Court of Appeal for Ontario

Date: 2025-03-18
Docket: M55821(COA-25-CR-0201)
Judge: Lorne Sossin (Motion Judge)

Between:
His Majesty the King (Responding Party)
and
Morthaza Amirdad (Applicant/Appellant)

Appearances:
Mark C. Halfyard and Colleen McKeown, for the applicant
Matthew Morley, for the responding party

Heard: March 12, 2025

Endorsement

Background

[1] Following a voir dire Charter application dealing with the admissibility of evidence and alleged violations of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms, and a trial before Johnston J., sitting without a jury, the applicant was convicted of 50 firearms offences on September 3, 2024. On February 18, 2025, he was sentenced to seven years in custody, after being credited for pre-sentence custody and restrictive bail conditions.

[2] The applicant appeals his conviction and seeks release pending his appeal.

[3] In order to succeed on an application for bail pending appeal, the moving party must establish, per s. 679(3) of the Criminal Code, RSC 1985, c C-46, that:

a) the appeal is not frivolous;
b) the applicant will surrender himself into custody in accordance with the terms of the release order; and
c) the applicant’s detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, at para. 19.

[4] The Crown opposes release on the basis that the merits of the appeal are weak, and that the applicant has failed to show that his continued detention is not necessary in the public interest. The Crown concedes that the applicant has shown, on a balance of probabilities, that he will surrender himself into custody in accordance with the terms of the order.

Merits Threshold

[5] The applicant raises the following four grounds of appeal:

1. In his ruling on the applicant’s Charter application, the trial judge failed to apply R. v. Debot, [1989] 2 S.C.R. 1140, to the confidential informant information that formed part of the arresting officer’s grounds;
2. In his ruling on the applicant’s Charter application, the trial judge erred in looking at each piece of evidence individually – sometimes applying an incorrect standard – rather than assessing whether the arresting officer’s information and observations together met the requisite standard;
3. In the reasons for conviction, the trial judge engaged in circular reasoning in discounting the evidence of the defence witness; and
4. In light of gaps in the evidence, the verdict against the applicant was unreasonable.

[6] The Crown accepts that the first ground of appeal involving the application of Debot meets the low bar of being “not frivolous” but argues it remains a weak ground, and the other grounds do not pass this threshold so that the merits of the appeal, overall, are weak.

The Alleged Debot Error

[7] It is not in dispute that, in determining whether there were reasonable and probable grounds for arrest, trial judges determine whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest, and then whether those grounds were justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51. The objective assessment is based on “the totality of the circumstances known to the officer at the time of the arrest”: R. v. Tim, 2022 SCC 12, at para. 24.

[8] In this case, the totality of what the arresting officer (Officer Canham) knew came from multiple sources, including his own observations, investigative work and information from other officers, and information he received from the Ottawa Police Service (“OPS”), which included “confidential sources.” The trial judge, in his Charter decision, acknowledged, “little of this background information was conveyed to the officer who made the decision to order the arrests.” Officer Canham learned the following from Officer James Kusiewicz of the OPS: the “known suspect” was Kyanoush Rezaei; he is known to be involved with firearms and drug trafficking; and “it is believed” that he picks up from his “backend” (i.e., supplier) in Cornwall. The applicant submits that it appears no other information was conveyed to Officer Canham about either the confidential sources (including how many), their criminal records, their past reliability, the sources of their knowledge, whether they provided consistent information, the currency of their knowledge, their motivations, or other details about the known suspect and his activities.

[9] According to the applicant, the trial judge erred in failing to assess whether the confidential information on which Officer Canham relied was sufficiently compelling, credible, and corroborated, following the Supreme Court’s decision in Debot. Instead, the trial judge found that it was “reasonable” for Officer Canham to rely on information relayed to him by another police service. He explained his conclusion in the following terms, at paras. 71-73, 78-79:

Canham received information from OPS about the Applicant Rezaei. He did not inquire as to the reliability of the confidential information, nor did he ask how current it was. Det. Sgt. Canham testified that he was called by the Intelligence unit of the OPS and provided information about a surveillance on a target. He felt in those circumstances he was able to and did rely on the information, as being both credible and current. In all the circumstances it was reasonable for Canham to accept what he was told by OPS. Clearly by itself, the information was insufficient to form reasonable and probable grounds, but it was information that he was entitled to consider as part of his overall consideration.

Similarly, Canham was entitled to rely on the information that Mr. Rezaei was a firearms trafficker and his “back end”, or supplier was in Cornwall. The information received was corroborated by Canham’s own observations. Det. Sgt. Canham witnessed the Applicant arrive in Cornwall, proceed to one parking lot, leave a car, go to a second parking lot in the F150 and meet someone, exchange greetings with the person, wave the driver of the pickup truck to advance close to the Cadillac, then he saw something move from one vehicle to the other. Det. Sgt. Canham’s own observations provide corroboration to the information received from OPS.

The Crown seeks to tender evidence of the history of the CI (confidential informer information) for the purpose of proving the reliability. This information was not relayed to Det. Sgt. Canham, it was therefore not in his contemplation when forming his grounds to order the Applicants arrest. However, Canham was entitled to accept the information provided to him by the Intelligence Unit of the OPS. The context in which he was given the information was also considered by Canham. It was an active surveillance, as opposed to something from the past.

Canham further received information that Jordan Lazore was known to be trafficking in commodities; including drugs and firearms. Langlois provided Canham with information from his confidential source, and said it was dated. Canham was entitled to rely on the confidential information, as part of his grounds; together with all the circumstances. The dated nature of the information modifies the relevance, but does not render it irrelevant.

For the foregoing reasons, the Court finds that Det. Sgt. Canham formed reasonable and probable grounds to believe and did believe the Applicant Rezaei was trafficking in firearms. The information relied on by Canham was objectively reasonable, as was his opinion that he possessed the requisite grounds for arrest for firearms offences.

[10] The applicant submits that where an arresting officer relies on information from one or more confidential informants as part of their grounds to arrest, the trial judge must consider whether the confidential information is compelling, credible, and corroborated as part of their objective assessment of reasonable and probable grounds: Debot, at p. 1168. The applicant submits that it is not sufficient to conclude, as the trial judge did here, that it was “reasonable” for the arresting officer to rely on a conclusory tip from another police officer.

[11] While it will be for the panel hearing the appeal to reach conclusions on this argument, the alleged Debot error, in my view, clearly surpasses the arguable and not frivolous threshold and constitutes a credible ground of appeal.

[12] It is not necessary to review the other grounds of appeal in detail, but overall, they appear substantially weaker than the Debot ground. In particular, I find the argument that the conviction was unreasonable based on a failure to differentiate sufficiently between the applicant and his co-accused, Mr. Rezaei, to be an uphill climb for the applicant.

Public Interest Threshold

[13] The public interest component of the Oland framework includes two aspects: public safety; and public confidence in the administration of justice.

[14] With respect to public safety, the applicant argues that, but for these offences, he has no criminal record, and has complied with the terms of his release without issue for over two years, including five months post-conviction. Additionally, the applicant notes that the Crown did not seek to revoke his bail after he was convicted, despite the seriousness of the offences. Finally, the applicant highlights his strict, proposed appeal bail plan, which tracks the successful pre-trial bail plan, and includes supervision by his older brothers who are both Canadian citizens, without criminal records, who own property and are employed. The proposed appeal bail plan includes strict house arrest conditions, with exceptions only for medical emergencies, court appearances and counsel meetings, and in the direct presence of his sureties.

[15] The Crown does not raise public safety concerns specific to the applicant’s particular circumstances, but instead relies on broader concerns with those convicted of serious firearms offences. In its factum, the Crown asserts:

[T]he possession of illegal handguns always carries the threat of violence and bodily harm. Death by firearms in public places in Toronto are a plague on this city and must be deterred, denounced and stopped. This Court and other courts have repeatedly affirmed the notion that illegal handguns pose a significant threat to public safety that has been deemed cancerous. Public confidence would be undermined if an offender actively engaged in spreading that cancer is released pending a frail appeal.

[16] The Crown additionally relies on R. v. Abdullahi, 2020 ONCA 350, 150 O.R. (3d) 790, in which Jamal J.A. (as he then was), held that releasing a convicted gun trafficker pending appeal would pose a significant risk of undermining public confidence in the administration of justice, and endorsed the following remarks on this point:

This is a very serious gun case. It includes very serious allegations of criminality. In the minds of reasonable members of the community, considering the seriousness of those alleged crimes, permitting people who supply firearms to be free on bail pending trial may more seriously undermine confidence in the administration of justice than to release individuals who have purchased those guns, or who possess them, or who use them. If the suppliers were not present, neither would there be a supply of guns”: at para. 27, quoting Quigley J.

[17] The public confidence component involves weighing two competing interests: enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability relates to the need for a meaningful review process, and one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

[18] The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. That said, the absence of flight or public safety risks will attenuate the enforceability interest. With respect to reviewability, the strength of the appeal plays a central role: Oland, at para. 39.

[19] The likely delay in deciding an appeal, relative to the length of the sentence, is also a consideration, to ensure that the reviewability interest remains meaningful: Oland, at para. 48. In this case, it is unlikely that the applicant will have served a significant portion of his sentence prior to the appeal.

[20] In conducting a final balancing of the enforceability and reviewability interests, public confidence in the administration of justice is to be assessed through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.

[21] There is no dispute that the offences of which the applicant has been convicted are serious. The applicant concedes the seriousness of the offence, but argues that this does not automatically render his detention necessary for public safety, relying on this court’s decision in R. v. Ansari, 2023 ONCA 601, where the motions judge was satisfied that an applicant convicted of possessing 26.5 kg of carfentanil and 33 firearms for the purpose of trafficking and sentenced to 20 years in jail did not pose a “significant” risk to public safety. While this case differs from Ansari in a number of respects, it raises a similar issue with respect to whether the seriousness of a significant firearms offence, on its own, is sufficient as an enforceability interest, to outweigh the reviewability interest where the merits of the appeal clearly surpass the not frivolous threshold.

[22] In my view, as in Ansari, this case is a close call, but one which comes down on the side of granting the application for bail pending appeal. While the enforceability interest is high given the seriousness of the offence, it is mitigated by the applicant’s sustained and uninterrupted full compliance with strict bail conditions, the strength of the proposed, strict bail pending appeal plan, and the fact that the applicant is a first-time offender.

Disposition

[23] For these reasons, the application is granted on the terms set out in the draft order that the appellant has filed with the court.

“L. Sossin J.A.”