Court File and Parties

Court of Appeal for Ontario Date: 2024-12-09 Docket: M55594 (COA-24-CR-1189)

Between: His Majesty the King, Respondent and Karm Akram, Applicant/Appellant

Before: C.W. Hourigan J.A. (Motions Judge)

Counsel: Chris Rudnicki and Theresa Donkor, for the applicant/appellant Jeremy Tatum, for the respondent

Heard: December 6, 2024

Endorsement

[1] The applicant seeks release on bail pending his conviction and sentence appeal. He was convicted of pointing a firearm, assault with a weapon, and possessing a weapon for a dangerous purpose. The offences occurred during a drive-by shooting. The applicant is currently serving a custodial sentence of two years less a day. The Crown consents to this request.

[2] The applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46 on a balance of probabilities to be granted judicial interim release pending the determination of the appeal. These three elements are 1) the appeal is not frivolous; 2) he will surrender into custody in accordance with the terms of the order; and 3) his detention is not necessary in the public interest: R. v. Oland, 2017 SCC 17, at para. 19.

[3] The not frivolous standard sets a very low bar: Oland, at para. 20. The criterion operates as an initial hurdle that allows for immediate rejection of a release order in the face of a baseless appeal: Oland, at para. 41. Although the applicant raises numerous grounds of appeal on his conviction appeal, the emphasis in oral submissions was on the sentencing appeal. The applicant’s position is that the trial judge erred in not sentencing him to a conditional sentence. In particular, he argues that the trial judge erred in not giving proper effect to the principle of restraint and erred in failing to consider the impact of incarceration on his physical and mental disabilities.

[4] As noted, the Crown consents. When asked about the strength of the sentence appeal, the Crown acknowledged that the sentence was fit but there were some arguable grounds. It is unclear to me why the Crown believes that the applicant has met his onus that bail should be granted.

[5] Regarding the issue of surrender, I am satisfied that he has met his onus.

[6] There are two components to the public interest criterion: public safety and public confidence in the administration of justice: Oland, at para. 23. The public safety component of the public interest criterion is concerned with the protection and safety of the public should an appellant be released pending appeal: R v. Ruthowsky, 2018 ONCA 552, at para. 8. The public confidence component of the public interest criterion balances two competing interests: reviewability and enforceability. The applicant submits that this is not one of the rare cases where the public confidence component of the test is engaged because his appeal is not frivolous, he will surrender as required, and he poses no risk to public safety.

[7] In this case, we are dealing with a drive-by shooting. The applicant conducted the drive-by shooting in a residential neighbourhood in retaliation for a drug debt of $220. The mother of the man who owed the debt was sitting in her car parked in the driveway of her home. Her husband was standing outside the car. In a span of 10-15 seconds, the applicant drove up to her car, pointed a firearm at her, and fired two shots.

[8] As this court has repeatedly stated, gun violence is a scourge in our society and gun crimes must be treated with the utmost seriousness. The sentence in this case for a drive-by shooting would appear to be on the lenient end. I am not satisfied that this court would likely interfere with the sentence. Therefore, this is a weak ground of appeal.

[9] Counsel for the applicant advises that her client will be eligible for release on June 20, 2025 and raises the concern that he may be released prior to the hearing of the appeal. In order to avoid that result, I have canvassed dates for an expedited appeal and am setting the date for March 4, 2025.

[10] For the foregoing reasons, the application for interim release pending appeal is denied.

“C.W. Hourigan J.A.”