Court of Appeal for Ontario

Date: February 16, 2018 Docket: C62047

Justices: Sharpe, Roberts and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Suleman Hussain Appellant

Counsel

Jennifer Penman, for the appellant

Michael Perlin and Jennifer Epstein, for the respondent

Heard

December 18, 2017

Appeal Information

On appeal from the conviction entered on February 19, 2015 by Justice M.L. Edwards of the Superior Court of Justice, sitting without a jury, and the sentence imposed on November 17, 2015, with reasons reported at 2015 ONSC 7115.

Reasons for Decision

Sharpe J.A.:

Introduction

1The appellant was convicted of five offences arising from the allegation that he transferred a firearm while on bail for other unrelated charges. He was sentenced to a total of 4 years and 6 months' custody, less 3.92 years' credit for pre-sentence custody. He appeals his conviction and seeks leave to appeal his sentence on the ground that the portion of s. 719(3.1) denying enhanced credit for pre-sentence custody on grounds of misconduct while on bail violates the s. 7 Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice. This appeal was argued together with R. v. Meads, 2018 ONCA 146 which raised the same Charter issues, the reasons for which are being released at the same time as these reasons.

Conviction Appeal

2The sole ground for Hussain's appeal from conviction is the submission that the verdict was unreasonable. At the oral hearing of this appeal, we did not call upon the Crown to respond to the conviction appeal and indicated that these reasons for dismissing the conviction appeal would follow.

3The police believed that Hussain was selling drugs and that he might be in possession of a firearm. The crucial evidence relied on by the trial judge in convicting Hussain of the firearms offences was that of Officer Campbell, a member of the police surveillance team observing the house where Hussain lived with his mother. A car arrived at the house and the driver spoke to the appellant for approximately 30 minutes. The driver then backed his car into the driveway. Officer Campbell, the "road boss" of the surveillance team, was in a car which he testified was parked across the street and one or two houses down from that of the appellant. Officer Campbell testified that after the car backed into the driveway, the trunk opened and he saw Hussain walking towards the car carrying something that looked like a firearm wrapped in a white patterned blanket. Officer Campbell admitted that this observation took place "within a second" and was "really quick". Another officer saw the appellant carrying an object towards the back of the car but could not see what it was. Officer Campbell relayed his observation to another officer so that the driver of the car could be arrested and searched. Within minutes the car was stopped and searched and a shotgun wrapped in a blanket was found in the trunk along with a tent and a toolbox. The driver of the car did not implicate Hussain and there was no other evidence, finger-print or DNA, connecting Hussain to the firearm.

4Hussain submits that the verdict was unreasonable. He does not attack Officer Campbell's credibility but submits that the trial judge erred by failing to recognize that Officer Campbell's evidence was not reliable.

5The appellant submits that Officer Campbell's ability to make a reliable observation was impaired by several factors:

• it was dark;
• the distance between Officer Campbell and the driveway;
• the fact that he was not using binoculars;
• the fact that his view was at least partially obstructed by a school bus parked in the driveway;
• the item he saw was wrapped in a blanket; and
• his observation only took place in a "split-second".

6The appellant contends that there is a real risk that Officer Campbell's evidence was tainted by hindsight bias flowing from the discovery of the firearm in the trunk of the car. The appellant also points out that there is no mention of a firearm in the notes of any members of the surveillance team; no evidence that the broadcast instructing the take-down of the driver mentioned a firearm; that the officers who stopped and arrested the driver did not immediately search the trunk of the car; and that Officer Campbell's description of the blanket having a floral pattern is implausible given the conditions under which he made his observation.

7I agree with the respondent Crown that Hussain has failed to meet the high threshold required for establishing an unreasonable verdict. I am not persuaded that no properly instructed judge or jury acting judicially could be reasonably satisfied that guilt was the only rational inference on this record. The trial judge, who had the advantage of seeing and hearing the witnesses, considered and rejected the submission that Officer Campbell's observation was unreliable because of possible "hindsight bias". He recognized the frailty of eyewitness evidence and carefully considered the contention that Officer Campbell could not have seen what he claimed. He pointed out that Officer Campbell's observation that the appellant was carrying an item to the back of the car was corroborated by that of the other officer, even though that officer could not identify the item. Officer Campbell demonstrated for the court the way the blanket-wrapped object was being carried. This supported his evidence that the wrapped object was a firearm. The defence called a witness to show that Officer Campbell could not have made his observation because of the school bus partially obstructing his view. However, that witness conceded in cross-examination that if the school bus had been parked further down the driveway than he had assumed, Officer Campbell could have made his observation.

8On this record, I am not persuaded that the trial judge committed any reviewable error by relying on the evidence of Officer Campbell to convict Hussain of the firearms offences or that the verdict was unreasonable.

Sentence Appeal

9The trial judge sentenced the appellant to 4 years and 6 months' custody less 3.92 years' credit for pre-sentence custody. The sole ground for his sentence appeal relates to the credit he was given for pre-sentence custody.

10The time the appellant spent in pre-sentence custody is complicated by the fact that at the time he was arrested on the charges that are the subject of this appeal (the Ajax charges), the appellant was on bail in connection with earlier robbery with a firearm charges (the Toronto charges). He was arrested on the Toronto charges on January 7, 2012 and remained in custody until he obtained bail on April 20, 2012. He was arrested on the Ajax charges on November 20, 2012 and did not seek bail. On September 30, 2014, the Crown sought and obtained an order pursuant to s. 524 of the Criminal Code revoking the appellant's bail on the Toronto charges. The appellant was convicted of the Ajax charges on February 19, 2015 and sentenced on November 17, 2015 as follows:

• s. 99(1)(b) firearm trafficking: 3 years
• s. 92(3) knowing unauthorized possession of a firearm: 1 year (concurrent to the 3 years imposed for firearm trafficking)
• s. 117.01 possession of a firearm contrary to a court order: 18 months (consecutive to the 3 years for firearm trafficking)
• s. 145(3) breach of recognizance: 18 months (consecutive to the 3 years for firearm trafficking but concurrent to the 18 months for possession of a firearm contrary to a court order)

11The appellant pleaded guilty to the Toronto charges after the disposition of the Ajax charges and was sentenced on January 6, 2016. He received 1.5:1 credit on the Toronto charges for the period of pre-sentence custody from the time of his arrest on January 7, 2012 until the time he obtained bail on April 20, 2012 but no credit for the period following the order revoking his bail on the Toronto charges on September 30, 2014.

12The appellant brought a successful Charter challenge to the validity of the mandatory minimum three year sentence required for s. 99(2) firearm trafficking offences. No appeal is taken by the Crown from that ruling.

13The appellant also brought a Charter challenge to the bail misconduct exclusion barring 1.5:1 credit for pre-sentence custody found in s. 719(3.1). The trial judge rejected that challenge and found that while the appellant was entitled to 1.5:1 credit for the 680 days from the time of his arrest on the Ajax charges (November 20, 2012) until the Crown obtained an order revoking the appellant's bail on the Toronto charges (September 30, 2014), the appellant was only entitled to 1:1 credit for the period following the revocation of bail.

Application of Sections 719(3) and (3.1)

14At the hearing of this appeal, the court raised with counsel the issue of whether ss. 719(3) and (3.1) apply to the facts of this case. Subsections 719(3) and (3.1) provide:

719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [Emphasis added.]

15Was the appellant detained "as a result of the offence[s]" for which he was being sentenced, namely the firearms offences, after his bail on the Toronto charges was revoked? I am satisfied that the answer to that question is yes on the basis of this court's decision in R. v. Barnett, 2017 ONCA 897. While the facts of this case are not on all fours with those in Barnett, in that case, Doherty and Rouleau JJ.A. provided guidance to judges called upon to sentence offenders who face different sets of charges and who obtain bail on the initial charges but then are remanded on new charges. The court stated, at paras. 30-31:

What we draw from the case law is that ss. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody. That relation or link can exist with more than one offence. It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge's assessment, factored into the offender's decision to not seek bail on the charges that triggered the detention order.

There is no strict rule dictating what constitutes a sufficient link or relationship between the given charge and the pre-sentence custody so as to meet the "as a result of" standard. The sentencing judge will take into account relevant factors that might include the reasons for bail having been granted on the first set of offences and denied for the second set of offences; whether bail was sought on the later offences; whether there has been revocation of the bail on the first set of offences; the impact if any of the reverse onus provisions of ss. 515(6) or 522(2) of the Criminal Code; whether subsequent charges remain outstanding, have been withdrawn or stayed; the amount of pre-sentence custody accumulated; the nature and seriousness of the various charges; and the relationship, if any, that charges have to one another. In sum, the sentencing judge must be satisfied that the offences upon which he is sentencing the accused have some meaningful causative connection to the accused's pre-sentence custody.

16In my view, the application of that test indicates that the appellant was detained "as a result of" the Ajax charges following the revocation of his bail on the Toronto charges. Nearly two years passed between the appellant's re-arrest on the Ajax charges, and the revocation of his bail on the earlier Toronto charges. However, he did not re-apply for bail. In the words of Barnett"common sense" suggests that the appellant's decision not to seek bail was likely influenced by the fact that the Ajax charges were laid while he was on bail for the Toronto charges: Barnett, at para. 28. I note also that the presence of a firearm was a common feature in both sets of offences. I therefore conclude that the Ajax charges had "some meaningful causative connection to the accused's pre-sentence custody". This conclusion is supported by the fact that when he was sentenced on the Toronto charges, the sentencing judge only considered the appellant's pre-sentence custody up to the time of his arrest on the Ajax charges, and did not address any time served in custody thereafter. If the appellant was not entitled to credit for that time in relation to the Toronto charges, he should be entitled to it on the Ajax charges.

Charter Challenge and Discretionary Denial of Enhanced Credit

17The trial judge denied enhanced credit for the post-bail revocation period of pre-sentence custody for two reasons. First, he rejected the appellant's Charter challenge to the bail misconduct exclusion. It follows from my reasons in Meads that I am of the view that the trial judge erred in his Charter ruling. In fairness to the trial judge, I would point out that he decided the point before the Supreme Court changed the landscape in this area with its decision in R. v. Safarzadeh-Markhali, 2016 SCC 14.

18However, it is clear that if the trial judge had come to a different conclusion on the constitutional question, he would still have exercised his discretion to deny enhanced credit. Quite apart from the statutory bail misconduct exclusion, there is a discretion to deny enhanced credit where the "detention was a result of the offender's bad conduct": Summers, at para. 71.

19The appellant submits that the trial judge erred by denying enhanced credit on the facts of this case because the appellant had already been punished for the breach of recognizance and breach of the firearm prohibition order.

20I agree with the appellant's submission. He received what was, in my view, an entirely appropriate consecutive eighteen month sentence for the two breach offences, consecutive to the firearm trafficking sentence. The breach offences were serious and a significant deterrent sentence to maintain public confidence in the justice system was fully justified. However, while the fact that an offence was committed on bail may be taken into account in determining the appropriate amount of pre-sentence credit, the extent to which the breach has already been punished must also be considered: see R. v. Colt, 2015 BCCA 190, at paras. 24-27. To impose an eighteen month sentence for the breaches, and then further deny the appellant the usual credit for pre-sentence custody on the basis of the same breaches would, in effect, punish him twice for the same misconduct: see R. v. Campbell, 2017 ONSC 26, at para. 62; R. v. Bonneteau, 2016 MBCA 72, at para. 22; R. v. Allen, 2015 BCCA 479, at para. 20; R. v. Vinepal, 2015 BCCA 349, at para. 22.

21I realize that the discretion to deny enhanced credit for pre-sentence custody has been exercised in some cases where the accused was sentenced at the same time for the breach charges that led to the revocation of bail: see, e.g., R. v. Warren; R. v. Morris, 2013 ONCA 223. However, those cases did not involve sentences as significant as the sentence imposed for the breaches in this case and the double punishment point was not considered. In my view, where an offender is simultaneously being sentenced for breach charges and the charges that led to the recognizance or court order that was breached, it will ordinarily be preferable for the sentencing judge to deal with the breach by imposing a sentence commensurate with the seriousness of the breach. Such a sentence reflects the aggravating factor of committing an offence in breach of a court order and serves the purposes of sentencing, including deterrence, more directly and more appropriately than by denying enhanced credit for pre-sentence custody. In this case, the appellant was sentenced for the breach offences directly. He should not also be denied enhanced credit for the period of incarceration between the revocation of his bail and the imposition of his sentence due to the same breaches.

22I do not, however, exclude the possibility that in some circumstances, such as where an offender attempts to "game the system" by causing delays in order to accrue additional enhanced pre-sentence credit, the denial of enhanced credit in addition to the sentence imposed for the breach may be justified. In such a case, however, it is the manipulation of the pre-sentence credit regime, and not the bail breach, that is targeted.

Disposition

23Accordingly, I would dismiss the conviction appeal, grant leave to appeal sentence and order that the sentence be adjusted to reflect credit at the rate of 1.5:1 for the entire period of 1,092 days' pre-sentence custody from November 20, 2012 to November 17, 2015, which I calculate to be 1,638 days' credit, or 4.488 years' credit rather than the 3.92 years given by the trial judge.