COURT FILE NO.: CR-18-50000188-00BR
DELIVERED ORALLY: 20181120
DATE RELEASED: 20190207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RAMAZAN OKSEM
Applicant
Yeshe Laine, for the Respondent
Kim Schofield, for the Applicant
HEARD: November 2, 6, and 15, 2018
REASONS ON BAIL REVIEW
garton j. (Delivered Orally on November 20, 2018)
Introduction
[1] On March 14, 2017, the applicant, Ramazan Oksem, was charged with possession of a loaded firearm, possession of crack cocaine for the purpose of trafficking, and other offences. On March 20, 2017, he was released on a recognizance in the amount of $50,000, with various conditions, including a curfew.
[2] Fifteen months later, on June 23, 2018, Mr. Oksem was arrested and charged with breaching his curfew. A search incident to arrest led to the discovery of what appeared to be crack cocaine and powder cocaine on his person, a digital scale and a quantity of Canadian currency. A search warrant executed at his residence resulted in the seizure of more crack cocaine and a quantity of powder cocaine, as well as Canadian and US currency. These searches led to the laying of further charges.
[3] At his bail hearing on July 10, 2018, Mr. Oksem’s bail on the first set of charges was cancelled pursuant to s. 524 of the Criminal Code, and he was ordered detained on all charges on the secondary and tertiary grounds. Mr. Oksem applies under s. 520(1) for a review of that order.
[4] The defence has proposed a new plan of release, which involves adding Mr. Oksem’s parents as sureties, and GPS (global positioning system) monitoring, which would require Mr. Oksem to wear an ankle bracelet. In addition, his family has made an appointment for him to attend an information session that could lead to his enrolment in a drug treatment program at CAMH. The position of the defence is that these matters constitute a material change in circumstance such that this court may engage in a de novo consideration of whether Mr. Oksem should be released. Defence counsel submits that Mr. Oksem has met his onus on the secondary and tertiary grounds.
[5] The position of the Crown is that there has been no material change in circumstances, and that even if there was a de novo assessment of bail, Mr. Oksem has not met the onus on him with respect to either the secondary or tertiary grounds.
First set of charges
[6] On March 14, 2017, Mr. Oksem was charged with possession of a loaded firearm, possession of a firearm without having a license, and careless storage of a firearm, contrary to ss. 95(2)(a)(ii), 92(3)(a) and 86(3)(a)(i), respectively, of the Criminal Code. These charges all relate to the same loaded revolver. He was also charged with possession of proceeds obtained by crime, contrary to s. 355(b)(i) of the Code, and possession of crack cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”).
[7] The charges arose from an investigation that began when a confidential informant advised the police that a male, identified as Mr. Oksem, was in possession of a semi-automatic handgun. The police applied for and were granted a search warrant for 371A Margueretta Street, Toronto, where Mr. Oksem resided with his parents.
[8] On March 14, 2017, at 7:00 p.m., surveillance officers observed a black Cadillac arrive at the Margueretta address. Mr. Oksem entered the vehicle, which contained two other passengers, and which was driven by a person identified as Sinan Hazan. The police followed and eventually stopped the Cadillac, searched the occupants, and arrested them for possession of a firearm. It is alleged that during the search of Mr. Oksem, the police located $90 in Canadian currency, and 7.64 grams of crack cocaine.
[9] The police executed the warrant at 371A Margueretta Street later that night. A Smith & Wesson revolver, which was loaded with five rounds of hollow-point ammunition, was located in a shoebox in a closet in a second-floor bedroom alleged to be that of the accused. Personal identification belonging to Mr. Oksem was beside the shoebox. The police also located $860 in Canadian currency, which was in a jacket hanging in the closet.
[10] A pellet gun was located on the counter in the second-floor bathroom.
[11] On March 20, 2017, Mr. Oksem was released on a recognizance in the amount of $50,000. He was required to live at 64 Gray Avenue in Toronto with his older sister, Ummu Calkan, who signed as his surety. The terms of his bail included a curfew of 7:00 p.m. to 7:00 a.m., except if he was travelling to, from, or was at his place of employment, or if he was in the company of his surety or four other named individuals. He was also subject to GPS monitoring.
[12] On September 19, 2017, the bail conditions were varied so that Mr. Oksem could attend school.
[13] On November 1, 2017, the GPS monitoring condition was removed on consent of the Crown. Mr. Oksem was therefore no longer required to wear the ankle monitoring bracelet.
Second Set of Charges
[14] On June 22, 2018, the police conducted a bail compliance check. At 7:05 p.m., officers attended at Mr. Oksem’s parent’s home on Margueretta Street. His parents told them that Mr. Oksem was required by the terms of his bail to reside at 64 Gray Avenue. An officer spoke to Mr. Oksem on the telephone. Mr. Oksem advised that he had just finished work and was on his way home.
[15] At 7:44 p.m., officers observed Mr. Oksem arrive at 64 Gray Avenue in a vehicle driven by a person by the name of Danny Le. Mr. Oksem entered 64 Gray Avenue but, 15 minutes later, exited with an unknown Asian male. They got into Mr. Le’s vehicle, which then drove off. Neither Mr. Le nor the Asian male was named in Mr. Oksem’s recognizance as a person whom he was permitted to be with outside his residence.
[16] The police followed Mr. Le’s vehicle for a period of time but ultimately lost sight of it and were unable to effect Mr. Oksem’s arrest.
[17] On June 23, 2018, at 5:30 p.m., officers located Mr. Oksem in front of 993 Dufferin Street. He was not in breach of his bail at that time, but was arrested with respect to the breach of his curfew the previous day. During a search incident to arrest, the police located several small baggies that contained what appeared to be crack cocaine, and several loose pieces of crack cocaine in Mr. Oksem’s pocket. The total weight was 8.25 grams. There was also 0.1 grams of what appeared to be powder cocaine, and $280 in Canadian currency. A digital scale was located in his back pocket. (Subsequent to the bail hearing on July 10, 2018, the substance in one of the baggies was analyzed and found to contain 1.34 grams of Fentanyl.)
[18] The police applied for and were granted a search warrant for 64 Gray Avenue. During the execution of the warrant, they seized $1,500 in Canadian currency and $50 in US currency. It is also alleged that more crack cocaine, weighing a total of 4.26 grams, and a quantity of powder cocaine, were also seized.
[19] The charges arising out of Mr. Oksem’s arrest on June 23, 2018 are: failing to comply with a recognizance (2 counts); possession of proceeds obtained by crime (2 counts); possession of cocaine; and possession of cocaine for the purpose of trafficking.
[20] Mr. Oksem attended in court on June 24, 27 and 29, as well as on July 6, 2018. His bail hearing was held on July 10, 2018. The presiding judge, Ray J., cancelled his bail with respect to the March 2017 offences, and a “global” bail hearing was conducted with respect to all of the charges. Justice Ray found that Mr. Oksem had not met the onus upon him and ordered him detained on both the secondary and tertiary grounds.
Mr. Oksem’s background
[21] Mr. Oksem is 21 years old and a Canadian citizen. He has no criminal record.
[22] Prior to March 2017, when his bail conditions required that he live with his sister, Ummu Calkan, Mr. Oksem lived with his parents at the Margueretta address. He and his parents have resided there since 2009.
[23] At the time of his arrest in June 2018, Mr. Oksem was employed at the Ontario Food Terminal as a food packager on an on-call basis. He was also attending the City of Adult Learning Centre Secondary School in an effort to attain his GED. Prior to his first release, he had done construction work on a part-time basis for his brother-in-law.
[24] According to his affidavit and testimony at this bail review, Mr. Oksem began using crack cocaine on a regular basis a few years ago, or around 2014. He did not disclose his drug use to his parents until after his arrest on the second set of charges. He indicates that he is willing to enroll in a drug treatment program. To that end, if released, he would attend an information session that has been set up through the Metro Addiction Assessment Referral Service (“MAARS”), after which he would be given an appointment for an individual assessment. It would then be determined which drug treatment program offered by CAMH would best suit his needs.
[25] During the seven months that Mr. Oksem was subject to GPS monitoring while on bail for the March 2017 offences, he complied with all the requirements set out by the Recovery Science Corporation (“RSC”). As stated, one of the terms of the current proposed release plan is that Mr. Oksem would again be subject to GPS monitoring.
The Bail Hearing
[26] Mr. Oksem’s older sisters, Serife Oksem, age 23, and Emine Oksem, age 37, were the proposed sureties at the bail hearing before Justice Ray.
[27] At the commencement of Serife’s testimony, Crown counsel at that time commented: “Your Honour, I just want to point out that the accused is laughing as he sits in the prisoner’s box listening to this evidence.” Justice Ray responded:
I’ve noticed that he seems to find the proceedings very amusing and right from the outset, he has been, it hasn’t interfered with my concentration, so I didn’t say anything, but I have noticed. Madam Crown is absolutely correct.
[28] In her decision ordering his detention, Ray J. did not specifically refer to Mr. Oksem’s laughter during the proceedings, although she did speak of his lack of respect for the sureties (presumably referring to the two proposed sureties, Serife and Emine). She also referred to Mr. Oksem’s attitude, which “flies in the face of the administration of justice” in that he was alleged to have brought drugs into the home of his surety, Ummu, while on bail for the first set of charges. In any event, at the bail review before me, Mr. Oksem, Serife, and Emine all addressed the matter of Mr. Oksem’s inappropriate behaviour before Ray J. They explained that his laughter is a nervous reaction and does not necessarily mean that he finds something funny or is not taking a matter seriously. It is simply the way that Mr. Oksem reacts when he is nervous and under stress.
[29] The release plan proposed at the bail hearing was that Mr. Oksem be under house arrest and not allowed to leave his residence at any time unless he was in the company of one or other of his sureties, that is, Serife or Emine. He was to reside at 371A Margueretta Street with his parents, Emir and Osman Oksem, and Serife and her husband, Erdem Yarkin. At the time of the bail hearing, Serife was unemployed, and therefore in a position to supervise Mr. Oksem on a 24/7 basis. She testified that if she did get a job, she would share the responsibility of supervising Mr. Oksem with her sister Emine. Serife had only modest savings – $1000 in a bank account – and a car worth $2000. She was willing to sign a recognizance in the amount of $3000. Although not proposed as a surety, Emir Oksem, was also in a position to supervise her son as she does not work.
[30] Emine Oksem owns the house at 182 Cameron Avenue, where she resides with her three children, ages 15, 11 and 4 ½ years of age. The equity in the house is approximately $500,000. Emine was willing to sign as a surety in the amount of $75,000. Her home is about a ten-minute drive from her parent’s residence. Emine works as a general helper for a food company and earns approximately $35-40,000 per year. Her hours of work are from 7:45 a.m. to 4:15 p.m.
[31] The sureties were unfamiliar with the nature of any drug problem that Mr. Oksem might have, but undertook to take him to any counselling or drug treatment program that he needed.
[32] Justice Ray found that the two proposed sureties were well-intentioned, and that they were prepared to do anything that they could in order to help Mr. Oksem, including searching his room and arranging for someone to keep an eye on him at all times. She continued:
But the bottom line is, even with … the stricter release that’s been proposed, we have to be able to also rely on Mr. Oksem to obey the terms of his release, and that’s where this plan of release falls down. It lies squarely on the shoulders of Mr. Oksem. I have not been shown, and the onus is on Mr. Oksem, I have not been shown that he should be released. The risk of releasing him is too great on the secondary ground. And, on the tertiary ground, where a firearm is involved particularly in these circumstances, I think that it would reduce the confidence of the public in the administration of justice if Mr. Oksem were released, particularly within this context of blatant disregard for previous terms of release.
[33] Justice Ray went on to note that Mr. Oksem comes from a very good family and that the sureties have the best of intentions. In terms of Mr. Oksem’s alleged drug abuse, she stated:
I do have a concern that the sureties, and I don’t blame them for this, this totally is not anything that I would hold them accountable for, don’t fully understand and appreciate what drug problem he has, the degree of the problem, what’s available to assist him with the problem, don’t really appreciate what he’s mixed up in, in terms of what’s led to his criminal involvement. And that’s very concerning. And, that’s often not something that the family itself is responsible for. It depends how much information they’ve been provided by the defendant and what he’s withheld from them.
[34] After stating that she had considered the Antic criteria, Justice Ray found that she was not persuaded that Mr. Oksem should be released. She concluded:
But in these circumstances, even the strictest possible release does not reassure me that there is not a substantial likelihood that Mr. Oksem will re-offend. And, in addition to that, I also haven’t been shown that it would not significantly reduce the confidence of the public, of right thinking members of the public, properly informed of all the circumstances of the case, reasonable members of the public, that the interest of justice would be served even if he were released. I’ve been shown the opposite, that it would really affect the confidence of the public in the administration of justice.
The Plan of Release Proposed at this Bail Review
[35] The plan of release proposed at this bail review includes house arrest with two new sureties – that is, Mr. Oksem’s parents – in addition to Serife and Emine. It also includes drug treatment programming and GPS-monitoring.
[36] Mr. Oksem’s mother, Emir Oksem, age 56, owns the house on Margueretta, which has an estimated value of $1,000,000. The equity is $684,000. Mrs. Oksem is willing to sign as a surety in the amount of $100,000 or any higher amount that the court deems appropriate.
[37] Mr. Oksem’s father, Osman Oksem, age 57, receives payments of approximately $ 2,125 per month through the Ontario Disability Support Program (“ODSP”). He has only $500 in savings. However, he and his wife rent out the basement of their home to a tenant, which provides additional income, although the basement has not been occupied since mid-August 2018. Osman Oksem testified that he hopes to have a new tenant by early December 2018.
[38] Since the original bail hearing, the initial step towards getting Mr. Oksem enrolled in a drug treatment program has been taken. As stated earlier, the sureties have obtained an appointment for him to attend an information session upon his release. He would be assessed at a later date in order to determine the appropriate program for him.
[39] It is also proposed that Mr. Oksem be subject again to GPS monitoring. Steve Tan, the co-owner and operator of RSC, testified that during the seven months that Mr. Oksem was electronically monitored while on bail for the first set of charges, there were no issues regarding compliance, including the requirement that Mr. Oksem keep the battery charged.
[40] Mr. Tan explained that if a term of Mr. Oksem’s bail prohibited him from leaving his home unless accompanied by one of his sureties, (which is part of the proposed plan of release), the surety would be required to call RSC in advance of their leaving the residence. A system of voice recognition for the surety is used to confirm that the monitoring company is, in fact, hearing from the surety. If Mr. Oksem left his residence without the voice recognition procedure having been followed, the monitoring company would notify the police within 15 minutes.
[41] Mr. Tan acknowledged that the ankle bracelet can be tampered with and removed, but that a tamper alert is generated and police are notified if this occurs. Arrangements could be made so that the officer in charge of Mr. Oksem’s case receives the alert directly, and would be able to check Mr. Oksem’s location in real time.
[42] Mr. Tan was cross-examined about potential delays in reporting alert signals to the police. He also acknowledged that there are certain “dead” zones, where there can be communication failures, such as on subways. In terms of the requirement that an accused keep the battery charged, Mr. Tan testified that eight hours prior to the battery running out of power, the device begins to vibrate. At the two-hour mark, a “critical battery alert” is generated, at which point RSC would call the police and advise them of the accused’s location.
[43] Each of the four proposed sureties testified that GPS monitoring was not put forward as part of the initial plan of release in July 2018 because the family was not in a financial position to pay for it at that time. They are now confident that together they will be able to cover the cost. The fee for the first month of monitoring is about $1,060, which includes an installation fee. The monthly fee thereafter is $612.00
Issues
[44] The issues on this application are whether there has been a material change in circumstances such that this court may engage in a de novo consideration of whether Mr. Oksem should be released and, if so, whether he has met his onus of establishing that he should be released having regard to the secondary and tertiary grounds.
Has there been a material change in circumstances?
[45] In R. v. St. Cloud, 2015 SCC 27, at para. 121, the Court identified the three bases on which the reviewing judge may exercise his or her discretion to review the bail judge’s order with respect to the detention or release of an accused. They are:
(1) where the bail judge has erred in law;
(2) where the bail judge’s decision was clearly inappropriate; and/or
(3) where new evidence is submitted to show a material and relevant change in the circumstances of the case.
[46] In determining what constitutes “new evidence” in the bail context, the Court in St. Cloud held that the classic Palmer criteria are relevant. Those criteria are:
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial... .
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
The evidence must be credible in the sense that it is reasonably capable of belief, and
It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[47] The Court in St. Cloud went on to explain that these criteria should be relaxed or applied flexibly in the bail context, given the generally expeditious nature of the interim release process, and the fact that, unlike an appeal, the release hearing takes place at the very start of criminal proceeding. In particular, the due diligence requirement, which is based on concerns about finality, must be applied having regard to the fact that bail decisions are, by their very nature, interim and not final: St. Cloud, at paras. 129-130.
[48] The Court also noted that according to Palmer, the due diligence criterion should not be applied as strictly in criminal matters as in civil cases. A generous and liberal interpretation of the meaning of “new evidence” in the context of a bail review is consistent with that principle: St. Cloud, at para. 131. A reviewing judge may consider not only evidence that is truly new but also evidence that existed at the time of the initial bail hearing but has not been tendered for some reason that is legitimate and reasonable: St. Cloud, at para. 132.
Due Diligence
Electronic Monitoring
[49] Crown counsel submits that Mr. Oksem has not met the due diligence requirement as it relates to the electronic monitoring component of the proposed plan of release. Ms. Laine submits that the only surety whose income and savings have changed since July 2018 is Serife Oksem. Serife is now employed at Starbucks, where she earns $1600 per month. Ms. Laine submits that given this marginal change in collective income, the explanation of the proposed sureties that the family could not have afforded the electronic monitoring fees in June or July 2018 is not reasonable in the circumstances.
[50] In terms of assessing the family’s financial situation back in July 2018, and whether or not they were of the view they could afford the monitoring fees, I take into account a number of factors. First, as already noted, Serife had no income at that time. She now has a job. Although her wages are modest, she is prepared to use part of them to pay RSC’s fees. Her savings at present are $1,500 – up from $1000 at the time of the bail hearing.
[51] Second, I note that although there is a sizeable amount of equity in the house on Margueretta, Mr. Oksem’s parents have a limited monthly income. Emir Oksem is not employed and has no income. Osman Oksem, who is diabetic and suffered a brain hemorrhage in 2009, is unable to work and is dependent on ODSP payments. Serife testified that most of those payments go toward household expenses and groceries. At the time of the bail hearing, Mr. and Mrs. Oksem were aware that as of mid-August 2018, they would no longer have any rental income as their tenants were vacating the basement apartment. However, they now anticipate that they will have a new tenant by early December 2018.
[52] A third factor that was on the minds of the accused’s family members leading up to and at the time of his bail hearing in July 2018 was the illness of his sister, Umma.
[53] Umma fell ill in October 2017. By March 2018, she was completely paralyzed. She obviously could not work. According to Serife, family members paid for some of her medical expenses. They also looked after her children, kept her house clean and bought the groceries. As Emine Oksem put it, Umma’s illness came suddenly and “consumed our attention.” Umma eventually got treatment for her condition in Turkey. She is apparently fine now, but it was five or six months following her paralysis in March 2018 before she fully recovered. She was still in the course of recovering when Mr. Oksem’s bail hearing was held. It now appears that the family no longer need anticipate having to pay any medical or other expenses related to her illness.
[54] Emine, like her parents, has substantial equity in her house on Cameron Avenue, but has only a modest income. She testified that at the time of the bail hearing in July 2010, she could have contributed $100 per month toward the GPS monitoring fees. She is still able to contribute that amount.
[55] Emine has $3000 to $5000 in savings, which she also had at the time of the bail hearing. Although she could dip into those savings to contribute more toward the monitoring fees, she could only do so for a limited period of time before her funds ran out, as the fees are over $600 per month.
[56] Although Mr. Oksem’s family members contributed to RSC’s fees for a seven-month period when Mr. Oksem was subject to electronic monitoring while on bail for the first set of charges, they did not, according to Serife, pay the full amount. She explained that Mr. Oksem was working at the time and therefore either paid the fees or part of the fees himself. As I understand Serife’s evidence, family members would make up the difference.
[57] In summary, there have been some changes in the family’s financial circumstances since July 2018. Those changes include the fact that Serife now has a job; rental income from the basement apartment at 371A Margueretta Street is anticipated to resume shortly; and the uncertainty or concern with respect to medical or other expenses associated with Umma’s illness has dissipated. These positive changes in the family’s financial situation may be modest but they are such that the family members now feel confident that together they can cover the cost of the GPS monitoring.
[58] In all of the circumstances, I am satisfied that there were legitimate and reasonable reasons why the evidence as it relates to the electronic monitoring component of the proposed plan of release was not tendered at the bail hearing and that the “due diligence” criterion in Palmer has been met.
The New Sureties
[59] Crown counsel submits that the two new sureties could have been proposed at the initial bail hearing, and thus the due diligence requirement has not been satisfied with respect to their evidence. Ms. Laine pointed out that Emir Oksem was present at the hearing and available to testify. Osman Oksem was not available as he was undergoing minor surgery that day to remove a painful cyst from his scalp and a mole from the side of his nose. Ms. Laine submitted that the defence could have scheduled the bail hearing on a day other than when Mr. Oksem Sr. was undergoing this medical procedure, which was classified as day surgery. He was released from the hospital the same day.
[60] According to Emir and Osman Oksem, the surgery had been scheduled for some time. Emir testified that prior to the surgery, their doctor had not discussed with them what was involved in the recovery process or how long it would take. She noted that her husband is diabetic. As she was uncertain as to what his recovery might entail, and what responsibilities she might be obliged to take on in terms of his care, she did not offer to act as a surety for her son. Her concern was that she might not be in a position to effectively supervise him for some time.
[61] As it turned out, Mr. Oksem’s aftercare was minimal and his mobility was unimpaired. He took painkillers for a while, and had fully recovered within a few weeks.
[62] There is no evidence before the court that either Emir Oksem or Osman Oksem deliberately held back from offering themselves as sureties at the time of the bail hearing for some oblique or improper motive.
[63] The evidence of Mr. and Mrs. Oksem would not likely meet the due diligence criterion on appeal. However, I am satisfied that it meets that criterion in the context of a bail review, given the more generous and liberal interpretation of the meaning of new evidence to be applied in that context.
Whether the New Evidence Could Reasonably be Expected to have Affected the Result
[64] The release plan obviously goes to the heart of the secondary ground. The bail judge, in considering whether Mr. Oksem had met the onus on him with respect to that ground, found that the proposed plan was strict. It was not, however, as strict as the plan now proposed.
[65] The original plan depended on Serife to do most of the supervision of Mr. Oksem, as she would be living with him in the same house. Although Serife was able at that time to supervise Mr. Oksem on a 24/7 basis, she also spoke of obtaining a job, in which case she planned to delegate some of the supervision to the other proposed surety, Emine. Serife could only sign as a surety in a modest amount of money, even though she was responsible for the bulk of the supervision.
[66] Emine, who was prepared to post $75,000 as a surety, was more limited in terms of her ability to supervise, although she undertook to attend regularly at the Margueretta address, which was not far from her home.
[67] In accordance with the new proposed plan, two more sureties would be residing with Mr. Oksem, one of whom – namely, his mother – is prepared to sign in the amount of $100,000 or more. Thus, although Serife is now working and not able to supervise Mr. Oksem on a full time basis, his parents, both unemployed, are in a position to take on that role.
[68] The bail judge found that although the proposed plan was strict, it did not allay her concerns that Mr. Oksem would not comply with its terms, and that the risk of releasing him was “too great on the secondary ground.” In terms of Mr. Oksem’s compliance, the bail judge did not have before her the proposal that he be subject to electronic monitoring, which can enhance a proposal of constant supervision. As noted in R. v. Fleming, [2015] O.J. No. 4380, (S.C.), at para.18, monitoring a physical location of an accused person may prevent in person meetings and associations with others. While not a panacea, in appropriate cases, it may have some utility.
[69] Had electronic monitoring been part of the original bail plan, the bail judge would also, no doubt, have considered that Mr. Oksem had a history of complying with his bail conditions when subject to GPS monitoring. There were no breaches of his bail conditions during the seven months that he was electronically monitored with respect to the first set of charges.
[70] I am satisfied that the new evidence could reasonably have impacted the bail judge’s decision with respect to the secondary ground.
[71] The new evidence could also have reasonably affected her decision with respect to the tertiary ground. As stated in R. v. Dang, 2015 ONSC 4254, at para. 58:
An accused person’s release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained: see R. v. B.(A.) (2006), 2006 CanLII 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont. S.C.J., at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c.1) to s. 29(2)(c) of the YCJA. 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).
[72] In light of the new evidence, I propose to conduct a de novo assessment of whether Mr. Oksem should be granted bail. In making that assessment, I take into account not only the evidence with respect to the proposed new sureties and the electronic monitoring, but additional facts introduced by the Crown, which include the following:
• At the time of Mr. Oksem’s arrest on the first set of charges, both of his parents were at home at the Margueretta address.
• The loaded firearm was located in a shoebox in Mr. Oksem’s bedroom. His passport was located beside the shoebox.
• Mr. Oksem provided a cautioned, videotaped statement that the Crown will seek to adduce at trial in relation to the first set of charges. In his statement, Mr. Oksem indicated that the firearm belonged to him and that his parents did not know about it.
• The other weapon, a pellet gun, was in plain view on the counter in the upstairs bathroom.
• The substance contained in one of the baggies located on Mr. Oksem’s person on June 22, 2018 was subsequently analyzed and found to contain 1.36 grams of Fentanyl.
[73] I also take into account that following the bail hearing, the proposed sureties took the step of setting up an appointment for Mr. Oksem to attend an information session regarding a drug treatment program.
De Novo Assessment of Bail
Secondary Ground
[74] Mr. Oksem bears the onus of establishing that his detention is not necessary on the secondary ground. The question for the court is whether he has established that if released on the proposed terms, there is not a substantial likelihood that he will commit further offences.
[75] There are a number of factors relevant to the secondary ground, including the seriousness of the offences. The allegations involve a loaded gun and that Mr. Oksem, on two separate occasions, was in possession of drugs for the purpose of trafficking. One of the drugs is now known to contain Fentanyl. As Crown counsel submits, the serious nature of the charges is a factor for consideration in assessing Mr. Oksem’s potential for future dangerous activity.
[76] The Crown’s case on both sets of charges appears to be extremely strong. The loaded firearm was found in Mr. Oksem’s bedroom, next to his passport. He has provided an inculpatory statement. The other two occupants of the house – that is, his parents – have testified that they had no knowledge of the gun or the pellet gun. On March 14, 2017, Mr. Oksem was found to be in personal possession of 7.64 grams of crack cocaine, which is a significant quantity of a highly addictive drug. On June 23, 2018, the police located three different types of drugs on his person – namely, powder cocaine, several baggies of crack cocaine, some loose pieces of crack cocaine, and the baggy containing Fentanyl. He also had a digital scale and $280 in Canadian currency. Mr. Oksem’s breach of his curfew on June 22, 2018 was directly observed by the police. Given the context, there is no reasonable excuse for that curfew breach.
[77] Although Mr. Oksem has no criminal record, his re-offending behaviour is apparent from the charges before the court. He was initially released on a substantial bail – $50,000 – with terms that he abide by a curfew. He not only breached his bail but, upon his arrest the following day, was found to be committing further offences. This is a significant concern with respect to the secondary ground, as past behaviour can be viewed as a predictor of future behaviour.
[78] The next question to be addressed is whether the proposed release plan addresses the very real concerns regarding the secondary ground.
[79] The four proposed sureties are well-meaning and very supportive of Mr. Oksem. However, as Crown counsel pointed out, there are some troubling issues relating to their suitability as sureties.
[80] The first concern relates to the proposed sureties’ inaction when Ummu, who was Mr. Oksem’s surety on the first set of charges, became extremely ill and was rendered incapable of supervising him. Her inability to supervise Mr. Oksem persisted for a significant period of time, commencing sometime after October 2017, and lasting right through to when he was arrested on the second set of charges in June 2018.
[81] All the currently proposed sureties were aware of the conditions of Mr. Oksem’s recognizance, as they had come together as a family after he was charged in March 2017. They had concluded at that time that Ummu was the most suitable family member to supervise him on what were very serious charges. Although Serife was not a surety, she was named in the original recognizance as a person with whom Mr. Oksem could be outside his residence after 7:00 p.m. Despite their knowledge of the serious nature of the charges and the significance of the bail, which was set at $50,000, none of the proposed sureties took any steps to address the lack of supervision after Ummu fell ill. They basically left Mr. Oksem to monitor himself. None of them stepped forward to replace Ummu, or offered to have Mr. Oksem reside with them so that he could be properly monitored. In the end, Mr. Oksem breached his bail and committed further serious offences.
[82] Serife testified that she suspected that Mr. Oksem was using drugs while on bail, as there were times when he did not seem to be himself. At one point, she raised the matter with him but “he did not tell me anything” or open up to her. She did not raise the matter with Ummu because Ummu was too ill to deal with the issue.
[83] Emine testified that she was aware that Mr. Oksem was using drugs while on bail, which was in violation of the terms of his release. She and Umma discussed the matter but Ummu was too ill to do anything about it, and Emine “had too many things going on with my house and family.”
[84] Neither Serife nor Emine mentioned the issue of Mr. Oksem’s use of drugs to his parents.
[85] Mr. Oksem testified that he disclosed his drug use to his parents after his arrest on the second set of charges. He testified that he had been using crack cocaine on a regular basis since 2014. According to Emir Oksem, Mr. Oksem told her following his arrest that he only used drugs “a little bit.” She did not ask him for any further details, such as the type of drugs he was using, which might have assisted her either as a parent or as a surety in helping him deal with this issue.
[86] It was apparent from Emir Oksem’s testimony that she blindly accepts that her son is not involved in drug dealing, despite the objective evidence to the contrary.
[87] Osman Oksem testified that his son, while on bail for the first set of charges, told him that his curfew condition had been lifted. Osman Oksem accepted this statement as true, when it was clearly false. This deceitful behaviour by the accused is troubling as it shows that he was prepared to lie to his father with respect to his bail conditions. And his father blindly accepted his son’s assertion without any further inquiry.
[88] When the police attended at the Margueretta address on June 22, 2018, Osman Oksem learned that the curfew restriction was, in fact, still in place. Both he and an officer spoke to the accused, who indicated that he was on his way home from work. Osman told him to get home and to comply with the curfew. Despite these instructions from his father and a further conversation with a police officer, Mr. Oksem, after arriving home, left 15 minutes later, thereby breaching his bail. The disrespect that Mr. Oksem showed for his father on this occasion raises concerns regarding the father’s suitability as a surety. As Crown counsel submitted, the issue is not simply whether the surety is willing to enforce the terms of the bail, but also whether the accused is willing to abide by the directions of the surety. Mr. Oksem demonstrated a complete disregard for his father’s directions and a willingness to lie to him on issues that directly relate to his bail.
[89] Osman Oksem, like Emir Oksem, has chosen to disregard the objective evidence indicating that his son was engaged in selling drugs. As for the loaded gun found in his son’s bedroom, and the imitation firearm in the upstairs bathroom, Osman Oksem testified that he made no inquiries of his son regarding these items or how they came to be in his house. He testified that if he had asked the accused about the gun, he presumed that he would have told him that it belonged to a friend. Osman Oksem’s willingness to deflect responsibility from his son, without any basis grounded in reason or evidence, is of great concern, especially in light of the objective evidence. As Crown counsel submitted, an appropriate surety must be aware of the circumstances and make objective assessments of risk. Emir and Osman Oksem’s blind faith in their son speaks adversely to their suitability as sureties.
[90] In considering how electronic monitoring would assist with respect to the secondary ground, I take into account that it has the potential to enhance a proposal of constant supervision. I also take into account that Mr. Oksem complied with the terms of his bail during the seven months that he was subject to GPS monitoring. However, there is a serious concern in this case with respect to Mr. Oksem’s actions while inside his home. As stated earlier, there is strong, if not overwhelming evidence that he had a loaded gun and drugs in his parent’s house, and that he brought drugs into Ummu’s home. The use of electronic monitoring to ensure that Mr. Oksem remain at home would not address what he is doing or with whom he is engaging while inside his residence. This is of particular concern in light of the Emir and Osman Oksem’s blind faith in their son, and their willingness to ignore or overlook the objective evidence. Osman Oksem never posed a single question to his son about the loaded firearm found in his bedroom. This lack of assertiveness or even curiosity with respect to his son’s activities, combined with Mr. Oksem’s deceitful behaviour – that is, his lying to his father with respect to his bail conditions – and the disrespect that he demonstrated by defying his father’s instructions to comply with his curfew, raise serious concerns with respect to the secondary grounds. I am not satisfied that GPS monitoring would adequately address those concerns.
[91] I find that Mr. Oksem has not met the onus upon him with respect to the secondary ground.
The Tertiary Ground
[92] Section 515 (10)(c) of the Criminal Code states that the detention of an accused is justified:
(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.
[93] In St. Cloud, at para. 87, the Court summarized the essential principles that must guide justices in applying s. 515 (10)(c) as follows:
• Section 515(10)(c) of the Criminal Code does not create a residual ground for detention that applies only where the first two grounds for detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) are not exhaustive.
• 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.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this 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, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This 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.
[94] I bear these principles in mind in considering and weighing the four criteria under s. 515(10)(c).
i) Apparent Strength of the Crown’s case
[95] As outlined earlier, the Crown’s case on both sets of charges appears to be extremely strong. This weighs in favour of detention.
ii) Gravity of the Offences
[96] There can be no dispute that the offences are extremely serious. In addition to the possession of a loaded firearm in a private home, they involve two sets of charges of possession for the purpose of trafficking. The maximum sentence for the firearm offence is ten years.
iii) Circumstances surrounding the commission of the offence, including whether a firearm was used
[97] The offences involve the possession of a firearm in the context of drug trafficking. Again, this is a significant factor that weighs in favour of detention. In R. v. Whervin, [2006] O.J. No. 443 (S.C.J.), at para. 14, Hill J., in reference to the possession of a loaded firearm in the context of drug trafficking, noted that “there is clearly an increase in concern in all segments of society for firearms crimes and risks to public safety, including to members of the public and police officers.”
[98] In R. v. J.G., [2005] O.J. No. 4599 (S.C.J.), at para. 27, Nordheimer J., as he then was, expressed similar sentiments:
The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in this city over the last number of months. Citizens in Toronto are understandably appalled at what appears to be a proliferation of handguns in the city. The alarm that naturally arises from that perception is dramatically increased by the apparent willingness of certain individuals to use those handguns, very often in often indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.
[99] The statistics filed by the Crown with respect to the proliferation and use of firearms in Toronto in the past year are indeed shocking. That proliferation is a factor for consideration in assessing the public’s confidence in the administration of justice. The possession of a loaded gun, along with an imitation firearm in the context of repeated drug dealing, weighs in favour of Mr. Oksem’s detention.
[100] The fact that Mr. Oksem was found in possession of Fentanyl is a further aggravating factor. Fentanyl is an extremely dangerous and potentially lethal drug, as demonstrated by the statistics relating to Fentanyl-related deaths. Mr. Oksem was found in possession of this drug while on bail for the firearm offence and other drug charges.
[101] Based on the evidence, there is an extremely strong inference that Mr. Oksem was selling drugs. The drugs seized during his second arrest were separately packaged, and he had a scale in his back pocket. He was also in possession of three different types of drugs – that is, Fentanyl, powder cocaine and crack cocaine – which suggests drug trafficking as opposed to personal use. I agree with Crown counsel’s submission that whether Mr. Oksem knew that the drug was Fentanyl is of no moment. When a person engages in drug trafficking, he assumes the risks associated with that crime. As already stated, the evidence strongly suggests that Mr. Oksem was in possession of the drugs for the purpose of selling them and, in so doing, was actively engaged in the distribution of this highly potent and deadly drug into the general population.
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
[102] The offence of possession of a loaded firearm pursuant to s. 96(2)(a)(ii) carries a maximum sentence of ten years. If convicted of this offence alone, Mr. Oksem would most likely receive a lengthy sentence. If he were also convicted of the two sets of drug trafficking charges and the offence of failing to comply with the terms of his bail, Mr. Oksem would certainly be looking at a penitentiary term of imprisonment.
Conclusion with respect to the Tertiary Ground
[103] In summary, there is a strong case against Mr. Oksem. The offences are very serious, given the serious public safety risks that the loaded firearm and the presence of Fentanyl pose to the community. If convicted, Mr. Oksem would receive a lengthy term of imprisonment. The proposed plan of release, including the GPS monitoring, does not, in the circumstances, lessen the cumulative effect of the four enumerated factors set out in s. 515 (10)(c). The cumulative effect of those factors leads me to conclude that a reasonable person’s confidence in the administration of justice would be undermined if Mr. Oksem was granted judicial interim release. Mr. Oksem has not met his onus on the tertiary ground.
Conclusion
[104] As Mr. Oksem has not met the onus upon him with respect to either the secondary or tertiary ground, his application for judicial interim release is dismissed, and the detention order made by the bail judge will remain in effect.
Garton J.
Delivered Orally: November 20, 2018
Released: February 7, 2019