COURT FILE NO.: CR-16-00009507-00BR DATE: 20170619 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – REHAN RIAZ Applicant
Ivana Denisov, for the Crown Scott Pearl, for the Applicant
HEARD: June 14, 2017
REASONS FOR DECISION
EDWARDS j. :
Introduction
[1] Mr. Riaz faces a number of drinking and driving offences, as well as a charge of drive disqualified and possession of cocaine. He was arrested on December 18, 2016, and was denied bail on December 22, 2016. Mr. Riaz seeks an order setting aside the detention order imposed by the justice of the peace on the basis of a material change in circumstances.
The Facts
[2] Mr. Riaz has a prior criminal record which includes two convictions for criminal negligence causing death and two convictions for criminal negligence causing bodily harm. These offences I am told occurred in 2008, and resulted in his conviction in 2010. He received a five year penitentiary sentence. He was released on parole after serving a substantial part of the sentence and completed his parole conditions in January 2015. In relation to these charges, I am advised that alcohol played a substantial role and that the deceased were close friends of Mr. Riaz.
[3] In relation to the offences in 2008, Mr. Riaz was released on bail. There is no evidence that he failed to comply with any of the bail conditions imposed on him in relation to the 2008 charges. There is also no evidence that he failed to comply with his parole conditions.
[4] On December 18, 2016, Mr. Riaz was charged with one count of impaired driving; one count of driving with a blood alcohol level over .08 mgs.; driving disqualified; and possession of cocaine. There is also a charge under the Highway Traffic Act of using an unauthorized vehicle number plate.
[5] Mr. Riaz was ordered detained by the justice of the peace, and in her Reasons Justice of the Peace Seglins stated at page 46:
Considering the plan, the Court finds as follows: The Court is not satisfied that the proposed sureties and their supervision plan is sufficient. Both sureties are well meaning. The court is quite convinced that Riaz Uddin, his father is hardworking and is very religious and leads by a good example. Raessa Naheed, the mother, is prepared to be at home at all times despite the fact that she is alone as everyone else is out working and she would provide supervision during the day.
[6] Justice of the Peace Seglins goes on in her Reasons, at page 47, to conclude:
So the Court finds that the plan is completely not a possible consideration. The plan lacks assurance for the Court that the accused will comply with the orders the Court would set and thus detention is ordered.
[7] At the time of the hearing of this bail review Mr. Riaz will have been in custody for approximately six months. His trial date is scheduled for October 30, 31 through November 1, 2017. If Mr. Riaz remains in detention until the time of his trial he will have spent approximately 319 days in custody, which with enhanced credit, will equate to 479 days in custody or approximately fifteen and a half months. As of today, with enhanced credit for the time that he has actually spent in detention Mr. Riaz will have served the equivalent of approximately nine months in custody.
Position of the Defence
[8] Mr. Pearl, on behalf of Mr. Riaz, advances three grounds upon which this application should be granted. In support of the application two new sureties were proposed on behalf of Mr. Riaz, specifically his brother and sister. It was proposed that if Mr. Riaz was released on bail he would live with his sister who presently is a stay-at-home mother looking after her young daughter. She and her husband live in an apartment and neither of them have access to a car. Neither of them drink alcohol.
[9] The plan of supervision is materially different, it is argued, from the one that was proposed to the justice of the peace, in that Mr. Riaz would be supervised primarily by his sister and by living with his sister he would not have access to any motor vehicle. The plan is also materially different because efforts have now been made by Mr. Riaz’s family to get him counselling through the Bellwood Treatment Centre (“Bellwood”). Evidence was presented to the Court that would suggest that family members have made enquiries of Bellwood. No actual application has been made and there will likely be some delay in Mr. Riaz being able to participate in any program at Bellwood should he be released.
[10] It was also argued on behalf of Mr. Riaz, as a secondary ground, that the justice of the peace erred by placing the onus on Mr. Riaz to show cause for his release rather than on the Crown. In that regard, Mr. Pearl argues that the following extract from the Reasons for Decision of Justice of the Peace Seglins demonstrates how she reversed the onus:
The Court must consider all of the evidence presented to it on the matters, the proposed sureties and the plan of supervision. The Court then will determine after hearing all of it and hearing the submissions from both of the counsel, can a proposed plan and the sureties address the grounds of concern identified by the Crown.
[11] Finally, Mr. Pearl on behalf of Mr. Riaz argues that the length of time that Mr. Riaz may have already served, or might be expected to serve prior to trial, is a factor that can be considered in determining whether to grant bail.
Position of the Crown
[12] Crown counsel argues that there has been no material change in circumstances, and that in essence all that is now being proposed by way of a plan of release suggested by Mr. Riaz is a “re-shuffling of the deck”. As for the suggestion that the justice of the peace erred by placing the onus on the Applicant, Crown counsel argues that the entirety of the Reasons of Justice of the Peace Seglins demonstrates that she was more than alert to where the onus lay, i.e. on the Crown, and that in fact her Reasons do not demonstrate a reversal of the onus as suggested by defence counsel.
[13] As for the argument that Mr. Riaz will have already served, or might be expected to serve, a longer period of time than the ultimate sentence that could be imposed on him if he is found guilty, Crown counsel argues that while this argument does have some merit, in reality the sentence Mr. Riaz can expect if he is found guilty will be well in excess of the amount of time he will have served by the time the case gets to trial in late October of this year.
Analysis
[14] Any analysis of an application for bail, or a bail review, must begin with the fundamental principle that any accused who stands before the Court is presumptively innocent of the charges. Mr. Riaz may be in detention as a result of the order of Justice of the Peace Seglins and participates in this bail review sitting in a prisoners dock with his hands in handcuffs. Nonetheless, he is still presumed innocent. This fundamental principle was recently restated by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, where at para. 66 Wagner J. stated:
…An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, “a hallowed principle lying at the very heart of criminal law… [that] confirms our faith in humankind”: R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119-20 [sic].
[15] Dealing with the argument suggested by Mr. Pearl that the justice of the peace reversed the onus by placing the onus on Mr. Riaz to show cause for his release, I agree with Crown counsel that when one reviews the entirety of the Reasons of the justice of the peace it is quite clear that the justice of the peace clearly understood where the onus lay. At the beginning of her Reasons she states:
…It is a Crown onus and the Crown must satisfy the court and give reasons why if you were released, there would be a substantial likelihood of you reoffending and/or put the public’s safety at risk. That is the secondary ground.
The justice of the peace reviewed the evidence, in particular the plan that was put forth for Mr. Riaz’s supervision were he to be released on bail, and was not satisfied that the plan would result in Mr. Riaz complying with the orders of the Court were he to be set free.
[16] I also agree with the position of the Crown that what may be described as the new plan advanced for Mr. Riaz’s supervision were he to be released, amounts to little more than a reshuffling of the deck. The comments of Hill J. in R. v. Ferguson, [2002] O.J. No. 1969 at para. 17, are particularly apropos when he states:
As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply re-shuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention…
[17] Like the comments of the justice of the peace who conducted the initial bail application, I was left with little doubt that both Mr. Riaz’s brother and sister are very well-meaning. They undoubtedly have the best interests of their brother at heart. What is proposed, however, in my view in the new plan of release, really is little different from what was proposed before the justice of the peace. While I also have little doubt that Mr. Riaz and his siblings will do everything to potentially further his application to Bellwood, there is little in the evidence that gives me the degree of confidence that he will in fact be able to participate in counselling were he to be released. I have little confidence that such counselling would take place prior to his trial.
[18] Crown counsel, in her argument, was entirely candid in acknowledging that the issue of Mr. Riaz’s continued incarceration and the possible outcome of the ultimate sentence he would face may constitute a material change of circumstances. In order to consider this argument, I engaged both counsel in discussion with respect to what the most likely outcome would be if Mr. Riaz is kept in detention and his trial results in a finding of guilt later this year. In my view, in order to properly consider this submission the Court requires the assistance of counsel in terms of what the likely sentence disposition would be in the event Mr. Riaz was found guilty. In engaging counsel in this discussion, it is important that the Court never lose sight of the fact that Mr. Riaz is entitled to his day in Court and is still entitled to the presumption of innocence.
[19] Crown counsel provided me with a number of authorities that would support a sentence at the low end of 12 to 15 months and at the high end of 18 months. Defence counsel provided me with a number of authorities that would suggest that the appropriate sentence and disposition was at the low end 5 to 7 months and at the high end 12 to 15 months.
[20] While this Court must consider the potential range of sentence that Mr. Riaz may face in the event he was found guilty, it would be entirely inappropriate to suggest any hard guidelines that a sentencing judge may ultimately have to consider should Mr. Riaz either plead guilty or be found guilty at his trial. Undoubtedly, any sentencing judge will take into account his prior criminal record for criminal negligence causing death and criminal negligence causing bodily harm, charges that arose out of an incident that apparently involved alcohol. As well, it will be particularly relevant for a sentencing Court to take into account that Mr. Riaz, at the time of his arrest on December 18, 2016, was driving while under a disqualification order of the Court in relation to the charges dating back to 2008.
[21] Having reviewed the various sentencing authorities that were referred to me by both counsel and recognizing that the Crown is proceeding by way of summary conviction, this Court accepts that at the low end Mr. Riaz could potentially face a sentence that in totality equates to 8 months incarceration, and at the high end might equate in totality to 15 months. It will readily be appreciated that if Mr. Riaz was found guilty and the sentencing Court found favour with the lower end of the range and Mr. Riaz remained in custody until the time of his trial, he will have served with enhanced credit fifteen and a half months which exceeds the lower end of the range that he is potentially presently facing.
[22] There has been surprisingly little jurisprudence that deals with this issue. I was referred by Mr. Pearl to R. v. White, 2010 ONSC 3164, [2010] O.J. No. 2269. In White, Hill J. stated at para. 10:
I am satisfied that, in all the circumstances, public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.
[23] I was not referred in argument to a recent decision of the Court of Appeal in R. v. Whyte, 2014 ONCA 268, where the Applicant argued in part that the passage of time and the probable outcome of sentence could constitute a material change in circumstances that would entitle her to change bail conditions. In Whyte, the Applicant’s pre-trial custody was such that she would have served a sentence at the upper limit of the sentencing range well before her actual trial would have commenced. With this in mind, Tulloch J.A. stated at para. 43:
In my view, this is a material change in circumstances that, coupled with the reduced risks that the appellant poses of interfering with potential witnesses and thus obstructing justice, favours granting judicial interim release. The severance of the applicant’s trial from her former co-accused’s trial, and the change in the anticipated date of trial, occurred after the bail judge rendered his decision. The amount of time the applicant will now serve in pretrial custody in excess of her anticipated sentence if convicted has increased significantly. As stated by Hill J. in R. v. White, 2010 ONSC 3164 at para. 10:
[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence.
[24] With these principles in mind, and accepting that if Mr. Riaz remains in custody there is a real risk that he may have been incarcerated for a longer period of time than he might otherwise receive by a sentencing judge, it would be entirely inappropriate to require that he remain in detention. In that regard it is worth noting that if Mr. Riaz was to either plead guilty or was to be found guilty, that the type of supervision suggested in the plan of release, which included a form of house arrest, would not be available to the sentencing Court. Simply put the type of supervision, through a properly formulated plan of release, cannot be imposed as part of a sentencing disposition even if it includes some form of probation.
[25] This Court therefore is prepared to release Mr. Riaz on the following terms:
a) He shall reside with his sister, Rukhshanda Riaz, at 2360 Birchmount Place, Apartment 215, Toronto, Ontario;
b) He shall be supervised either by his sister or his brother, Rafay Riaz, or alternatively if approved by the Crown as a surety, his mother or father;
c) He shall be supervised while residing at 2360 Birchmount Place, Apartment 215, Toronto, Ontario, by any of the aforementioned sureties subject only to him being allowed out of the residence to seek out and obtain employment, or to attend necessary medical appointments or addiction counselling at the Bellwood Treatment Centre in Toronto, or such other institution as may be agreed to by the Crown; and
d) It shall be a further stipulation of his release that he shall have no access to, nor shall he consume any alcohol or non-prescriptive drugs, nor shall he have access to nor shall he drive any motor vehicle.
If there are further terms of release that require discussion I may be spoken to.
