COURT FILE NO.: CR-21-50000129-00BR
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ISMAIL PATEL
Meghan Scott, for the Crown
Adam Newman, for Mr. Patel
HEARD: May 4, 2021
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON BAIL REVIEW
[1] Mr. Patel was detained by a justice of the peace on some 22 charges involving possession of a firearm, dangerous driving, pointing a firearm, robbery, reckless discharge of a firearm, fail to comply with a probation order, and other charges. Briefly, Mr. Patel is alleged to have stolen a car, crashed it, pointed his firearm at two passers-by and two police officers, and shot his way into a building in an attempt to escape from the police.
[2] Mr. Patel now brings a bail review. His counsel, Mr. Newman, argues that there has been a material change of circumstances. He also argues that the justice of the peace made errors of law. Thus, Mr. Patel is entitled to a hearing de novo. Mr. Newman further argues that Mr. Patel has presented an excellent plan that meets the onus on the primary and secondary grounds.
[3] Regrettably, I find that I am unable to agree. In my view, there has not been a material change of circumstances. As well, I find that the justice of the peace did not err in law. As a result, for the reasons that follow the application is dismissed.
THE ALLEGATIONS
[4] On October 17, 2020 Mr. Patel was in the area of 5306 Dundas Street in Toronto. That is the address of a Popeye’s Chicken restaurant. A delivery driver, Mr. Ahmed, was picking up food to deliver. Mr. Ahmed apparently left his 2003 Honda Civic unlocked. Mr. Patel allegedly got into the Honda. Mr. Ahmed confronted Mr. Patel and attempted to stop him. Mr. Patel started to drive away slowly. As he did so, Mr. Ahmed began to chase the Honda and called 911. Mr. Patel then allegedly produced a gun. Mr. Ahmed then decided to stop following the Honda.
[5] Mr. Patel then drove Mr. Ahmed’s Honda on Dundas Steet. He allegedly lost control and crashed it into a fence and construction equipment at 101 Subway Crescent. The crash caused some $50,000 to $60,000 in damage to the construction equipment. The crash also destroyed Mr. Ahmed’s Honda.
[6] Mr. Patel then got out of the car and went back to Dundas Street West. Dan and Harry Nespiak were driving along Dundas Street and were forced to slow down to avoid hitting Mr. Patel. Mr. Patel then allegedly pointed his gun at them. They sped away and called 911.
[7] Much of what followed was captured on surveillance cameras. Mr. Patel then ran to an office building at 4343/5353 Dundas Street West. He ran through the parking barrier and broke the barrier arm. He then fired several shots to break into the building. When police officers arrived, Mr. Patel tried to break through another door by using the gun to shatter the glass. He did not succeed and, apparently, only damaged the gun. He then apparently turned around and confronted the officers by pointing his gun at them. It appears that he may have attempted to fire at them but the weapon malfunctioned. Mr. Patel then tried and failed to correct the malfunction. It appears that the slide and the magazine both fell to the floor. The police then arrested Mr. Patel. Mr. Patel was found in possession of more than $11,000 in cash, and a receipt for over $10,000 from Harbour Sixty Steakhouse, a well-known Toronto restaurant. Mr. Patel was also in possession of his brother’s health card.
[8] At the time of the alleged offences, Mr. Patel was on probation and two weapons prohibitions.
[9] Mr. Patel has an extensive criminal record, although he is a young man. While a young offender he accumulated convictions for theft under $5000, fail to comply with a recognizance, assault, and fail to comply with a youth criminal sentence (twice). More seriously, as a youth he also accumulated convictions for robbery, dangerous operation of a motor vehicle causing bodily harm, and failure to stop at the scene of an accident.
[10] As an adult, Mr. Patel has accumulated convictions for (again) dangerous operation of a motor vehicle, failure to stop at the scene of an accident, and robbery. He has also accumulated convictions for failure to comply with a recognizance, possession of a scheduled substance for the purpose of trafficking (twice), assault with a weapon, and possession of property obtained by crime.
[11] Mr. Patel does not seem to have been working or going to school. As the justice of the peace put it:
He is unemployed and nobody seems to know too much about his daily activities or who he frequents with. He is not in school and for the most part was residing at the family home in Hamilton, which has now moved to Newcastle.
THE REASONS OF THE JUSTICE OF THE PEACE
[12] The justice of the peace noted that Mr. Patel faced 22 charges. She also mentioned his criminal record. She then summarized the allegations. She noted that the Crown’s case was seemingly strong, although she noted that even strong or overwhelming evidence is but one factor to be considered at a bail hearing. The justice of the peace summarized the plan of release. The plan called for Mr. Patel to live in the family home in Newcastle. He would be supervised by mature and capable sureties. He would work at his local mosque, mainly doing janitorial services. He would also be subject to GPS monitoring.
[13] In terms of the secondary ground, the justice of the peace stated that “I cannot deny that this plan is literally foolproof in reducing the substantial likelihood of re-offending”. She found that given the strength of the plan Mr. Patel met his onus on the secondary ground.
[14] Regarding the tertiary ground, the justice of the peace noted that the Crown has a strong case. That included the video evidence. She also mentioned that she was alive to potential defences. She noted that Mr. Patel allegedly breached three existing court orders. She also noted that the case involved a firearm, that the circumstances were serious, and that Mr. Patel was liable to a lengthy term of imprisonment.
[15] The justice of the peace also noted that Mr. Patel had contracted Covid-19 while in custody, but that he has recovered. Overall, she found that under the circumstances, “the court is convinced that the public would be outraged if you were released, and I find your detention is necessary on the tertiary grounds…”
ANALYSIS
[16] In my view, there are two issues: first, has there been a material change of circumstances? And second, did the justice of the peace make an error of law? For the sake of completeness, I will also briefly canvass whether Mr. Patel could have met the onus on the tertiary ground.
(a) Has there been a material change of circumstances?
[17] Mr. Newman argued that there has been a material change of circumstances due to Mr. Patel’s COVID status. The justice of the peace observed that as of the bail review hearing there was an outbreak of Covid-19 at Toronto South, where Mr. Patel was being held. Mr. Patel had contracted Covid-19 as of the bail hearing. The justice of the peace observed that if Mr. Patel’s sureties fell ill it would put the bail plan at risk of falling apart. Mr. Newman argued that since Mr. Patel has now recovered, he is no longer a threat to his sureties. He relies on the following passage from the decision of the justice of the peace:
The outbreak, having already happened at the detention centre and Mr. Patel having already contracted the disease, places his bail plan at risk and it would fall apart if the sureties fell ill, and the administration of public and the maintenance of confidence ....
[18] Respectfully, I cannot agree with the defence argument. In my view, the comments of the majority of the Court of Appeal in R. v. J.A., 2020 ONCA 660 at para. 55 apply:
The COVID-19 pandemic constitutes a material change warranting a new bail hearing where the circumstances of the pandemic are "relevantly material" to this respondent in these circumstances. The effect of COVID-19 must be "significant" in the sense that when considered along with the other evidence on the bail proceeding, it could reasonably be expected to have affected the result.
[19] In other words, if the pandemic evidence could have affected the balancing exercise engaged in by the justice of the peace, then it is a material change of circumstances: R. v. St-Cloud, 2015 SCC 27 at para. 137.
[20] As a practical matter it is obvious that Mr. Patel could not have been released to his sureties until enough time had passed after the infection. Even if Mr. Patel had met the onus on the tertiary ground, he could not have been released, at last at that point, since he may well have infected everyone around him. The justice of the peace was obviously aware of that fact. More importantly, however, it is clear that Mr. Patel’s health circumstances were just one of the factors that the justice of the peace took into account. When the reasons are read as a whole, it is clear that she detained Mr. Patel not because he might have infected his sureties, but because the public would have been outraged that a man in his position were released. In other words, the justice of the peace would have detained Mr. Patel regardless of his Covid-19 status.
[21] Thus, Mr. Patel’s recovery from a Covid-19 infection does not constitute a material change in circumstances.
[22] Mr. Newman also argued that there was a second material change of circumstances. He described this as the delay in setting a preliminary inquiry date in the Ontario Court of Justice. This point has merit, but, again, I must respectfully disagree. As Doherty J.A. pointed out in R. v. Jaser, 2020 ONCA 606 at para. 52, The “circumstances relevant to bail are dynamic and can change significantly as a case progresses and time passes.” There is no doubt that developments in a case (or lack of developments in a case) can sometimes constitute a material change of circumstances. Delays in getting to a preliminary inquiry or trial can be a basis for intervention by a reviewing court: R. v. Korkis, 2020 ONCA 8017 at para. 30. I do not agree that this kind of factor is only to be considered on a 90-day review, as at least one case has suggested. A consideration of delay in the proceeding is the purpose of a 90-day review, but it is not limited to 90-day reviews.
[23] In this case, the defence has chosen to delay obtaining an in-custody date. There have been several reasons for that. These reasons have been largely, although not wholly tactical on the part of defence. There have been ongoing discussions with the Crown as to the best way forward. Defence counsel also wished to determine whether Mr. Patel would be out of custody and thus not eligible for an in-custody date. As well, it does not appear that the trial coordinator in the Ontario Court of Justice is willing to provide approximate dates in the absence of an actual set date. I do not wish to be taken as criticizing defence counsel when I say that much of the reason for the delay has been tactical. On the contrary, experienced counsel has pursued a reasonable course of action that he judges best serves Mr. Patel’s interests. That is not, however, a material change of circumstances. As Ms. Scott fairly points out, there may at some point be sufficient delay that it will constitute a material change. I agree with that, but I do not think that this case is at that point.
[24] I am also aware that Mr. Patel seems to have developed anxiety, as well as dental problems while in custody. It is undoubtedly the responsibility of the jail authorities to treat Mr. Patel, and to ensure that he is safe. No doubt Mr. Patel could get better treatment out of custody, but that is not the test. The test is whether his anxiety and his dental issues constitute a material change of circumstances. In my view, they do not.
(b) Did the justice of the peace err in law?
[25] The Notice of Application outlined four errors of law allegedly made by the justice of the peace:
(i) The justice of the pace failed to give due weight to the presumption of innocence by failing to consider frailties in the prosecution’s case, and assuming that he is guilty;
(ii) The justice of the peace conflated the secondary and tertiary grounds and essentially found that Mr. Patel was un-releasable despite a plan that was “literally foolproof”;
(iii) The justice of the peace failed to consider the strength of the bail plan in the context of the tertiary ground; and,
(iv) The justice of the peace failed to give proper consideration to the effects of the Covid-19 pandemic on the tertiary ground.
[26] I must also disagree with this analysis.
[27] The justice of the peace indicated in her reasons that Mr. Patel was presumed innocent and that the charges were simply allegations. The justice of the peace also noted that the Crown’s case was extremely strong, although she also said this:
I am also alive to any defences being raised. Mr. Bernstein submitted that there may be triable issues with the inconsistency in the police notes and also, the state that Mr. Patel was in when these incidents unfolded.
MADAM INTERPRETER: I’m sorry, Your Worship, would you repeat again? I’m sorry.
THE COURT: And also the state that Mr. Patel was in when the incidents unfolded, however these are all issues for trial.
[28] The justice of the peace thus explicitly took into account the two issues raised by Mr. Bernstein, who was counsel for Mr. Patel at the bail hearing. Mr. Bernstein pointed out that the notes of the arresting officers were inconsistent: one officer noted that Mr. Patel was pointing a gun at them, the other officer did not. What is not inconsistent is that a surveillance video camera captured Mr. Patel pointing a gun. As well, noting that a potential defence is an issue for trial is not incorrect. The justice of the peace was required to weigh the strength of the Crown’s case, including potential defences, which she did. I do not read her reasons as suggesting that she assumed Mr. Patel was guilty. Rather, I read her reasons as noting that Mr. Patel’s defence will be considered at trial, which is surely correct. By indicating that she was “alive” to possible defences, I read her reasons simply as indicating that she understood she was required to weigh those defences when weighing the strength of the Crown’s case. It is worth noting that based on the video surveillance the Crown’s case does seem very strong.
[29] I also cannot agree that the justice of the peace conflated the secondary and tertiary grounds and found that Mr. Patel was “un-realeasable” in spite of a foolproof plan. The justice of the peace found that Mr. Patel was releasable on the secondary ground because it was a foolproof plan. She was clearly satisfied that Mr. Patel’s sureties, combined with GPS monitoring, could reduce the risk of further offences.
[30] She was not satisfied, however, that the plan was adequate to meet the tertiary ground. That was not an error. A plan may be sufficient for one ground, and insufficient for another. For similar reasons, I do not agree that the justice of the peace failed to properly evaluate the plan in light of the tertiary ground. The justice of the peace did not specifically evaluate it, but she did advert to the potential impact of Covid-19 on the sureties, and the risk to the administration of justice if the plan fell apart due to illness. The justice of the peace is not required to advert to all aspects of the plan of release in her reasons, as long as it is clear that she considered them. While perhaps the justice of the peace could have expressed her reasons on this point in a more complete way, in my view, when the reasons are read as a whole, she did so.
[31] Finally, I cannot agree that the justice of the peace failed to give weight to the Covid-19 pandemic in relation to the tertiary ground. On the contrary, the justice of the peace specifically commented on the pandemic in light of the tertiary ground. As I have already pointed out, she considered the fact that Mr. Patel had been infected, and considered the impact of his infection on the plan.
(c) Could Mr. Patel have met his onus on the tertiary ground?
[32] Mr. Patel has not demonstrated either an error of law or a material change of circumstances. Ms. Scott conceded that the plan was sufficient to meet the secondary ground, as the justice of the peace stated. If Mr. Patel had been able to demonstrate a material change or an error of law, could he still have met the onus on the tertiary ground? In my respectful view, he could not have.
[33] Mr. Patel essentially went on a crime spree involving a gun, a robbery, a car crash while driving a stolen car, pointing his firearm at bystanders as well as police officers, and shooting his way into a building to evade police. He has convictions for many of the same things, including dangerous driving causing bodily harm – twice, as well as robbery – also twice. His record also includes four convictions for failing to abide by court orders of various kinds. He also has other serious convictions on his record, including for extortion and drug trafficking. Unfortunately, Mr. Patel is a young man who has shown that he is basically ungovernable. I distinguish the case of R. v. Ofori-Mensah, 2020 ONSC 90 on that basis.
[34] A justice of the peace or judge evaluating the tertiary ground must consider all the circumstances of the case, including four that Parliament has specifically enumerated. Section 515(10)(c) of the Criminal Code sets them out:
(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.
[35] In this case, all four of the enumerated circumstances apply to Mr. Patel. The Crown’s case is extremely strong; the gravity of the offences is obviously very high; the circumstances are very troubling and include the use of a firearm; and Mr. Patel will be liable on conviction for a potentially lengthy period of incarceration. Other circumstances include the fact that Mr. Patel was on probation at the time of the offence, and his related and lengthy criminal record.
[36] Would a reasonable person, informed of Charter values, the purposes of the bail system, and the facts of the case, continue to have confidence in the administration of justice if Mr. Patel were released? (On this point, see R. v. Hall, 2002 SCC 64 at para. 41; R. v. St-Cloud at para. 74.) In my respectful view, the answer is “no”, notwithstanding a very good plan of release. This is one of those circumstances where the plan is simply not sufficient to overcome the tertiary ground: R. v. Dang, 2015 ONSC 4254 at para. 58. This is not a case where Mr. Patel was arrested on a theft under or possessed a small amount of drugs for personal use, or even was in a bar fight and struck someone. These allegations are considerably more serious and involve an extremely high level of recklessness.
DISPOSITION
[37] The application is dismissed. I thank both Mr. Newman and Ms. Scott for the skill and efficiency with which they conducted the hearing.
Released: May 12, 2021
COURT FILE NO.: CR-21-50000129-00BR
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ISMAIL PATEL
REASONS FOR JUDGMENT ON BAIL REVIEW
R.F. Goldstein J.