Court File and Parties

COURT FILE NO.: CR-19-468-00BR DATE: 20190418 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ATHRIN DEKO Applicant/Defendant

Counsel: Melissa Montemurro, for the Crown R. Roots Gadhia, for the Applicant/Defendant

HEARD: March 7 and 18, 2019

DAWE J.

[1] The Applicant Athrin Deko was arrested on January 15, 2019 and charged with various gun and drug offences. On January 30, 2019, following a contested bail hearing, he was ordered detained by Justice of the Peace K. Walker. He has brought a bail review application to this court pursuant to s. 520(1) of the Criminal Code.

[2] The Applicant’s bail review application was originally made returnable before me on March 7, 2019. After it became clear that there would be insufficient time to complete the review hearing that day, the parties agreed that I should first consider and decide the threshold issue of whether the Applicant had established grounds that would permit me under the principles established by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27 to conduct a de novo review of his detention.

[3] On March 12, 2019, I ruled that the Applicant had met this initial burden. [1] The review hearing then resumed before me on March 18, 2019. Crown counsel cross-examined the Applicant’s two proposed sureties – his parents – and adduced further documentary evidence. Both counsel then agreed to provide further written submissions on the issue of whether bail should be granted. [2] That is the question I must now decide.

Factual Background

The charged offences

[4] On the evening of January 15, 2019 York Region Police officers were conducting surveillance on two brothers, Ralph and Fouad Tabangi, who they believed were involved in shoplifting electronic goods and selling them to support their heroin habits. They followed the two brothers and watched them apparently stealing various electronic goods from two different stores in Brampton. The Tabangi brothers then drove to another store and took some of the recently stolen merchandise inside. The police believed they would be selling the stolen goods and would then use the sale proceeds to buy drugs.

[5] The Tabangi brothers left the store and drove to a restaurant in Mississauga. A short while later Ralph Tabangi exited the restaurant with his cell phone held to his ear. A silver Honda Civic in a parking lot flashed its headlights, and Ralph Tabangi went over and leaned down by the passenger side front window. The police believed they had just witnessed a hand-to-hand drug transaction and proceeded to arrest the two Tabangi brothers along with the three men who had been seated in the silver Honda.

[6] The Applicant was seated in the front passenger seat of the silver Honda. When he was searched incident to arrest the police found a bag in his pocket containing approximately 11 grams of what they believed to be “purple heroin”. They also found a loaded 9 mm pistol under the front passenger seat. The driver of the silver Honda, Samawade Abdullahi, was found to have a .40 calibre handgun with a chambered round but no magazine in one of his coat pockets, and a loaded magazine in another pocket. The gun found under the front passenger seat and the gun found on Mr. Adbullahi’s person both had their serial numbers ground off. A third man in the back seat named Tyrell McFarlane was also arrested. When the police searched the silver Honda they found a set of scales and a bag of ammunition in the back seat, and a large quantity of marijuana in the trunk.

[7] After his arrest Ralph Tabangi told the police he had just bought an eight-ball of heroin [3] and hidden it in his underwear, but that he thought the drugs had fallen down his pant leg. When the police searched the ground near where he had been arrested, they found a bag containing 3.9 grams of what appeared to be drugs.

[8] Testing conducted since the Applicant’s initial bail hearing has revealed that both the bag found on the Applicant’s person and the bag the police found on the ground contained fentanyl mixed with various cutting agents.

The Applicant’s background

[9] The Applicant is now 29 years old. His father testified that the Applicant had worked full-time at a Mr. Lube service station until the end of 2016. Since then he has not held a full-time job but has worked part-time assisting his father at his own job, which involves cleaning and repairing Petro-Can car washes at night.

[10] The Applicant has a prior criminal record dating back to 2010, when he was 20 years old, consisting of convictions for failing to comply with an undertaking to an officer in charge, possession of fraudulent credit cards, uttering counterfeit currency, and possession of marijuana. More recently, in December 2018, he was charged with impaired driving.

The proposed bail plan

[11] The bail plan proposed at the original bail hearing in January 2019 was for the Applicant to be released to live at his parents’ house under house arrest with his mother and father as his sureties. The Applicant also has two brothers, but one is currently studying in France and the other works in the US so neither would be living with the Applicant and his parents at the family home.

[12] Since the Applicant’s father works a night shift and his mother works a day shift, under the proposed bail plan at least one of his parents would be at home with the Applicant at all times. However, it is clear that whichever parent is at home will have to spend at least some of that time sleeping. In order to address the concern that this will undermine their ability to effectively supervise the Applicant, his parents have now had a security system installed in their home that will sound an alarm if anyone enters or leaves the house. This security system was not a component of the release plan that was proposed at the original bail hearing. However, in view of my prior ruling that the Justice of the Peace at the original bail hearing materially misapprehended the details of the proposed release plan and that this error triggered my review powers under St-Cloud, it is unnecessary for me to consider or decide whether adding this new component to the bail plan would on its own have constituted a material change of circumstance for the purpose of the threshold St-Cloud analysis.

Analysis

[13] Because the Applicant is charged with drug and firearm offences he bears the onus of establishing that his detention in custody is not justified (Criminal Code, s. 515(6)(a)(viii) and (d)). The Crown opposes the Applicant’s release on both the secondary and tertiary grounds (Criminal Code, s. 515(10)(b) and (c)).

The secondary ground

[14] Section 515(10)(b) provides that pre-trial detention will be justified when it 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;

[15] Since this is a reverse onus situation under s. 515(6), it is the Applicant’s burden to show that his detention is not necessary on this basis.

[16] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. explained (at paras. 86-88):

First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct (“commit a criminal offence”) or an interference with the administration of justice.

Second, in connection with the specified circumstances encompassed by the clause “including any substantial likelihood that the accused will, if released from custody, commit…”, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

[17] In any case where the accused is charged with serious offences, particularly offences involving firearms, there will almost always be obvious concerns about public safety and the protection of the public if he or she is released. However, the relevant question is not whether these concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors.

[18] Crown counsel challenges the adequacy of the proposed release plan on several different bases. First, the Crown vigorously challenges the suitability of the Applicant’s parents as sureties. The main focus of Crown counsel’s cross-examination of the Applicant’s parents at the review hearing was on alleged discrepancies between their affidavit evidence and their testimony at the original bail hearing concerning their usual working hours. In summary:

• The Applicant’s father testified at the original bail hearing that he worked until 3:00 a.m., adding: “[S]ometimes it’s two o’clock, sometimes it’s four o’clock. It depends”. In his affidavit filed on the bail review application and in cross-examination before me, his evidence was that he typically worked until 2:00 a.m. but would sometimes have to work as late as 4:00 a.m., depending on the weather and if there was equipment that needed to be repaired;
• The Applicant’s mother testified at the original bail hearing that her husband would work until between 11:00 p.m. and 1:00 a.m. depending on the volume of work, but agreed in cross-examination that it could be as late as 3:00 or 4:00 a.m. Her evidence in the bail review proceedings before me was that he usually gets home at around 2:00 a.m. but sometimes has to work until 3:00 a.m. or 4:00 a.m. and will occasionally finish as early as 11:00 p.m.;
• The Applicant’s mother testified at the original bail hearing that her own work hours are between 7:00 a.m. and 3:30 p.m. Her evidence in the proceedings before me was that she usually works until 3:00 p.m. but is sometimes asked to stay late and work until 3:30 p.m.;
• The Applicant’s father testified at the original bail hearing that his wife “comes back at four in the afternoon”. In cross-examination, he testified that he would “go at four o’clock, bring her back from work”. In contrast, his evidence before me was that his wife would work until 3:00 p.m. and that he would leave to pick her up at 2:45 p.m.

[19] Crown counsel attaches great significance to these discrepancies, arguing in her written submissions:

The Crown’s position is that the sureties misrepresented their work hours in order to convey an ability to supervise that is more comprehensive than they can actually offer. The main concern, however, is not the actual time discrepancies in their evidence (i.e., whether [the Applicant’s] father returns from work at 11 p.m., 12, 1, 2, 3 or 4 a.m.), but that they are willing to mislead the Court to be approved as sureties and thus ensure their son’s release. This is devastating to their reliability and credibility as witnesses and as potential sureties.

[20] I disagree. In my view, these inconsistencies cannot reasonably bear the weight the Crown would ascribe to them. There is simply no gap in the supervision plan that the Applicant’s parents can plausibly be said to have been trying to paper over by deliberately lying about their work hours. Whether Mr. Deko works until 11:00 p.m. or 4:00 a.m., he always comes home at least a few hours before his wife has to leave for her own daytime job. Likewise, whether the Applicant’s mother works until 3:00 or 4:00 p.m., she always comes home before her husband has to leave for his night shift. In these circumstances, Crown counsel’s contention that the Applicant’s parents deliberately set out to mislead either me or the Justice of the Peace on these points strikes me as fanciful. To the contrary, I see these inconsistencies as simply minor inconsequential mistakes of the sort witnesses commonly make. Despite the Crown’s best efforts to turn these inconsistencies into mountains, in my view they stubbornly remain mere molehills.

[21] Crown counsel also attributes great significance to the fact that the Applicant’s parents both swore affidavits that stated (in English) that they hoped the evidence would “exonerate” their son, but then both acknowledged in cross-examination that they did not understand what this word meant. According to Crown counsel, this “shows that [they] knowingly signed affidavits without understanding or caring about the truth of their contents”, which in turn demonstrates that they “lack an appropriate appreciation of the gravity of the court process” and “raises concerns about whether they will do what is expected of them as sureties”.

[22] In my view, this chain of reasoning is unsound. It is no secret that affiants rarely write their own affidavits, and that the task of organizing an affiant’s evidence coherently and setting it down in writing is almost always performed either by the lawyer who is submitting the affidavit as evidence or by one of his or her colleagues. While counsel would be well-advised to avoid using words that a particular affiant would not himself or herself employ, what is ultimately important is whether the sworn document accurately reflects the substance of the affiant’s evidence. Neither of the Applicant’s parents is fluent in English, and they both testified before me with the assistance of an Arabic interpreter. However, the Applicant’s mother explained in re-examination that she had indeed expressed to counsel her hope that her son would win his trial. In short, her evidence is that her affidavit accurately expressed her thoughts, even if it did so using an English word that she did not know. I have no doubt that the Applicant’s father similarly hopes that his son will be acquitted at his trial. Accordingly, I am not satisfied that the use of the word “exonerate” in their affidavits reflects any material inaccuracy in their sworn evidence, let alone one that would support the Crown’s further inferential leaps regarding their suitability as sureties.

[23] More generally, the Crown argues that the Applicant’s parents are unsuitable sureties because they did not prevent their son from committing the charged offences and have not “asked their son about his true involvement in the matter before the Court”. According to Crown counsel:

[T]o simply release [the Applicant] into the exact same environment he has been subject to for his entire life, with the same parental figures that he neither shares information with nor confides in, would potentially be a recipe for disaster. To use an analogy from the cooking world, to repeat the same recipe with the same ingredients, yet expect two different results, is not logical and is bound to disappoint.

In my view, it is unfair to judge parents’ suitability as sureties by pointing to the fact that their child now stands charged with criminal offences. Until the Applicant was arrested on the charges now before the court his parents had no apparent reason to be concerned about his behaviour in the nine years that had passed since his previous convictions in 2010, when he was only twenty years old. Even more importantly, if the Applicant is now released into his parents’ custody they will be equipped with powerful new tools to regulate his conduct that they did not previously have. They will also have a significant financial incentive to use these tools appropriately, and the Applicant himself will also be subjected to the “pull of bail”. To adopt the Crown’s culinary metaphor, these are all new ingredients that in my view substantially change the recipe.

[24] While the Applicant’s apparent concealment of his December 2018 impaired driving charge from his parents does raise some legitimate concerns about his willingness to mislead them, they were apparently in the United States visiting the Applicant’s brother when the Applicant was arrested and then released on this charge. Accordingly, I do not consider their failure to learn about this charge until after their son’s arrest in January 2019 as something that reflects badly on them as parents. I also do not fault them for not pressing the Applicant to disclose his “true involvement in the matter before the Court” during their jailhouse visits and phone calls with him since his arrest, while he has been in custody. In my view, it is entirely understandable why parents might choose to put off any such conversation with a child until it can take place in a more private setting than is typically afforded during a remand centre visit or phone call.

[25] In summary, I do not agree that the Applicant’s parents are unsuitable sureties or that their past actions demonstrate that they will be incapable of controlling him. To the contrary, my own impression of them is that they are both hardworking and responsible people who will take their role seriously. In my view, their role in the proposed bail plan strongly weighs in the Applicant’s favour in the secondary ground analysis.

[26] Crown counsel’s second line of attack on the proposed release plan under the secondary ground is to argue that even if the Applicant’s parents were otherwise suitable sureties, they will be unable to supervise their son around the clock because each will have to sleep at times when the other is away at work. As Crown counsel puts it in her written submissions:

The evidence is clear – if released [the Applicant] will be unsupervised and unmonitored by his sleeping father when his mother is at work. The plan offers no physical supervision when Mr. Deko’s mother is at work. This constitutes a significant gap in the plan of supervision being proposed. [Bold and underlining in original]

[27] While it is indeed true that the Applicant’s parents will both need to sleep sometimes, and thus be unable to watch the Applicant around the clock, this same objection could be made almost any time a bail plan involving supervised house arrest is proposed. It will rarely be realistic or reasonable to expect sureties to sleep in shifts so that they can maintain a 24/7 watch over the person in their charge. Indeed, the Crown at least implicitly recognizes this by focusing its objection on the Applicant’s father’s need to sleep during the day, without making a similar objection about the fact that the Applicant’s mother will presumably have to sleep at night when his father is away at work.

[28] While I agree that the Applicant’s father and mother’s respective need for sleep during the day and night does raise a legitimate concern about the extent of their practical ability to supervise the Applicant, I consider this concern to have been adequately addressed by the addition of the home security alarm to the bail plan. The alarm provides a measure of security that whichever parent is at home would be woken up if the Applicant were to try to leave the house while they sleep. While the Crown correctly points out that alarm systems are not foolproof, the Applicant’s burden under the secondary ground in a reverse onus case is not to demonstrate that his proposed release plan would make it impossible for him to commit further offences while on bail, but merely to establish that there is no substantial likelihood that he will do so. In my view, the speculative possibility that the Applicant might somehow be able to tamper with the alarm system in a way that allows him to leave the house and return unnoticed while his parents sleep is simply too remote to rise to a substantial likelihood.

[29] The Crown objects further that even if the alarm system does prevent the Applicant from physically leaving the house, he could still commit further offences while inside the house by using a telephone or the Internet. In support of this argument the Crown relies on a York Regional Police officer’s expert report indicating that drug dealers will sometimes communicate with customers using social media apps and websites. Although there is no specific evidence that the Applicant has ever done this himself, I accept that it would be possible for him to do so in the future.

[30] However, even if the Internet has given drug dealers new tools for arranging drug sales, drugs remain tangible physical items. Actually completing a drug transaction still requires some means by which the seller can physically transfer the drugs to the purchaser. If the Applicant is unable to physically leave his parents’ house or receive guests without their knowledge, he will not be able to personally carry out any future drug sales. The situation might be different if the Applicant were alleged to be an upper-echelon drug wholesaler who could plausibly run his operations remotely by giving phone or e-mail instructions to underlings. However, the Crown’s actual theory in this case is that the Applicant is a commercial street trafficker who sells directly to users, and who poses a threat to public safety because he is alleged to have met with a drug user purchaser while armed with a handgun in order to sell this person fentanyl, which is a particularly dangerous opioid. In my view, the proposed bail plan adequately addresses the specific public safety concerns that are raised by the alleged facts of this case. In this context, I am not satisfied that the prospect of the Applicant having phone or Internet access while he is under house arrest raises any substantial likelihood of a threat to public safety or security. In this regard, it is worth noting that accused persons in pre-trial detention in Ontario are generally not held incommunicado and are ordinarily allowed to make telephone calls.

[31] In any event, even if I had been satisfied that it was necessary in the public interest to curtail the Applicant’s access to telephones or the Internet while he is on house arrest bail, I would have found that this could be achieved through appropriate bail conditions. It would not in my view have been either necessary or reasonable to insist that one of his sureties remain awake at all times to ensure that he was complying with these conditions. However, since I have concluded that the secondary ground does not require any such conditions, I need not address this point further.

[32] For all of these reasons, I am satisfied that the proposed new release plan is sufficiently robust to permit the Applicant to discharge his onus under the secondary ground.

The tertiary ground

[33] Section 515(10)(c) of the Criminal Code provides that an accused may be detained prior to trial when doing so:

… 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.

[34] In a reverse onus situation, the defendant bears the burden of establishing that his or her detention is not necessary on this basis.

[35] In any case involving firearm charges at least three of these four listed factors will inevitably weigh in favour of detention: firearm offences are by their nature serious; they by definition involve the use of a firearm; and they generally attract substantial terms of imprisonment on conviction even when there is no longer an operational mandatory minimum sentence. Firearms charges also reverse the onus at a bail hearing, as do serious drug offences (see s. 515(6)(a)(viii) and (d)). However, as Wagner J. explained at paras. 68-71 of St-Cloud, s. 515 does not create a legal regime in which everyone charged with a gun or serious drug offence is automatically detained under the tertiary ground unless he or she can show that the Crown’s case is weak. Rather, courts must consider all the relevant circumstances that bear on the question of whether the public’s confidence in the administration of justice require the accused’s pre-trial detention.

[36] As Trotter J. (as he then was) explained in R. v. Dang, 2015 ONSC 4254 at para. 58, one of the relevant factors that must be considered in the tertiary ground analysis is the strength of the proposed release plan:

A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).

[37] In the case at bar, the question of whether the Applicant was in possession of the gun found under the front passenger seat of the silver Honda appears to raise a triable issue. It would seem to be at least arguable that this gun could have been put under the seat without the Applicant’s knowledge either by the man found sitting in the rear seat or by the driver. Indeed, the Applicant and Mr. McFarlane have been jointly charged with possessing this weapon. To the limited extent that it is possible to assess the strength of the prosecution’s case on the existing record, the Crown would appear to have a moderately strong but far from overwhelming circumstantial case on the gun charges.

[38] Likewise, the charge of possession of cannabis relating to the marijuana found in the trunk of the silver Honda would appear to raise a triable issue. The car did not belong to the Applicant and he was not the driver. In these circumstances, there would appear to be a live issue as to whether it can properly be inferred that he knew what was in the trunk.

[39] The Crown’s case against the Applicant on the charge of trafficking fentanyl is considerably stronger on its face, insofar as a quantity of fentanyl was actually found on the Applicant’s person at the time of his arrest. As the Crown points out, a conviction for trafficking fentanyl or possessing fentanyl for the purpose of trafficking would likely attract a penitentiary-length sentence even standing alone. However, the prospect of the Applicant successfully raising a Charter-based defence to this charge must also be considered in the tertiary ground analysis. While Crown counsel submits that “[t]here are no viable Charter issues that arise out of the circumstances of this case”, this overlooks the fact that the searches that resulted in seizures in this case were all warrantless, and hence presumptively unreasonable. It will be the Crown’s burden at trial to demonstrate that these warrantless searches complied with s. 8 of the Charter, not the defence’s burden to establish a s. 8 breach. The Crown will almost certainly take the position that the searches were lawful searches incident to arrest, which will require the Crown to demonstrate that the police had reasonable grounds to arrest the Applicant. The officers arrested the Applicant because they believed they had witnessed him performing a hand to hand drug transaction with Ralph Tabangi. However, their interpretation of these events seems to have been influenced by their a priori expectation that the Tabangi brothers would immediately use the money they received from selling the stolen electronics to buy heroin. Critically, the record before me does not disclose why the police believed this. It may very well turn out the officers had solid objective reasons for expecting the Tabangi brothers to buy heroin as soon as they were in funds. It may also turn out that their observations of the interaction between Ralph Tabangi and the Applicant were so strongly suggestive of a drug deal that it will ultimately not matter why they expected the Tabangi brothers would be buying drugs. However, on the existing record I cannot conclude that the Crown will necessarily be able to establish that the police had objectively reasonable grounds to arrest the Applicant. In my view, it is at least reasonably possible that the evidence that emerges at trial will not be sufficient for the Crown to displace the presumption that the warrantless search of the Applicant was unreasonable and violated his s. 8 Charter rights.

[40] In summary, the Applicant is facing serious charges but appears to have some potential defences. In these circumstances, the strength of the Applicant’s proposed bail plan is in my view a very significant factor in the tertiary ground analysis. As discussed above, I was favourably impressed by the Applicant’s proposed sureties and his proposed release plan. In my view, a reasonable and knowledgeable member of the community who considered this matter dispassionately and with due regard to the presumption of innocence would place considerable weight on the fact that if the Applicant is released on bail he will not be unsupervised, but will be on a form of strict house arrest monitored by two apparently responsible sureties.

[41] As Wagner J. explained in St-Cloud, supra at para. 114:

[Section] 515(10)(c) requires the justice to balance several factors, including the ones listed in that provision. In this balancing exercise, the justice must for the most part make findings of fact and assess the weight of those findings to determine whether detention is justified. Thus, the provision requires the justice to assess the appropriateness of a decision, which, from this perspective, can be characterized as “discretionary”.

In my view, the tertiary ground factors in this case are finely balanced, and I see this as a close case on which reasonable people can disagree. However, I am ultimately satisfied that the Applicant has met his burden of demonstrating that his continued detention is not necessary to maintain confidence in the administration of justice.

The terms of the Applicant’s release

[42] I would ask counsel to craft release conditions based on the record and these reasons. For clarity, I observe that while the Applicant bears the burden of demonstrating that his detention is not necessary under the secondary or tertiary grounds, once he has met this onus – as I have found he has done – it becomes my task to determine what bail conditions I “consider desirable” to impose (s. 515(4)(f)). As explained previously, I am not satisfied in the circumstances of this case that it would be appropriate restrict the Applicant’s access to telephones or the Internet while he is under house arrest bail.

[43] A draft release order should be forwarded for my approval. If there are terms that cannot be agreed upon, I will resolve the differences.

DAWE J. Released: April 18, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ATHRIN DEKO Defendant/Applicant REASONS FOR JUDGMENT DAWE J. Released: April 18, 2019

[1] R. v. Deko, 2019 ONSC 1581.

[2] I received the defence’s written submissions on April 1, 2019 and the Crown’s submissions on April 5, 2019.

[3] In drug slang an eight-ball is a quantity of drugs weighing 1/8 of an ounce (i.e., with a mass of approximately 3.5 grams).