Court of Appeal for Ontario

Date: 2018-03-05 Docket: M48877 (C63271) Motion Judge: Fairburn J.A.

Between

Her Majesty the Queen Respondent

and

Renzzo Iraheta Moving Party

Counsel

Mark Halfyard, for the moving party

Philippe Cowle, for the respondent

Heard

March 1, 2018

Endorsement

Overview

[1] Renzzo Iraheta seeks bail pending appeal.

[2] He was convicted on December 16, 2016 of possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code and possession of a prohibited firearm under s. 92(1). He was sentenced on January 17, 2017, receiving 96 months on the s. 95(1) offence and a concurrent 80 months on the s. 92(1) offence. He was granted a total of 44 months credit for pre-sentence custody and "lockdown conditions", leaving four years and four months to serve. As of today, he has about 3 years and 2.5 months left to serve.

[3] Accepting that the appeal is not frivolous and that the accused will surrender himself into custody in accordance with the terms of any release order that may be imposed, Crown counsel does not oppose bail under s. 679(3)(a) or (b) of the Criminal Code. Instead, the Crown opposes bail on the basis that the appellant has failed to demonstrate that his detention is not necessary in the public interest. Accordingly, the parties focus their submissions on this issue.

[4] I agree that the appellant has met his onus on the first two prongs of the analysis. I am satisfied that the appeal is not frivolous and that the appellant will surrender himself into custody as required. The question for determination is whether the appellant has shown, on a balance of probabilities, that his detention is not necessary in the public interest: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. For the reasons that follow, I find that the appellant has failed to meet his burden under s. 679(3)(c).

Analysis

[5] There are two components to be considered under the public interest criterion: public safety and public confidence in the administration of justice (Oland, at para. 26). I start with the safety consideration.

[6] As fairly acknowledged by counsel, the appellant has been convicted of serious offences. A brief review of the factual backdrop for the offences suffices to make the point. I take these facts from the written reasons of Himel J., dismissing the appellant's Charter arguments.

[7] The appellant was arrested while in a motor vehicle on December 3, 2014. Two shivs were located in his jacket pocket during a search incident to arrest. Another shiv was found in the car that he had been driving. Shortly after his arrest, a residence that he had been associated to was searched under warrant. Among other things, a Remington sawed-off shotgun and a loaded Ruger handgun were located in the residence. A vehicle parked behind the residence was later searched under warrant. The car contained a Ruger machine pistol and a magazine holding 30 rounds of ammunition, as well as ammunition for other types of firearms.

[8] On their own, these facts engage serious public safety concerns. The concerns are heightened by the fact that, at the time of these offences, the appellant was the subject of a firearms prohibition order resulting from his previous conviction for possession of a firearm.

[9] The appellant acknowledges his criminal record, which includes youth offences, including a breach of probation. He also has an adult conviction for possessing a firearm, where he received a 3.5 year sentence. He twice violated his parole while serving this sentence, leading to his re-incarceration and the requirement that he serve the duration of the sentence in custody. Although the appellant explains that his parole breaches arose from the consumption of marijuana, a substance he was ingesting to regulate pain arising from a motor vehicle accident, this explanation does not diminish the fact that he breached his parole on two occasions.

[10] In respect to the offences giving rise to the most recent convictions, the appellant was not successful in obtaining bail before trial. He explains that he was denied bail because of the number of additional charges he was facing at the time, including a heroin related charge. Leaving aside the reasons for why the appellant was denied bail pending trial, the reality is that he finds himself without a track record for bail compliance, something that he might otherwise point to in an effort to assuage concerns over public safety.

[11] To the extent that the appellant has developed a track record for modifying his behaviour based on directions given, it is an unenviable one. The parole and weapons prohibition order breaches point toward real concerns about the likelihood of reoffending. With his most recent convictions, the appellant has now been found guilty of being in possession of multiple different prohibited firearms, one of which was loaded. He also had weapons on him when he was arrested and had access to an abundance of ammunition. I find that the public could be at real risk if the appellant were to be released.

[12] My concerns are not allayed by the plan proposed for release. Although the surety put forward, the appellant's uncle, seems like an upstanding citizen, despite his best efforts, I have little confidence that the uncle could control his young nephew. The uncle works full time as a mechanic at an autobody shop. Although he says that his nephew can work with him, and that he will monitor his nephew's work, there is no information from the employer that this can occur. Nor am I satisfied that, in the circumstances of this case, the proposed plan would effectively counterbalance the risks to public safety.

[13] Although the public safety considerations alone call out for detention pending appeal, I will go on to briefly consider the broader inquiry into the public's confidence in the administration of justice, an inquiry that rests on both enforceability and reviewability interests.

[14] These are serious offences and there is no real dispute that the enforceability component points toward detention. Public safety concerns also inform the enforceability component. As noted by Moldaver J. in Oland, at para. 39, public safety concerns that fall short of the "substantial risk mark" remain relevant when considering the public confidence component and, in some cases, "tip the scale in favour of detention". Even if the appellant does not represent a substantial risk to the safety of the community, he certainly represents a considerable risk. The facts of the offence and the lengthy period of imprisonment directly intersect with the application of the criteria set out in s. 515(10)(c)(ii), (iii) and (iv) of the Criminal Code, as adapted for consideration under s. 679(3)(c): Oland, at para. 38. There is little that diminishes the pull of enforceability in this case.

[15] The interest in enforceability is to be balanced against the interest in reviewability, reflecting "society's acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process": Oland, at para. 25. The strength of the grounds of appeal must be taken into account.

[16] The appellant focusses on three of his grounds of appeal. Although I find that the grounds of appeal are not without merit, my preliminary assessment is that they are a good ways from being sure to succeed.

[17] The first ground relates to whether the police were duty bound to obtain another search warrant when they realized that the residence they were authorized to search was split into two units. The appellant relies upon R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, in support of this proposition. I simply note that Ting is a factually different case than this one and, in my estimation, falls some distance from being determinative of the suggested error.

[18] The second ground of appeal relates to the sufficiency of grounds supporting the reliability of the confidential informant. The appellant relies heavily on R. v. Debot, [1989] 2 S.C.R. 1140. I observe that the trial judge was well aware of the criteria by which to assess confidential informant information, she considered the facts related to the relevant criteria and appears to have correctly applied the R. v. Garofoli, [1990] 2 S.C.R. 1141 standard of review.

[19] The final ground of appeal relates to whether Garofoli step six can be applied when considering the sufficiency of grounds for arrest. The appellant maintains that this issue is yet to be commented upon in this court. He also argues that there is a live issue about whether, even if step six can be invoked in this context, evidence gathered incident to the arrest can be admitted at trial. I accept that the appellant's argument in this regard is somewhat novel and to be developed. On the basis of the law as it currently stands, though, the appellant will have to persuade this court of the correctness of his novel position. In other words, there is no authority that currently supports the suggestion of an error.

[20] I now move to the final balance. As Moldaver J. noted at para. 49 of Oland, "in the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required."

[21] This assessment leads me to conclude that the appellant is not a good candidate for release. His record for a firearm related offence, the shivs he had on him when he was arrested, his breaches of parole, his conduct in the face of a weapons prohibition order, and the seriousness of the offences with which he has been convicted, all point toward serious public safety concerns. The interest in enforceability is strong. Although the grounds of appeal are not frivolous, there is nothing that currently suggests that, pending his appeal, the appellant is at risk of continuing to serve a sentence that he will not have to serve one day.

[22] The appellant has failed to show why his detention is not necessary in the public interest. Having regard to the entire context of this matter, I find that a reasonable member of the public would lose confidence in the administration of justice if the appellant were to be released pending his appeal: Oland, at para. 47; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paras. 74-80.

[23] In reaching this conclusion, I have had regard to the fact that the appellant is well along in his sentence. His earliest day parole date is in April of this year and he will reach full parole eligibility in December 2019. The parties are encouraged to do what they can, as I am sure they will, to move the matter along.

Conclusion

[24] The application for release pending appeal is dismissed.

[25] Thank you to counsel for their assistance in this matter.

"Fairburn J.A."