Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210624 DOCKET: M52557 (C69495)
Before: Brown J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen Respondent (Responding Party)
and
Feisal Noor Appellant (Applicant)
Counsel: Jessica Parise, for the applicant Craig Harper, for the responding party
Heard: June 16, 2021 by video conference
Endorsement
BACKGROUND
[1] The appellant, Feisal Noor, applies for release pending the determination of his appeal from convictions on two gun-related charges: possessing a loaded restricted firearm without an authorization, licence or registration certificate; and, possessing a firearm, knowing the serial number had been removed.
[2] The circumstances resulting in the charges against Mr. Noor were summarized by the trial judge in her reasons for sentence:
On November 16, 2019 at 3:23 a.m., Constables Perelli and Sottile arrived at the Shell gas station at 2435 Finch Avenue West in response to a 911 call about a man with a gun. The caller described buying a package of cigarettes at the gas station, then being approached by a stranger, who asked for a cigarette. After the caller gave him a cigarette, the stranger “flashed” a gun that was under his jacket, in his waistband, and said “peace”. While driving away, the caller saw the man knocking on the window of the gas station. The 911 operator was given the following description: male, black, about six feet tall, slim build, in his late 20s, wearing light blue pants and a hoodie that was yellow, blue and a little bit of red with the hood down, “more like a sweater type”.
The gas station attendant, Ashkar Patel, advised the officers that the suspect had come up to the window and asked Mr. Patel to call him a taxi. When Mr. Patel refused, the suspect walked east, away from the gas station. Mr. Patel described the suspect as male, black, with a gold earring in each ear, possibly having a gold tooth or teeth, wearing an orange hoodie.
The two officers began a search for the suspect. They drove slowly along Finch Avenue West, going east in the direction taken by the man with the gun. At 2400 Finch Avenue West, a plaza roughly 350 metres northeast of the gas station, both officers noticed a group of between six and eight men standing outside of a restaurant. One member of the group appeared similar to the description of the suspect. That man was Mr. Noor, who was a young, black man, about six feet tall, with a slim build, short hair, a goatee and facial hair along his jawline. He did not have gold teeth. The defendant had gold hoop earrings in his ears. He was wearing a light coloured pants, an orange sweatshirt and a red, orange and black jacket that had no hood and had large and distinctive white number 8s on the sleeves and back.
As Constables Perelli and Sottile approached the group on foot, Mr. Noor appeared startled. The defendant quickly moved away from the other men and tried to evade the officers. Constable Perelli said “hold on, man” and reached for Mr. Noor’s arm with the intention of placing the defendant under investigative detention. When Mr. Noor attempted to flee, a violent struggle ensued. The defendant was taken to the ground but put up such strong resistance that Constable Perelli was not able to get control of him. Mr. Noor had his arms under his body and appeared to be trying to reach into his jacket with his right arm. Constable Perelli was concerned that the defendant was reaching for a firearm. Ultimately, with the assistance of other officers, Mr. Noor’s arms were extricated from under his body, and he was handcuffed. When the defendant was rolled onto his side, his jacket fell open revealing the grip of a handgun in a pocket inside the jacket.
Mr. Noor was in possession of a restricted firearm, a Para USA, 1911 Elite Commander 45 caliber semi-automatic handgun with an obliterated serial number that had six rounds of ammunition in the magazine and another round in the chamber. The defendant was not the holder of a firearms acquisition certificate, license, or firearms registration certificate.
[3] Mr. Noor’s trial took place in the Ontario Court of Justice before a judge alone. On January 12, 2021, the trial judge held that the Crown had met the burden of establishing the lawfulness of Mr. Noor’s detention and the search incident to that detention. Given the defence’s admission of the essential elements of the offences, the trial judge entered convictions on both counts.
[4] On April 20, 2021, the trial judge gave oral reasons explaining how she decided that the appropriate total sentence would be 467 days in jail, followed by two years of probation. The trial judge released written reasons for sentence on June 16, 2021.
[5] Mr. Noor’s notice of appeal from conviction identifies two grounds of appeal: the trial judge erred in finding there was no violation of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms; and, she erred in failing to exclude the gun from evidence pursuant to s. 24(2) of the Charter.
[6] The Crown opposes bail pending appeal on two grounds. First, the Crown submits that the grounds of appeal do not rise above the “not frivolous” standard in s. 679(3)(a) of the Criminal Code. Second, Mr. Noor has failed to discharge his burden to prove his continued detention is not necessary in the public interest: s. 679(3)(c) of the Criminal Code.
[7] Since the transcripts of the trial are not yet available, on this application Mr. Noor relies upon the written reasons of the trial judge.
ANALYSIS
Not frivolous: s. 679(3)(a)
[8] The bar for establishing that an appeal is not frivolous is “very low”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by Watt J.A. in R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: “An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.” The purpose of the “not frivolous” threshold is to require the applicant to “demonstrate that the appeal has some merit. If this were not so, the appellate process could be abused by those intent on forestalling the execution of a custodial sentence”: R. v. T.S.D., 2020 ONCA 773, at para. 24.
[9] Mr. Noor submits that the police officers’ notes disclosed that they had arrested him, rather than detain him for investigative purposes as they testified on the voir dire. The trial judge noted that the detaining officer conceded, in essence, that there were no grounds to arrest Mr. Noor until the gun was discovered after he had been subdued. As well, Mr. Noor submits that the officers did not have reasonable grounds for an arrest as there were substantial differences between the description of the suspect and his own appearance. Therefore, the trial judge erred in characterizing the interaction as an investigative detention instead of an arrest. Even if it was an investigative detention, the police violated Mr. Noor’s Charter rights because they failed to explain to him the reasons for his detention, the fact of the detention or his rights under detention.
[10] On its part, the Crown argues that the trial judge turned her mind to the issue of identity and detailed the applicable standard for reasonable suspicion and the information available to the officer. The Crown contends that all deficiencies alleged by Mr. Noor were explicitly addressed by the trial judge in her reasons and the grounds of appeal do not rise above the frivolous standard.
[11] I am satisfied that Mr. Noor has demonstrated his appeal is not frivolous. On May 22, 2019 the Supreme Court of Canada released brief reasons in R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576. A week later, the court released reasons in R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631. Both were split decisions, reaching different results on the admissibility of seized handguns. Both cases involved ss. 8 and 9 Charter issues arising out of police interactions with the accused in outdoor places and their implications for the admissibility of seized handguns. Arguably, the decisions applied different appellate approaches to the facts found by the trial judges and the resulting characterization of the interactions between the police and the accused for purposes of ss. 8 and 9 of the Charter: see, for example, the majority’s response in Le at para. 24 to the criticism of the minority at paras. 244 and 308. Given that differing jurisprudence from the Supreme Court, and notwithstanding the deference usually accorded to a trial judge’s findings of fact, I cannot say that Mr. Noor’s arguments are frivolous.
Public interest: 679(3)(c)
[12] The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: Oland, at para. 23.
[13] The Crown submits that the offences for which the applicant was convicted are serious ones. I agree. The seriousness of the offences is apparent to anyone living in Toronto where firearms offences now occur with great frequency.
[14] In respect of the reviewability interest, the Crown submits that even if Mr. Noor’s grounds of appeal are not frivolous, his appeal amounts to a request for this court to substitute a different view of the evidence, a power not open to the court absent palpable errors. I do not accord much weight to this submission, for the reasons given in para. 11 above.
[15] The Crown argues that even if Mr. Noor’s release plan adequately addresses public safety concerns, analysis under the enforceability factor would show that public confidence would be undermined if an offender, such as Mr. Noor, who does not dispute his illegal possession of a loaded handgun that he carried and displayed in public is released.
[16] There is merit to the Crown’s submission. However, as Oland teaches, the assessment of the competing interests of enforceability and reviewability requires an individual qualitative and contextual assessment: at para. 49.
[17] Notwithstanding the serious nature of Mr. Noor’s offences and the lack of dispute about his unlawful possession of a loaded firearm in public places, balancing the enforceability and reviewability interests leads me to grant the application for bail pending appeal for three reasons.
[18] First, as mentioned, the divided nature of higher authorities on the ss. 8 and 9 principles applicable to police detentions and resulting seizures of guns in public places establishes arguable grounds of appeal by the applicant.
[19] Second, the applicant complied with his interim release terms pending sentence. The three individuals who acted as his sureties on pre-sentence interim release are prepared to act again as sureties on bail pending appeal: his mother, Zahra Abdalla Noor; his older brother, Mohamoud A. Abdirahman; and his uncle, Mohamed Abdi. They are prepared to increase the amount of bail from $11,000 to $25,000. It is clear from their affidavits that $25,000 represents a significant amount of money for them. The willingness of members of the applicant’s family to increase significantly the amount of bail strongly influences my decision to grant bail. It indicates that family members are materially invested, so to speak, in ensuring that the applicant complies with his conditions of bail pending appeal.
[20] Third, during the hearing I advised Mr. Noor’s counsel that granting bail would require the applicant to agree to a firm, quick perfection date. Applicant’s counsel subsequently advised that the transcripts should be ready by August 18, 2021 and counsel undertook to perfect this appeal by September 30, 2021. I accept that as a reasonably expeditious perfection date in the circumstances.
[21] My insistence on a firm, quick perfection date in part is a function of the serious nature of the offence for which the applicant has been convicted and in part a reaction against the unduly lengthy time it takes to perfect too many appeals in this court. A quick perfection date ensures that this appeal should be heard later this year or early next year, thereby limiting the amount of time Mr. Noor is out on pre-hearing bail. Given the frequency of bail variation applications in this court as a result of the failure to perfect in a timely fashion, I wish to emphasize, for the benefit of any colleague who might later have to consider an extension of this bail order, that had Mr. Noor not agreed to a quick perfection date, I would not have granted this application.
[22] Accordingly, on balance, I am satisfied that Mr. Noor has established that his detention pending the hearing of his appeal is not necessary in the public interest.
DISPOSITION
[23] For the reasons set out above, I grant the application for bail pending appeal, on the terms and conditions set out in the draft release order sent by Crown counsel by email dated June 18, 2021, at 5:36 p.m., from which I delete Condition 3 (“You must pursue the appeal with all due diligence”) and replace it with the following new Condition 3:
- You must perfect your appeal by September 30, 2021.
[24] Counsel may submit a revised Release Order for my signature.
“David Brown J.A.”