NEWMARKET COURT FILE NO.: 12-09926 and 13-05264 and 13-05294

DATE: 20140220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen
Applicant

– and –

Muhammad Bajwa
Respondent

Harold Dale, for the Applicant

W. Glen Orr, for the Respondent

HEARD: February 3, 2014

REASONS FOR DECISION

Douglas J.:

[1] This is an Application by Mr. Muhammad Bajwa (hereinafter “Bajwa”) for an order granting Bajwa’s Judicial Interim Release pursuant to Section 520 of the Criminal Code of Canada.

[2] The factual context may be summarized as follows:

(a) Bajwa was born on September 3, 1970 in Pakistan;

(b) He is a Canadian citizen;

(c) He stands charged with the following offences:

(i) between July 1, 2009 and December 5, 2012, being one of the persons constituting a criminal organization, knowingly orchestrated staged accidents, instructed parties to report accidents to police and file fraudulent insurance claims and hire, instruct and pay employees to process said claims, to commit an offence namely fraud over for the benefit of the criminal organization contrary to Section 467.13(1) of the Criminal Code of Canada;

(ii) between July 1, 2009 and December 5, 2012 did by deceit, falsehood or other fraudulent means, defraud insurance companies of money of a value exceeding $5,000.00 contrary to Section 380(1)(a) of the Criminal Code of Canada;

(iii) between July 1, 2009 and December 5, 2012 did conspire together with others to commit the indictable offence of fraud by agreeing to submit fraudulent insurance claims, contrary to Section 465(1)(c) of the Criminal Code of Canada;

(iv) between July 1, 2009 and December 5, 2012 did wilfully obstruct numerous peace officers in the execution of their duties contrary to Section 129(a) of the Criminal Code of Canada;

(v) between July 1, 2009 and December 5, 2012 did possess proceeds of property namely money of a value exceeding $5,000.00, knowing that all or part of the said proceeds had been obtained by an offence punishable by indictment, contrary to Section 543(1) of the Criminal Code of Canada;

(vi) between July 1, 2009 and December 5, 2012 did use proceeds of property, namely insurance claims paid out by various insurance companies, with intent to conceal or convert those proceeds, knowing or believing that all or a part of same had been obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence, namely an offence against Section 380(1)(a) of the of the Criminal Code of Canada, contrary to Section 462.31(2) of the of the Criminal Code of Canada;

(vii) on or about December 5, 2012 did, being at large on a recognizance entered into before a justice and being bound to comply with a condition thereof, namely “Abstain from the consumption or possession of alcoholic beverages”, fail, without lawful excuse, to comply with that condition, contrary to Section 145(3) of the of the Criminal Code of Canada;

(d) On December 5, 2012 Bajwa was arrested and charged with the offences outlined above.

(e) On December 7, 2012 a bail hearing before Justice of the Peace A.L. Hefkey was commenced and adjourned to December 21, 2012.

(f) On December 21, 2012 the bail hearing continuation was adjourned to January 8, 2013 in part due to change in counsel for Bajwa.

(g) On January 8, 2013 the matter was further adjourned to January 12, 2013.

(h) On January 17, 2013 new counsel for Bajwa, Mr. David Steinberg, attended and the bail hearing was adjourned to February 5, 2013.

(i) On February 5, 2013 the bail hearing continued to completion at the conclusion of which the court reserved its decision.

(j) On February 19, 2013 the learned justice of the peace rendered her decision, detaining Bajwa on both the secondary and tertiary grounds.

(k) Bajwa has a criminal record summarized as follows:

(i) April 2005, fail to stop at scene of accident involving bodily harm or death (two charges), sentence of 90 days intermittent and to probation of two years on each charge concurrent following three months pre-sentence custody, and a five year driving prohibition;

(ii) November 2006, fail to comply with recognizance and fail to comply with a probation order, sentence of 42 days intermittent and probation for three months on each charge concurrently following nine days pre-sentence custody;

(iii) December 2006, assault, sentence of 30 days intermittent, consecutive to sentence being served, and probation of one year; and

(iv) October 2008, uttering forged document, $10,000.00 fine and six months’ probation.

(l) While in custody on these matters arising from an incident prior to his being taken into custody, Bajwa was convicted of impaired driving and refusing to provide a blood sample.

(m) Bajwa also currently faces charges relating to an alleged theft from a lawyer’s trust account in the amount of $23,794.25.

(n) Bajwa proposes the following terms of release: a recognizance of bail with two sureties being Mr. Mohsin Bajwa and Pioter Kaczmarek. Mr. Mohsin Bajwa would provide a $50,000.00 letter of credit. Bajwa would be obliged to remain in his residence subject to electronic monitoring and prohibited from leaving his residence save in the company of his sureties and solely for the purpose of attending court or for a medical emergency.

(o) It is the position of the Crown that the learned justice of the peace was correct in denying bail on both the secondary and tertiary grounds and that decision ought to stand.

Bail Review

[3] The Court received evidence from the following witnesses: Pioter Kaczmarek, Mohsin Bajwa, Stephen Tan and Officer Layne.

Evidence of Pioter Kaczmarek

[4] Mr. Kaczmarek testified in support of Bajwa’s Application for Judicial Interim Release.

[5] Mr. Kaczmarek was born on December 2, 1962 in Poland. He has no criminal record. He is a Canadian citizen. He lives at unit 8, 140 13th Street, Toronto. He has known Bajwa for six years. They spend a lot of time together fishing and barbequing. In the summer they are together almost every weekend. He has been to Bajwa’s house. He is aware of Bajwa’s criminal record and outstanding charges. He indicated that he understood what a surety is and that he was willing to act as a surety. He indicated he was prepared to live with Bajwa “24/7” for the duration of bail. He was not prepared to pledge any portion of the equity in his residence as it is jointly owned with another party. He was, however, willing to pledge $5,000.00.

[6] In cross-examination Mr. Kaczmarek conceded that he did not know the first name of the other proposed surety. He was challenged to identify Bajwa’s father by name and had some difficulty doing so. He was uncertain as to the address of the other proposed surety. He was uncertain of the name of the other proposed surety. He had last seen Bajwa in September 2012 in Richmond Hill. He did not remember Bajwa’s wife’s name. When asked about how he transported himself to court to testify he indicated that he drove with another party because he “didn’t feel too well” and because Bajwa’s sister was driving to court anyway he travelled with her. After further pressing he eventually conceded that he was a suspended driver and that he has been suspended from driving since 2008 for failure to pay fines. The witness struggled to describe what Bajwa did for a living before he was taken into custody and really did not appear to have any direct knowledge of Bajwa’s employment history.

[7] The witness acknowledged that during cross-examination in answering some questions he received some guidance with his answers from a person sitting in the body of the court who was making gestures to him by nodding and shaking her head and mouthing words. He acknowledged having himself been charged with assault and theft and, after failing to appear on those charges, failing to appear in court. He testified that all of those charges were “dropped” and that it was through inadvertence that he missed a court date.

Evidence of Mohsin Bajwa

[8] Mr. Mohsin Bajwa gave evidence in support of Bajwa’s Application for Judicial Interim Release.

[9] He confirmed that though he shares an identical surname he is not related to Bajwa. He was born in Pakistan and came to Canada in 1999. He is a Canadian citizen.

[10] He is a licensed real estate agent and has been so employed since 2008. He has no criminal record. He conceded that he had been charged in the past with assault, assault peace officer, assault with a weapon, assault bodily harm, being a member of a criminal organization and robbery with assault.

[11] He is employed with Century 21 Parkland in downtown Toronto. He knows Bajwa as Bajwa is a friend of his father. Bajwa is known to this witness, although “he is not a really good friend.” He has known Bajwa since 1999. The witness lives at 35 Leahurst Drive, Toronto with his father, mother, wife and brother. He is aware that Bajwa has a criminal record. He understands the nature of being a surety and he is prepared to act as a surety for Bajwa. He is prepared to provide a letter of credit from the bank in the amount of $50,000.00 payable as directed by way of security in connection with his surety. He has met Mr. Kaczmarek a few times. Were Bajwa ordered released to house arrest and to reside with Mr. Kaczmarek he would be willing to provide respite for Mr. Kaczmarek on occasion as required.

[12] In cross-examination this witness confirmed prior employment history including driving a taxi, being a student and being employed at a security company. He also owned a truck driving school. He had put to him a photograph of him from Facebook in which he posed holding a single barrel 12 gauge shotgun. He confirmed that he is not a holder of a firearms acquisition certificate. He indicated he owned firearms “back home” including a single barrel shotgun, but that he never brought it to Canada. He indicated his brother is licensed to possess weapons and that the photo entered in evidence as Exhibit 1 on the Application for Review was taken in 2010 or 2011 and shows this witness posing with his brother’s shotgun at a storage unit where it is stored.

[13] With respect to his criminal involvement, he indicated he was charged with seven counts of assault with a weapon, five counts of aggravating assault and two counts of possession of a weapon dangerous and that all charges were dropped upon his pleading guilty to one count of instructing criminal organization for which he received a conditional discharge for six months. There was another group of charges including two counts of weapons dangerous, two counts of assault with a weapon and one count of aggravated assault with respect to which these charges were withdrawn in 2006 upon the witness entering into a peace bond for one year. This witness has not been to jail to visit Bajwa. He last saw Bajwa two to three years ago. He has approximately $140,000.00 in gold in the bank. It was purchased in July 2013 from the proceeds of sale of a home which had been purchased for $410,000.00 and sold for $720,000.00.

Evidence of Stephen Tan

[14] Mr. Tan is a founding partner and operations manager for Recovery Science Corporation, incorporated in 1989, the purpose of which is to provide continuous alcohol monitoring by ankle bracelet and electronic location monitoring of accused persons. The program parameters and procedures are described more particularly in tab 16 of the record for this application and I do not intend to repeat those details here.

[15] Mr. Tan testified that the procedure described in the materials supplied are “standard” and can be varied by the court. He indicated he can install the equipment promptly upon the order being made. He confirmed that he is familiar with the area of Bajwa’s residence and that it is conducive to use of this system with GPS technology. He indicated that a “zone” would be created around the perimeter around Bajwa’s residence, or as the court otherwise directs. If there is an unauthorized departure by an accused from a permissible zone then he receives electronic notice which can then be passed on to the authorities. An alert of a person leaving a zone goes out within about 10 minutes and once the alert has been verified police are notified within about 20 minutes of the breach.

[16] Mr. Tan was questioned about the findings of Mullins J. in the case of Mansouri v. R. on a bail application under Section 22 of the Criminal Code. In that decision Mullins J. refers to “the frailties of the GPS service”. Mr. Tan conceded “limitations” and indicates that many of Justice Mullins’ concerns have been addressed. For example, “although Recovery Science Corporation is a small company, it has adopted an on call method of monitoring.” In addition to the active partners in the company being on call they have also added a “24/7” monitoring centre to receive the alerts. There will always be frailties resulting from power outages and satellite signal interruptions. Typically the confirmation of the position of an accused person wearing a bracelet is taken every couple of minutes and Recovery Science Corporation has moved to a secondary device that gives alerts after a 30 minute gap in receipt of such messages. The device is not designed to be an immediate response tool. The bracelet is easy to take off, but it triggers an alert. The bracelet must be easy to remove for safety reasons in the event of a medical emergency.

[17] In cross-examination Mr. Tan conceded that the monitoring system is, in part, reliant upon the bona fides of both an accused and the sureties.

Evidence of Lyndon Layne

[18] This witness was called by the Crown in response to the Application for Review.

[19] The witness is a court officer for York Regional Police. He was present in court during cross-examination of Mr. Kaczmarek. He observed a woman seated behind Bajwa during questioning. The woman was nodding in relation to the questions asked of Mr. Kaczmarek in excess of five times. She appeared to be a member of Bajwa’s family but he was not sure. During his testimony the woman was no longer present in the courtroom. She left when Mr. Kaczmarek was questioned about the issue by Crown counsel. The woman was nodding, sometimes affirmatively, sometimes negatively shaking her head. She was mouthing words to the witness but he could not tell what she was mouthing. She was only doing so during the Crown’s cross-examination of Mr. Kaczmarek. Mr. Kaczmarek seemed unsure of some of his evidence and then answered after she made her gestures. It seemed as if she was responding to the Crown’s questions.

The Law

[20] Section 515(1) of the Criminal Code provides as follows:

…where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

[21] Section 515(2)(c) of the Criminal Code provides as follows:

Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released, on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security.

[22] Section 515(2.1) of the Criminal Code provides as follows:

Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.

[23] By virtue of Section 515(6)(a) of the Criminal Code the onus was on the accused to show cause why his detention in custody was not justified.

[24] Pursuant to Section 515(10) of the Criminal Code:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[25] A fundamental concept in our criminal law is the presumption of innocence.

[26] The public interest and concern for the proper administration of justice are to be balanced against the accused’s constitutional right to a reasonable bail (See R. v. Hadani, 1999 BCCA 334, [1999] BCJ No. 1150 (BCCA)).

[27] In R. v. Farinacci [2009] OC No. 4701, the accused was charged with numerous drug related and weapons offences. Although the accused was a flight risk, he did not have access to large amounts of cash nor did he have the ability to lawfully leave the country without his passport. It was determined unnecessary to detain him on the secondary ground as long as two sureties were in place to supervise. The accused proved it was unnecessary to detain him on any of the three grounds, provided that he was released on very strict terms. His movements and actions were to be severely restricted and he was to be monitored and/or supervised at all times while awaiting trial.

[28] In R. v. Gale, 2001 ONCA 144 a review was conducted of bail on a charge of second degree murder. The Crown did not challenge the determination that the accused’s detention was not justified on the primary or secondary ground. The Crown argued that the judge failed to give sufficient weight to certain features of evidence when considering the tertiary ground. The Court of Appeal emphasised that the tertiary ground is to be used sparingly to justify a detention. A decision to grant or refuse bail based on the tertiary ground involves a careful assessment of the interaction of subtle factors that are difficult to measure and which readily would admit of different assessments by reasonable people. Although this was a borderline case, there was no evidence that the judge erred in law, misapprehended evidence, or reached an unreasonable result in granting bail.

[29] In R. v. LaFramboise 2005 63758 (ON CA), [2005] OJ No. 5785 (OCA) the Court stated that the tertiary grounds could only be used sparing to deny bail. Detention of an accused under Section 515(10)(c) is justified only in rare cases. The nature of the offence charged, by itself, could not justify the denial of bail. Something more is required than the fact that the charge is grave, potential punishment may be lengthy, and the Crown has a strong case, to detain under Section 515(10)(c).

[30] Where the case turns on the tertiary ground, the question is whether the accused’s presence in the community will undermine the public’s confidence in the administration of justice. Section 515(10)(c) of the Code was designed so that a consideration of all the circumstances, including the apparent strength of the prosecution’s case, the gravity and nature of the offence, the circumstances surrounding it’s commission, and the potential for a lengthy term of imprisonment would result in a determination that maintained the public’s confidence in the administration of justice (See R. v. Mordue (2006) 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (OCA)).

The Position of the Applicant

[31] The Applicant argues as follows:

(a) The learned justice of the peace erred in not concluding that the electronic monitoring system would address any concerns under the secondary grounds;

(b) The learned justice of the peace erred in not considering the electronic monitoring system at all in relation to the tertiary grounds; and

(c) There has been a change in circumstances since the justice of the peace rendered her decision including the amount of defrauded funds traceable to Bajwa has been reduced from $875,000.00 to approximately $160,000.00 and the new plan of release includes electronic monitoring and two sureties, one of whom will be present with Bajwa at all times.

(d) A proposed surety is not to be dismissed simply by virtue of the fact that he has been charged previously.

(e) The primary grounds were not an issue at the bail hearing and are not an issue now. In any event, the electronic monitoring would address the primary grounds.

(f) Any “frailties” in electronic monitoring as referenced by Mullins J. in Mansouri have been addressed by improvements in the system as confirmed by Mr. Tan in his evidence.

(g) On the secondary grounds the question is whether if the Applicant’s plan is enacted the secondary grounds would come into play and the response to this is “no”.

(h) The tertiary grounds are to be relied upon only in the rarest of cases and this is not one of those cases. In any event, on the tertiary grounds the Crown’s case is not necessarily as strong as it appears. Regarding gravity of the offence, the quantum at issue now is much less than originally alleged. There were no weapons utilized in the index offences. In terms of term of imprisonment Bajwa is facing he has already been in custody for over one year and this would be considered in any eventual term of imprisonment imposed if found guilty of any offences. Therefore the tertiary grounds are not applicable.

The Crown’s Position

[32] The Crown’s position may be summarized as follows:

(a) On this application the onus is on the Applicant to satisfy the court that he ought to be released;

(b) The order of the justice of the peace fully considered the electronic monitoring system now being advanced by the Applicant;

(c) The Crown conceded the primary grounds on the basis of the electronic monitoring system; and

(d) The bail hearing was unusually long and as a consequence there was an unusually substantial amount of evidence presented to the justice of the peace. Her decision was grounded in a fulsome appreciation of the available evidence.

(e) At page 12 of the reasons for decision of the learned justice of the peace she referred to electronic monitoring in relation to both the secondary and tertiary grounds;

(f) It was open to the court that bail be set but not met.

(g) The sureties had been previously proposed by prior counsel at the bail hearing and the learned justice of the peace did not feel it was appropriate to release with sureties.

(h) The fraud in question is valued at approximately $5,000,000.00 including not only the actual fraud but also the potential fraud.

(i) The $160,000.00 referenced above is the quantum that can be tracked directly to Bajwa and his companies.

(j) This is not a typical case of fraud. Staged motor vehicle accidents resulting in insurance fraud are a major problem. This case is worthy of tertiary ground consideration.

(k) There is a very serious concern regarding the bonifities of the sureties advanced by the Applicant.

(l) Does Mr. Kaczmarek really know Bajwa and his family? Although he has not been convicted of any criminal offences, he has been charged with serious offences. His credibility is dubious given his reliance upon prompting from a person in the court audience while giving testimony under oath.

(m) Similarly, Mr. Mohsin Bajwa is not appropriate as a surety. He too has had dealings with the criminal judicial system. He does not have clean hands.

(n) The electronic monitoring system espoused by Mr. Tan has limitations. This system is not appropriate in every case.

(o) Bajwa’s record is concerning including a breach of recognizance relating to having dealings with motor vehicles while prohibited from doing so. He has two charges of breach recognizance outstanding.

(p) His preliminary hearing starts in one week from February 3, 2013 and the judge presiding to that event can vary terms of bail pursuant to Section 523(2)(e) of the Criminal Code.

(q) As confirmed by the Ontario Court of Appeal in United States of America v. Pannell [2005] OJ 10, if there are concerns under the primary grounds electronic monitoring does not alleviate those concerns although the plan of supervision that includes monitoring can address concerns on any of the primary, secondary and tertiary grounds. Whether a release plan with monitoring addressed concerns sufficiently to fit the balance in favour of release depends on the constellation of factors present in the case at hand.

(r) The index offences are serious and the Applicant is alleged to be the main player in a criminal organization.

Analysis

[33] There is no issue before me as to whether Bajwa ought to be detained on primary grounds. The Crown concedes that this is not an issue.

[34] Regarding the secondary grounds, given Bajwa’s conviction for fail to comply with recognizance in 2006 he has demonstrated a readiness to breach terms of bail. He has also demonstrated readiness to breach court orders with his conviction for fail to comply with a probation order, also in 2006. That does not end the analysis. The issue for me in this regard includes whether “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice…” and although it might be considered a strong possibility that Bajwa would breach terms of bail, I cannot conclude on the evidence available to me that it is as strong as “substantial likelihood” as contemplated by Section 515(10)(b) of the Code.

[35] Further, the Applicant’s proposed plan of release, if implemented, would address any such concerns.

[36] I conclude therefore that the learned justice of the peace erred in detaining Bajwa on the secondary grounds.

[37] Regarding the tertiary grounds, in my view, the case law is clear that it is only in the rarest of circumstances that detention can be justified on the basis of these grounds. In my view this is not one of those cases. The Supreme Court of Canada in R. v. Hall 2002 SCC 64, [2002] 3 SCR 309 held that in considering whether detention is necessary to maintain confidence in the administration of justice, the inquiry must focus on the reasonable community perception of the necessity of denying bail to maintain confidence in the administration of justice, judicially determined through the objective lens having regard to all the circumstances including the strength of the case, the gravity of the nature of the offence, the circumstances surrounding the offence and the potential for a lengthy term of imprisonment. Further, no one factor in Section 515(10)(c) is determinative. The factors should be analysed together having regard to their combined effect. Where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is expected (See R. v. Mordue (2006) 2006 31720 (ON CA), 223 CCC (3d) 407). I have considered all of these factors in arriving at the conclusion outlined herein.

[38] I have reviewed all of the exhibits before the learned justice of the peace at the bail hearing and I have carefully considered the reasons for decision of the learned justice of the peace.

[39] Regarding the electronic monitoring, while it is clear the system has its limitations, as conceded by Mr. Tan, it is, nevertheless, in my view an important and useful tool in monitoring the location of an accused, particularly when coupled with the presence of a reliable party as surety.

[40] I am also persuaded that terms that Bajwa not use a telephone of any variety or a computer further enhance restrictions on Bajwa’s ability to participate in behaviour similar to that contained in the serious allegations against him.

[41] I conclude that the proposed terms of release advanced by the Applicant (apart from propriety of sureties) address any concerns under both the secondary and tertiary grounds in Section 515(10) of the Code.

[42] However, Mr. Kaczmarek is not a suitable candidate for surety for the following reasons:

(a) I was concerned by this witness’ readiness to attempt to deceive the court by apparently receiving “coaching” from the body of the court while giving testimony under cross-examination. This clearly generates doubt as to his bona fides; and

(b) he was not forthright with the court in presenting his evidence, preferring to avoid acknowledging why he could not drive to court until pressed on the issue.

[43] Regarding Mr. Mohsin Bajwa as proposed surety, his prior dealings with the criminal justice system leave me with concerns that he can be relied upon to faithfully monitor Bajwa’s conduct while on release in the community. Also, he appears to have little personal acquaintance with Bajwa, an important element when considering the likelihood that this proposed surety would remain in regular contact with Bajwa.

[44] Bajwa’s proposed terms of bail must fail because his sureties are not satisfactory for the reasons noted above.

[45] Therefore, solely on that basis, the Application by Bajwa is dismissed.

Justice P. Douglas

Released: February 20, 2014