SUPERIOR COURT OF JUSTICE

Information No. 13-00002194

HER MAJESTY THE QUEEN

v.

KIAN HOSEYNI

REASONS FOR RULING

BEFORE THE HONOURABLE JUSTICE M. L. EDWARDS

on June 18, 2013, at NEWMARKET, Ontario

APPEARANCES:

P. Tait Counsel for the Crown

K. Schofield Counsel for Kian Hoseyni

TUESDAY, JUNE 18, 2013

RULING

EDWARDS J. (Orally):

These are my reasons on the Hoseyni bail review.

BACKGROUND

After a bail hearing Mr. Hoseyni was ordered detained in custody by Her Worship Justice of the Peace R. Shousterman on April 8, 2013. Mr. Hoseyni seeks to review this decision. The Crown opposed Mr. Hoseyni’s release on both the secondary and tertiary ground. Dealing first of all with the secondary ground, the reasons of the Justice of the Peace make clear she was not satisfied with the plan of release, which included Mr. Hoseyni’s parents acting as sureties. As to the tertiary ground, and recognizing that the tertiary ground should only be used in rare cases, the Justice of the Peace denied bail. In doing so, her reasons refer to the fact that the case against Mr. Hoseyni involves allegations of road rage, drugs, and perhaps most importantly the use of a firearm. Mr. Hoseyni is presently 19 years of age, and on his volition is being kept in segregation.

CHANGE IN CIRCUMSTANCES

Mr. Tait acknowledged that the facts now before this court amounted to a change in circumstances. Specifically the new plan for the release of Mr. Hoseyni which incorporates two new sureties and the use of GPS electronic monitoring. I have no difficulty in accepting the evidence of Mr. Mazandrani and Ms. Khoshrow, that as the uncle and aunt of Mr. Hoseyni they would properly supervise him and if required to do so would report any breach of a bail condition to the police. Both of these individuals struck me as honest law-abiding citizens, who were prepared to risk their life savings, $125,000, to act as sureties. I am equally satisfied that the GPS electronic monitoring which is now being proferred as part of the plan proposed for the release of Mr. Hoseyni, while not providing any guarantee that Mr. Hoseyni will not reoffend should he be released pending his trial, will nonetheless provide another layer of confidence that this Court has to ensure that an accused, like Mr. Hoseyni, can obtain bail in difficult cases. That however does not end my analysis with respect to this bail review. The onus still remains with Mr. Hoseyni to meet the tertiary ground. In that regard, I agree with the comments of Ms. Schofield that in its review of the tertiary ground, this Court must look at all of the circumstances of this case.

THE TERTIARY GROUND

The charges which Mr. Hoseyni faces are charges arising out of an alleged case of road rage in which Mr. Hoseyni was a passenger in a vehicle driven by a co-accused. He is alleged to have pointed a loaded firearm at another driver. He is also facing a number of drug related charges, as well as a breach of probation charge. While these charges do not in any way constitute what might be described as the most serious of offences, Ms. Schofield quite rightly acknowledged they were serious charges. That said it is worth pausing to note that Parliament, in its wisdom, has not provided any category of offence for which bail cannot be granted. It is also worth pausing to note that in its decision as to whether to deny bail on the tertiary ground, section 515(10)(c) directs the reviewing court to consider “all of the circumstances”, which includes “whether a firearm was used.” I take from this that the use of a firearm in the commission of an alleged criminal offence is deemed to be a significant factor as to whether a release should be denied on the tertiary ground.

The starting point for the application for the tertiary ground on an application for bail such as the one before this court is the decision of the Supreme Court of Canada in R. v. Hall (2002) 2002 SCC 64, 167 C.C.C. (3rd) 449. As noted by the majority decision of McLachlin C.J., a situation may arise, where despite the fact that the accused is not likely to abscond or commit crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice.

In determining whether such a situation has arisen, McLachlin C.J. went on to state:

“...The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.”

Hall has been cited in a number of cases for the proposition that bail can only be denied pursuant to section 515(10)(c) in limited circumstances and should only be used sparingly. As Cronk J.A. noted in R. v. LaFramboise 2005 63758 (ON CA), [2005] O.J. No. 5785 (O.C.A.):

“First, in my view, the import of the Supreme Court of Canada decision in Hall is that section 515(10)(c) can only be used sparingly to deny bail. Where, as here, the Crown places no reliance on sections 515(10)(a) and (b) of the Code to oppose bail, the detention of an accused under section 515(10)(c) will be justified only in rare cases.”

The Ontario Court of Appeal in R. v. Mordue 2006 31720 (ON CA), [2006] O.J. No. 3654 notes that the question of whether a reasonable person would be satisfied that refusal of bail is necessary to maintain public confidence in the administration of justice presents the usual difficulties with a reasonableness standard. The determination of that reasonableness standard is achieved by the requirement that the court consider the four factors set forth in Section 515(10)(c) (i.e., (1) the apparent strength of the prosecution’s case; (2) the gravity of the nature of the offence; (3) the circumstances surrounding its commission; and (4) the potential for a lengthy term of imprisonment. This court’s function now is to assess these factors as they relate to Mr. Hoseyni.

As to the strength of the Crown’s case, very little emphasis was placed on this aspect of the case during the course of argument. Perhaps rightly so, as it is somewhat difficult for a reviewing court to place undue emphasis on the strength of the Crown’s case without encroaching on the fundamental presumption of innocence that remains with an accused right through until there is a finding of guilt or innocence at the end of a trial. That said, the evidence would suggest that Mr. Hoseyni was at the very least found in a vehicle where a loaded firearm was retrieved by the investigating police officers. There will be identification evidence led by the Crown suggesting it was Mr. Hoseyni who pointed the gun. The case with the Crown can be said to be one that has its strengths and also some possible weaknesses.

Dealing with the gravity of the offences as I have already alluded to, this is not a case that falls into the category of being the most serious. It does however involve the use of a firearm - a firearm that was loaded, with its safety mechanism off, and that was found in the vehicle where Mr. Hoseyni was arrested. It has been said many times by many other judges of this and other courts that the proliferation of the use of firearms is one of the scourges facing our society that must stop. The following comments are worth repeating and have been considered by me in my ultimate decision as to whether the release of Mr. Hoseyni is appropriate, having in mind the criteria set forth is section 515(10)(c) of the Criminal Code.

In R. v. Danvers (2005) 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (C.A), Armstrong J.A. at page 508 in dealing with a case of murder committed with a handgun said:

“The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in the city over the last number of months. Citizens in Toronto are understandably appalled at what appears to be a proliferation of handguns in the city. The alarm that naturally arises from that perception is dramatically increased by the apparent willingness of certain individuals to use those handguns, very often in indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.”

In another case where the use of firearms was the subject matter of judicial comment, Nordheimer J. stated in R. v. J.G. [2005] O.J. No 4599:

“The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in this city over the last number of months. Citizens in Toronto are understandably appalled at what appears to be a proliferation of handguns in the city. The alarm that naturally arises from that perception is dramatically increased by the apparent willingness of certain individuals to use those handguns, very often in indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.”

Finally, I have taken note of the comments of Trotter J. in R. v. Taylor (2008) 16189 (ONSC), where in dealing with the tertiary ground and the use of a firearm he said:

“The use of handguns has become a very real problem in Toronto. I can do no better than to repeat the words of my colleague, McCombs J., in R. v. Zekarias (March 13, 2008) (Ont. S.C.J.), at paragraph 23:

Guns have become a scourge in our community. People have become justifiably fearful that gunfire may erupt at any time, even in crowded, popular areas, frequented by law-abiding citizens. The public has the right to expect its courts to act firmly and decisively in the face of brazen, callous, and outrageous conduct such as that alleged here. In the circumstances of this case, detention is necessary in order to maintain confidence in the administration of justice.

I completely adopt Justice McCombs’ analysis. In this case, all of the factors enumerated in section 515(10)(c) of the Criminal Code are considered, particularly the strength of the evidence that presently exists against Mr. Taylor. Confidence in the administration of justice would be undermined by his release.”

What makes Mr. Hoseyni’s case difficult to reconcile with the aforesaid comments is the clear indication from both the Supreme Court of Canada in Hall, and our Court of Appeal in LaFramboise, that the tertiary ground is only to be invoked as grounds not to release an accused in rare cases. As I have already noted, the Court is specifically required when looking at all of the circumstances in any given case to give consideration to whether a firearm was used in the commission of the alleged offence. Nonetheless, section 515(10)(c) does not provide that the mere fact that a firearm is used, precludes the possibility of bail. In fact to suggest that such is the case would, in my opinion, fly in the face of an accused’s Charter right not to be denied reasonable bail without just cause.

While the proliferation of guns in our community are without any doubt one of the most serious challenges our society faces today, our courts when faced with an application for bail cannot simply say that with a firearms charge an accused will face an almost insurmountable challenge to his or her release, given the application of the tertiary ground. What then are the factors that should guide this court? The offences that Mr. Hoseyni faces are serious, but not at the most serious end of the spectrum. He does face a not insignificant period of incarceration should he be convicted of the firearms related charges. Against these factors must be weighed the fact that Mr. Hoseyni, like all accused, is entitled to the presumption of innocence. As such, as pointed out by Ducharme J. in R. v. A.B. (2006) 2006 2765 (ON SC), O.J. No 394:

“The importance of the presumption of innocence, the golden thread that runs through our system of criminal law and is guaranteed in section 11(d) of the Charter. She or he would understand that the presumption of innocence attaches to any person charged with a criminal offence, and that it is not displaced until the Crown has satisfied an independent and impartial tribunal of the accused’s guilt beyond a reasonable doubt. She or he would understand that the person seeking bail is only alleged to have committed an offence. The reasonable member of the public would expect to be presumed innocent if charged with a criminal offence and would want anyone else charged to be treated in a similar fashion. She or he would understand that pre-trial detention of a person who is merely accused of a criminal offence is inconsistent with the presumption of innocence, and must therefore be justified with care.”

Justice Ducharme in A.B. continues in his decision to provide useful guidance in terms of those additional factors that the court may wish to consider when dealing with the application of the tertiary ground. I summarize these factors as follows:

(i) the constitutional guarantee of a right to bail;

(ii) the assessment of each case, on a case by case basis, bearing in mind as well that there are no offences for which bail is automatically denied, including murder and firearms offences;

(iii) the court must consider the nature of the allegations and never lose sight of the fact these are in fact allegations and just allegations which may or may not be proven at trial;

(iv) the impact that pre-trial incarceration will have on an accused, including the impact it may have on his ability to properly prepare for trial, as well as the impact it will have on his family and his present and future employment; and

(v) the fundamental principle that an accused should only be denied his liberty and sentenced to jail after there has been a finding of guilt beyond a reasonable doubt, and the court has had an opportunity to hear sentencing submissions.

The facts in A.B. were particularly noteworthy in the context of Justice Ducharme’s ultimate decision to reverse the bail hearing judge’s decision to deny bail. Boxing Day in Toronto 2005 was an unforgettable day when gunfire on Yonge Street resulted in the tragic death of an innocent bystander. No more than 12 days later, the accused in A.B. was arrested at a gas station in possession of a semi-automatic handgun. He was perhaps, in the eyes of many in the community, not surprisingly ordered detained on the tertiary ground. After the application of the principles that I have summarized above, Ducharme J. then released the accused on strict terms, and commented as follows:

“There is, understandably, no evidence of any particular public concern about A.B. himself, and nothing in the nature of the offences that suggests, without more, that releasing him on bail would undermine confidence in the administration of justice. In my view, none of the four factors contained in section 515(10)(c) discussed above suggest that A.B. should be detained on the basis of the tertiary ground. Even with the heightened public concern about gun violence in Toronto, releasing A.B. will not in any way undermine public confidence in the administration of justice. This conclusion becomes that much clearer when one considers his personal antecedents, the released plan in place for him and the fact that the Crown does not suggest that he will abscond or commit further offences if released. Thus, it is clear to me that this is not one of the relatively rare cases where detention is justified solely on the tertiary ground.”

As I have already made clear, I have great difficulty reconciling some of the jurisprudence denying bail on the tertiary ground when dealing with firearms related offences with the clear guidance given by Hall and LaFramboise, requiring our courts only to apply the tertiary ground in the rarest of cases. It may very well be the case in years to come that Parliament in its wisdom may decide to legislate the denial of bail in a firearms related offence. This Court however must apply the provisions of section 515(10)(c) in light of what I perceive to be the clearest of dicta from our higher courts that the tertiary ground for the denial of bail should only apply in the rarest of cases. I know of no public concern as it relates to Mr. Hoseyni that would cause this court to deny him bail. I have no evidence that the release of Mr. Hoseyni will undermine the administration of justice, particularly where the terms of his release will amount to virtual house arrest monitored by two sureties who have pledged their life savings and where there is the added, albeit not total, and certainly not foolproof, supervision provided by electronic monitoring.

Mr. Hoseyni is therefore granted bail on the following conditions:

He shall be released pending his trial on recognizance with sureties in the amount of $100,000 without deposit. Bahman Mazandrani and Narges Khoshrow shall act as his sureties. He shall live at and, at all times, remain at 91 Routledge Drive, and shall at all times be in the care, custody and control of one or more of the aforementioned sureties. The only exception to him being at 91 Routledge Drive shall be if he is approved to attend school, or full time or part-time employment, or he is with one or other of his sureties. He shall submit to 24-hour electronic monitoring with Recovery Science Corporation, the cost of which shall be borne by Mr. Hoseyni. He shall have in his possession at all times a copy of his recognizance of bail. He shall have no contact with any of his co-accused and shall have no contact with any Crown witnesses, the only exception being if he is in the company of his counsel. He shall deposit all travel documents, including any and all passports that he may have in his possession and shall undertake not to apply for any new similar documentation pending his trial. He shall promise to keep the peace, be of good behaviour. He shall at all times obey the rules of the house of which he is living, and shall follow all lawful instructions given to him by Mr. Mazandrani and Ms. Khoshrow. He shall not possess any cell phone. He shall not possess any weapon as defined by the Criminal Code. He shall abstain from the use of any alcoholic beverage, or any non-prescriptive medication. Are there any other submissions concerning the terms of release?

MS. SCHOFIELD: None from myself, sir.

THE COURT: Mr. Tait?

MR. TAIT: No, I don’t believe so, Your Honour. Thank you for your consideration of the matter. The names of the co-accused, madame registrar has those?

COURTROOM REGISTRAR: I have one of them.

MR. TAIT: Mr. Kushain. And the other co-accused Mr. Kiarash Parzham. I think it’s K-I-A-R-A-S-H.

COURTROOM REGISTRAR: R-A-S-H?

MR. TAIT: Right. Last name P-A-R-Z-H-A-M. And the key witness Allreza Kashani, A-L-L-R-E-Z-A, last name K-A-S-H-A-N-I. If those could be specified in the order Your Honour, otherwise no, I don’t think there is any other terms, thank you.

THE COURT: All right. Is there anything else...

MS. SCHOFIELD: Nothing sir.

THE COURT: ...that we need to deal with this matter. I would normally give you a copy of my reasons, I typed them myself, so they haven’t been properly formatted, but I can get you a copy in due course should you require.

MS. SCHOFIELD: That would be great, sir. Thank you.

MR. TAIT: All right. Yes, thank you.