R. v. Javed Iqbal & Kishwar Munir

Ontario Court of Justice

Application to Vary Undertaking

Heard: December 23, 2015

Oral Decision: December 23, 2015

Written Decision: January 11, 2016

Justice of the Peace: M. Duggal

Counsel

For the Crown: A. Degrase and M. Dimartino

For the Accused: N. Rozier

Written Reasons on Ruling

INTRODUCTION

[1] Javed Iqbal and Kishwar Munir are asking this court to vary an Undertaking Given to a Peace Officer or Officer in Charge (hereafter Undertaking). The Undertaking was signed on December 2, 2015 at the Nottawasaga detachment of the Ontario Provincial Police. The purpose of the variation is to enable both Mr. Iqbal and Mrs. Munir to travel to Pakistan, in part, to care for Mr. Iqbal's 91-year-old father.

[2] The ruling consists of five parts: (1) BACKGROUND AND PERSONAL ANTECEDENTS; (2) NATURE OF THE CHARGES; (3) ARGUMENT and POSITION OF PARTIES; (4) LAW AND STATUTORY AUTHORITY; and (5) CONCLUSION.

BACKGROUND AND PERSONAL ANTECEDENTS

[3] Ms. Rozier on behalf of Mr. Iqbal and Mrs. Munir filed an Application Record. That Application Record is attached to the Information. The Application Record was filed with the Crown's office on December 15, 2015 and addressed in a bail court about December 17, 2015. Ms. Rozier then attended the 104 set date court on December 21, 2015 (I was presiding) and provided that background information. On December 21, I informed Ms. Rozier that since the Crown in 104, Ms. Degrase did not have a copy of the Application Record nor did the Court, it would be best to make the arguments on December 22, 2015 in 101 Court, the principal bail court where I would be present.

[4] Ms. Rozier returned on December 22, 2015; both she and Ms. Degrase made arguments on the Application. As the bail court was quite busy, I asked the matter be adjourned to December 23, 2015 for more fulsome reasons and a ruling on the application.[^1]

[5] The Application Record consists of two sworn Affidavits of Kishwar Munir and Javed Iqbal. The Crown did not cross-examine the applicants on their respective affidavits; as such, the affidavits speak for the parties and I accept the facts set out in the affidavits.

[6] Those facts are as follows:

• Javed Iqbal was born on November 1st, 1958 and is 57 years of age;
• Mr. Iqbal has two sons named Kuran Javed and Akasham Javed who were born in 1980 and 1986;
• Mr. Iqbal came to Canada in February, 2013 and is a permanent resident;
• Mr. Iqbal is not employed but owns a dairy farm and has rental properties in Pakistan;
• He lives at 392 Father Tobin Road in Brampton with his wife and two sons;
• Mr. Iqbal owns the property at 392 Father Tobin Road along with his son; the property was purchased in 2013 for $582,000 and has a mortgage of $440,000. There is approximately $142,000 equity in the home;
• On December 2, 2015, Mr. Iqbal was arrested and charged with one count of Property Obtained by Crime Exceeding $5000. An information in relation to that charge was sworn on December 22, 2015.

[7] The form of release in relation to the charge was a Promise to Appear and Undertaking. One of the conditions of the undertaking is that he remain in the province of Ontario with no exceptions. Another condition of the undertaking relevant to this Application is that Mr. Iqbal deposit a passport from all countries with the Ontario Provincial Police Nottawasaga Detachment.

[8] Mr. Iqbal is seeking a variation to the condition that he remain in the province of Ontario. With respect to being able to travel outside of the country, Mr. Iqbal deposed that "Another condition is that I deposit my passport with the O.P.P. In fact, the O.P.P. seized the passport from me when I was arrested." See Paragraph 10 of Applicant's Affidavit.

[9] Mr. Iqbal is seeking a variation to enable him to travel to Pakistan where he has property and family. Mr. Iqbal's father in law is 91 years old and sick with many illnesses. The father in law requires special care from the daughter and son in law. Mr. Iqbal also needs to collect rent and maintain the rental properties in Pakistan. Mr. Iqbal deposed that he is prepared to deposit $10,000 with the court as a guarantee of his return. He intends to plead not guilty and defend himself in the matter as he would not do anything that would jeopardize his permanent resident status in Canada.

[10] Mrs. Kishwar Munir swore an Affidavit on December 14, 2015 and I find the following to be true:

• Mrs. Munir came to Canada with her husband in February, 2013
• Mrs. Munir was born on January 1, 1969 and is presently 47 years of age;
• Mrs. Munir lives at 392 Father Tobin Road with her husband and two sons, Kuran Javed and Akasham Javed. The family home was purchased in 2013;
• Mrs. Munir wishes to return to Pakistan to help her ailing father who is 91 years of age and has a number of illnesses. When she visits Pakistan, she stays with her father so that she and her spouse can assist in the day-to-day needs of her aging father;
• In terms of the medical background, both Mr. Iqbal and Mrs. Munir receive medical treatment in Canada for high blood pressure and diabetes. Mr. Iqbal also suffers from Hepatitis C, an illness for which he requires monthly medical consultations.

[11] Neither party has a criminal record. Separate and apart from the findings of fact, Ms. Rozier made the following submissions. Those submissions are not in dispute; namely, that both Mr. Iqbal and Mrs. Munir routinely travel to Pakistan, have done so in the past and returned to Canada as they have both property and family.

THE NATURE OF THE CHARGES

[12] Both Mr. Iqbal and Mrs. Munir are charged with Possession of Property Knowing It was Obtained by Crime over $5000.00 contrary to s. 354 (1) (a) of the Criminal Code. Section 354 (1) (a) is a hybrid Indictable offence but in the absolute jurisdiction of the Ontario Court of Justice.

[13] Ms. Degrase, on behalf of the Crown, concedes that the police seized the Applicants' passports and permanent resident cards incident to arrest. Mr. Iqbal and Mrs. Munir were the subject of a police investigation called Project Ebal (ph); it is a multi-jurisdictional investigation involving frauds. A number of parties separate from the Applicants were charged with Fraud, Uttering Forged Documents, Personation and Obstruction. There are more people yet to be identified who may be charged. The Project was the subject of search warrants or production orders. The two individuals noted as the masterminds are Ahteshan Javed and Khuram Javed.

[14] While it is a little early in the investigation, there were two losses involving the use of American Express credit cards of $5579.00 (est.) and $6849.09. The allegations are that Ahteshan Javed, Khuram Javed, Javed Iqbal and Kishwar Munir were involved in making travel bookings through Marlin Travel.

[15] The modus operandi for the fraudulent activity is that someone used a Rogers cell phone with fictitious names to pay bills, thus establishing a credit history. Unknown parties max out the credit cards without paying the debts on the cards. As a result of the use of the fraudulent credit cards, the police seize a television, two cars and $11,000 cash plus numerous credit cards. The exact number of seized credit cards was never specified in the allegations.

[16] Based on the police investigation, the police decided to release Mr. Iqbal and Mrs. Munir on an undertaking.

ARGUMENT AND POSITION OF PARTIES

[17] The Crown is opposed to the variation being sought on the basis that neither Mr. Iqbal nor Mrs. Munir would return to the jurisdiction.

[18] Both the Crown and Defence agree that if the passports were seized incident to arrest, then this Court has limited authority to order the passports returned.

[19] Since neither Mr. Iqbal nor Mrs. Munir has ever been charged before, the case is a Crown Onus. Even though Mr. Iqbal and Mrs. Munir brought the application and are seeking to vary the undertaking, it is the Crown that has to justify why the Application should not be granted.

[20] Ms. Rozier argues that both applicants have compelling reasons to return to Pakistan; both parties own rental property and operate a dairy farm; they wish to care for an aged and ill parent.

[21] In addition, the defence argued it is significant that the accused brought the Application to change the Undertaking; that speaks to their willingness to attend court and follow a proper court process.

[22] Both parties attended the O.P.P. in Nottawasaga Detachment on December 2, 2015 for the purposes of identification pursuant to the Promise To Appear.

LEGAL ARGUMENT AND STATUTORY AUTHORITY

[23] Section 503 (2.2) of the Criminal Code states the following:

A person who has entered into an undertaking may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under 515 (1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require to such a person.

[24] One of the principal authorities on the issue of bail, Mr. Gary Trotter made the following observations on this section of the Code. In The Law of Bail in Canada (3d), 2010, chapter 2-40, the author notes the following:

An identical provision is found in 503 (2.2). When the conditions an officer could impose were expanded in 1997, the review process was extended to provide the prosecutor with an avenue of review. … citing s.499 (4). The power was similarly extended to undertakings made pursuant to section 503 (2.1) – see 503 (2.3). These provisions have received limited judicial interpretation. However, a few observations are in order. There are subtle differences in the review provision as they relate to the accused and prosecutors. Sections 499 and 503 (2.2) refer to an application being made for an order under 515 (1), which as discussed in chapter six is an undertaking without conditions. Sections 499 (4) and 503 (2.3) envisaged the prosecutor applying for an order under 515 (2) which includes the full panoply of release orders including recognizances with surety.

It is not clear from these provisions that either party may apply for an adjustment in the conditions that are available. The reference as to the applicability of 515 as a whole, as the circumstances require, allows a justice to make the appropriate order. However, the justice's powers are not unlimited. By restricting the focus to 515 (1) and (2) the review provisions do not envisage that a justice may detain an accused upon an application under any of the review provisions. They merely deal with the types of release orders and the conditions of release. If an order is made under any of these provisions, the nature of the accused's release status is transformed from a police bail situation to one where the operative order is judicial in nature (made pursuant to 515 (1) or (2).

[25] The results are important. G. Trotter concludes by writing:

This has some important implications. First, it makes the accused's release status amenable to pursuant to 520 and 521 of the Code, both of which are restricted to court order release or detention. Moreover, this may alter the application of the new variation found in 515.1.[^2]

[26] Based on the stepladder approach which s. 515 (2) of the Code dictates and on the following findings of fact in relation to Mr. Iqbal and Mrs. Munir, I conclude the Crown has not shown cause. Those findings of fact include both applicants have travelled to Pakistan before and returned to Canada, both attended for fingerprints, both brought an application to the Court through the guidance of their lawyer and are prepared to pledge an amount of money as a sign of good faith that they will return to Ontario.

[27] Another issue that arose involved the laying of a charge, i.e., swearing an information. An Information was sworn on December 22, 2015. Ms. Rozier very capably argued that the process of laying a charge was prodded in some way by the Application Record and request to vary an undertaking.

[28] In support of that argument, the defence provided the following case R. v. A.K., an oral decision of Justice Selkirk from May 5, 2008. Justice Selkirk at para. 19 observed that:

It is also essential that the condition of requiring confirmation be followed and not overly relaxed because to do so would make 503 (2.2) unworkable. Section 503 (2.2) allows for a person, subject to an Officer in Charge release to address or challenge the appropriateness of these condition at 'at any time' after he is released in front of a Justice of the Peace. Obviously this cannot happen until there is something before the Justice of the Peace. If the information is not sworn, and therefore not in possession of the court, and if the release conditions are not before the court, then the right of the accused to apply for a variation is illusory.

[29] The fact that an Application was brought created a "process" which resulted in an information being sworn.

[30] My other reason for concluding that the Crown has not met its onus in relation to why the application should be denied is that the principal basis for its opposition are the nature of the charges. The parties are presumed innocent.

[31] I repeat what I said earlier in this ruling, namely, I do not have the authority to compel the police to return anything seized incident to arrest. However, to the extent that is legally possible, I will grant the relief sought in the application.

[32] On December 23, 2015, I varied the undertaking and imposed certain terms and conditions which are noted below along with a new Promise to Appear date. The initial court date on the Promise to Appear was January 14, 2015. I inferred that was a clerical error and what was anticipated was January 14, 2016 (p.15 of Ruling on Application to Vary Undertaking transcript from Dec. 23, 15).

[33] Since paperwork could not be prepared for A Promise to Appear for January 14, 2016, a return date of January 14, 2016 was included in the amended Undertaking. The defence also conceded for litigation purposes that both parties had attorned to the jurisdiction by appearing on the Information and Application (p.22, of Ruling on Application to Vary Undertaking transcript from Dec. 23, 2015).

[34] Clause (d) of the original undertaking required the parties to deposit passports from all countries with the O.P.P.; that term was deleted. In relation to that term, the argument I heard is that Mr. Iqbal and Mrs. Munir are Pakistani nationals. No connection was made as to why passports from all countries had to be deposited. There was nothing to indicate the police had information as to whether Mrs. Munir or Mr. Iqbal are nationals of any other country. I conclude the term was overbroad and is deleted.

CONCLUSION

[35] In conclusion, the application was granted and Mr. Iqbal was released on an Undertaking with the following conditions of release. Mrs. Munir was also released on an Undertaking with the following terms.

CONDITIONS OF RELEASE

[36] Mr. Javed Iqbal is:

• To notify the Nottawasaga Detachment of the OPP in writing 48 hours prior to any change of address, employment or occupation;
• Abstain from communicating directly or indirectly with Adebowale Oyebanji, Damilola Adeoye, Ikechukwu Osuwah, Aladeji Alapo, Tena Belleh, Ifeanyi Nnaji, Salim Akhtar, Aryav Garg, Mannav Garg, Ritu Garg, Shahzad Hameed, Harminder Kaur, Suffian Sabir, Nitin Sharma, Elsit Esmat, Sorabh Garg and Asif Saleem;
• Abstain from going to either Marlin Travel located at 1500 Dundas Street East in Mississauga or Leon's Furniture at 201 Brittania Road, Mississauga;
• At least 72 hours prior to leaving the country, you are to provide a copy of your travel itinerary to Officer 11300 or his designate at the OPP detachment at Nottawasaga;
• Attend court on January 14, 2016, Court 105 at 9 am.

[37] Mrs. Kushwar Munir is:

• To notify the Nottawasaga Detachment of the OPP in writing 48 hours prior to any change of address, employment or occupation;
• Abstain from communicating directly or indirectly with Adebowale Oyebanji, Damilola Adeoye, Ikechukwu Osuwah, Aladeji Alapo, Tena Belleh, Ifeanyi Nnaji, Salim Akhtar, Aryav Garg, Mannav Garg, Ritu Garg, Shahzad Hameed, Harminder Kaur, Suffian Sabir, Nitin Sharma, Elsit Esmat, Sorabh Garg and Asif Saleem;
• Abstain from going to either Marlin Travel located at 1500 Dundas Street East in Mississauga or Leon's Furniture at 201 Brittania Road, Mississauga;
• At least 72 hours prior to leaving the country, you are to provide a copy of your travel itinerary to Officer 11300 or his designate at the OPP detachment at Nottawasaga;
• Attend court on January 14, 2016, Court 105 at 9 am.

Dated at the City of Brampton, January 11th, 2016

H.W Duggal

[^1]: As well, on December 23, 2015, I undertook to provide a written ruling by December 30, 2015. I requested the transcript in order to draft the reasons on December 23, 2015 and noted the matter was urgent. I received the transcript on January 5, 2016. I also indicated if there was a conflict between the oral reasons and written reasons, the written reasons would be binding.

[^2]: At Chapter 2, p. 41, the author says the variation provision with consent of the Prosecutor may have been designed to prevent the requirement of accused persons surrendering into custody while the new form of release is prepared. Those same observations also apply with respect to s. 503 (2.2) of the Code.