COURT OF APPEAL FOR ONTARIO DATE: 20230914 DOCKET: M54491 (COA-23-CR-0582)

Coroza J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Maisum Ansari Moving Party/Appellant

Counsel: Rameez Sewani, for the moving party Lisa Matthews, for the responding party

Heard: September 7, 2023 by video conference

ENDORSEMENT

OVERVIEW

[1] The appellant, Maisum Ansari, seeks bail pending appeal. The Crown concedes that his appeal is not frivolous but argues that the motion should be denied because the appellant is a flight risk and because detention is necessary in the public interest. For his part, the appellant argues that he is not a flight risk and that his appeal has substantial merit.

[2] The appellant has been convicted of extremely serious offences: possession of carfentanil and 33 firearms for the purposes of trafficking. The trial judge sentenced him to 20 years. [1] The drugs and firearms were found in the basement unit of a rental home which the appellant owned and rented to a friend named Babar Ali. According to the Crown, this is the largest seizure of carfentanil in Canadian history. At sentencing, the Crown relied on the expert evidence of forensic toxicologist Dr. Karen Woodall, who described the extreme and deadly potency of carfentanil. Dr. Woodall reported that carfentanil is up to 10,000 times stronger than morphine and 100 times stronger than fentanyl. Dr Woodall described carfentanil as a “highly potent opioid that has been implicated in numerous deaths”.

[3] The seriousness of the convictions and the sentence imposed are important considerations on this application. However, these considerations alone do not foreclose the appellant’s ability to obtain bail pending appeal: R. v. Papasotiriou, 2018 ONCA 719, 366 C.C.C. (3d) 298, at para. 44.

[4] In my view, the appellant has a strong plan of release, I am not persuaded that he is a flight risk, and his appeal clearly surpasses the “not frivolous” threshold. To be sure, the seriousness of the crimes the appellant has been convicted of has given me pause. But, under the circumstances, the appellant has satisfied me that his release is consistent with the just and proper functioning of our justice system.

[5] Accordingly, for the reasons that follow, I am satisfied that the appellant should be granted bail pending appeal.

RELEVANT BACKGROUND

The Trial

[6] On September 20, 2017, in response to a 911 call from the upstairs tenant, firefighters discovered, and police seized, 26.5 kg of carfentanil and 33 firearms from the basement apartment of a rental home owned by the appellant.

[7] A few weeks after the discovery, the appellant provided a videotaped statement to police in which he claimed to have rented the basement apartment out to “Waseem Khan”. This was not true – “Waseem Khan” did not exist. The appellant testified at trial that he lied to the police because he was afraid for the safety of his family.

[8] The only issues at trial were whether the appellant had the necessary knowledge of and control over the contraband in the basement and, in the alternative, whether he had knowledge that the illegal items were being stored in his basement and intentionally assisted the principal in committing the offences. For his part, the appellant pointed to Ali as the perpetrator of the crime. [2] He claimed he had no knowledge of the drugs and firearms in the basement.

[9] The Crown’s theory at trial was that the appellant was not necessarily the mastermind behind the criminal enterprise, but he was a “necessary cog in a larger operation”. He provided the necessary storage space for the contraband. In short, the appellant let Ali use his basement, knowing that he would be storing firearms and drugs and knowing or at least being willfully blind about the specific drug involved.

[10] The trial judge also found that the appellant lied to his mortgage lender about the house where the contraband was found and that he lied to the police in order to distance himself from the drugs and firearms. Ultimately, he rejected the appellant’s evidence as lacking any reliability or credibility. He concluded that the appellant’s lies were “an attempt by him to obscure his role in the enterprise”. Having rejected the appellant’s testimony and finding him incredible, the trial judge found that there was ample circumstantial evidence that the appellant knew about and exercised control over the drugs and firearms. That circumstantial evidence included:

• Seized communications between Ali and the appellant;
• Ali and the appellant’s relationship;
• The appellant’s attendance at the basement on August 4, 2017, and a photograph that he took of a box labelled “caffeine anhydrous”, followed by a web search conducted by the appellant using the search terms: anhydrous caffeine, alkaloid, and fentanyl;
• The appellant’s lies about Ali’s use of the basement;
• The appellant’s post-offence conduct, including lying to the police;
• Photographs and videos of the seizures; and
• Expert evidence on the value of the drugs and firearms.

[11] The trial was delayed and fragmented. The first phase of the trial started on March 15, 2021. It continued over multiple days in 2021 and 2022. In March of 2022, the trial judge granted the appellant’s motion to reopen the trial, and the trial continued in April of 2022. [3] The trial judge delivered reasons for conviction on February 1, 2023. The appellant remained on bail until the trial judge sentenced him to 20 years on May 29, 2023.

[12] On March 21, 2023, a second judge (the “application judge”) heard and dismissed a post-conviction application for a stay of proceedings based on a delay in the delivery of the trial judge’s reasons for conviction: R. v. Ansari, 2023 ONSC 1858. The sole issue before the application judge was whether the delay in delivering those reasons resulted in a breach of the appellant’s s. 11(b) Charter right warranting a stay of proceedings.

Compliance with Bail

[13] The appellant was released on bail for these charges on October 17, 2017. While on bail, in November of 2019, the appellant was charged with assault, assault cause bodily harm, dangerous driving, and fail to comply with release order, arising from a domestic assault on his ex-wife and her new partner. He pleaded guilty to a single count of assault, on May 26, 2022, and received a conditional discharge. The other charges were withdrawn as part of the plea agreement. Other than this incident, the appellant’s compliance with bail was flawless.

ANALYSIS

[14] To obtain bail pending appeal under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the appellant must establish that:

a. the appeal is “not frivolous” (s. 679(3)(a));

b. he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and

c. his detention is not necessary in the public interest (s. 679(3)(c)).

The Appeal is "Not Frivolous"

[15] The Crown concedes that the appellant has met his onus under the first ground in s. 679(3). I agree with that concession. There is a “very low bar” for the appellant to meet under this ground: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

The Appellant is Not a Flight Risk

[16] On the second ground, the appellant argues that he will surrender into custody in accordance with the terms of a bail order. He argues that he has no incentive to flee because he has a strong appeal. He will argue on appeal that there are serious errors in the trial judge’s analysis and that the trial judge repeatedly misapprehended his evidence on key points, as I outline below. He has proposed a release plan with a curfew (with an exception for work), and he will be under the supervision of his parents, who were the sureties that supervised him under bail for 5.5 years.

[17] The Crown argues that the appellant’s appeal is weak. It asserts that the evidence against the appellant was overwhelming, and that the trial judge’s negative findings as to the appellant’s credibility are owed deference. Given the stiff sentence that the appellant received, the Crown argues that there is a marked danger that the appellant will abscond on bail rather than face the consequences. According to the Crown, this powerful incentive to flee is even more pronounced because of the cross-appeal on sentence requesting this court to substitute a life sentence.

[18] While I agree that the convictions are for grave offences and that the sentence handed down by the trial judge reflects the seriousness of the crimes, I am not persuaded by the Crown’s submission that the appellant will abscond while on bail. The appellant was on bail for 5.5 years between his initial release and his sentencing. While his compliance with his pre-trial bail was not perfect because he was convicted for assault during that time, the appellant has explained the circumstances surrounding that offence. He pleaded guilty to the offence and received a lenient sentence. That sentence likely reflects the seriousness of that crime.

[19] Notably, the Crown did not seek to revoke the appellant’s bail at the time, notwithstanding his conviction for assault. This is not meant as criticism of the trial Crowns – their position was reasonable. I only mention this because it speaks to the likelihood that the appellant will abscond, a scenario that is remote. I note in this regard that on the Crown’s theory, the appellant’s powerful incentive to flee existed after sentencing submissions were made before the trial judge. Nevertheless, the appellant appeared to be sentenced before the trial judge knowing that at the very least, he would have to serve 16 years because that is the position his own lawyer took at the sentencing hearing.

[20] The appellant has children that he is supporting, and his parents have pledged a significant amount of money to secure the release of their son. He wishes to continue supporting his family and he does not want his parents to lose their money.

[21] In sum, I see no incentive for the appellant to flee under the circumstances.

The Appellant's Detention is Not Necessary in the Public Interest

[22] The appellant argues that his detention is not necessary in the public interest. The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, at para. 23.

Public Safety

[23] I am satisfied that public safety considerations alone do not justify the appellant’s continued detention. Other than the convictions for the offences under appeal, as noted above, the appellant’s criminal record consists of only one conditional discharge for an assault.

[24] Although the instant convictions relate to serious offences that undoubtedly would cause significant harm, the real issue on this application for bail is whether the appellant poses a significant risk to public safety. The appellant was released on bail for 5.5 years with no suggestion that he posed a significant risk. Indeed, the Crown did not seek to revoke his bail even after the trial judge convicted the appellant, and the appellant was permitted to remain on bail for another three months pending sentencing. I have reviewed the release plan of all three sureties, [4] and I am satisfied that there is no significant risk to public safety if the appellant is released.

Public Confidence

[25] The public confidence element involves weighing two competing interests: enforceability and reviewability. There is no question that the appellant was convicted of grave crimes that lead to a significant enforceability interest. But that interest is attenuated somewhat by the lack of flight risk and the absence of any concerns to public safety, given the appellant’s proposed plan of release and the absence of serious compliance issues during his pre-trial bail.

[26] As noted above, it is important for our justice system to have a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26. The real dispute in this case is where the scales should tip after balancing the reviewability and enforcement interests. That exercise involves a “pointed consideration” of the strength of the appeal: Oland, at paras. 40-41. On this application, the appellant filed his notice of appeal and an affidavit of trial counsel setting out his proposed arguments. I have reviewed those documents along with the application judge’s reasons for dismissing the appellant’s s. 11(b) application, and the trial judge’s lengthy reasons for judgment [5] and his reasons for sentence. While it is for a panel of this court to decide the merits of the appeal, at this stage of the proceedings, I am prepared to find that there are some credible arguments advanced by the appellant, and there are certainly some live issues that warrant a second look by a panel. In his notice of appeal, the appellant raises the following:

The Application Judge Erred in Dismissing the s. 11(b) Application

[27] The appellant did not press this ground in oral argument. I consider this ground of appeal to be weak. The appellant faces an uphill climb to convince a panel that the application judge made an error of law, considering the length of delay and the outcome in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364.

The Trial Judge Provided Insufficient Reasons

[28] The appellant impugns the quality of the trial judge’s reasons. However, the appellant, quite properly, does not argue this ground to be a standalone error, warranting a remedy. At this stage, the appellant is using this ground to supplement his arguments relating to the trial judge’s analysis on knowledge and control.

The Trial Judge Erred in His Analysis of the Elements of Knowledge and Control

[29] In my view, this is an argument that is in play. While the trial judge extensively canvassed the law of constructive knowledge, the appellant submits that there are shortcomings in the trial judge’s analysis and findings of the appellant’s control over the drugs and firearms. I agree that the trial judge’s application of his findings of fact to the law of knowledge appears to be at least somewhat conclusory. There is no question that the panel will conduct its own assessment with the benefit of complete transcripts of the evidence and will scrutinize the trial judge’s finding of actual or constructive knowledge. At this stage of the proceedings, I am prepared to say that the appellant’s argument about the lack of analysis on the control element is a credible one.

The Trial Judge Misapprehended the Evidence

[30] The appellant alleges that the trial judge misapprehended the appellant’s evidence, which caused him to incorrectly reject his testimony. For example, the trial judge disbelieved the appellant’s evidence that Ali threatened him to be quiet, because the appellant went to work right after and acted as if nothing had happened. The trial judge said this defied common sense. The appellant will argue that this was an ungrounded inference, since there is no commonsensical reaction to being threatened, and that at any rate the appellant did not act as if nothing happened.

[31] For its part, the Crown argues that since the trial judge found the appellant to be an admitted liar, there were ample grounds to disbelieve the appellant’s testimony, beyond those findings the appellant impugns.

[32] It is not for me to say whether the trial judge misapprehended the appellant’s evidence on these points. But the question for the panel will not be whether the appellant’s evidence warrants disbelief, either based on the record as a whole, or based on the other issues identified by the trial judge. The focus must be on the role the misapprehension played in the trial judge’s decision. As this court has recently held, the relevant inquiry for the misapprehension of evidence error is whether the material representation was essential to the trial judge’s reasoning: R. v. Yang, 2023 ONCA 526, at para. 16. This ground of appeal is a credible one.

The Verdicts with Respect to the Firearms Were Unreasonable Under s. 686(1)(a)(i)

[33] From my review of the reasons, the trial judge spent a great length of time explaining why he concluded the appellant had knowledge of the drugs. But the analysis in relation to the firearms is sparse. It may be that the trial judge implicitly assumed that if the appellant knew of the drugs, then he must have known about the firearms. At this stage, I am prepared to find that this ground of appeal is a live issue.

[34] Cumulatively, these grounds establish that the appeal clearly surpasses the “not frivolous” criterion. While it will be for the panel hearing the appeal to determine whether any of these grounds have merit, there are issues with the judgment that warrant further scrutiny.

Balancing

[35] Public confidence in the administration of justice is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.

[36] Notwithstanding that the enforceability interest is strong – given the seriousness of the offence for which the appellant was convicted – it is mitigated by the lack of flight risk and public safety risk, given the appellant’s proposed plan of release. Some of the grounds of appeal appear to be credible. This is a close call. But, when I balance the enforceability and reviewability interests together, I conclude that the reviewability interest outweighs the enforceability interest and therefore the appellant’s detention is not necessary in the public interest.

[37] In sum, when measured through the eyes of a reasonable member of the public, I am satisfied that public confidence in the administration of justice would not be undermined if the appellant were to be released pending appeal.

DISPOSITION

[38] For these reasons, the application is granted on the terms set out in the draft order that the appellant has filed with the court.

“S. Coroza J.A.”

[1] The Crown has filed a cross-appeal on sentence. [2] Ali pleaded guilty to the offences and received a sentence of 23 years. [3] The trial re-opened to accommodate the appellant’s newfound desire to testify, after Ali pleaded guilty in a severed proceeding. [4] In addition to his parents, the appellant proffers a family friend as a third surety. [5] The trial judge delivered oral reasons for judgment (173 pages of transcript).