Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20230926 DOCKET: M54531 (COA-23-CR-0916)

Before: Hourigan J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent/Responding Party

and

Abdoul Mare Appellant/Applicant

Counsel: Natasha Ramkissoon, for the applicant Ghazala Zaman, for the responding party

Heard: September 21, 2023

Endorsement

Introduction

[1] The applicant was convicted of two counts of possession of a Schedule I substance and two counts of possession of a Schedule I substance for the purpose of trafficking. On his arrest, the applicant was found in possession of 29.9 grams of fentanyl, 38.4 grams of cocaine, and $6,000 in cash. He was sentenced to 34 months’ incarceration. The applicant seeks bail pending appeal. The Crown resists on the grounds that his release would undermine public safety and public confidence in the administration of justice and is therefore contrary to s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46. At the conclusion of the hearing, I dismissed the application with reasons to follow. These are my reasons.

Facts

[2] The applicant has a limited criminal record. However, over the last three years, he has amassed several charges and convictions:

• On January 29, 2021, the applicant was convicted of driving while disqualified. He was given a conditional discharge and placed on probation for one year and prohibited from driving a motor vehicle for one year.
• On September 21, 2021, the applicant was arrested on gun and drug charges. On a search of the applicant’s vehicle, the following items were seized: 16 grams of powder cocaine, 16 grams of crack cocaine, 78.9 grams of fentanyl, $12,040 in Canadian currency, and a loaded 9-mm Smith and Wesson handgun with over 15 rounds of ammunition. The applicant was granted bail, which included a term that he was to remain on house arrest with one of his sureties, with limited exceptions. Those charges remain outstanding.
• On December 31, 2021, the applicant was arrested on several charges. Ultimately, he pleaded guilty to two counts – knowledge of unauthorized possession of a firearm contrary to s. 92(1) of the Criminal Code and possession of a prohibited firearm with ammunition contrary to s. 95 of the Criminal Code. The circumstances of these events are as follows. On a search incident to arrest, the applicant was found to be in possession of a Glock 19 firearm. The applicant was observed discarding the firearm near a child’s bicycle at a neighbouring property. As a result of these charges, his bail from the September charges was revoked.

[3] There was a preliminary issue about whether I could have regard to the circumstances of the December 31, 2021 charges that were withdrawn. I instructed counsel that I would not have regard to those withdrawn charges. They are not currently before the court and have been resolved without convictions. In the circumstances of this case, as a matter of fairness to the applicant, it would be improper to have regard to what are unproven allegations that will not be determined in court.

[4] I also note that the September 21, 2021 charges have not been tried and the applicant is presumptively innocent of those charges. However, it is permissible for me to have regard to pending charges in determining whether the applicant should be granted bail pending appeal: see e.g., R. v. C.L., 2018 ONCA 470.

Public Interest

[5] There are two components to the public interest branch under s. 679(3)(c) of the Criminal Code – public safety and public confidence in the administration of justice. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[6] The public confidence component of the public interest criterion balances two competing interests: reviewability and enforceability. Achieving this balance mandates a judicial assessment of, on the one hand, the need to review the conviction leading to imprisonment, and on the other, the need to respect the general rule of immediate enforceability of judgments: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 25-26 and 28.

[7] The reviewability consideration under s. 679(3)(c) focuses on the apparent strength of the prosecution’s case. In the appellate context, the measure is the strength of the grounds of appeal (beyond the not frivolous threshold): R. v. M.S., 2022 ONCA 348, at para. 16; Oland, at para. 40. In assessing the strength of an appeal, appellate judges “will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44.

[8] The enforceability considerations engage a review of the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential for a lengthy term of imprisonment: see Oland, at paras. 37-38. Where an applicant meets the public safety threshold, residual public safety concerns or the lack of any public safety concerns should still be considered as part of the public confidence analysis: Oland, at para. 27.

Analysis

[9] This is an unusual public safety case because, as the Crown concedes, the applicant does not have a lengthy criminal record. Almost all of his charges date from the past three years. Still, the December 2021 convictions are troubling, as they involve not only possession of a firearm, but its reckless disposal. The September 2021 charges also involve the possession of a firearm.

[10] Another troubling aspect of this case is the release plan proposed. I note that for the charges currently under appeal, the applicant was released on an undertaking. After the September 2021 charges, he was granted surety bail with a condition of house arrest. That bail was revoked after he was arrested on the December 2021 charges. I agree with the submission of the Crown that this history shows a concerning disregard for the conditions of his release.

[11] I am also concerned about the fact that the affidavits filed by the sureties reference the possibility that the applicant might be convicted. Of course, he has already been convicted of the charges that are in issue on this appeal. I am not certain that the sureties have a full appreciation of the applicant’s current circumstances.

[12] Despite the foregoing, I am satisfied, based primarily on the absence of a substantial criminal record, that the applicant has met his onus on the public safety ground. However, I observe this was a very close call, and I have residual public safety concerns.

[13] In my view, this case engages the public confidence criteria as these are serious drug charges, in terms of both the quantity and types of drugs involved. The sentence imposed is also substantial. Given these facts, it is appropriate for me to consider the public confidence criteria: see R. v. Allen, 2023 ONCA 185, at para. 22.

[14] Given the quantity and types of drugs involved, I am satisfied that the offences and their circumstances are serious. In addition, the 34-month sentence imposed demonstrates the potential for a lengthy term of imprisonment. Therefore, all three enforceability factors weigh against the applicant’s release.

[15] Regarding the merits of the case, the primary argument being made is that the trial judge erred in his s. 24(2) Canadian Charter of Rights and Freedoms analysis after finding a s. 10(b) violation. It is well settled law that, where a trial judge has considered the proper factors and has not made an unreasonable finding, their s. 24(2) analysis attracts deference: see e.g., R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, at para. 21. Having reviewed the trial judge’s reasons, wherein he cited the correct authority and followed the analytical framework set out in Grant, it would appear that the applicant’s appeal does not clearly surpass the not frivolous criterion.

[16] Having assessed the enforceability and reviewability factors, I must now balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland, at para. 47. In my view, the proposed grounds of appeal do not clearly surpass the not frivolous standard, and they are clearly outweighed by the strong enforceability considerations referenced above. Confidence in the administration of justice would be undermined, not maintained, by releasing the applicant. I am fortified in that conclusion given my residual public safety concerns.

Disposition

[17] The application is dismissed.

“C.W. Hourigan J.A.”