COURT OF APPEAL FOR ONTARIO

DATE: 2023-08-14 DOCKET: M54453 (C70338)

Sossin J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Rene Hamouth Applicant/Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the applicant Jim Clark, for the respondent

Heard: August 11, 2023 by videoconference

Endorsement

Overview

[1] The applicant seeks bail pending his application for leave to appeal to the Supreme Court of Canada. The Crown contests this application. For the reasons set out below, the application is granted.

[2] The applicant was convicted by Feldman J. of the Ontario Court of Justice in Scarborough of four counts of unauthorized possession of a firearm contrary to s. 91(1) of the Criminal Code, four counts of possession of a firearm knowing the possession is unauthorized contrary to s. 92(1) of the Criminal Code, and four counts of possession of a firearm that is loaded or with ammunition readily accessible contrary to s. 95(1) of the Criminal Code. On February 28, 2022, the applicant was sentenced to 30 month concurrent sentences on the four s. 95(1) counts, while the other counts were stayed.

[3] The applicant’s appeal to this court was dismissed (apart from one aspect of the conviction dealing with a firearm that is not in fact restricted), with reasons now reported at 2023 ONCA 518. On August 8, 2023, the applicant served and filed an Application for Leave to Appeal to the Supreme Court of Canada.

Bail pending leave to appeal to the Supreme Court

[4] The test for bail pending leave to appeal to the Supreme Court is the same as bail pending appeal generally and is well settled. The applicant must establish, under s. 679(3) of the Criminal Code, that: a) the application for leave to appeal is not frivolous; b) the applicant will surrender themselves 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, [2017] 1 S.C.R. 250, at para. 19.

[5] The parties agree there is no concern about the applicant surrendering himself into custody as required, nor that he has complied with previous bail conditions throughout the period leading up to his trial, and then his appeal before this court (a total of 49 months). The applicant therefore has satisfied the criterion in s. 679(3)(b). The only issues in dispute are: (1) whether the application for leave is frivolous; and (2) whether detention is necessary in the public interest.

The application for leave to appeal is not frivolous

[6] On appeal before this court, the applicant raised three grounds of appeal. First, the applicant argued the trial judge erred in rejecting the applicant’s pre-trial s. 8 Charter application, which claimed that there were insufficient grounds contained in the “Information to Obtain” (ITO) to support the search warrant that resulted in the seizure of the firearms and ammunition. Second, the applicant argued the trial judge erred in his disposition of the applicant’s s. 10(b) Charter application, claiming that the applicant’s right to counsel was infringed by the police in its questioning of the applicant. The trial Crown had conceded that the incriminating statements elicited from the appellant could not be adduced in evidence. The trial judge concluded that while the applicant’s s. 10(b) Charter rights had been violated, the breaches were not such that the firearms and ammunition should also be excluded from the evidence pursuant to s. 24(2) of the Charter. An aspect of the trial judge’s finding in this regard was that there was no causal connection between the s. 10(b) violations and the discovery of the firearms. According to the trial judge, the lack of any causal connection between impugned evidence and a Charter breach rendered exclusion unnecessary to maintain the long-term repute of the justice system. Third, the applicant challenged the trial judge’s finding that he was in possession of the firearms. As indicated, the court rejected each of these grounds of appeal.

[7] With respect to whether the application for leave to appeal is frivolous, the applicant argues two grounds of appeal, in particular, justify leave to appeal to the Supreme Court.

[8] First, the applicant argues that the court of appeal erred in upholding the trial judge’s ruling on the validity of the search warrant that led to the seizure of the firearms, in part because that ruling ignored the exculpatory hypothesis that the firearms were not in the possession of the applicant but rather his son, who was the subject of the police investigation.

[9] Second, the applicant argues that the lack of a causal connection between the s. 10(b) Charter breach and the locating of the contraband firearms should not have been given the determinative consideration that factor received in admitting the contraband firearms pursuant to s. 24(2) of the Charter. The applicant submits that the ‘causal connection’ concept arose in the context of derivative evidence and discoverability of derivative evidence; it was not meant to be a concept generally applicable in all Charter cases and accordingly has come to be misunderstood and improperly applied to the prosecution in securing admission under s. 24(2) of the Charter.

[10] As the applicant frames this issue in his notice of application for leave to appeal to the Supreme Court:

[T]here is no reason in policy or principle to allow police to behave more badly after evidence has been found than before it is found; Charter violations after are more likely and should be less forgivable; the police attitude after discovery is one of dealing with ‘known’ criminals, an attitude less conducive to respect for Charter rights.

The applicant characterizes this ground of appeal as novel and as one that has not yet been the subject of a Supreme Court decision.

[11] The Crown acknowledges that the “not frivolous” bar is low, but nonetheless contends that it is not met in the circumstances of the applicant. The Crown submits that both grounds of appeal highlighted by the applicant formed part of the arguments before this court which were unanimously rejected. The Crown adds that the applicant has pointed to no case law which conflicts with the trial judge’s findings or this court’s analysis.

[12] The grounds of appeal raise important issues for the administration of criminal justice, which were given serious consideration by this court. The applicant has raised at least a plausible basis to argue there are novel aspects to these issues which could justify leave. In my view, the applicant’s grounds for appeal meet the threshold of being not frivolous, which is not to say that obtaining leave to appeal to the Supreme Court is likely. It is not.

Detention is not necessary in the public interest

[13] The more difficult issue is whether the applicant’s detention is necessary in the public interest. Where an application for bail post-conviction turns on the public interest criterion in s. 679(3)(c), the court must determine whether the principle of enforceability is outweighed by the principle of reviewability.

[14] In this regard, this court has emphasized that the leave to appeal process is uncertain: R. v. Drabinsky, 2011 ONCA 647, at para. 6. The parties do not dispute that the rate of success of such applications is low and the length of time to have a leave application resolved is approximately 3-6 months: see Drabinsky, at para. 12.

[15] In such contexts where applicants already have exhausted their right of appeal, the enforcement interest often will outweigh the reviewability interest: R. v. Motayne, 2022 ONCA 701, at paras. 22-29; and R. v. Shaheen, 2022 ONCA 773, at paras. 14-16.

[16] The applicant argues that his case may be distinguished from others for which bail has been denied on two grounds. First, the applicant, who is 74 years old and in poor health, has no criminal record. The applicant referred me to a brief Quebec Court of Appeal decision in which an applicant without a criminal record and where it was not disputed that the applicant posed no risk to public safety was granted bail: K.C. c. R., 2023 QCCA 312. Additionally, the applicant submits that the crimes for which the applicant was convicted, while attracting penitentiary sentences, are towards the lower end of the spectrum of seriousness.

[17] Second, the time it will take for the leave to appeal application to be resolved will constitute a significant portion of the applicant’s sentence of 30 months, unlike the applicants in the other cases where bail pending leave to appeal to the Supreme Court has been denied (see, for example, R. v. Campbell, 2023 ONCA 48, at para. 25).

[18] The Crown contends that neither distinction justifies bail pending appeal for the applicant, or affects the principle that, at this stage, enforceability factors outweigh reviewability factors.

[19] In my view, the two factors raised by the applicant, taken together and in the context of the overall circumstances of this application, do distinguish this case from others for which bail pending leave to appeal to the Supreme Court of Canada has been dismissed.

[20] With respect to the seriousness of the offence, the sentencing judge observed that the applicant’s conduct “falls on the lower end of the true crime spectrum of gun offences” given that the possession of firearms was not connected to other criminal activity and there was no evidence of gang involvement, drug trafficking or violence beyond the inherent risk flowing from the possession of the firearms themselves.

[21] Additionally, the leave process in this case may cover a material portion of the applicant’s 30 month sentence, unlike the longer sentences in the cases of Campbell, Motayne and Shaheen. In R. v. Snelgrove, 2023 NLCA 21, the Newfoundland and Labrador Court of Appeal granted an application for bail pending an application for leave to appeal to the Supreme Court of Canada to an applicant who has been sentenced to four years imprisonment, less time served, for a sexual assault. F.J. Knickle J.A. observed:

[44] However, when I balance the merits of the interests in the enforceability of the conviction with the reviewability of the conviction, and the fact that there is a good plan in place to address the terms of release, and that there are no safety concerns, the balancing favours release. I also do not ignore that the process of challenging this Court’s decision will take time, possibly longer than the sentence Mr. Snelgrove is serving. As stated, the enforceability concern is mitigated by the fact that there is no doubt that if unsuccessful, Mr. Snelgrove will be returned to custody. [Emphasis added.]

[22] In this case, these distinguishing factors indicate a lower enforceability and higher reviewability interest. While this case is close to the line, I conclude that the applicant has met the threshold of establishing that detention is not necessary in the public interest during the period of time while the applicant is seeking leave to appeal to the Supreme Court of Canada.

[23] For these reasons, the applicant has met the test under s. 679(3) of the Criminal Code, that: the application for leave to appeal is not frivolous; the applicant will surrender themselves into custody in accordance with the terms of the release order; and the applicant’s detention is not necessary in the public interest. Therefore, the application is granted.

[24] The Crown has confirmed that in the event the applicant is granted bail, the conditions as proposed in the draft order are acceptable. Once finalized, the order reflecting those terms will be issued.

“L. Sossin J.A.”