CITATION: R. v. Latif, 2016 ONSC 1668
COURT FILE: CRIMJ(F) 1125/15
DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. D. King, for the Respondent
- and -
ARSHAD LATIF
M. Moon, for the Applicant
HEARD: February 29, 2016
REASONS FOR JUDGMENT
HILL J.
TABLE OF CONTENTS
Para. No.
INTRODUCTION.......................................................................................................................... 1
FACTUAL CONTEXT
Background of Applicant.......................................................................................................... 5
The 2014 Charges (the “Original Charges”)........................................................................ 10
Bail Variations......................................................................................................................... 16
The Second Set of Charges.................................................................................................. 20
Three Weeks Later................................................................................................................. 35
The Preliminary Inquiry on the Original Charges is Completed......................................... 37
Later that Day…...................................................................................................................... 42
Three Days Later.................................................................................................................... 47
Subsequent August 2015 Attendances at the Windsor Casino........................................ 51
Windsor Casino Terminates Malik’s Attendance................................................................ 54
The Third Set of Charges
the arrest and charges....................................................................................................... 56
the frauds and prohibited Internet use.............................................................................. 60
the s. 524 ruling.................................................................................................................. 69
the show cause hearing - introduction.............................................................................. 70
evidence of the Applicant’s wife....................................................................................... 72
the second proposed surety.............................................................................................. 85
positions of the parties at the show cause hearing........................................................ 88
the reasons for detention................................................................................................. 108
THE BAIL REVIEW APPLICATION
Introduction............................................................................................................................ 120
The Proposed Fresh Evidence
addiction counselling....................................................................................................... 123
electronic monitoring....................................................................................................... 128
Status of Proceedings Respecting All Charges............................................................... 131
Parties’ Submissions........................................................................................................... 134
ANALYSIS
Introduction............................................................................................................................ 144
Did the Justice of the Peace Have Jurisdiction To Conduct a s. 524
Revocation Hearing?........................................................................................................... 148
Whether There was Legal Misdirection as to the Scope of the Secondary
Ground for Detention............................................................................................................ 157
Cancellation of the Outstanding Recognizance................................................................ 162
The Primary Ground............................................................................................................. 164
Whether Findings of the Justice of the Peace Were Unreasonable
Respecting the Secondary Ground.................................................................................... 168
Admissibility of the Fresh Evidence................................................................................... 184
The Tertiary Ground.............................................................................................................. 192
The 90-day Review............................................................................................................... 207
CONCLUSION......................................................................................................................... 212
INTRODUCTION
[1] Arshad Latif is in custody facing 27 criminal charges. This state of affairs has a lengthy history.
[2] In May 2014, the Applicant was arrested on charges of fraud. He was granted bail. In January 2015, he was arrested for breaches of his recognizance. He was again released on bail. In November 2015, he was arrested for fraud and more breaches of recognizance. The Applicant was denied bail – he says without just cause.
[3] The Applicant requested this court review his detention. In addition, the court entertained a 90-day mandatory review of the Applicant’s detention.
[4] The Applicant should remain in custody.
FACTUAL CONTEXT
Background of Applicant
[5] The Applicant is 59 years of age. In 1996 or 1997, he came to Canada from Pakistan with his wife (Fatima Arshad) and three children. A fourth child was born in Canada. The Applicant is now a Canadian citizen.
[6] Mr. Latif has a prior criminal record:
October 5, 2004 - utter forged - suspended sentence document (x2) (4 days presentence custody (PSC)) & 2 yrs.’ probation
July 14, 2009 - fail to comply - 1 day concurrent on with recognizance (x2) each charge (30 days’ PSC) & 12 mons.’ probation
November 18, 2010 - fraud “over” - 1 day (4 mons.’ PSC) & 12 mons.’ probation
[7] One of the 2004 uttering convictions related to the Applicant’s possession of a false Portuguese passport in the name of Hamsa Alam.
[8] The 2009 convictions for failure to comply with a recognizance relate to a July 1, 2009 offence date. The Applicant, charged with fraud, had been released on a recognizance which included conditions that he be in the company of a surety at all times when absent from his residence, and, that he not attend any casino premises. The Applicant attended the Vaughan Mills Mall with his sureties who were his wife and sister-in-law. While the Applicant’s wife was in a hairdresser establishment, the Applicant disappeared. According to testimony of Ms. Arshad, after finding that her husband was also not with the second surety, she phoned the police only to learn that the Applicant was under arrest at the Rama Casino in Orillia.
[9] According to testimony of Peel Regional Police Service (PRPS) Constable L. Cato in a January 28, 2015 proceeding, in the November 10 fraud conviction, the victims were led to invest monies with the Applicant based on his misrepresentations:
While in Canada, the accused showed the victims a massive scrap metal yard in the GTA that he, allegedly, owned and took them on trips to the casino in limousines. Convinced by the accused that his business dealings were legitimate, the victims returned to Kuwait and transferred another $31,250 to the accused, through Lab Tech Incorporated, on June the 9th, 2008. By July 2008, the accused was arranging two letters of credit totalling $495,000. The victims’ family in Brampton unravelled the fraud and contacted banks and police. The letters of credit were cancelled. However, the victim suffered a loss totalling $49,000 Canadian.
The 2014 Charges (the “Original Charges”)
[10] On May 22, 2014, the Applicant was arrested for 4 charges of fraud over $5,000 relating to alleged conduct in 2011 and 2012. A fifth charge, contrary to s. 56.1(1) of the Code, related to the unlawful possession in 2000 of an identity document, to wit, a vehicle driver’s licence in the name of Hamza Alam.
[11] The fraud charges relate to the Applicant’s use of a corporate entity, Steel Management Co., soliciting investment as an international scrap metal business from 4 separate complainants relating to a venture to ship scrap metal overseas. It is alleged that the Applicant took individual complainants to Attar Metals’ recycling plants and yards to show them scrap metal he claimed he owned which was ready for shipment abroad.
[12] The Applicant had nothing to do with Attar Metals and in fact owned no scrap metals at these locations. It appears that the Applicant posed as David Starn in soliciting funds from the complainants resulting in a total unrecovered loss of $745,000.
[13] Police investigation revealed that the business address of Steel Management Co., 2680 Matheson Blvd., in Brampton, was at “Intelligent Office” a form of virtual officer where messages are taken and an office provided when requested. During the investigation, the operator of Intelligent Office, Peggy Adams, identified a photo of the Applicant as the person she knew as David Starn. The police were unable to identify any legitimate business conducted by Steel Management Company.
[14] After a contested bail hearing, the Applicant was released on May 29, 2014 on a recognizance with seven conditions. The surety was Danesh Irani resident at 668 Rossellini Dr., Mississauga. The surety pledged $50,000 without deposit. Mr. Irani was an employee of the Park Inn by Radisson Hotel. The release conditions were as follows:
Reside with your surety at 668 Rossellini Dr., Mississauga L4W 1L1 and abide by the rules and disciplines of the household.
Remain in your residence
EXCEPT
unless you are in the presence of your surety
unless at place of employment
Deposit your passport with Detective McGarry at Peel Regional Police 180 Derry Rd. E. Mississauga. Do not reapply for a passport or any other travel permits or documents
Do not associate or communicate in any way with the following: Bhupinder Bhoohi and family, Madan Rohra and family, Sohan Girn, Rajinder Kalsi
EXCEPT:
- through legal proceedings
Stay out of all casinos in the province of Ontario.
Not to have in your possession any financial instruments.
Not to attempt to solicit business by way of the internet.
(emphasis added)
[15] Because the police were aware that, during the period of the alleged fraud, the Applicant was gambling in casinos, and the $745,000 was unrecovered, the condition was imposed to prohibit attendance at any Ontario casino.
Bail Variations
[16] In the summer of 2014, the Applicant secured employment working full-time for Harpreet Sethi at the Park Inn by Radisson Hotel working in some special events management capacity. It is said that this employment would require the Applicant to attend casinos at times relating to tourist group packages.
[17] On August 1, 2014, a new recognizance was entered into with these conditions:
Reside with your surety at 668 Rossellini Dr., Mississauga L4W 1L1 and abide by the rules and disciplines of the household;
2a) Remain in the residence of your surety unless you are in the presence of your surety or; 2b) Travelling directly to your place of employment at the Park Inn’s Grand Victorian facility and returning directly home; 2c) In the course of his employment going directly to and from only the locations the surety directs him to attend in the course of his employment at the Park Inn’s Grand Victorian facility; 2d) For medical or dental emergencies for himself or members of his immediate family (spouse and child); 2e) to attend court appearances and for interviews at counsel’s office provided he goes directly to the location and directly to his surety’s residence or work; 2f) to attend his family home on the first and third Sunday of each month between the hours of 2 and 4 pm going directly to his home at 8 Tall Pines Place, Brampton and his surety’s residence at 668 Rossellini Dr., Mississauga;
Deposit your passport with Detective McGarry at Peel Regional Police, 180 Derry Road E. Mississauga. Do not reapply for a passport or any other travel permits or documents;
Do not associate or communicate in any way with the following: Bhupinder Bhoohi and family; Madan Rohra and family, Sohan Girn, Rajinder Kalsi except through legal proceedings;
Stay out of all casinos in the Province of Ontario;
Not to have in your possession any financial instruments that you are not lawfully entitled to possess;
Not to attempt to solicit business by way of the internet;
(emphasis added)
[18] A consent variation occurred on August 15, 2014 in these terms:
…delete Condition 1 and replace it with the following: “Reside at 8 Tall Oaks Place in the City of Brampton and abide by the rules routine and Discipline of the household.”
Delete Condition 2 and replace with the following: “2a) Remain in the residence located at 8 Tall Oaks Place in the City of Brampton unless in the company of your surety or; 2b) travelling directly to your place of employment at the Park Inn’s Grand Victorian facility and returning directly home; 2c) in the course of his employment going directly to and from only the locations the surety directs him to attend in the course of his employment at the Park Inn’s Grand Victorian facility; 2d) For medical or dental emergencies for himself or members of his immediate family (spouse and child); 2e) to attend court appearances and for interviews at counsel’s office provided he goes directly to the location and directly to his surety’s residence at 8 Tall Oaks Place, Brampton or work;
(emphasis added)
[19] The residence change permitted the Applicant to move from his surety’s home to his own residence.
The Second Set of Charges
[20] The Applicant was arrested on January 24, 2015 and charged with 10 counts of breaching his recognizance. The charges amounted to 5 pairs of alleged breaches (attend casino when prohibited/fail to remain in residence unless with surety) relating to the dates of December 4 and 14, 2014 as well as January 3, 20 and 21, 2015.
[21] The substance of these new allegations was that the Applicant was in the Niagara Fallsview Casino on the relevant dates in contravention of his bail conditions.
[22] There was again a contested bail hearing. Pursuant to s. 523(2)(c) of the Code, with the Applicant applying to vacate the May 2014 recognizance, the court revoked the existing judicial release order, then conducting a bail hearing on the original (x5) and new (x10) charges.
[23] The police had obtained witness statements, videotape and still pictures from the Fallsview Casino identifying the Applicant at the premises not in the presence of his surety. Evidence also revealed that the Applicant had a player’s gambling card at the casino and had actively played with large sums of money recording losses exceeding $1,114,000. Investigation further disclosed that the Applicant had a player’s card at Casino Rama where he had been quite active recording losses totalling over $324,000. At the show cause hearing, PRPS Constable Cota testified that the Applicant also had a player’s account for the OLG Casino and Slots.
[24] On December 4, 2014, the Applicant and two other males attended the casino cashier’s window for a transaction converting $10,000 in $50 bills to $100 bills. One of the males was Harpreet Sethi. Casino video surveillance for December 14, 2014 showed Mr. Sethi on the casino floor passing $20,000 in casino chips and cash to the Applicant. Although he was not sure, the officer inferred that Sethi may have been placing bets for himself and the Applicant. On December 20, 2014, video surveillance showed the Applicant standing beside Sethi at a roulette table. December 21, 2014 surveillance showed the Applicant and Sethi both seated at a gaming table. In his evidence, Const. Cato agreed that in none of the material he had reviewed from the OPP Fallsview Casino detachment was there evidence of the Applicant himself actually putting chips on a gaming table.
[25] In his testimony at the January 28, 2015 bail hearing, Const. Cato testified: “I believe Mr. Latif has a serious gambling problem”.
[26] The Applicant’s wife, in testifying as a prospective surety, stated:
Q. You’ve lived with him for 30 years, do you believe he has a gambling problem gambling addiction?
A. Not addiction. Sometimes we go for fun and we have dinner and come back.
Q. Okay. So you and he have gone to casinos yourselves together?
A. Yeah.
[27] Ms. Arshad further testified that once the Applicant began working with Mr. Sethi at his hotel in August 2014, he was often working seven days a week. In cross-examination, the witness gave this evidence:
Q. Because I, I did – I mean, I don’t know if you’ve ever been to the casino in Niagara Falls. I’ve never been there. But I did do a Google map from your home to Niagara Falls…
A. Yes.
Q. …and it’s about a hundred and thirty two kilometres. Does that surprise you? It’s far away.
A. Yeah.
Q. Yeah. And it takes about an hour and 19 minutes to drive there.
A. Yes.
Q. So what you believed was that your husband, when he was at the casino, was doing business meetings with Mr. Sethi, was that what you thought?
A. Yes.
Q. Okay, and is that what he told you?
A. Yeah. He was not telling me he was – he’s going to the casino. He was telling me it’s a part of his job. He’s going with his employer. Yeah.
Q. Okay. And so your understanding is that he was simply working on those nights, is that right?
A. Yes.
Q. Okay.
[28] Ms. Arshad explained to the court that she believed, from speaking with her husband, that he could lawfully attend a casino on business but not gamble.
[29] Harpreet Sethi testified that he attended the Fallsview Casino with the Applicant for business-related purposes for example to meet with clients. The witness, who acknowledged having a player’s membership card, would also gamble when there. While the Applicant told him that “he’s not supposed to gamble”, nothing was said about any prohibition from being in a casino:
Q. But you’d agree with me from what you’ve told us, Mr. Latif, himself, never said to you I am not permitted to be in any casinos with you?
A. He did not say me, at all, that’s not supposed to be in any casino.
Q. Right, because, as you indicated, if you had known, you never would have taken him there, right?
A. For sure. I could have different options.
A. …I did not know about his condition.
A. …if he would have told me, Mr Sethi, I cannot enter into casino, I would have gladly put him into Clifton Hill, some restaurant, but – and would have come here and finish and pick him up.
(emphasis added)
[30] Mr. Sethi testified that any occasion where he passed gaming chips to the Applicant would have been limited to asking the Applicant to hold his winnings.
[31] In fashioning a release order, the Justice of the Peace addressed the Applicant directly in court, stating in part:
THE COURT: You are to be in your residence between the hours of 11:00 p.m. and 7:00 p.m.
Stay out of all casinos in the Province of Ontario. That means you do not attend any casinos in the Province of Ontario and you do not gamble at any gambling institution. So that includes the racetrack, horse races, any gambling institution, you’re not to be there, you’re not to gamble.
Mr. Latif, do you understand those conditions?
APPLICANT: Yes, Your Honour.
THE COURT: And you were asked the last time if you understood those conditions.
APPLICANT: Yes, I do.
THE COURT: There seems to have been some misinterpretation from defence. Do you clearly understand the conditions this time, sir?
APPLICANT: Yes. Yes, Your Honour.
THE COURT: Do you understand that if you don’t abide by one of those conditions that your surety may remove themselves as surety? You’ll be re-arrested and be held for another bail hearing?
APPLICANT: Yes.
THE COURT: Do you understand that [at] such time you may not be so lucky and you may be detained?
APPLICANT: Yes.
THE COURT: And you agree to obey by those conditions?
APPLICANT: Yes, Your Honour.
(emphasis added)
[32] At the end of the s. 515 show cause hearing, the Applicant was ordered released on the 15 charges then before the court. There were two approved sureties: Fatima Arshad in the amount of $2,500 and Harpreet Sethi in the amount of $150,000. The conditions of the new recognizance of February 3, 2015 were as follows:
Reside with your surety at 8 Tall Oaks Place in Brampton, and abide by the rules and discipline of the home
Remain in your residence between the hours of 11:00 p.m. and 7:00 a.m.
EXCEPT
for medical emergencies involving you or a member of your immediate family (spouse, child, grandchild).
for attending court appearances and for interviews at counsel’s office, provided you go directly to the location and directly to your home or work;
for purposes of travelling directly to your place of employment at Park Inn’s Grand Victorian Hotel and returning directly home;
In the course of your employment, going directly to and from the locations the surety, Mr. Sethi, direct you to attend; or in the presence of an adult agreed by one of your sureties, in writing, signed and dated by your surety
Do not retrieve your passport at Peel Regional Police, 180 Derry Road E., Mississauga; Do not reapply for a passport or any other travel permits or documents;
Do not contact or communicate in any way either directly or indirectly with the following: Bhupinder Bhoohi and family; Madan Rohra and family, Sohan Girn, and Rajinder Kalsi
EXCEPT
- through legal counsel or legal proceedings
Stay out of all casinos in the Province of Ontario;
Do not gamble at any Gambling Institutions and online gambling websites.
Not to have in your possession any financial instruments that you are not lawfully entitled to possess;
Not to attempt to solicit business by way of the [internet].
(emphasis added)
[33] The Crown elected to proceed summarily on the 10 charges alleging contravention of s. 145(3) of the Code.
[34] Some months later, on July 8, 2015, there was a consent variation of the February 3, 2015 recognizance including an addition to Condition #2: “except in the company of your surety”.
Three Weeks Later
[35] Three weeks after the Applicant’s release, and the February 3 lecture by Justice of the Peace Morin, on February 24, 2015, the Applicant was in the Windsor Casino as would be discovered in a subsequent police investigation described more particularly below.
[36] The Applicant had a player’s card for the casino in the name of Hamid Malik. At a point, the Applicant’s brother-in-law, Abdul Kadar, took $18,000 in gaming chips to a casino cage to cash out on behalf of the Applicant. Because casino policy did not allow a third party cash-out or one in an amount exceeding $10,000 without the production of player identification, the transaction was declined. The Applicant, posing as Hamid Malik, then cashed out the chips on his own.
The Preliminary Inquiry on the Original Charges is Completed
[37] The Applicant’s preliminary inquiry on the 5 original charges was scheduled before Justice Currie of the Ontario Court of Justice on August 11, 2015.
[38] Mr. Anser Farooq, a criminal lawyer, had been representing the Applicant on the original charges as well as the additional charges laid in January, 2015. On the Applicant’s behalf, on August 11, Mr. Farooq waived the hearing of evidence and conceded committal on the original charges.
[39] Before the formal committal for trial, Mr. Farooq brought an application before Justice Currie pursuant to s. 523(2)(b) of the Code to vary conditions of the February 3, 2015 recognizance by which the Applicant was bound. In particular, it was sought to have the Applicant be able to enter casino properties for business purposes. To this end, counsel called the Applicant’s employer and surety, Harpreet Sethi, to give evidence. The witness, who first met the Applicant in 2012, again explained the context of having been in the Fallsview Casino with the Applicant prior to becoming his surety in February 2015:
Q. All right, and you gave some of your money and some of your chips to Mr. Latif.
A. If he would have been nearby me I would have given him.
Q. Okay, and you weren’t really wandering around the casino, you were actually seated at a table on a number of those occasions and you were gambling.
A. Yeah, I was gambling. When I go there, I do my all my stuff, I drive on to business, my business is over in 45 minutes. I travel one and a half hour to go, one and a half hour to come back and I do sometime when I’m in - - normally I[‘m not] … kind of person who typically goes from home especially to gamble but if I’m in that area, I sometime do.
Q. What was Mr. Latif’s job before you became his surety?
A. Dealing with the event and the groups.
Q. So basically he was working at the Park Inn.
A. He was working before I become his surety, a part time for us at the Park Inn. At that time we were called Radisson Plaza, Mississauga, when I hired him. Then it later got converted into Park Inn by Radisson.
Q. So what is his special skill set that you need him to go into casinos rather than someone else or have business outside of casinos.
A. No, no, he’s not, I don’t, I want him to go to casino and that his business. When we deal with a group, if the group is being booked to take to casino and if he’s the one who’s in charge of the group, he’s the one who’s going to do the coordination. They go to Niagara Falls. If the Niagara Falls has a casino and the group wants to go, say if Europe Tour is coming from Europe and a particular group of China, what are you going to do? Somebody from our hotel will take you in. Once we take you there, if Mr. Latif cannot enter into that complex, there’s an issue with anybody, he can’t enter in it. If there’s an issue to talk to somebody in the complex, he can’t enter the complex. That’s where my problem is.
[40] In his submissions to the court for variation of the existing recognizance conditions, Mr. Farooq stated:
… he’s, for the most part, maintained the terms and Your Honour heard with respect to Mr. Sethi’s evidence as to how his involvement was in here and how he feels partially responsible at the same time as to what happened with the breach. Those matters are set for trial, a trial is pending with respect to the breach charges.
… and the terms, I’m going to suggest, Your Honour, subject to what Your Honour feels, are very, very intrusive and you heard evidence with respect to this involvement in employment and what he’s trying to do.
So when a term is being imposed - - and I’ll leave that to Your Honour with respect to whether or not Mr. Latif should be allowed to gamble or not because when you have terms in a recog, any term imposed should be reasonable and in light of the Charter because we are not infringing the rights of Mr. Latif to engage in his ongoing daily activities and unless that infringement is appropriate and Your Honour feels it’s reasonable in the circumstance, it should not be imposed. It should not just be willy nilly imposed. In this context you have him not being able to attend casinos. You’ve heard evidence about I need him to go to different places, he’s involved in the hospitality business, so there’s no fixed hours for doing that stuff, he’s got to be available.
(emphasis added)
[41] The bail variation application was denied with the court stating:
In my view, s. 523 is in place to address those cases where over the course of a preliminary inquiry, evidence comes out that either substantially undermines the case for the Crown or, on the other hand, significantly aggravates the nature of the charges an accused person is facing.
Mr. Latif had a lengthy bail hearing presided over by a justice of the peace. I have part of the transcript of that bail hearing in the material I’ve been provided, although, it does not include the Reasons given by the justice in arriving at the order made.
In my view, cause has not been shown today on the evidence I heard that I should vacate that order or any part of that order.
Later that Day…
[42] Subsequent police investigation would reveal the following events transpiring later on August 11, 2015 only hours after the Applicant’s morning court appearance in Brampton.
[43] Direct surveillance, including casino video surveillance, revealed the Applicant and Anser Farooq in the Windsor Casino. Mr. Farooq opened a player’s front money account in his own name at the casino with the deposit of a $420,000 bank draft. With a $220,000 marker, he proceeded to a roulette table where he purchased gaming chips. He then left the table without playing.
[44] Video surveillance showed Farooq giving gaming chips to the Applicant who then played at a roulette table for a short time before approaching a casino cage to cash out $106,300 in chips. He received Canadian currency after identifying himself with a false Pakistani passport (KF875922) in the name of Hamid Malik with a date of birth of 58/04/15. About a half hour later, the Applicant cashed out a further $105,300 in chips. A video surveillance tape shows both the Applicant and Farooq gambling at a roulette table at 8:46 p.m.
[45] On August 11, the Windsor Casino generated two Suspicious Transaction Reports – one relating to Farooq and one relating to Malik. The report respecting Mr. Farooq was because he initially left a roulette table after receiving $220,000 in chips and then not playing. The report relating to Malik (the Applicant) was on account of the amount and time of play not substantiating the level of his cash-out.
[46] Mr. Farooq and the Applicant left the casino together in a vehicle with a licence plate registered to Adbul Kadar. $200,000 remained in Mr. Farooq’s player account at the end of August 11.
Three Days Later
[47] On August 14, 2015, the Applicant and his lawyer were again present in the Windsor Casino.
[48] Mr. Farooq withdrew $200,000 from his player account and took the $200,000 marker to a roulette table where he purchased that amount in individual $5,000 gaming chips. He then left the table without playing and proceeded to Room #2662 in the casino’s Augustus Tower, a room registered to Hamid Malik. Between about 10:30 p.m. and 11:00 p.m., the Applicant and Mr. Farooq’s two children were also in that hotel room.
[49] At 11:08 p.m., all four persons left Room #2662. The Applicant stopped briefly at a second hotel room, also registered in the name of Malik, on the sixth floor. The four individuals then met briefly in the lobby. Mr. Farooq went outside with his children walking toward downtown Windsor while the Applicant returned to the casino floor and gambled.
[50] At 12:58 a.m. on August 15, 2015, the Applicant attended a cash cage in the casino and presented the Malik passport as identification to cash out 20 $5,000 chips, receiving $100,000 in Canadian currency. The Applicant at first placed the money in a plastic bag. After going to a roulette table, the Applicant returned to the cash cage for an envelope in which to place the cash. The Applicant then returned to a roulette table where he gambled until at least 4:00 a.m.
Subsequent August 2015 Attendances at the Windsor Casino
[51] Video surveillance revealed that the Applicant, representing himself as Hamid Malik, was in the Windsor Casino on August 25 and August 30.
[52] On August 25, the Applicant went to a casino cash cage and received a payout disbursement of $1,265. The payout related to the Windsor Casino paying the transportation costs of Malik (the Applicant) to come to the casino to gamble. However, the Applicant did not go to the casino floor to gamble. After briefly attending the casino gift shop, he departed.
[53] On August 30, the Applicant again received a transportation disbursement payout this time in the amount of $2,532. The Applicant left shortly after without gambling.
Windsor Casino Terminates Malik’s Attendance
[54] By the time of the Applicant’s September 13, 2015 attendance at the Windsor Casino with his brother-in-law (Kadar), Windsor Casino security, the OPP Windsor Casino detachment and the PRPS had confirmed that Malik was in fact the Applicant and that he was prohibited by court order from being in a casino.
[55] While gambling at a gaming table on September 13, when the Applicant identified himself as Malik and was asked to show the passport identification he had presented in the past, in response to the request, the Applicant claimed that he had provided it to the casino host. That proved to be false. The Applicant was then served with a trespass notice by casino staff.
The Third Set of Charges
the arrest and charges
[56] The Applicant was arrested on November 13, 2015 for 12 alleged offences:
(1) breach recognizance by failing to comply with condition to remain out of any casino in Ontario (x6)
(2) fraud over $5,000 (x2)
(3) breach recognizance by failing to comply with condition not to attempt to solicit business by way of the internet (x2)
(4) unlawfully possess an identity document, to wit a Pakistan Passport in the name of Hamid Malik contrary to s. 56.1 of the Code.
[57] As part of the Applicant’s November 13 videotaped police interview at the time of his arrest, PRPS Const. Cota and Detective McGarry related the following to the Applicant:
CONST. COTA: As part of your arrest, there is a 524 bail revocation. That just means that later on the Crown will make a motion to take out all of your conditions. So you know how you had one, and another one, we take out all those conditions and whatever happens at the bail.
DETECTIVE MCGARRY: …start fresh (inaudible…)… fresh bail hearing.
CONST. COTA: So, 524…as part of your arrest, I just thought I would let you know now. We are going to make a motion to cancel all previous bails. Fresh start. Today you are going to go in front of a judge.
[58] The Applicant first appeared in the Ontario Court of Justice on the new charges on November 13, 2015. On this date, he was represented by Legal Aid Ontario Duty Counsel.
[59] Anser Farooq was arrested and separately charged as a party to the breaches of recognizance alleged to have occurred on April 11 and 14, 2015. The arrestee declined to provide a statement to the police. He was released on bail.
the frauds and prohibited Internet use
[60] From May to November 2015, the PRPS had been investigating the Applicant respecting alleged fraudulent activity relating to an entity known as Atar Steel Co. This business was registered in Ontario on April 1, 2014 by the Applicant with a business address of 295 Queen St. E. in Brampton. It too was linked to a virtual office operated by “Intelligent Office” at its site at 77 City Centre Drive in Mississauga. Peggy Adams dealt with Bob Harris as the principal of Atar Steel Co. She identified a photograph of the Applicant to be the person she knew as Bob Harris.
[61] Police investigation on the Internet revealed a website for Atar Steel Co. which in part represented the following:
ATAR STEEL COMPANY
ABOUT
For over 20 years, Atar Steel Company. has continued to be an industry leader as a full service metal recycler throughout the Americas, Europe and Asia.
Headquartered minutes away from the Toronto Pearson Airport, in Mississauga, ON, Atar Steel Company specializes in the purchasing, grading, handling and processing of all ferrous and non-ferrous scrap metals from the manufacturing, dealer and service industries.
Atar Steel Company is one of the largest copper refiners in North America. Atar Steel Company markets ferrous and non-ferrous materials both domestically and internationally, ensuring the most competitive pricing and quality in the industry.
Atar Steel Company is able to ship and export worldwide professionally any quantity of steel/aluminum/copper scrap.
ATAR STEEL © 2015 by Atar Steel Company 77 City Centre Drive
COMPANY Proudly created with Wix.com East Tower, Suite 501
Mississauga, ON
Canada
[62] Much of the text of the Atar Steel Company website narrative had been copied from the pre-existing and legitimate Attar Steel Company business website. The Atar version also listed Bob Harris as the “Chairman” along with a cellphone contact number which police investigation revealed to be the number for the Applicant’s cellphone.
[63] In May of 2015, one of two brothers who own the Attar Steel Company in Mississauga, Andy Attar, contacted the PRPS after receiving information from Tracy Shaw, the then president of CARI (Canadian Association of Recycling Industries) whose office is in Ottawa. Ms. Shaw had been contacted by HSB Global, a registered company located in Ho Chi Minh City, Vietnam. HSB Global trades in non-ferrous scrap and plastic scrap. A principal of HSB Global forwarded this communication to Canada:
… I got an offer of Copper Wire Scrap from Company named Atar Steel Company (Canada) as follows:
Dear Buyer,
We have copper MB purity 99.9% available more than 5000 MT in stock origin Canada at USD 4890.00 CNF your part, Pl contact us for further information if interested.
Thanks,
Bob
Atar Steel Company (Canada)
[64] According to information received from HSB Global, it attempted to verify particulars about the Atar Steel Company with CARI. This in turn led to Ms. Shaw calling Attar Steel Company, a CARI member. In speaking to Thanh Hoang of HSB Global, Const. Cato learned that HSB was in discussions with Atar Steel Company regarding a scrap metal deal. Ultimately, the deal fell through with no funds advanced by HSB Global.
[65] In October 2015, the PRPS learned of dealings between Atar Steel Company and Yala Metals LLC (Yala) of Houston, Texas. Yala is in the scrap business and the trading of metals. The sole owner of Yala, Rajeev Yalamanchili, was put in touch with Bob Harris of Atar Steel Company by an intermediary, Harry Govani. On October 13, 2015, Mr. Yalamanchili sent an introductory email to Harris. He received back an email from Govani:
Hi We can supply 200 M. TONS /Month Millberry Copper Wire Scrap 99.5 Ffom CANADA. Price : US$ 1.97/lb CIF Port Houston. Need LOI with banking information. Has to on buyers letterhead. If ready please let me know. My best regards Harry Govani NC
[66] Mr. Yalamanchili made efforts to contact Bob Harris directly as evidenced in his statement sent to the PRPS in November 2015:
I was very interested but still had my doubts as the price was too good to be true. Anyhow few days went by before Bob Harris actually picked up his phone. He knew his terms and knowledge and sounded good. He basically said we can come visit the material and then we can open the L.C. I have a contact in Montreal who was willing to go visit but he beat around the bush plenty. He promised this material CIF at this rate. I kept asking why we cant do FOB. FOB would have been the safest as we would load it then pay vs his own shipping “CIF”. Chinese before has ripped us off and I was skeptical from the start. I knew if he did not meet my friend he was fake. I told my contact in Canada about his company Attar Group and my contact right away confused it for Larry Attar. He said they are great brothers and we have met them before. I decided to email Larry and ask if Bob was affiliated with their company. He said no and that’s the end of it!
Bob is a fraudster and sinner and we need these people out of our industry. He gives it a bad name! Thanks for your hard work. If this deal went thru we would of lost a total of $868,376. 200MT x2204 = 440,800lbs of copper x (hi price) 1.97 =$868,376
The current market is at 2.36 , that’s why his price was attractive. But like they said if it is too good to be true it probably is!
Feel free to contact me if you have any further questions.
[67] No funds were forwarded to Atar Steel Company after Bob Harris stalled about meeting Yala’s Montreal contact and Mr. Yalamanchili had discussions with Larry Attar of Attar Steel Company including that no Bob Harris was employed by him.
[68] The police were unable to identify any legitimate business dealings conducted by Atar Steel Company. Further, no person identifiable as Bob Harris was located other than as an alias of the Applicant.
the s. 524 ruling
[69] A show cause bail hearing was conducted before Justice of the Peace J. Child on January 15 and 18, 2016 with Reasons for Judgment issued on January 19. The court ruled on the first day of the hearing that because a s. 524 Code arrest had been effected, the February 3, 2015 recognizance covering 15 offences stood to be cancelled if the Crown established that reasonable grounds existed to believe that the Applicant committed any indictable offence after his February 3 release on bail (s. 524(8)(b) of the Code). The Crown sought to do so through the evidence relating to the 12 new charges laid in November 2015.
the show cause hearing - introduction
[70] On behalf of the Applicant, Fatima Arshad and one of the Applicant’s sons, Wajahat Arshad, were put forward as prospective sureties.
[71] Before turning to aspects of Ms. Arshad’s evidence, it was not disputed in the s. 515/524 bail hearing that, by the summer of 2015, Mr. Farooq had been charged with assaulting his wife and that his marriage was in a state of dissolution. It should be noted at this point that this court has not had the benefit of Mr. Farooq’s position relating to the allegations against him. Mr. Moon, on the Applicant’s behalf, submitted to Justice of the Peace Child that the Applicant’s casino attendances involved, “Mr. Farooq using his client [the Applicant] … to launder or to otherwise wash money to keep out of family law proceedings”. Mr. King, unable to say precisely what the scheme was or how well thought out it was, noted for the bail hearing court that:
… but if the, if the plan is to try to hide your money, you need to open an account so there’s a paper trail and then you need to tell, tell the judge, “I lost it all at the roulette table ‘cause I was so depressed that my wife – ‘cause my wife was leaving me.”
evidence of the Applicant’s wife
[72] Testifying at the show cause hearing, Ms. Arshad stated that her family resided in rented accommodation for $4,000 a month. Although she believed that her husband had, in the past, acted as a broker in the steel industry, she had never been to his workplace. The witness has never heard of Hamid Malik. Contrary to her evidence a year earlier, Ms. Arshad told Justice of the Peace Child that she now believes that the Applicant has “a gambling problem”.
[73] In her testimony, Ms. Arshad acknowledged that in the past she had attended casino sites with her husband for the purpose of a meal, not to gamble:
We just go for the dinner and we come back or have fun, that’s it. I mean not – before, he never gambles in front of me. We just had a dinner, have a nice time and come back.
Because we always go for fun, we have a dinner, we come back, that’s it. We used – I used spa, my daughter used spa, we had dinner with family and that’s it. He never gamble in front of me.
[74] Ms. Arshad also testified before Justice of the Peace Child that Harpreet Sethi was a very good friend of the family. Prior to the Applicant’s November 15, 2015 arrest, she would call Mr. Sethi two or three times a day.
[75] According to Ms. Arshad, she kept a log or list of dates that her husband visited Mr. Farooq. She did not bring the log to court at the show cause hearing. The witness claimed from memory that the Applicant’s attendances at his lawyer’s office included Feb. 24, August 11 / 14-15 / 25 / 30, and Sept. 13, 2015. The witness expressed the belief that her husband never went to a casino without Mr. Farooq.
[76] Speaking to the February 24 date, Ms. Arshad testified that she drove the Applicant to Mr. Farooq’s office. She telephoned Mr. Sethi during the day to confirm that her husband was with his lawyer. She also called Mr. Farooq who told her, “Don’t worry, he is with me”. The Applicant returned home at 10:00 p.m.
[77] Ms. Arshad informed Justice of the Peace Child that she was present with her husband for an August 10, 2015 appointment at Mr. Farooq’s office. As she sat on a couch in the office waiting room, she overheard parts of the discussion between her husband and his lawyer. There was discussion of going to a casino and “they were just talking about the wife issues and the problems”. She heard of Mr. Farooq having issues with his wife and he told the Applicant that because he was not going to give “his whole money to his wife” that the Applicant should help him in return for a financial benefit relating to legal fees. In her evidence, Ms. Arshad variously described the arrangement as:
If you do my work, I will never charge you from the trial expenses.
… you just don’t worry about the retainer, we’ll adjust it later.
If you do my work it’s not, I mean breach. If you do my stuff, I can never charge you trial charges.
[78] Const. Cato testified at the show cause hearing that his review of the casino video footage of August 11 and August 14/15 supported the inference that Mr. Farooq was using the Applicant as his agent to move money in and out of his player’s account.
[79] Ms. Arshad appeared at court on August 11, 2015 for her husband’s appearance before Justice Currie. The witness provided this information to Justice of the Peace Child:
Q. Do you know why that – were you privy to the discussions about why that request to vary was made?
A. Mr. Farooq was anxious, he said, “Mr. Latif, don’t worry, we’ll ease your conditions. Don’t worry, you come, you come with us and we’ll see in the court.”
Q. Okay.
A. “Especially the casino one.”
[80] Ms. Arshad was present in court when Justice Currie dismissed the Applicant’s s. 523 bail variation application. The witness recalls Mr. Farooq saying to her and the Applicant that a further application could be made to the Superior Court.
[81] Later on August 11, on her evidence, Ms. Arshad phoned her husband at about 8:00 p.m. She learned that he was attending a casino. She heard Mr. Farooq in the background say: “Okay, tell your wife you are okay, you are with me. We are going to casino, it’s not a breach”. She assumed the attendance was “to try to hide some of Mr. Farooq’s money”.
[82] Ms. Arshad further testified at the show cause hearing that she was aware that her husband was going to the casino on August 14:
Q. …and August 14th and 15th of 2015, there’s there are video captures from the Windsor Casino with Mr. Farooq and – Your Worship may recall the evidence of the OPP officer in that regard. Did you know or were you aware that your husband had gone down to Windsor with Mr. Farooq on those…
A. Yes.
Q. …days?
A. Yes.
Q. Okay. And what did, what, if anything, did either your husband or Mr. Farooq tell you about that?
A. He – my – I asked my husband where he’s going, he said he’s going with his lawyer, so I called Mr. Farooq, “Mr. Farooq, he’s going with you?” He said, “Yes, he is going with me to the casino.”
Q. Okay.
A. So I was shocked to hear that. His counsel is taking him to the casino, his counsel is telling him to breach. He said, “Don’t worry, Mrs. Latif, if he is with me, he’s not going to – it’s not a breach, he’s okay.”
(emphasis added)
[83] The witness was also aware of the Applicant’s September 13 attendance at the casino with his brother-in-law. She maintains that Mr. Farooq was also there because she called him on his cellphone.
[84] Other aspects of Ms. Arshad’s testimony may be summarized as follows:
(1) she was aware that the bail order prohibited the Applicant from entering a casino or gambling
(2) she believed that action on Mr. Farooq’s part to hide money from his wife using her husband was “dishonest”:
Q. So why didn’t you make him not go when you knew what he was doing was dishonest?
A. I, I told him, he said, he’s, he’s not going to “It’s okay, if I’m doing his work for him he’s not going to charge for the trial.” He was charging too much money for the trial
(emphasis added)
(3) she told her husband not to go to the casino:
I was shocked to hear that. His counsel is taking him to the casino, his counsel is telling him to breach
I told him… “It’s not a good idea to go with – I mean it’s a breach”
I told him it’s not a good idea
(emphasis added)
(4) in her capacity as one of the Applicant’s sureties, she never contacted the police about him going to the casino
(5) she felt she was in the middle of things – with Mr. Farooq telling her and the Applicant it was permissible to be in a casino together:
What you can say if your lawyer guide you to the wrong way, what, I mean what should, I mean what should I say?
What can you say if your lawyer …he’s telling you to do the wrong thing?
the second proposed surety
[85] Wajahat Arshad, one of the Applicant’s adult sons residing with his parents, testified at the show cause hearing as a prospective surety. He is self-employed and with three computers works largely from home in Internet-related businesses, marketing, design and social media management. The witness testified that the Applicant does not use his computers.
[86] Wajahat Arshad had met Anser Farooq: “[h]e’s been by the house a couple of times”.
[87] The proposed surety was prepared to pledge in the amount of $10,000.
positions of the parties at the show cause hearing
[88] On behalf of the Applicant it was submitted, before Justice of the Peace Child heard evidence, that there was no jurisdiction to hold a s.524 hearing relating to cancellation of the February 3, 2015 recognizance as Mr. Latif had not been subjected to a s.524 arrest. In addition, it was argued, relying upon authorities such as R. v. McBride, [1986] O.J. No. 2226 (Gen. Div.), that the prerequisite arrest for a s.524 hearing could not simply be constructive or notional.
[89] Crown counsel responded that in fact and law “there was a 524 arrest” on November 13, 2015 when the Applicant was arrested and interviewed. Alternatively, the Crown submitted, relying on such authorities as R. v. Ramage (2011), 2011 ONSC 3092, 273 C.C.C. (3d) 331 (Ont. S.C.J.), that a formal s.524 arrest was not an essential precondition of a s.524 hearing.
[90] As discussed below, the Justice of the Peace ruled in favour of the Crown putting in play the issue of bail on all 27 charges.
[91] At the conclusion of the evidence and submissions, it was submitted on behalf of the Applicant that “in any allegation or any application under section 524” that the Crown was required to establish on a balance of probabilities that the person in question committed an indictable offence while subject to a judicial interim release order.
[92] The Crown disagreed, submitting that pursuant to s.524(8)(b) of the Code it need only demonstrate reasonable grounds for believing that the subject accused had committed an indictable offence while on bail. It was argued that quite apart from those grounds demonstrably existing by virtue of the sworn information of November 2015 charging 12 new offences, that the evidence led at the hearing before Justice of the Peace Child established the necessary grounds.
[93] Acknowledging the reverse onus nature of the hearing respecting the 12 new charges (Code, ss. 515(6)(a)(i)(c)), the Applicant submitted that there was no real concern respecting the secondary grounds described in s. 515(10)(b) of the Code. A principal argument was that the newly-laid charges did not allege violent criminality on the Applicant’s part. It was said that:
...the secondary grounds deals with whether or not a person [is a] substantial likelihood of reoffending in a way that’s violent, endangering the public.
…the secondary ground should be geared toward keeping persons in custody whose conduct endangers the safety and protection of the public.
[94] It was submitted on Mr. Latif’s behalf that there was no evidence that he “ever engaged in any sort of violent conduct. There is nothing in what he does that has ever endangered the public” – the alleged frauds, recognizance breaches and other offences were not capable of endangering the public.
[95] The Crown disagreed with this narrow interpretation of the secondary grounds test. It was submitted that the Crown could justifiably argue that protection of the community, “is not just from violent offences but from offences generally”. Crown counsel noted the economic peril associated with fraud offences.
[96] On behalf of the Applicant, it was argued that the alleged fraud and the associated recognizance breaches relating to solicitation over the internet were weak or clearly unprovable allegations. No monies or property was advanced. The HSB Global negotiation was not consummated and there was no evidence that Mr. Latif was engaged in any discussions with HSB representatives in Vietnam. Insofar as the Yala Metals matter, the solicitation to Atar Steel Co. came from Yala and an intermediary was involved. There was no evidence of internet solicitation by Atar or the Applicant.
[97] The Crown responded by submitting that there was evidence to support the Applicant’s connection to Atar Steel Co., the existence of an Atar website soliciting business, the falsity of representations in that website, the existence of Bob Harris as an alias for the Applicant, and the active conduct of an Atar representative misrepresenting the nature of Atar and its available product to HSB and Yala Metals.
[98] Turning to the s. 145(3) charges alleging a breach of the February 2015 recognizance by Mr. Latif’s attendance at the Windsor Casino, the Applicant submitted that there existed “a preponderance of evidence … that indicates whether rightly or wrongly Mr. Farooq indicated to his client that he would not be in breach if he attended at the casinos”. It was argued that there is no evidence of the necessary mens rea on the part of the Applicant of intending to breach his recognizance condition prohibiting attendance at a casino. The legal advice received from Mr. Farooq, and reasonably relied upon by the Applicant, clearly amounts to a “reasonable excuse”. In addition, it was argued that Ms. Arshad was placed in a predicament by Mr. Farooq’s exploitation of her husband.
[99] The Crown emphasized the strength of its evidence respecting the casino condition breaches including video surveillance evidence. Counsel was critical of the credibility of Ms. Arshad’s evidence for a variety of reasons. Crown counsel noted that the video surveillance showed Mr. Farooq’s attendance at the Windsor Casino on two dates only during which he opened and drained his player’s account. On the remaining four dates (February 24, August 25 and 30, September 13), the surveillance shows the Applicant in the casino without his counsel. On two of the August 2015 dates, the Applicant did not gamble but simply picked up transportation disbursement compensation. The use of the Malik passport and false identity supports the inference that the Applicant was going to the casino with the intention of defeating detection for a breach of the condition in the February 2015 recognizance.
[100] The Applicant also submitted that his gambling addiction could be seen as responsible for the alleged recognizance breaches. Such a person should be treated, not incarcerated.
[101] The Crown did not accept that gambling addiction was clearly at the heart of what the authorities had uncovered. In some respects, the evidence more persuasively supported a desire for a legal fees discount and a laundering of monies.
[102] It was also submitted on Mr. Latif’s behalf that the court should remain sensitive to the risk that, if not released, the Applicant’s pre-trial custody, even if convicted, could well outstrip the likely duration of any sentence which might ultimately be imposed for the crimes charged.
[103] The Crown responded that there was no evidence before the Justice of the Peace respecting the courts’ capacity for setting timely in-custody trial dates.
[104] As to the tertiary ground, the Crown argued that it had a strong case especially respecting the original serious fraud charges and the casino breach charges. A penitentiary sentence would be likely. Any reasonable and fully informed member of the public would view a release on bail as a message that one could ignore court orders with impunity. Bail is not meant to be a “revolving door” of serial recognizances – the public would soon lose faith in the administration of justice.
[105] In response, the Applicant argued that even in a post-St-Cloud era, it is still the rare case where detention is justified solely on the tertiary ground. It was submitted that the court should have regard to a lack of strength in the Crown’s case, compelling defences available as outlined, the Applicant’s addiction, the likely delays to trial considered along with the duration of potential sentences which might be imposed, and the strength of the proposed release plan.
[106] The Applicant submitted that a release plan of a recognizance with a house arrest condition and other restrictive limitations, and gambling addiction counselling, would adequately address secondary and tertiary grounds concerns.
[107] The Crown disagreed submitting that the Applicant had clearly and repeatedly demonstrated dishonesty and a failure to abide by judicial interim release order conditions. The pledged surety exposure of $10,000 was significantly lower than in prior releases where the Applicant had again reoffended. It was apparent that the Applicant’s wife was unsuitable as a surety and there could be no confidence that the Applicant’s son would be equal to the task of controlling the Applicant.
the reasons for detention
[108] During argument on January 15, 2016 as to whether a formal arrest under s. 524 of the Code was required to found jurisdiction for a s. 524 hearing, Justice of the Peace Child noted his experience respecting a s. 524 arrest being waived or a case being held down with the prosecutor saying, that if necessary, “We’ll arrest pursuant to s. 524”. Ultimately, the court favoured the Ramage approach that timely notice of a s. 524 cancellation application was legally adequate for jurisdiction without the necessity of a formal s. 524 arrest.
[109] As an alternative basis for proceeding with a s. 524 hearing, the court concluded that Const. Cato’s exchange with the arrestee (para. 57 above), amounted to a s. 524 arrest:
In regard to exhibit one, first, I find that a proper arrest was made pursuant to section 524 of the Criminal Code, as indicated – as it’s stated on November 13th, 2015 and certainly that notice was given. Mr. Moon, on behalf of the accused indicates that he was aware prior to today that the Crown was proceeding by virtue of section 524. As well, based on the Ramage case, and the authorities cited in Ramage, I believe that the weight of the case law favours the decision of Ramage and I’m satisfied that proper notice and a proper arrest has been given in these circumstances in any event and as a result the Crown has the right to proceed with a section 524 application today.
(emphasis added)
[110] On agreement of the parties, the 2-day bail hearing was conducted as a blended proceeding under ss. 524 and 515 of the Code.
[111] On January 19, 2016, the day after the evidence and submissions were completed, Justice of the Peace Child provided oral reasons for detention comprising 32 pages of transcript. Following an extensive review of the evidence adduced in the bail hearing, the court, applying the reasonable grounds standard of s. 524(8)(b) of the Code, concluded that the evidence relating to the charges in the November 2015 information constituted reasonable grounds to believe that the Applicant had committed one or more indictable offences while subject to the February 3, 2015 recognizance. The court further held, in the alternative, that this conclusion would also be warranted on a balance of probabilities standard. In these circumstances, the court cancelled the February recognizance and proceeded to consider the issue of bail on 27 charges.
[112] As to the primary ground (s. 515(10)(a)), a matter argued but not pressed by the Crown, after the court noted the lack of any prior fail to appear convictions, as well as the concern over the unrecovered Malik passport, the court concluded that this ground for detention was factually not an impediment to release.
[113] The court did not find it necessary to consider the tertiary ground (Code, s. 515(10)(c)) because of its conclusions respecting the secondary ground.
[114] As to the secondary ground, Justice of the Peace Child rejected a restrictive interpretation of s. 515(10)(b) holding that the ground was not limited to “physical safety” concerns but to broader notions of public protection as well, for example, the risk of economic harm posed by fraud.
[115] As to the alleged breaches of the bail condition to stay out of Ontario casinos, the court, in making these findings, considered the Crown to have a strong case:
the prohibitive condition in the February 2015 recognizance was clear on its face without exception
the Applicant was not unfamiliar with the criminal justice system
the Applicant possessed the forged Malik passport for the purpose of avoiding detection of his presence in the Windsor Casino
the record does not support an honestly held belief on the Applicant’s part that he could lawfully attend the Windsor Casino on the 6 relevant dates having regard to the following:
a. Ms. Arshad’s testimony was evasive and unresponsive negatively affecting her credibility – her evidence was rejected respecting the Applicant’s belief that he was not in breach of his bail order in attending the casino
b. in any event, on Ms. Arshad’s evidence, the dishonesty of Mr. Farooq in seeking to hide money from his wife in the context of a marital dispute would have been evident to her and the Applicant which would have reasonably placed in doubt any statement by Mr. Farooq, assuming it to have been made, that being with him would not constitute a breach
c. there is no credible evidence that Mr. Farooq was in fact in the casino with the Applicant on February 24, August 25 and 30, and September 13, 2015
d. the August 25 and August 30 attendances could not have involved furtherance of any money laundering scheme with Mr. Farooq as the Applicant was only briefly at the casino on those dates and did not gamble.
[116] As to the alleged fraud and related s.145(3) breaches for soliciting business on the Internet, the court was satisfied on the evidence described at the hearing that there was “a good circumstantial case implicating the accused”. The court had regard to a number of factors including the Applicant being the sole proprietor of the Atar Steel Co., Atar’s website soliciting business on the Internet, and the linkage to the Applicant being Bob Harris who was the person engaged in the misrepresentations with HSB Global and with Yala Metals.
[117] Insofar as the original charges from 2014, the court considered there to be a strong case. As to the 10 charges laid in January 2015, there was also a strong case given the clearly worded prohibition against being in a casino – a condition without exception or variation.
[118] In terms of the proposed release plan, the court noted its inadequacy given the strength of the Crown’s case, the specifics of the Applicant’s prior criminal record, the undetailed plan relating to gambling addiction counselling including the Applicant’s amenability to such counselling, the diminished monetary pledge by the sureties compared to the quantum in earlier bail orders, and, the unsuitability of Fatima Arshad as a prospective surety.
[119] In the end, the court concluded that the Applicant “is involved in ongoing criminal activity” and that “based on all of the evidence, [he] cannot be trusted”. On the secondary ground, the Applicant failed to discharge the onus of demonstrating why his continued detention was not justified.
THE BAIL REVIEW APPLICATION
Introduction
[120] Mr. Moon accepted that the onus was on the Applicant in his s. 520 Code bail review application.
[121] The Applicant’s Notice of Application pleaded that:
- The herein Applicant submits Justice of the Peace CHILD failed to properly consider and apply the law, standards of proof and burdens when finding that it was necessary to detain the Applicant on the secondary grounds, thereby committing reviewable error, in the following, not necessarily exhaustive areas:
(i) The Justice of the Peace erred in that it was not necessary for the accused to be “arrested” under Criminal Code, s.524, prior to being brought to Court for the purposes of a Show Cause hearing;
(ii) The Justice of the Peace erred in vacating the Applicant’s prior Recognizances of bail pursuant to a finding under Criminal Code, s.524;
(iii) The Justice of the Peace erred in his application of the law and facts as it relates to the “strength of the Crown’s” case within the context of the analysis under the secondary grounds;
(iv) The Justice of the Peace erred in failing to consider the role of the Applicant’s then trial counsel in facilitating the commission of breaches of recognizance;
(v) The Justice of the Peace erred in finding the Applicant’s wife, acting as his surety, failed to properly supervise the accused by not overriding the express assurances of the Applicant’s then counsel that his conduct in attending at a Casino, in the company of his counsel, did not violate the conditions of the Applicant’s Recognizance of Bail;
(vi) The Justice of the Peace erred in finding as a fact that the Applicant would have no defence of officially induced error of law on the allegations of breach; and
(vii) The Justice of the Peace erred in holding that concerns about the Applicant re-offending, but in a non-violent way [was] a proper basis to detain under the secondary grounds.
- Additionally, and/or in the alternative, the Applicant asserts a material change of circumstances, and seeks leave to adduce further and fresh evidence on the hearing of the Application, to wit:
(i) Evidence related to the effectiveness and efficacy of a GPS monitoring bracelet on the proposed supervisory plan; and
(ii) Evidence in the nature of an Assessment conducted by Jane LESLIE of the Peel Addiction Assessment and Referral Centre.
[122] In this application, the court was provided the following material:
(1) Application Record
(2) Transcript – January 28, 2015
(3) Transcript – February 3, 2015 – Reasons for Judgment (Justice of the Peace K.A. Morin)
(4) Transcript – August 11, 2015 (Currie J.)
(5) Transcript – January 15, 2016
(6) Transcript – January 18, 2016
(7) Transcript – January 19, 2016 – Reasons for Judgment (Justice of the Peace J. Child)
(8) Applicant’s Book of Authorities and supplements
(9) Applicant’s Memorandum of Argument
(10) Recognizances in Court file
(11) SCJ Indictment #1125/15.
The Proposed Fresh Evidence
addiction counselling
[123] In his affidavit sworn February 29, 2016, the Applicant stated that he would be prepared to follow all conditions set out in the Draft Release Order filed with the court which included a proposed term: “Take all counselling as recommended by Jane Leslie of the Peel Addiction Assessment and Referral Centre”.
[124] The proposed sureties, Fatima Arshad and Wajahat Arshad, deposed that they expected that if the Applicant were ordered released he would “be required to attend at weekly counselling sessions for a total of at least twelve (12) weeks, through Jane Leslie of the Peel Addiction Assessment and Referral Centre (PAARC)”.
[125] Also filed was a copy of a February 26, 2016 fax to Mr. Moon forwarding an Assessment Summary from Jane Leslie, Counsellor/Case Manager of PAARC relating to a February 22, 2016 assessment conducted by her with the Applicant at the Maplehurst Correctional Complex.
[126] In her 2-page Assessment Summary, Ms. Leslie noted the following:
(1) the Applicant reports extreme difficulty with finances on account of incarceration
(2) the Applicant described his debt load as related to gambling and the spending of significant amounts of money at casinos
(3) the Applicant expressed willingness to engage in treatment.
[127] Ms. Leslie further stated:
Problem Statements
Client shows lack of insight into problematic behaviours and gambling addiction.
Client appears in denial about the severity of addiction issues.
Client appears to live in an enabling environment with family.
Client Goals
Get out of prison and get through court procedures so he can return home.
Provide income for family and start to repay debt.
Get help to deal with and understand his gambling addiction.
Rebuild a trusting relationship with family members.
Recommended Treatment Plan
Client was assessed for gambling pathology with the SOGS (South Oaks Gambling Screener) and tested 16 of 20 for a gambling pathology. Also screened with the Gambling Life Scale Screener which showed that most areas of his life had been negatively impacted by his gambling. Most scores were in the 1-3 of satisfaction, 1 being the least satisfied and 10 is most satisfied. Client appears to have little insight into how serious his gambling pathology is or to how it has impacted his life despite the obvious. Client showed signs of depression and anxiety and shared that he has experienced these feelings over the last several years and it is this counsellor’s opinion that he would benefit from a Geriatric Psychiatric Assessment to diagnose such and to provide either a treatment plan or Psychotropic medications. Client was informed by this counsellor that he needs gambling addiction treatment and the following recommendations were made to both he and Mr. M A Moon his barrister:
He receive intensive one on one counselling from a qualified gambling treatment specialist, here at PAARC. (Peel Addiction Assessment and Referral Centre.)
He attend the 12 week Gambling Treatment and Education Group at PAARC.
His family attend counselling and support in PAARC’s Family Gambling Education Group.
He have an off sight self-exclusion from all Casino access in Ontario.
He receive a complete assessment for a Geriatric Psychiatric Assessment unit.
He is given limited access to funds with which to gamble.
electronic monitoring
[128] In his February 29, 2016 affidavit, the Applicant stated that he would, if released and ordered to do so, comply with a condition that he, “Wear at all time[s] a GPS monitoring ankle bracelet in accordance with the conditions specified by Recovery Science Incorporated”.
[129] The two proposed sureties deposed that, “It is expected that if released, the accused Arshad Latif will be required [to] wear a GPS monitoring device at all times”.
[130] The Applicant filed a 24-page document from Recovery Science Corporation (RSC) relating to its Compliance Monitoring Programs. The material described the private company’s ankle bracelet technology and monitoring capabilities and experiences respecting persons required to comply with court orders.
Status of Proceedings Respecting All Charges
[131] As to the original 5 charges, following the committal for trial by Currie J. on August 11, 2015, the Applicant appeared before the Superior Court of Justice (SCJ) Criminal Assignment Court on August 28, 2015. Mr. O. Chaudry appeared as agent for Mr. Farooq informing the court that Mr. Farooq was not yet retained to represent the Applicant in the SCJ trial. The accused was remanded to October 20, 2015 at 9:30 a.m. for a judicial pre-trial (JPT). Further appearances were held on October 20 and 22 with Durno J. again noting on the indictment that Mr. Farooq was not retained. On October 22, November 20 was set as the JPT date. The indictment further records in-custody appearances by the Applicant on November 20 and 24, 2015 as well as January 8, 22 and February 5, 23 and March 1, 2016 without a JPT being held. It is unclear as to what the Applicant has done to retain counsel to succeed Mr. Farooq on the file.
[132] Turning to the 10 charges laid in January 2015 alleging breaches of s. 145(3) of the Code, upon which Mr. Farooq had been representing the Applicant before the Ontario Court of Justice, Mr. Sandhu is the counsel now recorded on the information as representing the Applicant as of February 5, 2016. The case has been adjourned to be spoken to on March 11, 2016.
[133] With respect to the most recent set of charges, 12 in number, laid in November 2015, there is an indication that Mr. Sandhu came on the file in early February 2016 as counsel for the Applicant. The charges, upon which the Crown will be proceeding by indictment, have been adjourned to March 11, 2016 to be spoken to.
Parties’ Submissions
[134] Before this court, the parties largely tracked the submissions made before Justice of the Peace Child.
[135] The Applicant again asserted that the proceeding below ought to have been limited to a s. 515 hearing on the 12 new charges as there was no s. 524 arrest as required to open up jurisdiction to deal with all 27 charges faced by the Applicant. The Crown argued that there was no error in the Justice of the Peace’s ruling on the s. 524 issue.
[136] The Applicant again pressed the argument that the secondary grounds analysis anticipates review as to whether the arrestee represents a risk to public safety in the context of endangerment by violence. The Applicant is a “non-violent offender” who would not “reoffend in a violent way if released” and therefore the court’s reliance “on the strength of the Crown’s case to justify detention on the secondary grounds was completely misplaced”. It is said that the numerous breach-recognizance charges were “technical” in nature in the sense of not being breach allegations based on the commission of another substantive criminal offence (i.e. commit assault while subject to a recognizance ‘keep the peace etc.’ condition). Mr. Moon acknowledged that if he is correct in this approach, a court would however be compelled to consider the fraud and breach charges in a tertiary grounds analysis.
[137] Mr. King responded to argue that the court ought to reject a narrow construction of s. 515(10)(b) and that, in any event, the Applicant’s apparent proclivity for fraudulent behaviour is a risk to the public.
[138] The Applicant again submitted that the newly-laid fraud charges and breach charges relating to internet solicitation of business are weak – “at best” perhaps attempt fraud charges. Defences exist for the casino breach charges.
[139] The Crown again emphasized the strength of the evidence supporting the alleged breaches of the casino condition including video surveillance footage. It was submitted that the charge relating to the Malik passport and the original fraud charges are all strong prosecution cases. It was submitted that the apparent serial nature of the Applicant’s fraudulent and breaching conduct underlines the substantial risk he poses to commit further criminal offences. It was submitted that the justice of the peace did not err in detaining on the secondary grounds.
[140] Mr. Moon submitted that this court should adopt a flexible approach to admission of the tendered fresh evidence. It was argued that there is a significant material change in circumstances respecting the issue of the Applicant’s gambling addiction. The Applicant and his proposed sureties recognize the problem, a long-standing problem confirmed by Ms. Leslie’s report. There is a proposed counselling plan. Augmented by electronic monitoring, discovery of a breach of a house arrest plan is assured. It was submitted that this amounts to “a much tighter supervision plan”.
[141] Mr. King opposed admission of the fresh evidence as simply shoring up deficiencies in the presentation before Justice of the Peace Child. The addiction and electronic monitoring evidence could have been placed before that court – this was not an instance of a quick bail hearing as the Applicant was arrested on November 13, 2015 and the bail hearing did not commence until January 15, 2016. As to the gambling addiction issue, Crown counsel noted such matters as Ms. Arshad’s flip-flop on the existence of addiction, the brevity of the Leslie report, the self-reporting nature of the assessor’s source material, the casino attendances without gambling, and the need for the Applicant to recognize that he has committed other crimes to support the addiction if such exists. Counsel further submitted that there is no indication of how the cost of the proposed electronic monitoring would be underwritten. Such monitoring cannot itself prevent a breach.
[142] Mr. Moon submitted that this is not a case for detention on the tertiary ground having regard to the Applicant’s addiction, the weaknesses in the prosecution case, the non-violent quality of the allegations, the tight limitations of the proposed release plan, the inevitable delays to trial, and the likelihood on conviction of a sentence only ranging from a conditional sentence to a mid-to-high reformatory disposition.
[143] Mr. King submitted that this case is squarely within the tertiary ground for detention. Counsel reiterated the “revolving door” spectre of successive releases on bail where an individual advances entitlement to be released again and again only to commit further offences. This diminishes respect for the bail system. The Applicant is seeking a third release in circumstances of the alleged commission of similar offences. The charges are numerous. The alleged frauds are serious and the alleged recognizance breaches are serious by virtue of their repetition. Breach of bail orders by the Applicant has become flagrant and blatant. Ms. Arshad was rightly considered an unsuitable candidate to be a surety. There can be no confidence that the Applicant’s son will be able to supervise his father or that the Applicant would be amenable to anyone’s supervision. Just taking into account the original fraud charges, on conviction a penitentiary sentence would be warranted. The Applicant has new counsel and all matters can move on to trial. A successive s. 520 bail review can be launched if circumstances are appropriate.
ANALYSIS
Introduction
[144] A bail review conducted pursuant to s. 520 of the Code, on the basis of transcripts and exhibits and such affidavits as are contemplated by Rule 20 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), is not a de novo hearing allowing a reviewing judge to substitute his or her assessment of the various circumstances for that of the s. 515 show cause court. This point is squarely framed at para. 121 of R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328:
It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.
[145] In addition, within limits, new evidence may be properly receivable on a s. 520 review application as authorized by s. 520(7) of the Code:
On the hearing of an application under this section, the judge may consider
(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,
(b) the exhibits, if any, filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor…
[146] As explained in the St-Cloud decision, at paras. 123-139, new evidence relating to a material change in circumstances is admissible in a review proceeding on a modified Palmer test. Among other qualities discussed more fully below, the proffered fresh evidence must be “significant” in the sense “that it is reasonable to think, having regard to all the relevant circumstances that it could have affected” the decision of the show cause hearing judge: St-Cloud, at para. 137. In R v. Whyte, 2014 ONCA 268, at para. 26, the “material change in circumstances standard” was described in these terms:
[T]he assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances relevantly material.
Did the Justice of the Peace Have Jurisdiction To Conduct a s. 524 Revocation Hearing?
[147] Sections 524(1) (2) (3) (8) of the Code states:
524 (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused
(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he may issue a warrant for the arrest of the accused.
(2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused
(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
may arrest the accused without warrant.
(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall
(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or
(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.
(8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds
(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,
he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
[148] It was agreed that the Applicant’s arrest on November 13, 2015 was not on the authority of a s. 524(1) warrant of arrest. As I read his reasons, Justice of the Peace Child concluded that he had authority to cancel the February 3, 2015 recognizance covering 15 charges on the alternate bases of timely notice of a s. 524 application without formal arrest and (2) the existence of an actual s. 524(2) arrest without warrant with Const. Cato having told Mr. Latif that s. 524 was part of “your arrest”.
[149] It is generally the case that police discovery of a breach of a condition of an existing recognizance (i.e. violate prescribed curfew or alcohol consumption prohibition) will result in arrest and the laying of a s. 145(3) charge. The alleged commission of a further indictable offence resulting in arrest and the laying of a new substantive charge (i.e. fraud) against an individual already on bail does not routinely result in a s. 145(3) charge unless a condition of the pre-existing bail order is implicated.
[150] It is in the interests of an accused and system efficiencies for a consolidated bail hearing relating to newly-laid charges and a bail cancellation application relating to a pre-existing release order.
[151] To the extent that the court relied upon authorities such as R. v. Ramage (2011), 2011 ONSC 3092, 273 C.C.C. (3d) 331 (Ont. S.C.J.) and R. v. Parsons (1997), 1997 CanLII 10870 (NL CA), 124 C.C.C. (3d) 92 (N.L.C.A.) to found s. 524 jurisdiction on the basis of the Crown merely providing to an in-custody person clear notice of intention to seek cancellation of an existing recognizance without a formal s. 524(2) arrest, it erred in law. While there may at times seem to be a degree of artificiality about the process, a s. 524 arrest is an essential pre-condition for a s. 524(3)(b)(8) cancellation proceeding. The text of the statute is unambiguous in this regard.
[152] Justices of the peace, acting under Part XVI of the Code, exercise express and limited statutory jurisdiction. Part XVI, and specifically s. 524, contains no express statutory provision conferring jurisdiction to modify procedures as necessary and appropriate as existed in R. v. Dallaire (2001), 2001 CanLII 24106 (ON CA), 40 C.R. (5th) 385 (Ont. C.A.), at para. 13 and R. v. Currie, [1999] O.J. No. 2656 (C.A.), at paras. 3-4. In the absence of consent or agreement on the part of an in-custody accused before the court facing new charges, effectively agreeing to a notional s. 524 arrest, the Crown must establish by evidence that a s. 524 arrest has occurred. In R. v. Yarema (1991), 1991 CanLII 7098 (ON CA), 64 C.C.C. (3d) 260 (Ont. C.A.), at pp. 270-271 (leave to appeal refused [1992] S.C.C.A. No. 49), the court approved the approach of Watt J. (as he then was) in the decision under appeal ((1989), 1989 CanLII 7112 (ON SC), 52 C.C.C. (3d) 242 (Ont. H.C.J.)):
Where the reason for the accused’s appearance is that he or she has been arrested for alleged misconduct, either with a warrant issued under s. 524(1) or without a warrant under s. 524(2), the only process before the justice may be the warrant and/or the original information on which the accused had earlier been released.
It may be that the accused has been arrested under s. 524(1) or (2), as well as for an offence contrary to s. 145(2) to (5)…
It is only where the accused has been arrested with a warrant issued under s. 524(1) or by a peace officer without a warrant under s. 524(2), that the review procedure of s. 524 may be invoked.
(emphasis added)
See also R. v. McBride (1996), 1996 CanLII 21274 (ON SC), 49 C.R. (4th) 294 (Ont. Ct. Gen. Div.), at para. 24; R. v. Major (1990), 1990 CanLII 13297 (ON SC), 76 C.R. (3d) 104 (Ont. Dist. Ct.), at pp. 111-112 per Charron Dist. Ct. J. (as she then was) (“…it would certainly appear from the wording of the section [524] that its application is triggered by the appearance of the accused pursuant to an arrest as set out therein”).
[153] I do not suggest that any particular linguistic formula for a s. 524 arrest is necessary or that it need possess all the formality of an arrest for breach recognizance, fraud or some other indictable offence. The timing of the s. 524 arrest may or may not coincide with arrest for the new charge(s). Mr. King, an experienced prosecutor, was familiar with police officers in various cases being dispatched to the courthouse cells to effect a s. 524(2) arrest before the accused was brought to a courtroom for a consolidated 515/524 bail hearing.
[154] Beyond the unambiguous wording of the text of s. 524 itself, the advantage of requiring a s. 524(2) arrest, as opposed, for example, to a police officer’s sole reliance upon s. 495(1)(2)(d)(iii) and s. 145(3) arrest authority, followed at some point by a prosecutor announcing a desire to have revoked an outstanding recognizance, is that an arrestee, the court, Legal Aid Ontario, existing sureties, bail hearing schedulers, the jail superintendent, and others can have a timely and clear understanding that an arrest has transpired triggering a mandatory s. 524(3)(b) hearing (“the justice shall…”).
[155] In the present case, the justice of the peace’s erroneous reliance on the Ramage approach constituted harmless error given what I find to be a fair reading of the court’s reasons, and it’s not unreasonable interpretation of Const. Cato’s November 13, 2015 exchange with the Applicant, as invoking s. 524 as part of the arrest. Accordingly, the court correctly assumed jurisdiction under s. 524(8)(b) to determine:
(1) whether there were reasonable grounds to believe the Applicant had committed an indictable offence while subject to the February 3, 2015 recognizance requiring cancellation of that bail order (“shall cancel”)
(2) should the recognizance be cancelled, whether the accused could show cause why his detention in custody was not justified within the meaning of s. 515(10).
Whether There was Legal Misdirection as to the Scope of the Secondary Ground for Detention
[156] Section 515(10)(b) provides:
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(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
[157] The show cause judge correctly rejected an interpretation of the secondary ground which would limit the court to considerations associated only with dangerous accused in the sense of those substantially at risk to commit violent offences against the person if released.
[158] While dicta can be selected from text in judicial interim release jurisprudence articulating s. 515(10)(b) concerns with endangerment and prospective dangerousness, those cases most often have a case-specific context of arrest for a violent crime. I do not read this caselaw, for example R. v. Dang, 2015 ONSC 4254, at paras. 38-44, as advancing the interpretive principle that “protection…of the public” is limited to protection against violent re-offence only.
[159] No one could reasonably restrict the secondary ground from a duty upon the courts to protect the community against fraudsters, incorrigible bookies, serial break and enter offenders, repeat counterfeiters, etc. – all offences without an inherently violent character.
[160] In the present case, the evidence before the justice of the peace relating to fraudulent conduct on the part of the Applicant and his alleged use of a forged Pakistan passport, against the background of outstanding fraud charges from 2014 and a prior criminal record for fraud and uttering forged documents, properly grounded concerns for protection of the public within the secondary ground analysis quite apart from consideration of the breach-recognizance charges.
[161] I accept Mr. Moon’s submission that the connection between the breach recognizance charges faced by the Applicant and the concept of protection of the public is more attenuated. That said, use of the internet to solicit business in contravention of a prohibition in a recognizance may, as here, be shown to contribute to means to commit fraud. Admittedly, the casino attendance breaches, viewed in isolation, do not directly signal harm or risk to the public. However, these alleged successive instances of non-compliance with the relevant court orders have broader implications including:
(1) routine breach of a particular condition in a release order (i.e. curfew, be in company of surety, non-attendance term) raises the risk of non-compliance with other conditions in the order more directly related to community protection (i.e. non-communication with complainant, prohibition against internet solicitation of business, condition not to possess identification except in own name)
(2) the evidence reasonably supports the view that some of the prohibited casino attendances on the part of the Applicant were to gamble with an inferential link to fraudulent conduct to finance his casino spending.
Cancellation of the Outstanding Recognizance
[162] The justice of the peace, as said, had sufficient evidence before him upon which he could find that the Applicant had committed one or more indictable offences while subject to the February 3, 2015 recognizance. The court correctly applied the standard of reasonable grounds to believe (s. 524(8)(b)) in making this finding although the court alternatively held that: “I would find that the higher standard of balance of probabilities has been met by the Crown in any event”.
[163] In cancelling the outstanding recognizance, the court, at the bail stage, was not required to determine whether the Applicant’s alleged dishonest conduct was properly charged as fraud as opposed to attempted fraud or false pretences, or whether the s. 56.1 Code charge relating to the Pakistan passport was the proper charge as opposed to an uttering charge.
The Primary Ground
[164] Before this court, as below, Crown counsel raised the s. 515(10)(a) primary ground that the Applicant’s detention was necessary to ensure his attendance at trial. The argument was not strenuously pressed.
[165] Justice of the Peace Child held that the Applicant had discharged his onus on this ground. The Applicant is a Canadian citizen. His Canadian passport has been surrendered to the police. His wife and children reside here. He does not have a conviction for failing to appear for court. The Applicant has expressed an intention to defend the charges.
[166] Standing in the balance are various countervailing factors including that the Applicant came to Canada in the late 1990’s and has dual citizenship, born in Pakistan the Applicant undoubtedly has family in that jurisdiction, the Applicant rents his home and there is no evidence that he owns any significant assets, no profile of long-term gainful employment exists, $745,000 in alleged fraudulent proceeds is outstanding, a false Pakistan passport used by the Applicant has not been located, the Applicant has demonstrated capacity to access false identity documents, there is cogent evidence of breach of other recognizance terms other than the direction to appear in court as required, and the Crown has strong evidence respecting some of the charges which, if convictions result, would attract a significant term of imprisonment.
[167] While I may not have decided the s. 515(10)(a) issue in the same manner, I am not prepared to interfere with the decision of the bail court.
Whether Findings of the Justice of the Peace Were Unreasonable Respecting the Secondary Ground
[168] The experienced justice of the peace was alive to the Applicant’s right not to be denied bail without just cause. From the court’s reasons and as a judicial officer routinely presiding in bail courts, the court would be aware of the following:
(1) that the Applicant was presumed innocent of all pre-trial allegations: St-Cloud, at paras. 109, 117; R. v. Hall, 2009 SCC 50, [2009] 3 S.C.R. 309, at para. 13
(2) pre-trial detention must be necessary having regard to the governing criteria in s. 515(10) of the Code: St-Cloud, at para. 70 (“in Canadian law, the release of accused persons is the cardinal rule and detention the exception”) and para. 159 (whether “detention … is necessary”)
(3) circumstances delineated in s. 515(6) of the Code (“reverse onus” provisions) are “an exception to the basic entitlement to bail”: R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124 (S.C.C.), at p. 142
(4) the prosecution is entitled to lead evidence to prove a prior criminal record (Code, s. 518(c)(i)), whether the accused has ever been charged with and awaiting trial for one or more criminal offences (Code, s. 518(c)(ii)), or whether the accused has previously committed an offence “under section 145” (Code, s. 518(c)(iii))
(5) a prosecution case as presented in a bail hearing may increase in strength with ongoing investigation or conversely may be demonstrably weakened: St-Cloud, at para. 57; R. v. LaFramboise (2005), 2005 CanLII 63758 (ON CA), 203 C.C.C. (3d) 492 (Ont. C.A.), at para. 38; R. v. White, 2006 ABCA 65, at para. 2
(6) in assessing the strength of the Crown’s case (Code, s. 518(c)(iv)), the court must also consider any defence raised by an accused: St-Cloud, at paras. 59, 160
(7) that a decision not to release may result in prolonged detention with a trial held only at a much later date: St-Cloud, at para. 71; White, at para. 24.
[169] Following the s. 524(8)(b) cancellation of the February 3, 2015 recognizance, the Applicant was “automatically detained”: R. v. Akintunde, 2015 ONCA 597, at para. 32. Once the Applicant was given the opportunity to show cause why his continued detention was not justified pursuant to ss. 515 and 524(8) of the Code, and failed to do so, detention was ordered on the secondary grounds. The Applicant submits here that this conclusion was unreasonable for a number of reasons including over-valuation of the strength of the Crown’s case, failure to adequately address Mr. Farooq’s role in the alleged commission of some offences, failure to consider “the availability of the defence of officially induced error”, insufficient weight afforded to Mr. Latif’s gambling addiction, and an unreasonable finding respecting the credibility of Fatima Arshad. These arguments are not persuasive having regard to the totality of the record and the cogent reasons of the justice of the peace.
[170] As discussed earlier, the bail court had evidence before it that in 2015 the Applicant engaged in business negotiations with others through the misleading Atar website and the alias of Bob Harris to solicit funds for metals he did not possess or have access to. On its face, it is but a short step to seeing Atar and Harris as a retooling of Steel Management Co. and David Starn in order to continue his dishonesty without interruption.
[171] The finding of the justice of the peace that the Applicant’s use of the Hamid Malik identity at the Windsor Casino was for the purpose of evading detection as Arshad Latif, a person subject to recognizance conditions not to be in a casino or to gamble, is eminently reasonable. The Applicant’s use of the false passport is well-documented including by video surveillance. This is strong evidence for the Crown.
[172] As to the 16 counts of failing to comply with a recognizance through attendance at casinos, the bail court reasonably viewed the prosecution to have a strong case considering the available documentation, witnesses and video evidence.
[173] The court, with the advantage of seeing and hearing Fatima Arshad testify, concluded that she was an evasive witness unresponsive in many of her testimonial responses. The transcript supports this assessment. The court’s negative credibility assessment respecting the witness served to call into question her evidence that the Applicant believed he could lawfully attend the Windsor Casino between February and September 2015 because Mr. Farooq said such conduct would not breach his recognizance. In addition, Justice of the Peace Child made these findings supported on the evidence before him:
(1) the February 3, 2015 recognizance “clearly indicated” that the Applicant was to stay out of all casinos “and there was no exception”
(2) the submitted purpose of the Applicant being at the casino with Mr. Farooq was to assist his lawyer in hiding monies from his family assets – knowing that Farooq was acting dishonestly, the Applicant could not have believed he could “legitimately” be in the casino
(3) the Applicant was posing as Hamid Malik at the Windsor Casino to hide his true identity
(4) The Applicant was in the casino with Mr. Farooq on only 2 of the 6 occasions described in the evidence.
[174] The court’s findings were reasonable and supported by these additional factors:
(1) after clearly being informed by Justice of the Peace Morin on February 3, 2015 that there were no exceptions to the prohibition from entering a casino, the Applicant was in the Windsor Casino on February 24 gambling and without his lawyer
(2) on August 11, 2015, hours after Justice Currie denied any relaxation of the recognizance condition prohibiting casino entry, the Applicant went to the Windsor Casino and gambled
(3) assuming the accuracy of at least some of Fatima Arshad’s evidence relating to the role of Mr. Farooq in enlisting the Applicant to move monies from paper (bank draft and Farooq player’s account balance) to apparent gambling losses (Farooq account balance reduced to zero with no record of Farooq cashing in chips or winnings) while cycling cash back to Farooq (Applicant cashes out Farooq’s chips as his own and gives off-the-books cash back to his lawyer):
a. as noted by the bail court, this alleged laundering exercise was completed in 2, not 6, casino attendances (August 11 and 14, 2015)
b. there is evidence that on those 2 dates the Applicant was simply acting out of self-interest to reduce his own legal fees
c. on August 14/15, 2015, after the Applicant had apparently fully cycled Mr. Farooq’s money back to him, and Farooq had left the gaming floor, the Applicant gambled on his own for several hours resulting in the Applicant not being “with” Mr. Farooq and his breaching two additional conditions of the February 3, 2015 recognizance that he not be absent from his residence after 11:00 p.m. (condition #2) and that he not gamble in any gambling institution (condition #7)
(4) knowing that he was prohibited from entering a casino by a term of his May 29, 2014 recognizance, the Applicant nevertheless accepted employment in the summer of 2014 said to require his attendance in casinos from time to time while not disclosing to his surety (Sethi) that he was subject to such a bail condition
(5) the Applicant had a criminal record for breaching a recognizance for entering a casino when prohibited from doing so.
[175] In a s. 145(3) Code prosecution, the Crown must prove that the accused knowingly or recklessly breached a condition of his recognizance in the sense of intending to commit the actus reus knowing that act was prohibited by a court order: R. v. Custance, 2005 MBCA 23, at paras. 12-19 (leave to appeal refused [2005] S.C.C.A. No. 156); R. v. Legere (1995), 1995 CanLII 1551 (ON CA), 22 O.R. (3d) 89 (C.A.) at pp. 99-100.
[176] In summary, the totality of the circumstances support the view that the Applicant intended to breach his bail terms and that the claim that he honestly believed that he had “a lawful excuse”, based upon Mr. Farooq’s alleged advice, is a complete fabrication.
[177] In any event, it is no defence to the mens rea element of a crime, nor a “lawful excuse” where misinterpretation of legal consequences or ignorance of the law is advanced except within the narrow confines of the officially induced error excuse involving an official or “authorized representative of the state”: Lévis (City) v. Tétreault (City); Lévis City v. 2629-4470 Québec Inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at para. 22. In this sense, “[o]fficially induced error exists as an exception to the rule that ignorance of the law does not excuse”: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at para. 25 per Lamer C.J. In R. v. Forster, 1992 CanLII 118 (SCC), [1992] 1 S.C.R. 339, at paras. 15-16, the court stated:
It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356. This Court recently reaffirmed in R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, at p. 960, the principle that knowledge that one's actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.
I do not rule out the possibility that, in an appropriate case, an officially induced error as to the state of the law might constitute a defence.
[178] Mr. Farooq was not an official or a state actor. In R. v. Eizenga, 2011 ONCA 113, at para. 79, the court observed:
First, it was not open to Eizenga to advance what amounts to a mistake of law defence based on the legal advice that he received. It is well established that reliance on legal advice is a mistake of law which affords no defence to the commission of an offence: R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.), at para. 17; R. v. Pontes, 1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44, at paras. 33-34; R. v. Kotch (1990), 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A.), at p. 138; and R. v. Stucky (2009), 2009 ONCA 151, 240 C.C.C. (3d) 141 (Ont. C.A.), leave to appeal discontinued at [2009] S.C.C.A. No. 186. Thus, Eizenga’s reliance on legal advice concerning the use of the seed capital exemption or the RRSP eligibility of the investments was no defence.
[179] To similar effect is the holding in R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.), at paras. 17-18, 23:
[17] The principle that ignorance of the law is no defence has been firmly and consistently applied by the courts. Even those who commit offences in good faith while relying on the mistaken advice of their legal counsel may not defend on the basis of ignorance of the law: see, for example, R. v. Dalley (1957), 1957 CanLII 394 (ON CA), 118 C.C.C. 116 (Ont. C.A.), at pp. 123-24; R. v. Giroux (1981), 1981 CanLII 3197 (QC CA), 63 C.C.C. (2d) 555 (Que. C.A.), at p. 561, leave to appeal to S.C.C. refused [1981] S.C.C.A. No. 58; R. v. Kotch (1990), 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A.), at p. 138.
[18] The inflexibility of this rule causes concern, however, when a person acts as a result of an error of an "authorized representative of the state" and the state then demands that the criminal law he applied strictly to punish the person for his or her conduct. In such a case, the fundamental fairness of the criminal process would appear to be compromised. Consequently, the law has recognized the defence of officially induced error which, if proved by the accused on a balance of probabilities, entitles the accused to a stay of the charges.
[23] A further consideration is significant. If reliance on advice from duty counsel could constitute officially induced error, then detainees who speak to duty counsel will have available a defence that is unavailable to those who speak to privately retained lawyers. If mistake of law is not a valid defence for those who rely on the erroneous advice of privately retained lawyers, it does not make sense that those who receive the same advice from duty counsel should be afforded an exception to the rule that ignorance of the law is no defence. As a matter of criminal law policy, it cannot be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a privately retained lawyer.
(footnotes omitted)
[180] I am also of the view that the justice of the peace was entitled to conclude, as he did, that Ms. Arshad would be an unsuitable surety in part because of her failure to prevent her husband from going to the casino. There was support for the court’s views including consideration of these factors:
(1) Fatima Arshad was present in court on August 11, 2015 when Justice Currie declined to vacate or modify the existing recognizance condition that her husband not attend a casino
(2) Ms. Arshad had an interest in the Applicant’s legal fees being reduced by his participating in what she maintained she understood as Mr. Farooq’s dishonesty
(3) Ms. Arshad acknowledged in her evidence having formed the view that Mr. Farooq was engaging in dishonest conduct relating to moving monies through a casino, the venture in which he was enlisting the Applicant – as with the Applicant, these circumstances suggest that no reasonable person, including Ms. Arshad would unquestionably accept legal advice from Mr. Farooq
(4) despite describing her reaction as being “shocked”, that it seemed Mr. Farooq was “telling him [the Applicant] to breach” and purportedly believing it was a breach for him to go to a casino, Ms. Arshad did not forbid the Applicant from going or contact the police
(5) further, Mr. Farooq was not Ms. Arshad’s lawyer – she apparently took no opportunity to seek independent legal advice – there is no evidence that she consulted about the propriety of counsel advancing an exception to the casino prohibition not set out in the bail order with her co-surety, Mr. Sethi, whom she described as a very good friend with whom she was in daily contact – she made no recommendation about returning to the court for it to authorize an exception to the casino prohibition or undertaking the Superior Court of Justice review mentioned by Mr. Farooq
(6) in signing a Form 32 Recognizance as a surety on February 3, 2015, Ms. Arshad bound herself with a duty to the court, not to her husband, to ensure that the order’s conditions were complied with
(7) it appears from testimony of Ms. Arshad (paras. 26, 73 above), she considered it appropriate to attend casinos with the Applicant to have dinner while he was prohibited from being in a casino.
[181] The bail court had no information from the Applicant as to a gambling addiction. Ms. Arshad’s change of position respecting her husband’s possible addiction occurred after he was again arrested. There was no treatment or counselling plan before the court.
[182] Ms. Arshad, based on her testimony and failure as a surety to enforce the conditions of the February 3, 2015 recognizance, was not a satisfactory surety. The court rightly observed that with bail pledges of $50,000 (May 2014) and $152,500 (Feb. 2015) not deterring further criminal conduct including non-compliance with bail conditions, the proposal of the Applicant’s son with a $10,000 pledge could not reduce the risk the Applicant posed to the community to a tolerable level.
[183] In sum, the decision of the justice of the peace respecting detention on the secondary ground was not clearly inappropriate or unreasonable and reflected no error in principle. The Applicant, with a criminal record for fraud and breach of recognizance, had set upon a pattern of similar behaviour unrestrained by court proceedings or court orders. There existed a substantial likelihood of the commission of further criminal offences threatening protection of the public. The court cannot be faulted for deciding that the Applicant had failed to discharge his onus of establishing that with respect to the 27 charges before the court his continued detention was not justified.
Admissibility of the Fresh Evidence
[184] Section 520(7) of the Code anticipates that “additional evidence or exhibits may be tendered” in a bail review proceeding.
[185] In the St-Cloud decision, at paras. 122-138, the court opted for a modification of the fresh evidence admissibility rules in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. On the due diligence prong, whether the newly proffered evidence was available or could reasonably have been available at the original s. 515 show cause hearing, the court advocated a generous and liberal interpretation where a reason is given that is “legitimate and reasonable” (paras. 131, 134). In many cases, a short time between arrest and a bail hearing will adequately explain late presentation of relevant evidence or material (paras. 109, 125, 127, 129); see also R. v. A.A.C., 2015 ONCA 483, at para. 52. The new evidence must be relevant to a s. 515(10) enumerated ground, must be credible, and such that it would be reasonable to think that, having regard to all the relevant circumstances, “it would have affected” the bail court’s decision (paras. 135-7).
[186] In the present case, the addiction-related evidence and the electronic bracelet monitoring evidence was not put before Justice of the Peace Child despite the fact that the January 15, 18, 19, 2016 bail hearing took place 9 weeks after the Applicant’s November 13, 2015 arrest. No legitimate and reasonable reason exists for the material not being advanced before the bail court.
[187] Leaving this finding to the side, the evidence relating to the existence of a gambling addiction is inconclusive. There is evidence supporting such a condition of the Applicant including:
(1) the opinion of Const. Cato expressed at the January 28, 2015 bail hearing
(2) Fatima Arshad and Wajahat Arshad consider the Applicant to have a gambling addiction
(3) the Applicant has attended casinos with some frequency
(4) Ms. Leslie’s assessment report stating that the Applicant informed her that his debt load relates to gambling and that he would be prepared to engage in treatment
(5) Ms. Leslie’s report of screening test results ranking the Applicant as 16 out of 20 for gambling pathology.
[188] To be considered in the balance relating to the second to fourth Palmer factors are the following circumstances in this case:
(1) in his Rule 20 sworn affidavit, the Applicant did not inform the court that he believed he required treatment for a gambling addiction
(2) Ms. Arshad testified in January 2015 that she did not believe her husband had a gambling problem
(3) the defence position respecting the Fallsview casino attendances was that the Applicant was engaged in business not gambling and that he was only at the Windsor casino with Mr. Farooq to assist counsel – this seems inconsistent with asserting a gambling habit
(4) on August 25 and 30, 2015, the Applicant attended the Windsor Casino to acquire nearly $4,000 in total without gambling
(5) Ms. Leslie did not provide a Rule 20 affidavit – her very brief unsworn report is dependent in part on information from the Applicant – there is no indication of Ms. Leslie’s medical or professional qualifications or the general acceptance of the actuarial screening instruments she used to predict gambling pathology
(6) Ms. Leslie’s report noted lack of insight on the part of the Applicant.
[189] Therefore, quite apart from the absence of diligence, the proffered evidence is inconclusive as to whether the Applicant enjoys casino attendances from time to time to gamble or whether he in fact has a gambling habit. The evidence could not reasonably have affected the detention decision of Justice of the Peace Child.
[190] Turning to the electronic bracelet monitoring proposal, the RSC package of materials has been distributed for some time before this court in various bail proceedings. There is, as noted, no legitimate and reasonable reason for the material not being before the bail court. The RSC technology does not necessarily act as a deterrent and, like the gambling counselling proposal, does little to protect the public from renewed fraudulent conduct by the Applicant.
[191] The limits of the technology were discussed in R. v. Kahsay, 2015 ONSC 1775, at paras. 47-56, 94; R. v. Obi, 2015 ONSC 4444, at paras. 34-36; USA v. Pannell, 2005 CanLII 22 (ON CA), [2004] O.J. No. 5715 (S.C.J.), at paras. 34-43 (affd (2005), 193 C.C.C. (3d) 414 (Ont. C.A.), at paras. 29-37). I am satisfied that consideration of the RSC material would, reasonably, not have impacted upon the justice of the peace’s conclusion respecting s. 515(10)(b) detention.
The Tertiary Ground
[192] As said, Justice of the Peace Child declined to consider the tertiary ground. In light of the fresh evidence application in this proceeding, Mr. Moon’s submissions respecting breach recognizance charges in particular as falling outside the violent crime focus of the secondary ground, and because Mr. King was entitled to defend the detention result on any s. 515(10) ground having a foundation in the evidence, counsel argued the tertiary ground issue.
[193] Section 515(10)(c) of the Code states:
(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.
[194] In A.A.C., at paras. 47-50, the court summarized some of the “important principles that inform the application of s. 515(10)(c)”:
[47] … St-Cloud clarifies the ambit of s. 515(10)(c). In St-Cloud, the Supreme Court rejects an unduly restrictive interpretation of the section’s scope and holds that the tertiary ground for detention is not to be interpreted narrowly or applied sparingly. As the court puts it, the section is not necessarily limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes involving circumstances similar to those in Hall, [2002] SCC 64], or to certain classes of crimes: at paras. 5, 47, 50, 53 – 54, and 87.
[48] Rather, the Crown may rely on s. 515(10)(c) to support detention for any type of crime, so long as the Crown proves – except in the cases provided for in s. 515(6) of the Criminal Code, of which this is not one – “that the detention of the accused is justified to maintain confidence in the administration of justice”: at para. 54. In this context, the fact that detention may be justified on the tertiary ground only in rare cases is but a consequence of the application of s. 515(10)(c); it is neither a precondition to its application nor a criterion the court must consider or the purpose of the section: at para. 50.
[49] … St-Cloud reiterates the holding in Hall that each of the four listed factors in s. 515(10)(c) and their combined effect must be considered, together with all other relevant circumstances, when detention is sought to be justified under the tertiary ground: at para. 68.
[50] Consequently, “[a] court must not order detention automatically, even where the four listed circumstances [in s. 515(10)(c)] support such a result”: at para. 87. The s. 515(10)(c) inquiry requires a balancing of the listed factors, together with any other relevant factors, in order to answer the ultimate question: whether detention of the accused is necessary to achieve the purpose of maintaining confidence in the administration of justice: at paras. 69 and 87.
[195] We also know from St-Cloud that the following principles inform the tertiary grounds balancing exercise:
(1) consideration of the apparent strength of the Crown’s case includes attention to the reliability of prosecution evidence such as videotaped evidence which “is more reliable than circumstantial or testimonial evidence” (para. 160) as well as any defences of the accused as may appear from the record (para. 59)
(2) the gravity of the offence requires the court to determine the objective gravity of the crime(s) charged in comparison to other offences in the Code (para. 60)
(3) the circumstances of the offence(s) charged are very case-specific and may include the type of aggravating or mitigating factors which might be considered in a sentencing hearing (para. 61) – this may include an accused’s prior criminal record and the timing of any future trial (para. 71)
(4) jeopardy for the imposition of a potentially lengthy term of imprisonment if convicted invokes consideration of the nature of the offence, potentially aggravating factors and mitigating factors and relevant sentencing principles (paras. 62-65)
(5) beyond the factors specifically enumerated in 515(10)(c), other relevant circumstances must be considered and balanced in combination to the extent that they are relevant to whether “detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country” (paras. 69, 87)
(6) the need to maintain public confidence in the administration of justice adopts the perspective “of reasonable members of the community who are properly informed about “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”” (paras. 72, 74, 77-83, 87).
[196] Insofar as the strength of the Crown’s case, the original fraud charges involve multiple complainants in a position to testify to their investment losses and the Applicant’s/Starn’s modus operandi. The evidence convincingly suggests that, while on bail for these charges, the Applicant switched the deception of Steel Management Co. and Starn for Atar Steel Co. and Bob Harris to continue his dishonesty. The breach-recognizance charges involving casino attendances are provable by documentation, witness accounts and video surveillance including the Applicant’s use of a false Pakistan passport. As discussed above, the prosecution apparently has a strong case on these charges with no robust defences revealed by the record.
[197] As to the gravity-of-the-offence factor, in this case there are 27 crimes charged. Fraud of a value exceeding $5,000 “is a serious offence”: R. v. Bengert (2002), 2002 CanLII 41073 (ON CA), 167 C.C.C. (3d) 390 (Ont. C.A.), at p. 396 (leave to appeal refused [2002] S.C.C.A. No. 398). Possession of a false foreign passport is also serious. The knowing and flagrant nature of the breaches of successive recognizances increases the gravity of these alleged crimes.
[198] In considering the circumstances of the alleged offences, these factors are significant. The bulk of the charges faced by the Applicant are fraud and breach recognizance offences. He has a prior criminal record for fraud and breach recognizance. It is alleged that while on bail for fraud the Applicant simply continued his dishonesty, with different identities, relating to being an international scrap metal and metal broker. While on bail for multiple breach of recognizance charges, it is established by the evidence that the Applicant committed similar, multiple violations of a new bail order using an identity supported by a false Pakistan passport. $745,000 from the original fraud charges is unrecovered. The Hamid Malik passport has not been located.
[199] On conviction, the Applicant is facing a potentially lengthy period of imprisonment. The original fraud counts, “major frauds”, even for a first offender, will ordinarily attract a sentence of 3 to 5 years’ imprisonment: R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 163 C.C.C. (3d) 259 (Ont. C.A.), at p. 271; R. v. Khatchatourov and Keznick, 2014 ONCA 464, at para. 39; R. v. Dwyer, 2013 ONCA 34, at para. 12; R. v. Witen, 2014 ONCA 694, at paras. 1, 25; R. v. Maxwell, 2014 ONCA 316, at para. 5; R. v. Drakes, 2009 ONCA 560, at paras. 24-6 (leave to appeal refused, [2009] S.C.C.A. No. 381); R. v. Bertram, [1990] O.J. No. 2013 (C.A.), at p. 3; R. v. Wilson, 2003 CanLII 48181 (ON CA), [2003] O.J. No. 1047 (C.A.), at para. 5. The Dobis decision, at p. 273, includes at the lower end of “large-scale frauds”, the McEachern case ((1978), 1978 CanLII 2506 (ON CA), 42 C.C.C. (2d) 189 (Ont. C.A.)) involving $87,000 and the fraud in Pierce ((1997), 1997 CanLII 3020 (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.) (leave to appeal refused, [1997] S.C.C.A. No. 225)) in the amount of $270,000, while a $200,000 defalcation was described by Juriansz J. (as he then was) as a large-scale fraud in R. v. Robinson, [2003] O.J. No. 4722 (S.C.J.), at paras. 4, 11.
[200] The Applicant has a prior record for fraud. Committing further frauds while on bail for fraud is an aggravating factor.
[201] Turning to the breach-recognizance allegations, the Applicant faces not one, but 16, charges. The Applicant has a prior record for breach of recognizance. The s. 145(3) charges proceeded with by indictment are punishable by a maximum of 2 years’ imprisonment. Breaching a recognizance while on bail for breaching a recognizance is a serious situation suggestive of incorrigibility. Facilitating non-compliance with bail conditions by concealment of identity by a false Pakistan passport reflects a high degree of moral blameworthiness. Bail order breaches, the circumstances of which are said to involve participation in a fraudulent concealment fraud by another individual, are particularly serious (s. 341 of the Code: “Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years”). Given all of these circumstances, on conviction after trials the Applicant stands to be sentenced to significant incarceration.
[202] The evidentiary record speaks to the Applicant being an individual who has a steadfast intention to continue criminally dishonest conduct unrestrained by judicial interim release orders.
[203] The Applicant has retained new counsel. There is no evidence before this court that timely in-custody trial dates cannot be set for the charges faced by the Applicant. It is time to get on to trial or meaningful resolution discussions.
[204] Balancing all of the relevant circumstances, the reasonable member of the public described in St-Cloud would have no difficulty in concluding that release of the Applicant would undermine confidence in the administration of justice. The language in R. v. Warren, 1999 CanLII 2205 (ON CA), [1999] O.J. No. 4591 (C.A.), at para. 7 is apposite to the present case:
… the appellant … violated the terms of his release on many occasions … These were flagrant violations of important terms… The appellant had been given every opportunity to remain at large so that he would not suffer the prejudice of pre-trial custody. By his own actions, he jeopardized his bail status and ultimately he had to be detained pending his trial.
[205] The Applicant’s detention on the tertiary ground is demonstrably justified.
The 90-day Review
[206] On February 12, 2016, 90 days after the Applicant’s November 13, 2015 arrest on 12 new charges and his s. 524 arrest respecting the commission of further indictable offences while subject to the February 3, 2015 recognizance, the Superintendent of the Maplehurst Correctional Complex applied to this court pursuant to s. 525 of the Code for a 90-day review of the Applicant’s detention on all 27 outstanding charges.
[207] As noted in Pearson, at p. 142, on a s. 525 review the court “is to take into consideration whether there has been unreasonable delay”.
[208] No trial dates have been set. This court has no transcripts or other information as to the cause of any delay in proceedings prior to Mr. Farooq’s discharge as the Applicant’s counsel.
[209] In respect of the original charges laid in May 14, 2014, and now before this court, the justice presiding over the Applicant’s March 29, 2016 appearance shall determine whether an expedited in-custody trial date can be scheduled having regard to whether the Applicant has retained counsel, the availability of counsel, and the state of the court calendar.
[210] The 10 breach recognizance charges laid in January 2015, on a track of being proceeded with summarily, have not come to trial 14 months later. The justice of the Ontario Court of Justice presiding over the Applicant’s March 11, 2016 appearance on these charges shall take immediate steps to set an expedited in-custody trial date.
[211] No s. 525(9) directions are required at this time respecting the 12 charges laid in November of 2015.
CONCLUSION
[212] I am satisfied that even if the review before this court had been limited to the question of release/detention on only the 12 charges laid in November 2015 the result would have been the same.
[213] The s. 520 Code bail review is dismissed. In his able submissions, Mr. Moon said everything that could be reasonably advanced on the Applicant’s behalf.
[214] The s. 525 Code 90-day review is dismissed with the s. 525(9) directions set out in paras. 209 and 210 above which the SCJ Trial Coordinator shall bring to the attention of Justice Durno respecting indictment #1125/2015 and to the attention of the Local Administrative justice of the Ontario Court of Justice in Brampton respecting the 10-count information to be spoken to before that court on March 11, 2016.
Hill J.
DATE: March 8, 2016
CITATION: R. v. Latif, 2016 ONSC 1668
COURT FILE: CRIMJ(F) 1125/15
DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. ARSHAD LATIF
COUNSEL: D. King, for the Respondent
M. Moon, for the Applicant
REASONS FOR JUDGMENT
Hill J.
DATE: March 8, 2016