Court File and Parties

COURT FILE NO.: CR-32BR-16 DATE: 2016/06/20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Takin Lahmi

BEFORE: Valin J.

COUNSEL: R. Wood, for the Crown D. Ahmad, for the Accused

HEARD: June 20, 2016

Endorsement

[1] The accused was arrested on May 23, 2016 and charged with single counts of impaired operation of a motor vehicle, possession of a firearm, unauthorized possession of a firearm, possession of a loaded firearm, and possession of a weapon for a dangerous purpose.

[2] He had a bail hearing before a justice of the peace on May 30, 2016. The learned justice of the peace ordered that the accused be detained in custody, relying primarily on the tertiary ground, but also on the secondary ground.

[3] The accused appeared before me for a bail review hearing. No new evidence was called. Both sides relied on the testimony given at the bail hearing on May 30th. The transcript of that hearing was filed as Exhibit 1 in the hearing before me.

[4] Crown counsel conceded that the reasons of the justice of the peace were less than fulsome and that I had jurisdiction to conduct a bail review hearing on the basis that the justice of the peace erred in principle and/or in law.

[5] On May 16, 2016, a police officer stopped the accused for a speeding infraction. When obtaining documentation from the accused, the officer noticed some indicia of impairment. After preparing a provincial offence notice, the officer invited the accused to exit his vehicle with the hope that he could observe the accused’s gait. The officer formed grounds for an ASD demand. The accused provided a sample of breath. The reading on the device was “0”. The officer then concluded that the indicia of impairment he observed might have been due to fatigue. While the accused was returning from the police cruiser to his vehicle, he stumbled and appeared to be unable to walk in a straight line. The officer steadied the accused by grabbing him by the shoulder, at which time the officer discerned the accused was wearing a bullet proof vest.

[6] The officer then arrested the accused for impaired operation of a motor vehicle and proceeded to conduct a search incident to arrest. He found a handgun beneath the driver’s seat with 9 shells in the magazine, but no shell in the chamber. He also found a 50 round box of ammunition for the handgun beneath the seat, with 9 shells removed. The officer made no notes with respect to advising the accused of his ss. 10(a) or 10(b) Charter rights.

[7] The justice of the peace rejected the plan of supervision put forward by the accused whose father was prepared to post cash bail and act as a surety. The accused lived with his father and was employed by him in a pizza shop in Gatineau, Quebec.

[8] In ordering the detention of the accused, the justice of the peace relied in part on the secondary ground. I find he was in error in doing so because his reasons fail to disclose any facts to support a conclusion that there was a substantial likelihood that the accused would re-offend. Indeed, the evidence is to the contrary. The accused has no criminal record. He has no record for having breached any previous undertakings or recognizances.

[9] With respect to the tertiary ground, s. 515(10) of the Criminal Code of Canada provides as follows:

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

(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.

[10] In his reasons, the justice of the peace concluded that all four circumstances existed and that, accordingly, the decision of the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27 required the detention of the accused. With respect, he was in error in forming that conclusion.

[11] In St. Cloud, the Supreme Court of Canada specifically held that the four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive, and that a court must not order detention automatically even where the four listed circumstances support such a result. The court must, instead, consider all the circumstances of each case, paying particular attention to the four listed circumstances. The Supreme Court also noted that whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

[12] The Supreme Court held that no single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. The test to be met under s. 515(10)(c) involves the balancing of all the relevant circumstances. At the end of that balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice.

[13] To answer that question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case. However, that person is not a legal expert and is not able to appreciate the subtleties of the various defences available to the accused.

[14] Finally, in St. Cloud, the Supreme Court observed that the reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[15] In this case, the Crown elected to proceed summarily against the accused on May 31, 2016, the day after his bail hearing. While I acknowledge the justice of the peace could not have known that would happen, he did not make any inquiry of the Crown as to whether it intended to proceed by way of indictment or by summary conviction.

[16] Given the fact that the Crown has elected to proceed summarily, none of the weapons related offences charged carry a mandatory minimum prison sentence. Indeed, the maximum sentence the accused could now receive is one year. Given the fact that the accused has no prior criminal record, it is highly unlikely, if convicted, that he would be sentenced to anything close to the maximum.

[17] The apparent strength of the prosecution’s case must be tempered by the fact that there may have been a violation of the accused’s ss. 10(a) and/or 10(b) Charter rights. Given that the evidence recovered was real evidence in the nature of a handgun and a box of ammunition for it, and that the accused’s chances of a successful application to exclude that evidence may be somewhat tenuous, it cannot be said that an application to exclude that evidence is totally without merit.

[18] The gravity of the offence has also been tempered by the Crown’s decision to proceed against the accused by way of summary conviction.

[19] Finally, by virtue of that decision, the accused is no longer liable on conviction to receive a lengthy term of imprisonment or, with respect to the firearm offences, a minimum punishment of imprisonment for a term of three years or more.

[20] In the circumstances of this case, I conclude the detention of the accused on the tertiary ground is not justified. I am satisfied that a reasonable person would reach the conclusion that the detention of the accused is not required in order to maintain confidence in the administration of justice.

[21] The application is therefore granted. The order of the justice of the peace dated May 30, 2016 is vacated.

[22] An order will issue that the accused be released on a recognizance upon the deposit by him of the sum of $4,000 cash, and upon the agreement of his father Majed Lahmi, to act as his surety upon deposit of the further sum of $6,000 cash.

[23] The accused shall be subject to the following terms and conditions of release:

• He shall attend court at The Legion Hall, 201 River St., West Nipissing, as required.
• He shall keep the peace and be of good behaviour.
• He shall reside with his surety at 240 Rue Albert Einstein, Gatineau, Quebec.
• Except for purposes of employment with his father at 2 for 1 Pizza at 114 De Portage, Gatineau, Quebec, or for consulting counsel with respect to the charges that are the subject of this application, he shall otherwise remain in the home at 240 Rue Albert Einstein, Gatineau, Quebec at all times.
• He shall answer the front door of the residence at 240 Rue Albert Einstein, Gatineau, Quebec upon the request of a police officer.
• He shall not possess or consume any alcohol or non-medically prescribed drugs.
• He shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance.

The Honourable Mr. Justice G. Valin Date: June 20, 2016