COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fundi, 2012 ONCA 227

DATE: 20120410

DOCKET: M41130 (C51151)

Hoy J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Abraham Fundi

Applicant

Breese Davies, for the applicant

Michael Bernstein, for the respondent

Heard: April 2, 2012

On an application for bail pending the determination of an application for leave to appeal to the Supreme Court of Canada.

Hoy J.A.:

[1] The applicant, Abraham Fundi, was involved in the violent, armed robbery of about $500,000 of jewellery and $35,000 of cash from a jewellery store in November 2006. Cell phone records were used by the police in their investigation. Jewellery and cash were found at the applicant’s home. The applicant was convicted of conspiracy to commit robbery and possession of property obtained by crime and sentenced to five years imprisonment. This court upheld his conviction: R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641. He is currently incarcerated in a minimum security institution.

[2] The applicant now seeks bail pending the determination of his application for leave to appeal to the Supreme Court of Canada. The Crown opposes bail.

[3] The test for bail pending an application for leave to appeal to the Supreme Court of Canada is set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46. This court may grant bail if the applicant establishes: (a) his application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of any release order; and (c) his detention is not necessary in the public interest.

[4] For the reasons that follow, bail is denied.

(a) Merits of the leave to appeal application

[5] In the course of their investigation, the police obtained conventional search warrants under s. 487 of the Criminal Code to obtain cell phone records and to search the homes of the applicant and other suspects. The trial judge found that the warrants were improper. However, the trial judge admitted the cell phone records obtained under one of the two warrants issued in respect of phone records and the evidence seized under the residential warrants under s. 24(2) of the Charter. In the case of the cell phone records admitted, the trial judge concluded that, while the information furnished did not support the issuance of a warrant under s. 487 of the Criminal Code, it would sustain a telephone records order under s. 492.2(2). Section 492.2(2) allows a justice to order provision of a copy of telephone records if there are reasonable grounds to suspect that an offence has been or will be committed and the information would assist in the investigation of the offence.

[6] The applicant’s ground for appeal is that s. 492.2, which permits access if a reasonable suspicion is made out, is unconstitutional. He submits that s. 8 of the Charter requires a reasonable grounds standard before citizens’ privacy interests in cell phone records gives way to the state’s interest in law enforcement. Counsel for the applicant concedes that this court declined to entertain argument on the constitutionality of s. 492.2 on the basis that it was not argued at trial, there was an insufficient evidentiary foundation, and the Crown would be prejudiced. The applicant argues that this court erred in doing so, because s. 492.2 affected the trial judge’s s. 24(2) analysis. Counsel for the applicant submits that the pervasive use of cell phones makes the constitutionality of s. 492.2 of national interest.

[7] The Crown agrees that the constitutionality of s. 492.2 is an important issue. The Crown argues, however, that given this court declined to consider the issue as it was not argued at trial, it is so remote that leave would be granted by the Supreme Court of Canada that the appeal is, in fact, frivolous. An order was not issued under s. 492.2(2). The existence of s. 492.2(2) was simply a factor in the trial judge’s s. 24(2) analysis. Moreover, the Crown submits that there is no conflicting appellate authority on the issue.

[8] Leave to appeal is granted sparingly by the Supreme Court of Canada. Given that the constitutional issue was not argued at trial, or before this court, and the lack of inconsistent appellate authority, in my view the chances of leave being granted are remote. However, as Doherty J.A. observed in R. v. Drabinsky, 2011 ONCA 647, 276 C.C.C. (3d) 277, it is difficult for a judge of this court to determine whether an application for leave to appeal to the Supreme Court of Canada is frivolous. Like Doherty J.A. in R. v. Drabinsky, I am prepared to accept that this application clears that low hurdle, because the applicant has not, in my view, shown that his release is in the public interest.

(b) Flight Risk

[9] The applicant was on bail, without incident, for an aggregate of nearly five years, before trial, pending appeal to this court, and again pending the release of this court’s decision. He surrendered himself into custody when required. His home, his family, including his children, and the family business are in Toronto. Family members are again proposed to be his sureties.

[10] The Crown does not argue that the flight risk criterion warrants the denial of bail in this case. I am satisfied that the applicant will surrender into custody in accordance with the terms of any release order.

(c) Public Interest

[11] Counsel for the applicant concedes that the applicant was convicted of a serious crime, and that it is in the public interest that those convicted of crimes serve their sentences. Counsel for the applicant argues, however, that if the court is satisfied that the applicant will surrender into custody, that interest will ultimately be satisfied if the applicant is unsuccessful.

[12] The public interest criterion in s. 679(3)(c) was discussed by a five-judge panel of this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.). Arbour J.A., for the court, explained the meaning of the “public interest” in this context:

The concerns reflecting public interest, as expressed in the case law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The “public interest” criterion in s. 679(3) of the [Code] requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

[13] As noted by Doherty J.A. in R. v. Drabinsky, at para. 9:

Where an accused is convicted of a serious crime and sentenced to a significant jail term, public confidence in the effective operation of the justice system must suffer if years go by before the accused serves that sentence.

And at para. 10:

The pendulum must swing towards enforceability and away from bail pending further review after the correctness of the convictions entered at trial has been confirmed on appeal.

[14] On this application, the balance is in favour of enforceability. The applicant has been convicted of a serious and violent crime, and remained at liberty for almost five years after committing the crime. His conviction was confirmed on appeal to this court. The applicant has no further right of appeal and only has what I consider a remote chance of obtaining leave from the Supreme Court. Any right of review that the applicant has is tenuous. The public interest requires that the general rule of immediate enforcement of judgments be observed.

[15] Counsel for the applicant argues that if leave is granted, and bail has not been granted, the applicant risks completing the entire custodial portion of a sentence in respect of a conviction that may be overturned. The parties expect that the Supreme Court will determine whether leave will be granted by June of this year. If leave is granted, it is open to the applicant to then seek bail, on the basis of the change in circumstances.

Released: April 10, 2012 “Alexander Hoy J.A.”

“AH”