated he did not have that information, and did not have the value of the vehicle that was recovered.
14Despite what the court would note as many named victims in the information, the Crown advised the court that it had not sought any victim impact statement, as this was not a matter where the Crown would normally request a victim impact statement. He further advised the court that the Crown had not requested any victim impact statement.
[15]
Analysis
As this court expressed to counsel in court, the court is concerned that the proposed sentence is inadequate to address the ongoing epidemic of vehicle theft in the GTA, and elsewhere in southern Ontario. It fails to address the principles of denunciation and deterrence for this type of offence, notwithstanding the mitigating factors related to this offender and the guilty plea. The court is concerned that accepting this submission would lead reasonable and informed persons, aware of all of the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system has broken down (see Anthony Cook, at para 34).
16This court has advised the parties of the court’s knowledge of the prevalence of this type of crime, sitting as a judge in this court, and being a citizen of this community. It is impossible to be exposed to this information and not appreciate the enormous nature of the problem of vehicle theft in our community.
[17]
Order
Having provided notice of the concerns of this court, now on multiple occasions and today, the court finds that the information provided to this court on this guilty plea is insufficient to determine whether the proposed sentence is not contrary to the public interest and would not bring the administration of justice into disrepute. Therefore pursuant to s. 723 of the Criminal Code, the court orders as follows: (i) The Toronto Crown Attorney’s office is directed to contact the victims and seek victim impact statements from the victims, pursuant to the mandatory requirements set out in s. 722 of the Criminal Code. The court notes that to date, the Crown has taken no steps whatsoever to provide the victim(s) with an opportunity to prepare victim impact statement(s) addressing the physical or emotional harm, property damage or economic loss suffered by the victim, as a result of the commission of the offence, and the impact of the offence on the victim(s). (ii) The Toronto Crown Attorney’s office is directed to obtain information pertaining to the value of each of the vehicles that were involved in this offence, the extent of the loss occasioned arising from the admitted facts in this case including damages sustained to any vehicles that were recovered, and the loss occasioned for any vehicle which was not recovered. To date this information has been sought by the court and not provided by the Crown. (iii) The Toronto Crown Attorney’s office is directed to produce evidence regarding the following, presumably from Myron Demkiw, Chief of Police, Toronto Police Service, or his designate, relating to the following, for the City of Toronto, and for the Greater Toronto Area (GTA) area (arising from statistics from Peel Regional Police, York Regional Police, Durham Regional Police Service and the Ontario Provincial Police), and any other regional police forces working with the Toronto Police Service either independently or on any task force, related to this issue: (a) The prevalence of automobile theft in Toronto, for 2020, 2021, 2022, 2023 and 2024, and the increase or decrease in the rates of automobile thefts over that period of time, including an average of the number of vehicles stolen, over a particular period of minutes or hours, per each day, for example a calculation as to how often a vehicle is stolen, quantified in minutes, or hours, of each day of that year; (b) The number of vehicles and total values of vehicles reported stolen in each of those years, and concurrently the number and total values of vehicles recovered after investigations; (c) Any special procedures that have been put in place by the police such as investigative teams addressing the specific problem of vehicle thefts in Toronto and the GTA, and the human resources, police and civilian, that have been deployed to address this issue; and (d) Details of any of the police investigations into multiple vehicle thefts which have successfully resulted in prosecutions and convictions of parties who are at the level of organizing the schemes of stealing vehicles, moving them to other locations, and then transporting them to other parts of Canada and outside Canada to other countries.
17The sentencing hearing will continue on a date to be scheduled in the future. The case will be before this court to be spoken to on December 13, 2024 in 1004 court at 10 am. In the meantime, the Crown is to proceed with the Order of the court. The information to be gathered by the Toronto Crown Attorney’s office is to be disclosed in a timely manner to the defence, and to the court, and in any event no later than one week prior to the scheduled continuation of the sentencing hearing. Should either party or the court wish to question a witness who has provided this information, that shall be arranged for the sentencing hearing, or as soon thereafter as possible. The parties are again encouraged to provide any further information or caselaw that would support the current joint recommendation.
B.A. BROWN, J. December 5, 2024 Signed: Justice Beverly A. Brown