Her Majesty the Queen v. Kasmir Singh, 2018 ONSC 5336
COURT FILE: DR(P) 1226/18 DATE: 2018 09 11 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. T. Sarantis, for the Respondent Respondent
- and -
KASMIR SINGH J. Mencel, for the Applicant Applicant
HEARD: September 11, 2018
BAIL REVIEW JUDGMENT (On Review of a Detention Order of Justice of the Peace M. Hudson made July 12, 2018)
HILL J.
INTRODUCTION
[1] Kasmir Singh was arrested on July 12, 2018 and detained in custody in a judicial hearing later that day. The applicant seeks review of his pretrial detention status.
[2] On account of outstanding charges upon which the applicant was on bail, the July 12, 2018 show cause hearing of the applicant was a reverse onus proceeding (s. 515(6)(a)(i) of the Criminal Code).
THE JUDICIAL INTERIM RELEASE HEARING
[3] At the outset of the hearing, when asked by the court whether he had counsel, Mr. Singh replied that he did not. The presiding justice of the peace pointed out a “lady in the red jacket”, presumably duty counsel, saying “she will assist you”.
[4] Crown counsel, not Mr. Sarantis, then indicated to the court that Mr. Singh:
(1) had “a number of outstanding matters” (2) had a lengthy record (3) had been interviewed by the John Howard Society of Peel who were “not in position to offer supervision”.
[5] Crown counsel then stated:
Your Worship, the Crown is prepared to recommend this gentleman’s release in the form of his own recognizance with appropriate conditions to satisfy those grounds.
[6] When the court asked to hear the allegations, the prosecutor introduced the prior criminal record, outlined the outstanding charges faced and the forms of release thereon, and then detailed the facts of the allegations relating to Mr. Singh’s most recent arrest.
[7] In summary, on July 12, 2018, at about 12:20 a.m., the complainant, R.S., was walking through the parking lot of the Khalsa School on Airport Road in Malton when he observed the applicant asleep in the parking lot. When R.S. informed Mr. Singh that this was not a place to sleep, the applicant became enraged, picked up an eight-foot long metal rod while threatening to kill R.S., and swung the rod at the complainant. With a security guard intervening, the complainant was not hit. The applicant was arrested and, in addition to criminal charges of assault with a weapon and threatening, was charged with being intoxicated in a public place.
[8] Once the narrative of allegations was complete, Crown counsel:
(1) repeated that the John Howard Society could not offer the applicant “support or supervision in the community” (2) the complainant, who was unknown to Mr. Singh, received no injuries (3) having regard to the philosophy and spirit animating the subject of bail as canvassed in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, and despite the allegations being “serious in nature”, the applicant was “releasable” (4) “with appropriate conditions, the safety concerns with respect to the victim can be minimized” without the need for a surety.
[9] At this point, duty counsel informed the court that:
I have discussed this matter with my friend. We are in agreement, so this is a joint submission for your consideration.
[10] Mr. Singh’s date of birth is December 6, 1969. He is currently 48 years of age. The applicant has a prior criminal history in the 13-year period stretching from 2005 to 2017 – from ages 35 to 47. There are 58 entries in the applicant’s prior criminal record.
[11] Given the nature of the outstanding charges, the applicant’s prior criminal record is not without significance. In terms of the yet-to-be resolved theft charges, the applicant has 11 prior theft convictions (2006, 2007, 2010, 2011, 2012, 2013 (x2), 2014 (x2), 2016, 2017). As to bail-related convictions – fail to comply in 2005 and 2007. Turning to the applicant’s history of compliance with other court orders, he has 25 prior convictions for breach of probation (2010, 2011 (x6), 2012 (x4), 2013 (x5), 2014 (7), 2016, 2017).
[12] The charges upon which the applicant now stands detained and seeks release, assault with a weapon and uttering a death threat, fall to be considered within the context of this prior criminal record: uttering threats to cause death or bodily harm (2012), and, 9 assault convictions (2005, 2007, 2010, 2011, 2012 (x2), 2013 (x2), 2017), and, assault with intent to resist arrest (2014), and, assault with a weapon (2015). Relevant to the applicant’s apparent public intoxication on July 12, 2018 are prior drinking/driving-related convictions in 2005, 2006 and 2014.
[13] At the point of the s. 515 show cause hearing, the applicant was facing a number of criminal charges and was subject to various forms of release under Part XVI of the Criminal Code for which the Crown sought no bail revocation pursuant to section 524.
Outstanding Charges
| Alleged Offence | Date | Form of Release |
|---|---|---|
| (1) assault | June 11/17 | Promise to Appear |
| (1) assault | June 11/17 | Promise to Appear |
| (2) fail to appear | July 5/17 | s. 515(2)(b) Recognizance |
| (3) fail to comply with Appearance Notice | July 6/17 | s. 515(2)(b) Recognizance |
| (4) theft under | Sept 1/17 | Appearance Notice |
| (5) theft under | April 21/18 | Undertaking to Officer in Charge |
| (6) assault | June 28/18 | Undertaking to Officer in Charge |
| (7) Assault | July 3/18 | Undertaking to Officer in Charge |
Current Charges
| Alleged Offence | Date | Form of Release |
|---|---|---|
| (8) assault with a weapon | July 12, 2018 | detained |
| (8) utter death threat | July 12, 2018 | detained |
Reasons for Detention
[14] Once the bail court was informed that a “joint submission” for release existed, the court immediately began its oral reasons for decision. The court referred to the applicant’s prior criminal record, and the history of non-compliance with court orders concluding that, “[i]n all of those cases, the majority of those are failing to comply, not following the rules”. The presiding justice of the peace then summarized the allegations relating to the July 12 charges before stating:
I understand and abide by the direction of the higher courts and, in terms of Antic, it does indicate that bail should be granted, but I think there has to be room for this court to make a decision in the interests of the safety of the public.
When I look at the record and the number of entries for failing to comply with court orders, the number of outstanding matters, which include[ed] failing to comply with court orders, and the number of assaults that are outstanding, including those for which you have been convicted, to release you without a proper plan of supervision I think would be a disservice to the public. Notwithstanding the Crown is recommending your release, this court is not going to release you based on your record, the outstanding matters, and the allegations before the court today. If there is no plan in place to supervise him, this court is going to order his detention on the secondary grounds.
[15] Once these reasons were delivered, the court set a video remand date for the applicant’s next court appearance.
The Bail Review Record
[16] In addition to the transcript of the s. 515 show cause hearing, the applicant has filed his own affidavit dated September 7, 2018. The affidavit in part deposes that:
- If this Honourable Court does release me, I will be residing with my friend Gopal Khera in his residence on Homeside Gardens, in Mississauga.
- At the time of my arrest, I was living with a friend at 42 Sledman Street, Mississauga for a couple [of] months. Prior to this I lived in a basement by myself at Homeside Gardens, Mississauga. Prior to this I lived with my girlfriend and daughter at 7296 Cambret Drive, Mississauga, for four years.
- My most recent long-term employment was in 2017 when I worked for a temp agency. This employment ended when I was charged criminally. I recently got my forklift licence and if released, I intend to find a forklift job so I can work towards getting my own place.
- I have two daughters. My first born is Raynuka Arjoon, born in 1998, who lives with my wife who I am separated from. I see Raynuka often. I have a good relationship with her mother, Kiranjeed Singh. My second daughter is Simranpreet Singh, born in 2005, who lives with my girlfriend, Ramanbeep Gill. I am also involved in Simranpreet’s life.
No affidavit was filed by Gopal Khera.
The Grounds for Review
[17] In seeking to have this court review the detention orders, the applicant does not seek to rely on changed circumstances. It is submitted that the justice of the peace erred:
(1) in failing to afford the applicant “an opportunity to make submissions” thereby denying him “a full bail hearing” (2) in failing to adhere to the “ladder principle” in not providing reasons “why a lesser form of release was not acceptable” which did not require a surety (3) in failing to accept the joint submission for a “consent release” of the applicant on his own recognizance without a surety requirement given that the joint submission would not have brought the administration of justice into disrepute.
ANALYSIS
[18] The parties before this court accept that:
(1) the onus was upon the applicant in the s. 515 show cause hearing to displace the s. 515(6) presumption of custody by demonstrating, on balance, entitlement to release from detention on a form of release as described in ss. 515(1)(2) (2) the joint submission, often described as a “consent release”, was that the applicant be released on a s. 515(2)(b) recognizance without sureties or other supervision (3) the justice of the peace detained the applicant because no plan was advanced, by surety or John Howard Society or otherwise, to “supervise” the applicant in the community (4) the onus is upon the applicant in this s. 520 bail review to demonstrate error on the part of the detaining justice beyond harmless error in terms of its impact upon the decision to detain on the secondary grounds described in s. 515(10)(b) (5) should such error be established, the applicant must demonstrate, including on any relevant enhanced record, that he is releasable on a particular form of judicial interim release order.
[19] The applicant is presumed innocent of the charges arising from the July 12, 2018 incident.
[20] The s. 526(6)(a)(i) reverse onus provision concerns itself with the arrest of a person for an indictable offence while at large after being released in respect of another indictable offence on what remains an outstanding bail restraint. It is recognized that “s. 515(6) requires the accused to demonstrate that bail is justified, thereby denying the basic entitlement to be granted bail unless pre-trial detention is justified by the prosecution”: Regina v. Morales, [1992] 3 S.C.R. 711, at paras. 57 to 64.
[21] As noted at para. 41 of Morales, “the bail system does not function properly if individuals commit crimes while on bail”. Accordingly, “if there is a substantial likelihood that the accused will engage in criminal activity pending trial, it furthers the objectives of the bail system to deny bail”: Morales, at para. 41; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 1.
[22] “The decision concerning the interim release of an accused is often described as “discretionary”” in the sense of a judicial balancing of factors implicated by the s. 515(10) primary, secondary and tertiary grounds requiring that the court “make findings of fact and assess the weight of those findings” of fact and assess the weight of those findings” within the relevant legal context: St-Cloud, at paras. 113-114; Antic, at para. 42. “[T]he existence of a discretion” is “indispensable to the balancing of interests” – this is inconsistent with a judicial officer carrying out a “rubber stamp role”: Baron v. Canada, [1993] 1 S.C.R. 416, at para. 29.
[23] In the Antic decision, Wagner J. (as he then was) stated at para. 68:
Of course, it often happens that the Crown and the accused negotiate a plan of release and present it on consent. Consent release is an efficient method of achieving the release of an accused, and the principles and guidelines outlined above do not apply strictly to consent release plans. Although a justice or a judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.
[24] Too often, as is evident from some transcripts of show cause hearings coming before this court, counsel conduct themselves as though a “consent” bail governs the release/detention result with all that is required of the court is a signature. At times, outright hostility is exhibited toward a presiding justice of the peace who dares to make inquiries, to require more information, or to reasonably challenge the soundness of the submission. This is fundamentally wrong.
[25] Exercise of the judicial function of deciding the issue of bail requires an independent and impartial judicial determination. The show cause judge is not a rubber stamp. Put differently, consent or agreement of the detainee’s counsel and the prosecution does not constitute a judicial adjudication. The court maintains a residual discretion to discharge the important obligation of balancing liberty and public safety considerations: Regina v. Hilderman, 2005 ABCA 249, at para. 17.
[26] Undoubtedly in an era of active case management by courts, and sensitivity to contribution to the collaborative effort of all system participants to reduce delay, agreements between the parties that an arrestee is releasable furthers these objectives. That said, narration of a cryptic summary of the relevant criminal allegation, the tendering of a bald statement of consent, and dictation of conditions of release by counsel to the court for sign-off, without more, does not generally found a judicially-considered determination of bail. Indeed, this approach risks abdication of judicial responsibility.
[27] While reference to application of the rule relating to joint submissions in sentencing hearings is not a perfect analogy to the bail context for reasons described below, I nevertheless adopt the following observations in Regina v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 54, as properly applicable to joint submissions in s. 515 bail hearings, insofar as a show cause court undoubtedly wanting to know the circumstances leading to the joint submission:
Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a “corollary obligation upon counsel” to ensure that they “amply justify their position on the facts of the case as presented in open court” (Martin Committee Report, at p. 329). Sentencing – including sentencing based on a joint submission – cannot be done in the dark. The Crown and the defence must “provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence”, in order to give the judge “a proper basis upon which to determine whether [the joint submission] should be accepted” (DeSousa, at para. 15; see also Sinclair, at para. 14).
[28] Stopping for a moment, what happened in the present case? Counsel indicated agreement for release on a recognizance with conditions and no surety, relating to an individual the court knew to be subject to a probation order requiring that he keep the peace and be of good behaviour when the July 12, 2018 crimes were alleged to have been committed, to have an extensive prior criminal record with convictions in every year from 2005 to 2017, and to be the subject of 7 outstanding bail dispositions. A context for the newly laid assault charge was a criminal record of 11 assault convictions and existing bail releases relating to 4 outstanding assault charges.
[29] On any reasonable view of the matter, the information provided to the court fell woefully short of that necessary for a judicial determination of the propriety of the joint submission. This was a rush to bail only hours after arrest without provision of the necessary foundation for the meaningful exercise of a judicial discretion. These circumstances required more from counsel and the court. The court, effectively left in the dark, was invited to rubberstamp the proffered joint submission. How old was the applicant? Was he a Canadian citizen? Did he have a partner and children? Was he employed? What was his education level? Did the applicant have assets or roots in the community? Was he homeless and of no-fixed address or did he have a residence to go to? Was there alcohol or documented anger management problems or evidence of mental illness? What were relevant conditions of the outstanding release documents? Were reasons provided by the John Howard Society for declining to be involved in the case? How, given the applicant’s history, could release on his own recognizance, without third-party supervision, realistically satisfy secondary ground concerns?
[30] Unlike the degree to which there may exist a “considered agreement of counsel” in sentencing hearings (Anthony-Cook, at paras. 44, 63), the applicant was in a busy bail court in perhaps Canada’s busiest courthouse only hours after arrest with the limited assistance of duty counsel – a lawyer the applicant had not met before the brief bail hearing was underway.
[31] While it is not strictly necessary to decide in this case, I would be cautious about applying the test for departure from a joint submission in sentencing applied by some to the bail context (whether “the proposed sentence would bring the administration of justice into disrepute” or would be “otherwise contrary to the public interest”). In a sentencing hearing, the court has an extensive record with trial evidence or facts narrated and accepted or proven in a guilty plea proceeding, a presentence report and/or defence evidence and submissions, and jurisprudential guidelines and relevant precedent respecting range of sentence. The show cause hearing record is ordinarily sparse. A joint submission in a bail hearing is an important consideration for the exercise of judicial discretion but rejection of the submission can occur on a principled and reasonable application of the law to the facts without the court asking itself whether the joint submission is unhinged or whether it would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the bail system.
[32] I do agree, however, that when the judicial officer presiding at a show cause hearing is inclined to reject a consent bail recommendation, the court should alert the parties so that counsel can decide what further information, explanation, evidence or submissions might meet the expressed concerns of the court. This may necessitate an adjournment before the court provides a final decision.
[33] This did not happen in the present case. The justice of the peace provided no notice or warning that he would detain on the s. 515(10)(b) secondary ground for want of a supervision plan. Counsel were given no opportunity to tender suggested conditions of release, to explain how those conditions would be adequate to a tolerable level of public safety protection, or to secure further information or evidence, or for the applicant to make efforts to secure a surety or reinterview by the John Howard Society of Peel.
[34] In light of the error of the show cause justice acting upon a record inadequate to a judicial exercise of discretion under s. 515 of the Code, and, the failure to provide notice to the parties of its real concerns with the consent bail submission before deciding the issue of bail, this court must review the matter without deference to the original bail determination. Mr. Sarantis acknowledged these errors on the part of the show cause court.
[35] Mr. Mencel submitted that release of the applicant upon his own recognizance is an appropriate remedy equal to meeting any secondary ground concerns particularly in light of the Crown’s position, the applicant’s affidavit indicating he will have a place to live upon release, and the fact that by the point of the applicant’s trial in January 2019 he will have served about 6 months in custody said to clearly outstrip any sentence properly imposable should he be convicted.
[36] While Mr. Sarantis does not seek to resile from the Crown position that the applicant is releasable on his own recognizance, counsel submitted that the rationale of the show cause justice for detention cannot be said to be patently unreasonable considering the applicant’s prior criminal record and successive outstanding bail releases as of July 12, 2018.
[37] There is apparent strength to the prosecution case in the context of available evidence from the complainant and the security guard.
[38] While this court now has some biographical information about the applicant which was not in the record of the show cause hearing, nothing is known of a number of relevant matters including any underlying causes of his pattern of assaultive behaviour, the presence or absence of an alcohol problem, the existence of mental illness, the depth and length of the friendship with Khera with whom the applicant purposes to reside if released, etc.
[39] There is no doubt that greater use of undertakings and own-recognizance releases is justified – more than has historically been the case. This is not such a case. While a prior criminal record, poverty, untreated addiction or mental illness are not themselves reasons for detention, manifest risk to the public is written all over this case. The prior record of violence, and pattern of re-arrest in 2017 and 2018 while subject to bail releases, evidences a profile of incorrigibility. There is a substantial likelihood of the commission of further criminal offences threatening public safety should the applicant be released. On the record here, the applicant has failed to discharge the onus of demonstrating that he can be released on any order within s. 515(2) which would provide a tolerable level of protection to the community.
[40] The fact that the presumptively innocent applicant has now been in custody for 60 days and is 4 months from trial does not amount to a new or changed circumstance. While delay-to-trial can be a relevant factor in a judicial interim release hearing, this measure of presentence custody, even with the prospect of acquittal, cannot overcome the very real public safety concerns here. I note that in 2015 the applicant served the equivalent of a 6-month term of imprisonment for assault with a weapon.
[41] Remaining sensitive to the distinction between being releasable from detention on assessment of the s. 515(10) criteria, and, the precise contours of a particular release plan (R. v. Wynter, 2015 ONSC 2426), at this time, on the record here, the applicant is not releasable.
CONCLUSION
[42] The application is dismissed without prejudice to the applicant reapplying for review after 30 days pursuant to s. 520(8) should there be a material change in circumstances.
[43] Pursuant to s. 520(12), the applicant is ordered not to communicate, directly or indirectly, with Rajvinder Singh.
Hill J. DATE: September 11, 2018
