COURT FILE No.: Region of Durham 998 10 25055
DATE: 2012·01·05
Citation: R. v. Neshan, 2012 ONCJ 4
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Kuhen Neshan
Ramanan Kenegarajah
Before Justice J. De Filippis
Heard on December 21, 2011 and January 4, 2012
Reasons for Judgment released on January 5, 2012
Mr. M. Flagg .............................................................................................................. for the Crown
Ms H. Jamshidi .................................................................................................. for Kuhen Neshan.
Mr. B. Scott............................................................................................. for Ramanan Kenegarajah.
De Filippis, J.:
[1] This is an application, pursuant to section 523 of the Criminal Code to set aside a detention order previously made against Mr. Neshan and Mr. Kenegarajah. After considering evidence and submissions at a hearing that lasted one and one-half days, I dismissed the application for reasons to follow. These are my reasons.
[2] The Applicants are two of six defendants named in multi-count Information alleging fraud and related offences. They were arrested on March 3, 2010 and the two Applicants have been in custody since then. The trial commenced before me on May 10, 2011 and has continued over 19 days since that time, with four additional days of evidence scheduled in March 2012. It is expected that closing submissions will follow shortly thereafter.
[3] At the initial bail hearing the Applicants were in a reverse onus situation; that is, the nature of some of the charges faced by the Applicants imposed an onus upon them to show why they should be released. Pursuant to section 515(10) there are three grounds for ordering the detention of an accused person pending trial, namely, to (1) ensure the accused will attend court, (2) ensure the safety of the public, including victim/witnesses and prevent interference with the administration of justice, and (3) maintain public confidence in the administration of justice. In previous decisions it was held the Applicants had failed to discharge the onus upon them.
[4] Subsections 523(2) provides as follows:
Despite subsections (1) to (1.2),
(a) the court, judge or justice before which or whom an accused is being tried, at any time,
(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or
(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,
(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
(iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
[5] The hearing held pursuant to subsection 523 (2) is not, strictly speaking, a bail review. In R v Prete [1987] O.J. No. 2480, Justice Watt commented upon the predecessor section as follows:
In my respectful view, it is incumbent upon an applicant under subsection 457.8(2) to demonstrate, on a balance of probabilities, a substantial change in circumstances in a respect material to the basis upon which detention has been ordered, namely, the primary or secondary ground, in order to discharge the onus of showing cause placed upon him or her under the subsection. The subsection does not envisage a hearing de novo akin to that held at first instance under Section 457.7(1), nor an examination of such a hearing to identify error, which is clearly the function of a review under Section 608.1.
In considering the aforementioned comments, Justice Wake, in R v Ibrahim [2009] O.J. No. 3587, in entertaining a similar application stated, “it would be helpful to have a transcript what occurred at the [original bail hearing] to give some context into what material changes and circumstances may have occurred”. I have reviewed the relevant transcripts in this matter.
[6] The show cause hearing for Mr. Kenegarajah was held on March 11, 2010. Justice of the Peace Degannes received the allegations with respect to the 86 charges faced by the Applicant, heard from prospective sureties, and considered the proposed release plan. The justice ordered the Applicant detained pending trial notwithstanding that he does not have a criminal record or other outstanding charges. She found the Crown case to be a strong one and that the charges are serious and held as follows: “The question is, can a form of release with appropriate conditions and a proper plan ensure that the accused will effectively be supervised on the basis of the primary, secondary and tertiary grounds, given all that has come before the court today….the answer to that question is no. The court is not satisfied that there is an overall plan in place that the court takes comfort in…”. In this regard, the justice stated that she was not satisfied with surety who was described as “merely an acquaintance from the temple”.
[7] Mr. Kenegarajah launched a bail review and proposed three new sureties. On April 28, 2010, Justice Lack heard and dismissed the application. She found no error in the reasons of the justice of the peace and held as follows:
The issue is whether the production of three new sureties in addition to the surety proposed at the bail hearing is a material change in circumstances….I do not find there has been a material change in circumstances. This is a reverse onus situation. The accused is not a Canadian citizen. He apparently has no job, no immediate family such as a wife and children and his actual residence appears to be open to question.
Justice Lack was not satisfied with the three sureties because of their limited relationship with the Applicant and concern about the source of their assets. A further bail review was dismissed by Justice Sosna in December 2010.
[8] The show cause hearing for Mr. Neshan was heard over two days by Justice of the Peace Massiah. On April 1, 2010, he ordered that the Applicant be detained pending trial. The justice found the Crown’s case to be “very strong” and that the charges are serious. He accepted that the Applicant has a wife and children in the community but doubted the legitimacy of his past and proposed employment. The justice stated he was not satisfied the proposed sureties could properly supervise the Applicant and added as follows: “ I go one step further to say even with a good surety and a proper plan, based on all of the alleged activities, your actions, involvement , so on and so forth, this court is certainly not confident you will abide by any court order”. In coming to this conclusion, the justice relied, in part, on the fact that the Applicant “may be subject to a deportation order”. It is now known there is no such order.
[9] A bail review with respect to Mr. Neshan was heard on was heard on Sept 15 & 17, 2010 by Justice Salmers. He considered the new release plan put forward by the Applicant and dismissed the application. Justice Salmers stated that the Applicant faced 90 fraud related charges and described the Crown’s case as “relatively strong” with substantial losses to the victims. The justice noted that while the Applicant has family in Canada, he has no “real job” and all his Canadian assets were seized by police. The Applicant was found to be a risk on primary and secondary grounds and his proposed sureties were rejected because both lacked credibility and the first was merely an acquaintance from the temple.
[10] The present application is grounded in the assertion that the proposed release plan is better and the new sureties are more reliable. The Crown disputes this assertion and argues, in any event, that the Applicants are not suitable candidates for bail under any circumstances. What the Applicants have not asserted is that the evidence called at trial, now in its final stages, has undermined the claim made about the strength of the Crown’s case and the seriousness of the charges and the impact of this on the primary and secondary grounds. The significance of this was the subject of comment by Justice Duncan in R v Cole [2002] O.J. No. 4662. In that case, the application was brought at end of a preliminary inquiry in which the applicant had been ordered to stand trial on a charge of conspiracy to commit robbery but discharged on the second count of using a firearm in the commission of a robbery. Justice Duncan considered section 523(2) and stated:
I think some insight into the phrase "on cause being shown" can be gained from the fact that the jurisdiction given by the section is conferred only to the justice on completion of the preliminary inquiry. In my opinion, this suggests that "cause" will, generally speaking, be related to the evidence heard on the preliminary; to the strength or weakness of the case presented; to the charges for which the accused has been ordered to stand trial; and particularly to any significant change between the charges upon which he has been committed and those that he originally faced. I am inclined to think that the bringing forward of a new and better plan for supervision of the accused in the community is not the type of cause that is contemplated by the section. Where the substantial thrust of the renewed claim for bail is this type of material, then the proper forum is a bail review under section 520 or 521, where the applicant enjoys an unlimited right to present further evidence: see R. v. Saracino (1989), 1989 CanLII 7197 (ON SC), 47 C.C.C. (3d) 185 (Ont. H.C., Doherty J.).
However, where cause has been shown as I have interpreted it, such a plan regarding supervision may be relevant to whether release is granted. But that plan cannot, in itself, be the material change or cause that triggers the jurisdiction under the section.
[11] On the reasoning in Cole, the failure to show a material change in the nature and strength of the Crown’s case between the time of the detention order and the s. 523 application is fatal to the latter. Whether the remedy is limited to this consideration and whether other considerations might apply in an application brought during trial, rather than at the end of a preliminary inquiry, are issues I need not decide. As a practical matter, the failure to do what Justice Duncan describes will often weigh heavily against an applicant and it does so with respect to these Applicants. This follows from a plain reading of the section and the authority of Prete. In any event, I am not satisfied that the proposed release plan alleviates the concerns that informed the previous detention orders.
[12] Mr. Kenegarajah offered new sureties. They are Mr. Sivekunar, his wife, and his sister, Ms Balchandran. Mr. and Ms. Sivekunar are good people, active in community and productive citizens. They have substantial equity. They met the Applicant through their volunteer activities at the jail and have since seen him there three more times on subsequent visits to the institution. They, along with Ms Balchandran, who offered to assist in supervision, know nothing about the Applicant, including his background or residence when outside of jail. In addition to their community activities they are busy in business. Moreover, they currently supervise two other sureties. They were approached at the temple by the Applicant’s sister to help out and are confident the he will respond to their kindness by obeying the terms of any bail order. The proposed sureties are well meaning but unsuitable; they are already overstretched with their personal and community affairs in addition to having responsibility for two sureties. Moreover, their faith in a man they know nothing about is not a reasonable basis for a bail order.
[13] Mr. Neshan also presented new sureties. Mr. Subasthandiran is 44 years old and publishes “Charity Pages”. He has two employees and earns $35,000.00 per year. His wife works at the company and is paid the minimum wage. Mr. Subasthandiran and his wife own two properties, the matrimonial home and a rental income property. The total of the mortgages is about $450,000.00 and total equity is about $150,000.00. How a couple with this limited family income qualified for such a debt load was not adequately explained. In 2002, Mr. Subasthandiran entered into a peace bond following the withdrawal of charges related to credit card fraud. His relationship with Mr. Neshan is based at the temple and he is willing to have the Applicant live and work with him. He provided a vague account of what the Applicant’s duties might be at Charity Pages. Mr. Subasthandiran is willing to pledge his equity in support of the bond. I do not have confidence in this proposed surety. His relationship with the defendant is long standing but limited. He has obviously manufactured a job for him and his financial situation is puzzling.
[14] The second proposed surety is Mr. Gnanasundram. He is 47 years old and operates a trucking company. He earns 200-250 thousand dollars per year and owns his home and business property, with total equity of $480,000.00. He offered to post this equity to secure the bond and to closely supervise the Applicant. Mr. Gnanasundram is Mr. Neshan’s cousin and the step-father of Mr. Balan, one of the original six defendants (who, during the trial, changed his plea to guilty). Mr. Gnanasundram is also the son of Ms Sri Gnanasundram. The latter is the title holder of two properties that were the subject of much comment at trial. The Crown alleges that this 71 year old woman is, at best, the nominal holder of those properties, one of which is the principal residence of Mr. Neshan, and that this arrangement is sinister. As is the case with all the allegations, whether this is proven remains to be determined. The point, for present purposes, is that the proposed surety was unaware that his mother’s name is linked to these properties. Moreover, Mr. Gnanasundram testified that Mr. Neshan told him his family is in Ontario and also that he does not hold dual citizenship. Mr. Neshan testified to the contrary at his original bail hearing. The proposed surety could not explain these discrepancies. In addition, he could not account for a letter, filed as evidence at the trial that purports to show that the Applicant’s co-defendant, Mr. Kenegarajah, once worked for him at a salary of $48,000.00. Mr. Gnanasundram stated the contents of the letter are not true and that the signature on it is not his. This surety is not suitable; he is either naïve or wilfully blind to what is being done by and/or on behalf of family members allegedly implicated or otherwise involved in the offences. That does not give me confidence in his ability to supervise the Applicant.
[15] The Applicants have not shown cause why the orders for their detention should be set aside. The Applications are dismissed.
Released: January 5, 2012
Signed: “Justice J. De Filippis”