COURT FILE NO.: CR-19-05000080-00BR
DATE: 20190523
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RIMA MANSOUR
Applicant
Susan Adams, for the Crown
Eric S. Neubauer, for the Applicant
HEARD: May 16 and 17, 2019
RULING ON A REVIEW OF A DETENTION ORDER AND A 90-DAY REVIEW
B. P. O’Marra J.
[1] A brief overview of the allegations will suffice for this ruling.
[2] On October 31, 2018 the applicant was the driver and lone occupant of a 2017 Nissan Rogue as it approached a border crossing to enter Canada from the United States. She was detained and the vehicle was searched. Twenty-five handguns were found wrapped in vacuum sealed plastic wrap and submerged in the gas tank. The gas gauge for that tank had been disconnected and the sensor for the gas gauge was found on the floor of the vehicle. The applicant was charged with numerous counts including conspiracy to import and traffic in firearms contrary to the Criminal Code, R.S.C. 1985, c. C-46.
[3] The applicant faced a reverse onus at her bail hearing on December 5, 2018 based on the specific charges. She has no criminal record and presented a plan of release amounting to house arrest with sureties. She was detained on the tertiary grounds.
[4] This application to review the detention order was presented based on both ss. 520 and 525 of the Criminal Code. The latter is the 90-day review process that was the subject of R. v. Myers, 2019 SCC 18, [2019] S.C.J. No. 18. Counsel agreed that in the unsettled time since Myers it was fair to both sides to deal with this application based on both sections.
[5] Counsel for the applicant submits that the detention order should be vacated and judicial interim release should be ordered based on the following:
(1) Errors of law at the original bail hearing;
(2) A material change in circumstances, including health issues of the applicant that have been inadequately dealt with or exacerbated while she has been held in pretrial detention. There is also significant outstanding disclosure that relates to whether there is evidence of a conspiracy involving the applicant; and
(3) A comprehensive plan of release amounting to house arrest with sureties was proposed.
[6] Counsel advised that dates have been set for a preliminary hearing for two weeks in October 2019. Counsel also agreed that the detention of the applicant was not required on the primary or secondary grounds.
[7] The tertiary grounds for detention are set out in s. 515(10)(c) of the Criminal Code:
Justification for detention in custody
(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:
(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.
[8] The applicant submits that there were errors of law in the original decision to detain, including the following:
(a) Reference to “an indication of a criminal organization” as the only reasonable inference that can be drawn from the seizure of 25 handguns; and
(b) Failure to consider all the circumstances.
[9] Even if there were errors of law, I am not satisfied that the conclusion reached was in error. Based on the record at the original bail hearing and the evidence and submissions on this application, a detention order is amply justified on the tertiary grounds. The Crown’s case on the substantive charges of importing and trafficking in illicit firearms is formidable. A circumstantial case is by no means a weak case. The gravity of these offences is reflected in the proliferation of serious crimes committed by the use of handguns. This is particularly so in many cases before this court in Toronto. The tertiary grounds specifically include reference to firearms based on the deaths and destruction caused by those weapons.
[10] In reaching this conclusion I have considered other circumstances referred to on this application. They relate to issues that have arisen since December 5, 2018. Counsel submits his client would be in a much better position to prepare her defence if she were out of custody. I agree that her detention renders that important process more challenging. However, there is a process for counsel to meet their clients in custody and prepare their defence in such circumstances. I have also considered complaints by the applicant that her medical issues have been ignored or exacerbated by the lack of attention while in custody. I am not in a position to make findings of fact related to those allegations. Counsel was justified in raising these issues with the court. Every person who is held in custody, whether pretrial when they are presumed innocent or when serving a sentence, has a right to be treated with dignity and to receive reasonable medical attention for medical or health issues.
[11] I am not satisfied that the further or changed circumstances since the original detention order impact the appropriateness of a detention order on the tertiary grounds.
[12] The detention of the applicant is required in all the circumstances to maintain confidence in the administration of justice. A reasonable member of society, properly informed of all the circumstances and the philosophy of the legislative provisions, would have diminished confidence in the administration of justice if a release order were to be made.
[13] I am grateful to both counsel for their submissions. In particular I commend Mr. Neubauer for the quality and completeness of his written and oral submissions.
[14] In the result, the application is dismissed and the detention order is confirmed.
B. P. O’Marra, J.
Released: May 23, 2019
COURT FILE NO.: CR-19-05000080-00BR
DATE: 20190523
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
RIMA MANSOUR
Applicant
RULING ON A REVIEW OF A DETENTION ORDER AND A 90-DAY REVIEW
B. P. O’Marra, J.
Released: May 23, 2019