COURT FILE NO.: CRIMJ(F) 525/20

DATE: 2020 11 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Erryl Taggart for the Respondent Crown

• and –

NARINDER SINGH

Ayesha Abbasi for the Defendant Applicant

HEARD: November 28, 2020 by audio conference

RULING ON SECTION 520 BAIL REVIEW

PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES

D.E HARRIS J.

1The Applicant, Narinder Singh, makes application for review of the detention order of Justice of the Peace Krayzman dated December 24, 2019. She detained the Applicant on both secondary and tertiary grounds.

2The key facts pertinent to this review are: 1. The Applicant is charged with trafficking in the deadly drug fentanyl; and 2. He has a lengthy criminal record for fail to comply with bail and probation orders.

THE BACKGROUND

3There are three charges against the Applicant: 1. Fail to comply with a bail release restricting him from leaving Ontario; 2. Possession of fentanyl for the purpose of trafficking; and 3. Possession of cash under $5000 obtained by crime. The Applicant has been recently committed for trial and has elected judge and jury.

4The Applicant was originally released on a bail October 16, 2016 with respect to a charge of conspiracy to commit an indictable offence. About a year later, on September 24, 2017, police received word that Mr. Singh was on a flight from Vancouver to Toronto. He was apprehended when he came off the plane at Pearson Airport and charged with violating his bail condition not to leave Ontario. Later on, it was learned that a bag from the flight had not been claimed. It had a baggage tag on it with the name of Narinder Singh. When the bag was searched it was found to contain 6000 pills weighing 3,623 grams. The pills were stamped “TEC.” Also found in the bag seized from the airport was $2400 in cash, the subject of the possession of property obtained by crime count.

5An RCMP officer, called as a witness at the original bail hearing, testified that an average dose of fentanyl is 1 milligram. Each pill in this case was found to contain .7 of a milligram, or three quarters of an average dose. A report tendered at the hearing fixed the street value of the drug if sold by the pill at between approximately a quarter and a half million dollars.

6The Applicant was originally released on consent on October 23, 2017 with respect to these three charges. It was a two-surety bail, no deposit, each pledging $5000 for a total of $10,000. The Applicant was rearrested on charges of theft of an automobile on August 11, 2019. This charge has now been withdrawn.

7Between the bail release on the fentanyl charge in September of 2017 and the bail hearing in this case in December, 2019, the Applicant accumulated a total of 37 additional charges in Brampton, Toronto, Newmarket and Halton. Many of these were failure to comply with court order charges. On November 29, 2019 in Brampton, 3 of those charges were disposed of by guilty pleas. There were 2 fail to comply with bail release conditions and one fail to comply with probation. One fail to comply with probation and one fail to comply with bail were withdrawn by the Crown. The Applicant was sentenced to a total of 62 days and credit was given for 58 days of pretrial custody. Previously, the Applicant had pled guilty in July of 2019 to another fail to comply with recognizance.

8At the original bail hearing in this matter before Justice of the Peace Krayzman, Ms. Taggart compiled a document of the outstanding charges with the name of the offence and the alleged offence date. The majority of these offences were fail to comply offences but there were also quite a number of other offences, including personation with intent, obstruct peace officer, possession of break in tools, possession of property obtained by crime over $5000, robbery, assault, threatening death, dangerous driving and two counts of theft of an automobile.

9In addition, the Applicant pled guilty July 31, 2020 in Toronto to four counts of breach of bail, two counts of failure to comply with probation and one count of possession of property obtained by crime. He was sentenced to a total of four months, this sentence being reduced by pre-trial custody. The remaining charges, somewhere around 24 in all, have all now been withdrawn.

THE APPLICANT’S CRIMINAL RECORD

10The Applicant is 41 years old and has a serious criminal record. It begins in the early 90’s with assaults, drinking and driving and mischief. In 2010 he was convicted of a firearms offence and received a 5 and a half year sentence. In Newmarket in 2018, he received a conditional sentence for the commission of an offence for a criminal organization. In British Columbia, he was convicted the same year of obstruct justice and received a sentence of one day on top of credit for 366 days served. Subsequent to these entries, there are convictions in 2019 for assault with a weapon, possession of break in tools, fail to comply with bail release, possession over $5000 and selling a counterfeit mark.

THE REASONS OF THE JUSTICE OF THE PEACE

11The Justice of the Peace detained on the secondary and tertiary grounds. Here is a partial excerpt of the pertinent passages in her reasons:

Although the drug trafficking allegations, which I find to be the most serious, arise from 2017, and there is no allegation that you have been charged with any new drug trafficking offences, your post-offence conduct is something that gives me great concern when I consider the secondary ground of detention, particularly when you are in a reverse onus situation. Your post-offence conduct involves several as yet unproven allegations of bail and probation breaches, among other charges, but also involves proven breaches of your bail and probation.

For a person charged with trafficking in fentanyl, with the Crown's case as strong as it apparently seems at this point, I would expect the proposed sureties to be people who are both very close to you and very familiar with your criminal background.

The sureties you have proposed are not, in my view, appropriate for this type of offence, given their tenuous ties to you and almost complete lack of knowledge about you. For that reason alone, I find you have not met your onus on the secondary ground.

However, it goes further than that in your case. I understand that you were originally released in 2017 on consent to two sureties, and that you were apparently further released in three other jurisdictions for the numerous outstanding charges you acquired since then. But you are in a very different situation now. Now you come before me with a trafficking charge plus 37 new charges laid against you, 24 of which involve breaches of various court orders in various jurisdictions.

The problem in your case, when I consider the secondary ground, is not just that the sureties you have presented are inappropriate; the problem here lies squarely with you.

I do not have to engage in speculation to determine that there is a substantial likelihood of you committing offences or interfering with the administration of justice if you were to be released. I have clear evidence before me that you have done both of those things and on numerous occasions while on a house arrest and two surety residential bails for the very offences for which you seek a release now.

In addition to the four enumerated factors [on the tertiary ground], I also consider the other circumstances of your case. Unfortunately, they do not work in your favour. Your record is long, recent and include serious criminality. You have acquired 37 charges since last release on bail for this drug trafficking charge.

(Emphasis Added)

HAS THERE BEEN A MATERIAL CHANGE OF CIRCUMSTANCES?

12I agree with the Applicant that there has been a material change of circumstances as described by the Supreme Court in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139. There are two distinct changes. First, the sureties tendered at this review hearing were a significant improvement, in my view, over the sureties offered at the original bail hearing. Second, there are no longer the 30 plus outstanding charges against the Applicant as there were at the original bail hearing.

13With respect to the sureties, the Applicant’s girlfriend of two years, Ramandeep Kaur Sidhu, is proposed to be the residential surety in the amount of $ 20,000. A family friend, Arshdeep Kaur Dhillon, who has known the Applicant for 10 years, will also be a surety. She has pledged $ 30,000. Unlike the proposed sureties tendered last time, these two are close to the Applicant. They are aware of his criminal record and his drug problems. The bail proposed is a true house arrest bail, with no exceptions for work or schooling. Electronic monitoring is again offered. It is a highly restrictive bail.

14There was a wholesale attack in cross-examination and submissions on the honesty and reliability of these sureties. I reject the challenge to them. They were credible and reliable, in my opinion.

15It is not a “reshuffling the deck” when new, improved sureties are advanced responding to and ameliorating deficiencies with the sureties identified at the original bail hearing: R. v. Phillips 2020 ONSC 6189, [2020] O.J. No. 4518 (Ont. S.C.J.) at paras. 13-18. The sureties at the bail hearing were not close to the Applicant; the new proposed sureties are close to him. This rectifies the deficiencies identified by the Justice of the Peace.

16Second, it was argued at this hearing that the change from over 30 outstanding charges to the current situation of 7 convictions is, essentially, a trade-off and does not alter the status quo. Although this argument is not unattractive, I do not ultimately agree. The Justice of the Peace, as shown by the excerpt above at paragraph 11, used the outstanding charges against the Applicant with respect to both the secondary ground and tertiary grounds for detention. On the basis of the outstanding charges, particularly coupled with the long criminal record, it might be said that the Applicant was virtually a one man crime wave. The charges were in four different jurisdictions. Some of the substantive charges were extremely serious, the robbery in particular. To replace this mountain of outstanding charges with 7 convictions for fail to comply with bail or probation, leading to a sentence of only 4 months, is a very significant diminution.

17Although it was not argued by the parties, I have examined the Justice of the Peace’s statement above that the problem was not just the sureties but “the problem here lies squarely with you.” It could be argued that the Justice of the Peace was opining that the Applicant was un-releasable. Neither the new and improved sureties nor the alteration in the 30 plus outstanding charges would, if that were the case, be a material change of circumstances. However, when the Justice of the Peace made this statement, it was in reference in part at least to the multitude of outstanding charges against the Applicant. The “problem” of the Applicant has now been substantially reduced by the disposition of the outstanding charges.

SHOULD THE APPLICANT BE RELEASED ON BAIL?

THE FENTANYL ALLEGATION

18This allegation is inarguably very serious. Fentanyl is a lethal drug which has caused a monumental public health crisis in Canada. The Crown estimated that if convicted, the likely sentence would be in the 10-15 year range. The defence argued that 6-8 years would be the sentence. Apparently there are some issues identified at the preliminary inquiry with respect to guilt and innocence, including a significant continuity issue. If convicted, there is also a question of the seriousness of the offence in light of the amount of fentanyl in each pill: R. v. Hamilton 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, (2004) 72 O.R. (3d) 1 (Ont. C.A.) at paras. 150-153.

19Despite the seriousness of drug dealing allegations (R. c. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99 (S.C.C.) at para. 63), the Applicant was initially released on bail for the fentanyl charge. The release was with a relatively modest surety amount, $10,000. Most importantly, the Crown conceded release. That is not definitive but it does inform the approach to this allegation. Furthermore, while the Applicant’s record is a cornucopia of criminal offences, there are few if any drug offences on his record.

20I conclude that on this charge, viewed in the full context, the Applicant is releasable. The prominent secondary ground concerns must be placated, however, by proper controls and supervision.

THE APPLICANT’S FAIL TO COMPLY CONVICTIONS

21The Applicant has over 10 fail to comply convictions over the last two years. Some are probation violations, some are bail violations. These offences, as outlined above, have led to relatively short sentences. Nonetheless, the Crown argues that the Applicant cannot be trusted to abide by a bail order given this history.

22In my view, the approach that must be taken to failure to comply convictions has changed since the time of the Justice of the Peace’s reasons in December, 2019. This past summer, the Supreme Court released R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1 (S.C.C.). The narrow focus of the judgment is on the mental element for the fail to comply with bail offence but there was also a broader dissertation on the fail to comply offence within the context of bail. Distilled down, two main principles of relevance to this review can be derived from Zora:

a) There is a widespread problem with the imposition of unnecessary bail conditions and conditions which set accused persons up to fail. Unnecessary conditions are contrary to the principle of restraint in bail now codified in Section 493.1 and 493.2 of the Criminal Code: paras. 26, 87-88

b) Bail breaches are “over-criminalized.” As a result, Parliament has enacted Section 523.1 of the Code, a judicial procedure for managing fail to comply charges. This process may lead to diversion and the dismissal of the charge where there is no physical or emotional harm to a victim: paras. 27, 70.

23There is one passage in Zora which directly considers the impact of fail to comply allegations on an application for bail and has special pertinence to the case at hand. Justice Martin wrote:

56 Previous convictions under s. 145 may also inform bail hearings for any future offences (see s. 518(1)(c)(iii)). Convictions for failure to comply under s. 145(3) are treated by Parliament and the courts as often indicating that an accused has a history of intentionally disobeying court orders, and therefore is more likely to breach their court orders again. A failure to comply conviction can result in assumptions that an accused has a “lack of respect ... for court orders and for the law”, which may affect future sentencing and release decisions (R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.), at para. 118; see also Schab, at para. 24; R. v. Omeasoo, 2013 ABPC 328, 94 Alta. L.R. (5th) 244 (Alta. Prov. Ct.), at para. 47). A Department of Justice study of closed cases from 2008 found that 43.9 percent of accused persons with a prior history of convictions for s. 145 offences were denied bail, which is a remand rate significantly higher than accused persons with no such history, and even slightly higher than the remand rate for accused persons who were previously convicted of violent offences (39.9 percent) or sexual offences (39.5 percent): K. Beattie, A. Solecki and K. E. Morton Bourgon, Police and Judicial Detention and Release Characteristics: Data from the Justice Effectiveness Study (2013), at pp. 17-18). Thus, conviction under s. 145(3) may lead to the denial of bail or the increased likelihood of more stringent bail conditions for future unrelated offences.

57 This is problematic because breach charges often accumulate quickly: Mr. Zora’s failure to answer a door twice on one weekend resulted in four separate charges under s. 145(3). People with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits. Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pre-trial detention [references omitted]

(Emphasis Added)

24These comments have important ramifications for bail. The significance for the Applicant’s argument for release is two-fold. First, he is a drug addict. The importance of evaluating the circumstances of vulnerable populations and addicts in particular is emphasized in the passage above and with some force in several other passages in the Zora judgment: see paras. 79, 89, and 92. Conditions in previous bail orders may have set the Applicant up to fail. His bail transgressions may have been over-criminalized.

25The acknowledgement that drug addicts have a particular susceptibility towards accumulating fail to comply convictions pertains directly to the Applicant’s situation. Evidence from both prospective sureties is that the Applicant used heroin, Percocet and oxycodone. His drug addiction provides at least partial explanation for the fail to comply convictions so abundant on his record over the last two years. Apparently, he is now on methadone, a drug used in the treatment of opiate dependence. He will see a family doctor immediately upon release—he was scheduled to see him the day of this bail review if he had been released—and is willing to continue drug treatment. He will also sign up for drug counselling. The methadone regimen and his willingness to be treated is reason for some tempered optimism.

26Second, while it has been customary to see all fail to comply convictions alike for the purposes of a bail hearing, after Zora, that is no longer the case. The Court made a distinction between conduct which merely breaches bail conditions and the more serious situations where the alleged acts in breach are themselves criminal: see para. 70. The latter are of much greater importance.

27The judgment in Zora reminds us that not all bail breaches are created equal. While it is open for the prosecution to simply rely on fail to comply entries on the criminal record with no foundational facts in support, as was the case here by and large, if the aim is to demonstrate that the accused is truly incorrigible, details of the breaches are potentially much more persuasive. This is not to say in this instance that the fail to comply convictions do not reflect poorly on the Applicant’s likely conformance with a bail release. They do to some extent. However, it is difficult to determine how much weight to give them towards the Crown’s attempt to show he is ungovernable.

28In this case, for the most part, only the bare entries were tendered. There was one incident in which the Applicant may have been out of his residence without a surety. There was one in which he violated his probation by failing to attend at the appointed time to begin serving an intermittent sentence. And there was one in which he possessed a weapon as defined by the Criminal Code. There were hints of another in which he was driving a car and was prohibited from doing so. However, without more flesh on the bones, what can be drawn from this is limited. It is also noteworthy, in view of the comments in Zora, that virtually all of the fail to comply convictions on the Applicant’s recent record were not accompanied by substantive offences.

29I conclude that the fail to comply convictions tend towards detention but are not as damning as they might have been viewed previously. Without knowing the factual basis of these convictions, their weight is limited. There is every likelihood that the Applicant’s addiction has served to multiply the fail to comply entries on his record. Keeping the foregoing comments in mind, attention must turn to the secondary and tertiary grounds.

THE SECONDARY GROUND

30The concerns under the secondary ground in Section 515(10)(b) of the Criminal Code are that the Applicant will not conform to a bail release and, secondly, that he is likely to commit further offences which could jeopardize the safety of the public. Following the guidance in Zora, the plethora of fail to comply charges on the Applicant’s record reflect negatively on his bail prospects but it is difficult to ascertain how far to take them. For the most part, we do not know the nature of the breaches or how stringent the bail releases were that it was admitted he violated. It is doubtful whether the Applicant has ever been on as tight a bail as is proposed in this case, including house arrest with no ordinary exceptions and electronic monitoring. Furthermore, the bloom of fail to comply charges on his record is likely a symptom of his drug addiction. He is currently receiving treatment for his addiction.

31Ms. Taggart read into the record an occurrence report from Maplehurst Correctional Centre dating from April 25, 2020. Her intention was to bolster the Crown’s case on the secondary ground. The Applicant is said to have told a correctional officer at Maplehurst “I will see you when I am released, you clown.” No charges, either institutional or criminal, were laid. About a month later, the officer was approached in the community and asked his name by persons he did not know.

32In my view, this evidence is inadmissible. First, it is a naked allegation with no external support. It lacks any detail. Second, in a custodial environment, tempers often flare, probably even more at the time this allegation arose, the early days of COVID in late April of this year. Everyone was on edge. In context, as transgressions go, this was picayune. The jail environment is not a friendly or gentle one. Third, disciplinary proceedings are commonly initiated with very little fanfare in correctional institutions. This incident did not even merit this summary type of extra-judicial proceeding.

33If it were creditable and I found I could rely on it, because of its nature, I would give this allegation virtually no weight. At best, it is of tenuous relevance. But the circumstances also lead me to conclude that it is not “credible or trustworthy” within Section 518(e) of the Criminal Code. Justice Durno in R. v. Downey, [2018] O.J. No. 6133 (Ont. S.C.J.) frowned on the use of occurrence reports of uncharged allegations in bail hearings. He said,

10 I appreciate that as a result of the need for expeditious determinations of bail issues, that the rules of evidence are relaxed. However, they are not abdicated. In cell phone cases, we hear and read of tower dumps. Bail hearings should not become police file dumps of everything in a police file or computer with the accused’s name anywhere in it. Just because a police officer has recorded something someone has told him or her in an occurrence report, does not mean it is admissible at a bail hearing or anywhere else. It is impossible to determine if any of the uncharged incidents were “credible” or “trustworthy”. There is no way to test it. No sources are given, no reasons are given why no charges were laid…

(See in general paras. 4-24).

34Although we have a source and an explanation why no criminal charges were laid, the bottom line is there is no way to test the allegation. I do not view the occurrence report as “credible or trustworthy.” It is inadmissible.

35In conclusion on the secondary ground, as evidenced by his criminal record, the Applicant has shown a propensity for crime and not complying with his bail releases. However, in my view, the two sureties and the plan proposed, although not perfect, adequately appease the secondary grounds concerns. Both sureties will be pledging a large amount of their savings, knowing that a breach will put them in jeopardy of losing the entire amount. The relationships between them and the Applicant are sufficiently close to operationalize the pull of bail: Canada (Minister of Justice) v. Mirza, 2009 ONCA 732 (Ont. C.A.) at para. 40. Both sureties emerged from a lengthy, aggressive exploratory cross-examination by the Crown with their credibility and reliability intact.

36The Crown initially agreed back in 2017 that the Applicant should be released on a modest surety bail on the very disturbing fentanyl allegation. Looking at that, and the other pertinent factors, including that he has been committed to trial, the fentanyl count does not prohibit his release. The Applicant has satisfied his onus on the secondary ground.

THE TERTIARY GROUND

37This case registers high with respect to the four statutory factors listed in the tertiary ground. Yet, taking into account the fact of the Applicant’s previous consent release on the fentanyl charge and the uncertainty with respect to conviction and sentence on that allegation, the restrictive plan of supervision is enough to fulfill his onus on this ground. In addition, the pandemic militates to some degree against tertiary ground detention, as the risk of contraction of the virus during this second wave is obviously higher in a jail setting than outside: R. v. Jaser, 2020 ONCA 606 (Ont. C.A.) at paras. 99-103.

38I do not believe, with the plan proposed, that the Applicant’s detention is necessary to maintain public confidence in the administration of justice.

39I would grant bail on the following terms. I would emphasize that Ms. Dhillon, despite the Applicant not likely living with her on a regular basis, is expected to have a substantial supervisory role under this bail order:

Two sureties in the following amounts, with no deposit:

Ramandeep Kaur Sidhu: $20,000

Arshdeep Kaur Dhillon: $30,000

Under the following conditions:

a. Ordinarily reside with surety Ramandeep Kaur Sidhu at 611-7256 Airport Road, Mississauga, Ontario;

b. You may also reside, alternatively, with surety Arshdeep Kaur Dhillon at 285 Conestoga Drive, Brampton. If you reside overnight with her for any period of time, you must notify the officer-in-charge or his or her designee;

c. Remain in either one of these residences at all times EXCEPT in the immediate and direct presence of one of your sureties or if necessary for emergency medical treatment;

d. Remain in the province of Ontario;

e. attend court as required;

f. Surrender all passports and do not apply for any travel documents;

g. At your expense, be monitored by Recovery Science Corporation ("RSC") according to the following conditions:

i. Enter into RSC's Participant Agreement and comply with its terms. Ensure that RSC procedure is that in the event of an alert, notification will be directly to the officer-in-charge or his or her designate;

ii. Wear a GPS ankle bracelet at all times;

iii. Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;

iv. Comply with RSC leave notification and battery charging requirements; and

v. Cooperate and comply with all RSC requirements and staff directions.

h. Not to possess a weapon, firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance weapons or ammunition as defined by the Criminal Code;

i. Not to be in possession of a cellphone, computer or any device capable of accessing the internet unless under the direct and immediate supervision of one of your sureties;

j. Not to access the internet except under the direct and immediate supervision of one of your sureties;

k. Do not possess drugs unless legally prescribed;

l. Take drug counselling and drug treatment and provide proof by the first of each month of all contacts or meetings to the officer-in-charge or his or her designee.

m. Keep a copy of the recognizance on your person at all times.