R v. Nahal, 2019 ONSC 6634

COURT FILE NO.: CR-19-1665-00BR

DATE: 2019 11 18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Onkar Nahal

BEFORE: D. E. Harris J.

COUNSEL: G. Batasar, for the Applicant

H. Gluzman, for the Crown Respondent

E N D O R S E M E N T

1The applicant applies under Section 520 of the Criminal Code to review his detention order made by Justice of the Peace Santos on March 4, 2019. The detention order was made on the secondary grounds.

2The applicant had bail on two sets of previous charges. These bails were revoked at the March 4, 2019 bail hearing under Section 524 of the Criminal Code.

3First turning to a summary of the charges, the first set of allegations are that on July 12 and 13, 2016, along with two others, the applicant is alleged to have stolen two tractor-trailers from his employer, Rapri Transport. One was loaded with shampoo and the other with Michelin tires. Both were recovered.

4Previously, on July 12, 2016, a tractor-trailer loaded with scrap metal was stolen from another trucking yard. The accused turned himself in to the police on July 19, 2016. He was charged as theft over $5000 (x4) and possession of stolen property. He was released with a $20,000 surety, his brother-in-law.

5A year and a quarter later, on October 10, 2018, the accused with an accomplice allegedly robbed a cellphone store in Mississauga. Much of the incident was caught on video. The applicant is said to have threatened the store clerk by showing him the handle of a firearm in his shirt and saying that if he did not go to the back, he would shoot him. Mr. Batasar challenged the strength of this version of events by showing stills from the video which he said did not support an imitation firearm being in the applicant’s waistband. The stills were inconclusive.

6The co-accused stole phones, a laptop and other electronics. The two also stole approximately $5000 in cash. Upon apprehension some time later, the applicant gave an inculpatory statement, saying that he was trying to get money he was owed from the victim.

7About a month later, the police executed a search warrant and seized a replica firearm. At the original bail hearing, this was said to be seized from the applicant’s residence. On the review hearing, the Crown corrected this and said it was seized from the co-accused. The co-accused also apparently said that this was not the imitation firearm used in the offence.

8There is a further allegation with respect to November 30, 2018. The accused was in the front passenger seat of a stolen vehicle. He and the two other occupants, including the driver, were arrested by the police. Break and enter tools were found in the stolen vehicle.

9On December 12, 2018, with respect to the above charges, the applicant was released on a house arrest bail. The surety amount was $12,000 with his parents as sureties.

10On January 4, 2019, the applicant with some other males were on a job site driving an allegedly stolen Dodge Ram truck. They got into a confrontation with an individual and threatened him with a gun and a metal bar. The men left in the individual’s Volvo which was found nearby but with some property missing.

11The last incident occurred January 8, 2019 and again involved the Dodge Ram. The police observed the vehicle at a gas station in Brampton. The driver sped away and left the accused behind. He ran and punched a police officer as he was being tackled. Half a gram of methamphetamine was found when he was searched.

12The applicant has a criminal conviction for theft of a motor vehicle entered in October 2018 for which he received a suspended sentence.

13The Justice of the Peace below on this reverse onus hearing held March 4, 2019, revoked the two previous bails and then detained the applicant on the secondary ground. The large number of offences was a concern as were their seriousness. When the applicant violated his house arrest bail, no one alerted the police. There was no indication that he would respect his sister who was proposed as a surety for the first time. No one in his family seemed to be able to deal with his addictions. Previous bail releases with the parents and with the brother-in-law as sureties had been unsuccessful. There was no concrete plan in place for him to get treatment. In summary, the Justice of the Peace found that the proposed plan was inadequate to quell secondary ground concerns.

14This application is premised on the most frequently raised of the three review grounds referred to in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, a material change in circumstances. There are two aspects:

1. A plan is now proposed in order to ensure the applicant receives treatment for his drug addiction. There was an expressed intention to get him help proposed at the last bail hearing but no plan of action.

Both Crown and defence agree that the applicant’s alleged criminal conduct is a direct consequence of his drug addition. If he could receive effective treatment for his drug addiction, this would remove his motivation to commit property offences;

2. The other salient circumstance is that the applicant has now been in custody since his arrest on January 8, 2019, a period of 10 months. One month is attributable to serving a short sentence on a breach of recognizance guilty plea. With the usual Summers credit, the pre-trial time served to date is equivalent to 13.5 months post-sentence incarceration. While the applicant is facing a considerably longer period of jail than he has already served, nonetheless, he has accumulated significant banked incarceration towards a future global sentence.

15On the review, the sister is again tendered as a surety. The Justice of the Peace found that she was well meaning but that she was being “asked to do the impossible.” Also put forward is the accused’s wife, father and mother. The parents were sureties in the past and were unable to control the applicant’s behavior.

16On the key issue of treatment for the applicant’s admitted drug addiction, counsel presented a senior probation officer with 28 years experience, Mr. Tarek Haddad. Mr. Haddad has volunteered to manage Mr. Nahal’s drug treatment and oversee his bail. Mr. Haddad does not know Mr. Nahal. It is not suggested that he would act as a surety.

17As I understand it, Mr. Haddad would not be acting in the course of his parole and probation job duties but rather in his private capacity. He would liaise with local police to ensure the applicant’s compliance with all of his bail conditions. Apparently, he has the power to issue an arrest warrant in the case of a breach.

18Ms. Gluzman recognized that Mr. Haddad’s responsibility under this bail was a novel arrangement, if not unprecedented. I understand Ms. Gluzman’s concern. Mr. Haddad is a government official with a full-time job not directly related to supervising individuals on bail release. Although Mr. Haddad’s role may not sit perfectly with his job obligations, that is between him and his employer. As things stand, on the basis of the record on this bail review, there does not appear to be any conflict in that regard which will hamper his role on a bail release.

19Another question is the motivation he has to assist the applicant, a stranger to him. Whatever the reason, Mr. Haddad is a responsible individual and will ensure the proper supervision and management of the applicant.

20Mr. Nahal is fortunate to have Mr. Haddad’s assistance. The plan is that he will get Mr. Nahal into a culturally sensitive Punjabi drug treatment group meeting on Saturdays. In the meantime, Mr. Nahal will be assessed for admission into an inpatient program with the view to getting him in as soon as possible. It is expected that Mr. Nahal could get admitted within 6 to 8 weeks.

21Besides administrating his drug treatment progress, Mr. Haddad will supervise compliance with the other conditions of bail. He will also review the applicant’s drug test results and enforce his attendance for them.

22The applicant has attempted to get treatment previously for his addiction, including at an inpatient facility in India, and it has not worked. It was suggested by Mr. Haddad and in submissions that having been incarcerated for a considerable amount of time, the addiction will likely have abated somewhat. I am skeptical of this. Although the applicant has withdrawn from the drugs he was addicted to, that does not mean that the drug cravings have disappeared or will not return. In light of the unsuccessful treatment in the past, an inpatient program is clearly necessary.

23The other major factor here is the amount of pre-trial custody the applicant has done. He will do at least several more months before a trial can be held. In R. v. Myers, 2019 SCC 18, 2019, 375 C.C.C. (3d) 293, the Section 525 of the Criminal Code 90 day detention review was awoken from its long dormancy. In doing so, the Supreme Court commented on the relationship between bail release and trial delay. Pertinent to the secondary ground, the court said,

In St-Cloud, the Court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71 … In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.

24A literal interpretation of the text of the secondary ground in Section 515(10)(b) of the Criminal Code does not seem to leave room for consideration of the delay in bringing a case to trial. However, Myers commands that at least in some circumstances, trial delay must be incorporated into evaluation of the secondary ground.

25On the secondary ground, the urgency of the protection and safety of public can be diminished by the accumulated delay. In this case, the pre-trial custody “dead-time” does not fully outweigh the risk on the secondary ground but it serves to reduce it significantly.

26The new treatment plan amounts to a material change of circumstances as contemplated by St-Cloud at paras. 122-139. The treatment will hopefully remove or ameliorate the drug addiction so as to diminish the risk of the commission of crime to fund it. The accumulated pre-trial incarceration is supplemental to the material change of circumstances brought about by the treatment plan.

27I would order release on a strict house arrest bail and would ask that counsel put together a draft for my approval. If there are any disputes, I will resolve them.

28The sureties should be the sister, the applicant’s wife and both parents. The sister should pledge $100,000 as she has agreed in her affidavit. She must know that any violation by the applicant of his bail could result in her losing the total amount by way of bail estreat. It is not clear how much the other family members are willing to pledge but each must pledge at least what has been pledged by them on the previous bails.

29Mr. Batasar has conceded that there should be no exception for employment on the house arrest bail to be imposed on the applicant. There should also be mandatory, regular weekly drug testing and a corresponding requirement to supply the test results to both Mr. Haddad and the police. This should be coupled with a condition not to consume non-medically prescribed drugs.

30With respect to treatment, there should be a requirement to follow the treatment plans and schedule co-ordinated by Mr. Haddad. On a weekly basis, the applicant must submit or ensure that one is submitted on his behalf, a written report to the police with specific details of what treatment he is receiving and what plans have been made for treatment in the future. The intention is to tie the applicant’s liberty directly to his treatment for drug addiction. If the applicant is unwilling or cannot for some other reason get the drug treatment he so desperately needs, then the lynchpin justifying his release disappears.

31The other conditions suggested in the motion record and any others which counsel view as advisable should also be included.