R. v. Yassin, 2012 ONCJ 783
ONTARIO COURT OF JUSTICE
Her Majesty the Queen
And
Harry Ali Yassin
Counsel for the Crown: Mr. P. Attia
Counsel for Mr. Yassin: Mr. A. Brass
JUDGMENT
Case argued on: December 6, 2012
Oral decision: December 7, 2012
Written reasons released on: December 10, 2012
Introduction – The issue of post-conviction revocation of bail
On December 6, 2012, Mr. Yassin was found guilty after trial of a number of firearm offences involving a single loaded restricted handgun, notably a breach of s. 95 of the Criminal Code for which he must be sentenced to a minimum term of imprisonment of three years. In addition, the firearm was in his possession contrary to a s. 109 weapons prohibition imposed in January of 2011 arising out of a robbery offence. The prosecution immediately applied for a revocation of his recognizance of bail and on December 7, after brief yet full argument, I ordered that Mr. Yassin be detained in custody until dealt with according to law, indicating that reasons in writing would be delivered as soon as possible.
For the reasons which follow, I conclude that the application was justified as it was fully consonant with the limited case law interpreting the Criminal Code provisions which govern post-conviction revocation of bail to the effect that:
i) The Crown bears the onus in such cases;
ii) The onus is not only substantial, it is exacting, as the accused was admitted to judicial interim release and has not breached any of his conditions of bail;
iii) The Court enjoys a discretion in such instances and is not to revoke bail merely by reason that the presumption of innocence has been exhausted;
iv) The decision to revoke a bail order post-conviction is exceptional in nature and brings about inherent prejudice to an offender;
v) The justification for such an exceptional order must be found within the language of s. 515(10) of the Criminal Code, the so-called primary, secondary and tertiary grounds, and is found in this case secondarily under s. 515(10)(b) of the Criminal Code addressing the protection of the public and primarily by reason of the recent introduction of the special provision found at s. 515(10)(c)(iv) of the Criminal Code touching upon offenders who possessed a firearm and who must be jailed for at least three years.
Discussion - The issue of post-conviction revocation of bail
The elements governing the decision whether to revoke bail post-conviction
The limited case-law which has been considered in the course of this ruling consists of the following judgments: Firstly, R. v. Green, [2006] O.J. No. 3240, 210 C.C.C. (3d) 543, 2006 ONSC 27306 (Sup. Ct.), a ruling by Justice Ducharme of the Superior Court, which was the only authority presented to the Court and, secondly, the three cases which follow which the undersigned discovered during the brief period for deliberation: R. v. D.J.M. [1993] O.J. No. 2992 (Gen. Div.), per McIsaac J, R. v. Shrubsole, [2007] O.J. No. 5309 (Sup. Ct.), a further judgment of Justice McIsaac, and R. v. Niemi, [2008] O.J. No. 4622 (Sup. Ct.), signed by Justice Eberhard. No case addressed the special “firearm crime leading to a three year term” clause noted above.
In order to draw full attention to the different elements forming the animating principles that must be applied in such cases, I have listed them below together with the source of the authority being advanced. For ease of future reference, I have grouped a number of the constituent elements under two thematic headings, starting with the exercise of discretion and followed by the onus of proof, to then discuss the importance of s. 515(10) of the Criminal Code.
a) The exercise of discretion:
i) The absence of discretion in the case of s. 499 offences
As discussed chiefly in R. v. Green by Justice Ducharme, s. 523(1)(a) of the Criminal Code is peremptory in directing that all offenders found guilty of a s. 469 offence, notably murder, must be detained until the completion of their sentence hearing. Put simply, “... his or her bail will be terminated upon the finding of guilt...”, as set out at para. 6 of R. v. Green. Parliament has expressed itself in no uncertain terms in this regard and the safety of the community and public confidence in the administration of justice cannot be upheld unless all bail orders in such cases be terminated upon a finding of guilt.
R. v. Niemi also notes that the Criminal Code directs detention in the case of s. 469 offences and that this distinction must be recognized in the course of the analysis surrounding an application for revocation of bail post-conviction, as set out briefly in paragraphs 7 and 8.
ii) The granting of discretion in the case of non s. 499 offences
By parity of reasoning, as discussed again principally by Justice Ducharme, Parliament has expressly refused to direct Courts to jail all offenders who are subject to judicial interim release orders if they are found guilty of offences not described in s. 469, notwithstanding their gravity. That being said, no judgment suggests that no such power exits. Indeed, all of the cases save for R. v. Green concluded with an order setting aside the bail order; in the case of Mr. Green, the Court held by means of footnote 3 that “In addition to conferring the power to revoke a bail, s. 523(a) of the Code also...” Earlier, Ducharme J. wrote: “... while s. 523(1)(b) recognizes the possibility of post-conviction revocation of bail, it does not confer any power on the trial judge to do so.” Reference is made to para. 6.
In the case of Justice Ducharme, His Honour has held firstly that the language of the Criminal Code supports the existence of a discretion. The plain meaning of the words “may, on cause being shown” found in s. 523(2)(a) of the Criminal Code emphasize the discretion which the convicting court enjoys in that Parliament did not resort to the mandatory “shall” or words to that effect. Refer to para. 8 of R. v. Green.
It will be helpful to repeat language consigned at para. 14 of R. v. Niemi addressing the gravity of the offending conduct and the question of discretion in general: “… It is not automatic. In fact, it is rarely sought in the Superior Court of Justice context except in cases of some significant seriousness…”
iii) The exercise of discretion against a constitutional background of promoting the accused’s liberty interest
Further, Ducharme J. held that such an application ought only to be granted in what should amount to exceptional circumstances as it sets aside existing Court orders granted by judicial officers in the majority of cases, against the background of a Charter-based régime in which pre-trial liberty is the norm, not the exception, leaving aside the facts that such a reversal in liberty status brings about prejudice in all cases, especially in terms of access to counsel in preparing favourable submissions directed to the offender’s personal situation. Thus, the Court’s discretion ought to be exercised from a perspective, in general, which serves to promote an accused’s liberty interest.
On the subject of prejudice, I note as well R. v. Niemi at para. 4: “… extended time, before sentencing can occur, prejudices Mr. Niemi from doing what he can do upon sentence, including seeking bail pending appeal…” The Court held that in the case at Bar, “… The decision does not turn on specifics of the raw time”, as consigned at para. 4.
Para. 9 of R. v. Green refers to one of central and signal tenets of our system of justice, that pre-trial detention is extraordinary in our system of justice, with reference to s. 11(e) of the Charter, and to R. v. Morales, 1992 SCC 53, at para. 18.
iv) The exercise of discretion after the presumption of innocence is spent
Justice Ducharme went on to observe at para. 10 that Justice Arbour, as a member of the Ontario Court of Appeal, had remarked in R. v. Farinacci, 1993 ONCA 3385, [1993] O.J. No. 2627, at para. 10: “... the presumption of innocence, which is substantially spent by the conviction ...” Nevertheless, His Honour also took pains to point out at para. 11 of R. v. Green: “But this does not mean that the mere fact of conviction mandates the revocation of an existing judicial interim release order.”
In this vein, it will be useful to refer next to the advice consigned by Justice McIsaac in the case of R. v. Shrubsole, [2007] O.J. No. 5309 (Sup. Ct.). As we read at para. 2:
[2] The Crown seeks revocation on the principle of the offender's change of status from accused to offender. This approach was rejected ... in R. v. Green, (2006) 2006 ONSC 27306, 210 C.C.C. (3d) 543 (Ont. S.C.J.) ... [My ruling ...] in R. v. D.J.M. [1993] O.J. No. 2992 accepted that the change of status could trigger a revocation of bail ... I am of the view that the verdicts of the jury, especially ten of them, can merit a re-consideration of this offender's continued liberty pending sentence.
We are informed at para. 1 that Mr. Shrubsole was found guilty of ten offences against four of his children over a five year period of “domestic terrorism”. In effect, Justice McIsaac is of the considered opinion that the fact of a conviction may be dispositive. I add that both judgments of this experienced jurist involved quite grave violence, a matter of great importance in assessing public safety and the administration of justice.
Noteworthy as well is the judgment in R. v. Niemi. In respect of the potential importance of a finding of guilt and the termination of the presumption of innocence, Her Honour Justice Eberhard observed at para. 8: “I do not find that any finding of guilt automatically invokes the tertiary ground. Far from it. It is the exception where revocation is even raised after findings of guilt.” Further language at para. 14 emphasizes that in respect of the tertiary ground, “… It is not automatic. In fact, it is rarely sought in the Superior Court of Justice context except in cases of some significant seriousness…”
v) The exercise of discretion within the legislative confines of s. 515(10) of the Criminal Code
The justification for a post-conviction order revoking judicial interim release, in accordance with the guidance put forth by Justice Ducharme in R. v. Green at para. 8, is circumscribed by s. 515(10): “... this can be done by demonstrating that the detention of the accused is necessary for any of the reasons enumerated in s. 515(10) of the Code.”
vi) The exercise of discretion and the question of public confidence in the administration of criminal justice
The question of the protection of the public, a factor which the Court found to be dispositive of the within application, in the final analysis, by reason of the special clause noted earlier pursuant to s. 515(10)(c)(iv) of the Criminal Code, leaving aside the secondary ground which was also found to be applicable, is also discussed ably by Justice Ducharme, as follows, in the context of the law and Parliament’s will as it existed and was expressed at the relevant time:
[14] Finally, neither public safety nor maintaining public confidence in the administration of justice requires that bail be routinely revoked following conviction. Parliament has sought to ensure public safety in two ways: first, by providing that, for the most serious offences, those enumerated in s. 469, bail will automatically be revoked following conviction; and second, by providing for the revocation of bail under s. 524 where the accused has not complied with the terms of the judicial interim release order. The important question of public confidence in the administration of justice must be assessed from the perspective of a public that is both informed about our system of bail and the facts of the particular case. This includes an appreciation of the fact that the offender, although convicted, has already been granted judicial interim release and has complied with the terms of that release, usually for a considerable period of time. It is difficult to understand how public confidence in the administration of justice will be undermined by the continued release of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration of justice. This is particularly true given that the time between conviction and sentencing rarely exceeds two months.
vii) The exercise of discretion: Other judicial officers have already exercised their discretion in granting bail
R. v. Green is helpful in pointing out that “... the convicted offender has already been deemed worthy of judicial interim release...”, adding that if there had been a failure to comply with the terms of the release, an application to revoke the bail would have been advanced at an earlier stage. As we read in the latter part of para. 12: “... Thus, the post-conviction revocation of bail will most commonly occur where, during the course of the trial, new facts emerge about ... (iii) the offender’s failure to comply with the terms of his or her release.” Justice Eberhard adopted without critical comment these remarks of Justice Ducharme.
I am of course fully mindful that Mr. Yassin was admitted to bail though the prosecution must have argued that the special clause now found at s. 515(10)(c)(iv) of the Criminal Code might suffice to justify detention, and that this element, together with the others, was not sufficient to justify his detention either before the Justice of the Peace or Justice Roy during the Crown’s review application.
viii) The exercise of discretion: New facts emerging about the crime
Further, para. 12 of R. v. Green also makes reference to a meritorious post-conviction revocation when “... new facts emerge about (i) the circumstances surrounding the commission of the index offence…” Once again, Justice Eberhard adopted without critical comment these remarks of Justice Ducharme.
ix) The exercise of discretion: New facts emerging about other crimes
Further yet, a third scenario put forward by Justice Ducharme in R. v. Green justifying the exercise of discretion leading to a revocation of bail post-conviction follows: “... new facts emerge about (ii) other criminal acts engaged by the offender.” Justice Eberhard also adopted without critical comment these remarks of Justice Ducharme.
x) The exercise of discretion: the likelihood of a jail term
A final element to be considered by the court in the exercise of its discretion, as suggested by Justice Ducharme, surrounds the question of the likelihood of a jail term. As consigned at para. 13 of R. v. Green: “... Of course, any doubt about whether or not the offender will receive a custodial sentence would be another important factor militating against the revocation of bail.” Read from the opposite perspective, Justice Ducharme is taken to have suggested that the certainty of a significant jail term must indicate that the court ought to consider such an application with greater favour, all other things being equal, without being dispositive as the Court enjoys a substantial discretion.
xi) The exercise of discretion: May the trial judge initiate a revocation of bail post-conviction?
In this regard, Justice Ducharme added a valuable comment at footnote 4: “While s. 523(2)(a) would seem to permit a trial judge to act sua sponte, the requirement to show cause means, as a practical matter, that this would rarely be done.”
For my part, I am of the view that Justice Ducharme is correct in that it is rare that a judge should direct such a hearing upon registering a finding of guilt of its own motion for fear of being viewed as not impartial. In the great majority of cases, the adversarial system should be respected, save in those instances in which the Court has viewed conduct not “caught” on record which must be addressed.
xii) The discretion to amend the bail order post-conviction
The Court in R. v. Green advanced guidance on this point, observing that the convicting court is at liberty, in the exercise of its discretion, to dismiss the application of the prosecution, to then vary the terms and conditions of the judicial interim release order is good cause is shown by the Crown. This instruction is found at footnote 3: “In addition to conferring the power to revoke a bail, s. 523(a) of the Code also empowers the trial judge to vary the terms of the offender’s release or, indeed, to release the convicted offender in appropriate circumstances.” Refer as well to the concluding passage of para. 13: “... the trial judge hearing an application for revocation of bail should first consider, where the Crown has legitimate concerns, whether these could be met by varying the terms of the release...”
xii) The exercise of discretion: The time period during which the bail order was complied with
Justice Eberhard’s judgment in R. v. Niemi is also of assistance in identifying a further element to be weighed: the time period during which there has been full compliance with the judicial interim release order. As we read at para. 14: “… It often takes time for matters to reach a Superior Court of Justice trial, and compliance and lack of further offence weighs heavily on the side of the offender…”
b) The onus of proof: The prosecution must discharge a quite heavy burden
The instruction on this point found in the judgment in R. v. Green is to the effect that the normal rule is that bail is to continue until the imposition of a sentence, unless the court orders otherwise. Refer to para. 6. Accordingly, as a practical matter, “... the convicted offender need not apply to continue his bail.” Typically, unless the prosecution applies for a revocation, the court directs that bail is to bind the conduct of the person found guilty until the sentence hearing is complete, and this may include a period during which time the sentencing judge will deliberate.
Having noted that unless an application is brought by the Crown, nothing ought to be said about the judicial interim release order save that it continues to bind the offender, it will be useful to address directly the question of the onus of proof. In this vein, Ducharme J. was of the view that the inclusion of the words “on cause being shown” serves to underscore that the prosecution bears the onus of proof in demonstrating the justification for an order revoking bail after a finding of guilt. As His Honour made plain at para. 8 of his ruling: “... In a case of an application to revoke the bail, the Crown must show cause...”
On the question of the onus of proof, Justice Eberhard remarked: “I accept the premise in Green that the onus is on the Crown to show cause.” Refer to para. 9.
I am of the view that the onus of proof is to be discharged by the prosecution and that it is substantial and may only be satisfied in exceptional circumstances. It was discharged in this case.
c) The importance of s. 515(10) in revocation applications arising from a conviction
i) The primary ground
The paradigmatic situation involving this first ground surrounds flight from the jurisdiction. In this vein, I note the assistance found in Justice Everhard’s judgment in the case of R. v. Niemi, [2008] O.J. No. 4622 (Sup. Ct.). The jury convicted the accused of two counts of importing cocaine and hashish worth many millions of dollars. Of note, para. 16 includes a reference to co-offenders having been sentenced to jail terms of 19 years and there are many references to Mr. Niemi’s capability as a pilot to flee the jurisdiction to avoid the likely severe sentence he faces. In the final analysis, the Court revoked the bail order notwithstanding that there had been no breaches of bail, as set out at para. 10.
I have not discussed this ground further as the prosecution did not press the matter.
ii) The secondary ground
a) The protection of the public
It is my considered opinion that Justice McIsaac’s earlier judgment, R. v. D.J.M. [1993] O.J. No. 2992 (Gen. Div.), fully supports the revocation of bail post-conviction in this instance, as a matter of protection of the public. In sum, to permit offenders convicted of a number of serious crimes involving a firearm, contrary to a weapons prohibition imposed for a quite recent robbery, to continue to be at large compromises the protection of the public, an expression that I find to be distinct from the safety of the public. The protection of the community embraces notions such as a sense of personal security and the public’s knowledge that violent criminals will be dealt with severely, within the panoply of all relevant sentencing principles.
I have elected not to discuss the matter further because Parliament has, in effect, adopted Justice McIsaac’s views on this subject but has transported them into the re-cast tertiary ground, which is discussed below. That being said, I find at a secondary level of decision making that detention in this case is fully justified under this heading and so order.
iii) The tertiary ground[^1]
a) The apparent strength of the prosecution’s case
In the case of R. v. Shrubsole, Justice McIsaac was greatly influenced by the tertiary ground, as noted in the passage which follows: “[3] Having considered the three elements of bail under s. 515(10) of the Criminal Code, I am driven to the conclusion that the ‘tertiary’ ground demands revocation. The strength of the Crown's case is no longer an issue. The number of offences and the impact on the psychological well-being of this family suggests these are grave offences. The fact the offender breached his obligation of parental trust is an extremely disturbing circumstance, in my view. Finally ... a lengthy period of incarceration seems almost inevitable given the nature and number of offences.”
On the question of the strength of the Crown’s case, R. v. Niemi adds an element of refinement to the debate in terms of the question of the merits of setting aside the status quo by making direct reference to the fact that “The court granting release did not emphasize the strength of the Crown’s case.” Refer to para. 11 and to the subsequent observation that the finding of guilt by the jury was a firm determination of the strength of the case until set aside.
b) The gravity of the offence
It will be helpful to repeat again language consigned at para. 8 of R. v. Niemi addressing the gravity of the offending conduct and the question of discretion in general: “I do not find that any finding of guilt automatically invokes the tertiary ground. Far from it. It is the exception where revocation is even raised after findings of guilt.” Further language at para. 14 emphasizes that in respect of the tertiary ground, “… It is not automatic. In fact, it is rarely sought in the Superior Court of Justice context except in cases of some significant seriousness…”
Refer also to the passage from Justice McIsaac’s judgment noted above under clause a) with respect to the question of the impact on the victims of the commission of the violent crimes.
c) The circumstances of the offence, including the use of a firearm
Refer to the passage from Justice McIsaac’s judgment noted above under clause a) with respect to the question of the grave breach of a parental trust. Further, in the case of Shrubsole, Justice McIsaac was greatly influenced by the tertiary ground, as noted in the passage which follows: “[3] Having considered the three elements of bail under s. 510(10) of the Criminal Code, I am driven to the conclusion that the ‘tertiary’ ground demands revocation. The strength of the Crown's case is no longer an issue ... Finally ... a lengthy period of incarceration seems almost inevitable given the nature and number of offences.”
This is a case of possession, transportation, careless use, et cetera, of a loaded restricted firearm within a motor vehicle, increasing thereby the potential not just to harm but to avoid arrest, in violation of a weapons prohibition. Many of these elements would suffice, standing alone, to justify the revocation that was sought. In the combination which was held to arise in this instance, no other conclusion is warranted in the public interest.
d) the special “firearm crime leading to a three year minimum term” clause:
I begin by repeating my earlier observation that Mr. Yassin was not detained, either originally or upon review, notwithstanding this clause. Nevertheless, as he will be detained for at least three years, as will be discussed below, surely it would be to disregard Parliament’s express if the Court refused to detain him at this juncture. He no longer enjoys the presumption of innocence and has committed a number of quite serious gun related crimes. To further discuss the question under this heading is without purpose.
The findings of fact justifying the revocation of bail post-conviction
Firstly, the Court notes that the prosecution has succeeded in establishing that Mr. Yassin is guilty of the following offences, which are indictable or were prosecuted by indictment, occurring on July 15, 2012, in Ottawa, expressed in simple terms:
Without lawful excuse, did transport a firearm, a handgun, in a careless manner, contrary to s. 86(3) of the Criminal Code;
Without lawful excuse, did possess a firearm, a handgun, without being the holder of a licence and registration certificate, contrary to s. 91(3);
Without lawful excuse, did possess a firearm, a handgun, while knowingly not being the holder of a licence, contrary to s. 92(3);
Without lawful excuse, did occupy a motor vehicle knowing that a firearm, a handgun, was found within the vehicle, contrary to s. 94(2);
Without lawful excuse, not being holder of licence, did possess a loaded restricted firearm, a handgun, contrary to s. 95(2);
Without lawful excuse, did possess a firearm, a handgun, while prohibited from doing so by reason of a weapons prohibition pursuant to s. 109, contrary to s. 117.01.
Without prejudging the question of the merits of either consecutive sentences or increases beyond the minimum three-year jail term which must be imposed to reflect the fact of so many offences, leaving aside the possible Kienapple based stays, Mr. Yassin faces a severe jail term if only the minimum term is imposed.
Secondly, Mr. Yassin was sentenced on January 6, 2011, in respect of an offence of robbery contrary to s. 344, and received a conditional sentence order for 18 months, together with a weapons prohibition, as noted, for ten years. The Court emphasizes that within one montj, Mr. Yassin was found to have breached the conditional jail term, on February 5, 2011, with the result that the order was suspended.
Thirdly, Mr. Yassin has abided fully by all of his conditions of release and appears to have significant supervision by his sureties and other family members.
In the final analysis, applying the law set out above, in the exercise of the Court’s discretion, primarily pursuant to the jurisdiction grounded upon the tertiary ground under s. 515(10)(c)(iv) and secondarily as a result of applying the secondary ground under s. 515(10) of the Criminal Code, the Court finds that Mr. Yassin’s continued presence within the community is contrary to the will of Parliament and the public interest. The number and nature of these violent firearm offences together with a failure to abide by the only sanction meted out in the past, in respect of a robbery, notwithstanding his full compliance whilst awaiting trial and during his trial, mandate the revocation of his judicial interim release. The fact that he is guilty of a firearm offence mandating a 3 year term, a fact situation not discussed in any of the cases noted earlier, is critical to the decision reached in this instance. This signal aggravating fact fully justifies his detention until sentenced.
I hasten to add that in the case of Mr. Yassin, I possessed no information about the original bail and subsequent bail review save that he had been released and successfully resisted the Crown’s attempt to overturn that original release. Further, I agree with Mr. Brass that the onus placed on the prosecution and the presumption against a revocation necessarily resulted in quite an exacting burden having to be discharged by the Crown in that the accused person had been viewed as fully capable of conforming to the conditions of his bail. I add once again the important nuance, however, that the strictures found at s. 515(10) take on a quite different hue once findings of guilt are recorded in respect of multiple crimes involving a firearm, aggravated by the breach of a Court order respecting a weapons prohibition and further aggravated by the inexorable fact of a minimum three year term in the penitentiary.
Conclusion
By way of summary of the foregoing, the Court has found that the following circumstances fully justify the exceptional order that was sought by the prosecution, firstly on the tertiary ground and, as well, on the secondary ground, pursuant s. 515(10) of the Criminal Code:
a) findings of guilt in respect of five serious offences involving the possession of a loaded restricted firearm, a handgun which was loaded, notably an offence pursuant to s. 95 of the Criminal Code which mandates a minimum sentence of 3 years imprisonment;
b) a finding of guilt under s. 117.01 of the Criminal Code to the effect that Mr. Yassin breached a s. 109 weapons prohibition;
c) a recent and related record for a single violent offence, contrary to s. 344 of the Criminal Code; and
d) a finding by the sentencing court on February 5, 2011, that Mr. Yassin had not complied with the conditional sentence meted out on January 6, 2011, to sanction the offence of robbery.
Mr. Yassin is ordered to be detained in custody until dealt with according to law.
I thank both counsel for their assistance.
Gilles Renaud, J.
December 10, 2012
[^1]: I have profited greatly from reviewing Justice Gary T. Trotter’s instruction on this subject at item 3.4 of the Third Edition of his well respected text, The Law of Bail in Canada, Carswell, Toronto, 2010, loose-leaf, consulted December 9, 2012.