COURT FILE NO.: CR-22-0000352-00BR
DATE: 20221207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
ALEX GHAKHAR
Applicant
Meghan Scott, for the Crown
Daniel Varilone, for the Applicant
HEARD: December 1, 2022 at Toronto
Michael G. Quigley, J.
Reasons for Decision: ss. 520 C.C. Bail Review
Introduction
[1] On this application, Alex Ghakhar asks that I vacate the detention order of His Worship, Quamina J.P. of February 2022, and the subsequent order of B. O’Marra J. continuing that detention following a 90-day review conducted in July of 2022. He asks to be released based on alleged material changes in circumstance, and that he be kept under house arrest with electronic monitoring and video surveillance at the homes of his proposed sureties pending his trial.
[2] Initially, Quamina J.P. detained Mr. Ghakhar on both the secondary and tertiary grounds. O’Marra J. continued that detention. The Crown resists this application and opposes the release of the Applicant on both the secondary and the tertiary grounds in s. 515(10)(b) and (c) of the Criminal Code (the “Code”).
[3] The issue here is whether there has been a material change in circumstances that warrants the revisiting of the J.P.’s prior order of detention. If I find that there has been a material change in circumstances, then I must consider whether those materially changed circumstances call for the existing order of detention encompassing the first set of charges to be vacated, and Mr. Ghakhar to be granted bail based on the new proposed plan of suretyship.
[4] At the conclusion of the hearing held on December 1, I granted the application of the accused. These are my reasons for granting his release.
Background
[5] On January 30th, 2022, the Applicant was arrested and charged with firearm possession offences under the Code. They arose from him being found in a rented vehicle with a Glock pistol and high-capacity magazine in the glove box. The Applicant was also charged at that time with two fraud-under $5,000 charges and fail to comply offences further to an outstanding warrant for those offences dating from December 2021.
[6] At the time of his arrest the Applicant was already on two release orders. The first was a residential surety release for several outstanding charges including criminal harassment and failure to comply. This release was dated April 8, 2020. Importantly, it initially included a house arrest condition. The Applicant remained subject to that condition without incident until January 14, 2021, when Crown counsel agreed to vary that release order to remove the house arrest term entirely.
[7] In January 2022, Mr. Ghakhar was also on release on his own recognizance for a single count of failure to comply with an earlier recognizance, relating to an allegation in which it was claimed that he was out of his residence without a surety on September 25th, 2020.
[8] Quamina J.P. conducted a show cause hearing on February 18 and 22, 2022. He determined to detain the Applicant. The very telling transcripts from that hearing show his conclusions that the proposed sureties, Mr. Ghakhar’s father and mother, would be hopelessly inadequate to perform that role. In his view, the parents, while well meaning, had plainly demonstrated their unsuitability since they had also been his sureties on the two prior occasions he breached. However, it also shows his conclusions that Mr. Ghakhar was not a person who was releasable at that time.
[9] After the 90-day bail review, O'Marra J. ordered the continued detention of Mr. Ghakhar. The transcript for the bail hearing from July 19 was not available due to the poor quality of the audio recording, but O’Marra J.’s reasons for judgment delivered on July 21st were transcribed and I had the opportunity to read them, together with the entire proceedings before the J.P. in preparation for this further review under s. 520 of the Code.
[10] Going back a few months earlier to May 4, 2022, before the 90-day review, the Crown withdrew the Applicant's outstanding criminal harassment and associated fail to comply charges. Evidently Crown counsel concluded that there was no reasonable prospect of conviction.
[11] Then three months after the the 90-day Myers review, the Applicant resolved his outstanding fraud and associated fail to comply charges on October 13, 2022. He was given a seemingly quite lenient sentence of 60 days pre-trial custody time served, plus a suspended sentence and 12 months-probation. A DNA order was made.
[12] As a result, the “only” remaining charges before the court at the time of this review are the firearm allegations dating from January 2022, though these are obviously the most serious charges of the lot. They are scheduled to proceed to trial on February 28 to March 3, and April 24 and 25, 2023 in the Ontario Court.
[13] Mr. Ghakhar claims there have been several material changes in circumstance that warrant a reconsideration of the previous decision of the J.P., including but not limited to:
(i) He has now been in pretrial custody for a period totaling 10 months as of the date of this hearing;
(ii) He has now globally resolved his outstanding fraud under charges and associated fail to comply offences dating from December 2021 as well as the December 2020 fail to comply charge.
(iii) His criminal harassment and associated fail to comply charge were withdrawn on May 4, 2022, so the only outstanding charges before the court are in relation to the firearm and ammunition. They are of course very serious.
[14] Mr. Ghakhar’s counsel also contends that the J.P.’s detention order was at least in material part founded upon a factual error, which in turn flowed through and affected the reasons of O’Marra J. on the subsequent 90-day review. That error is claimed to undermine that part of the J.P.’s reasons in which he determines that the accused must be detained because he is ungovernable. In counsel’s view, it caused him to misapprehend the extent and seriousness of the Applicant’s fail to comply charges.
[15] At the time of the show cause hearing, it appears from his reasons that the J.P. was under the misapprehension that Mr. Ghakhar was under an order of house arrest bail, but that is incorrect. In fact, at the time of the January 2022 arrest for the firearms offences, Mr. Ghakhar had been living under a simple residential suretyship for almost a year without incident. That release plan became less restraining when Crown counsel removed the house arrest term upon the withdrawal of the criminal harassment and related fail to comply offences.
[16] However, that is not the flavour of the J.P.’s reasons in respect of the secondary ground:
At this point let me say quite clearly, I have no confidence in your parents’ ability to effectively supervise you if you are released. Given the evidence before the court, I am satisfied that you will do what you want to do. You will go where you want to go and you will fill in the blanks as you go along. This leads me to the question of the plan being proposed for your release.
[17] And then again, the point is made more directly in the J.P.’s description of the basis for his tertiary ground finding. The J.P stated:
I must comment on two other factors. It says having regard to all the circumstances. He was not supposed to be out. He was out, not in the company of his sureties, and the lack of supervision by his two parents cries out for him being left alone to do what he wants to do, where he wants to go, when he wants to go, and then having the parents explain their faith in him. (My emphasis).
[18] This misapprehension then flowed through the 90-day review where O’Marra J. commences his decision as follows:
Based on the accused's track record of breaching court orders, it is not surprising that the Justice of the Peace at the Ontario Court had no confidence that the accused would attorn to terms of release or that the sureties could fulfil their roles as sureties: R. v. Ghakhar, July 21, 2022, at p.1.
[19] Turning to the plan before me, it comprises two different residential sureties with a significant financial pledge. They claim they will be able to jointly supervise the Applicant 24/7, supplemented by GPS monitoring. The new plan of release also includes video surveillance which has been set up to monitor the Applicant at his proposed residence, which, together with the GPS monitoring, causes them to assert that they have been able to achieve the highest possible level of supervision.
[20] This is different from the plan before the J.P., but the very same plan with the very same sureties that O’Marra J. had before him. On that occasion, he concluded that the Applicant had to continue to be detained, not because of weakness in the plan, but rather entirely because of weakness in the ability of the Court to have confidence that the applicant, Mr. Ghakhar, would abide by terms of release given his prior history. In ordering that Mr. Ghakhar continue to be detained, B. O’Marra J. concludes:
All of my comments are not to criticize the proposed sureties. This is no shortcoming of the proposed sureties. This is the conduct of Mr. Chakhar that has put himself into this position. So I am satisfied that the continued detention of Mr. Chakhar is both justified and confirmed on the secondary and tertiary grounds: R. v. Ghakhar, Reasons for Judgment, July 21, 2022, at p. 8.
[21] It is the Crown’s position that there is no material change in circumstances warranting a bail de novo in this case. Indeed, she claims that the change in circumstances, if there is one, is to the Applicant's detriment since he now has two more convictions for breaching bails, and three more fraud convictions and a conviction for impaired driving. Crown counsel claims that the concerns on the secondary grounds are even more elevated now, and the concerns on the tertiary grounds remain unchanged, as the firearms offence remains outstanding.
[22] In summary, there is no dispute here relative to the plan that has been put forward per se. There is no dispute and both parties accept that O’Marra J. accepted, as do I, that the two new proposed sureties would faithfully honour their pledge to the court. The sureties and the plan are not the issue. The issue is the Applicant himself.
Applicable principles
[23] In R. v. Morales, the Supreme Court of Canada instructs that bail is not to be denied for individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Rather, it is to be denied only for those who pose a "substantial likelihood" of committing an offence, and only where that substantial likelihood endangers the protection of the safety of the public: see R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R.711 at para. 39.
[24] Section 515(10) of the Criminal Code spells out the only statutory grounds for the pre-trial detention of an accused. Since all accused persons are presumed to be innocent, the detention of an accused in custody is justified only on one or more of the following three grounds:
(a) where necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where necessary for the protection or safety of the public, including any victim of or witness to the offence, … having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if 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.
[25] In these circumstances, where the accused bears the onus of having to “show cause” justifying his release, he must satisfy the court that his detention is not justified. In relation to the secondary ground, more particularly, the accused must establish that his detention is not necessary for the protection or safety of the public, and that there is no substantial likelihood that, if released from custody, the accused will commit a criminal offence or interfere with the administration of justice. The release plan devised by the accused must persuasively address these issues.
[26] I happen to like the way Gans J. described the issue in R. v. Walton, [2005] O.J. No. 48 at para. 11 (S.C.J.), as not being one of absolute certainty but rather whether or not there exists a reasonably manageable risk that if the accused is released into the community under the proposed plan, that the likelihood of re-offending is not substantial.
[27] Before we get to that consideration, however, the burden is on the Applicant to establish a material change of circumstances. R. v. St. Cloud, establishes there are only three circumstances where a higher court is permitted to exercise its discretion to review a lower court’s order respecting the detention or release of an accused: (i) where the lower court has erred in law; (ii) where the lower court’s decision was clearly inappropriate; and/or, (iii) where new evidence is submitted to show a material and relevant change in the circumstances of the case: R. v. St. Cloud, above, para. 121.
[28] The applicant here does not allege an error in law or that the previous decisions were clearly inappropriate, but he does allege an error of fact that caused the J.P. to misapprehend the need to detain Mr. Ghakar in the first place. He alleges several material changes in circumstance, but St. Cloud confirms that as the reviewing Justice, I must first determine if it is appropriate to exercise my powers of review, remembering that it is firmly established that I have no open-ended discretion to vary the initial decision made by the J.P.
[29] Both ss. 520(7) and 521(8) of the Code do allow new “evidence or exhibits” to be tendered by the accused or the prosecutor. In St. Cloud, Wagner J. (as he then was) adopted the “new evidence on appeal” criteria established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, for the purpose of determining what new evidence may amount to a material change in circumstances. He cautioned that new evidence should not be limited to that which was plainly unavailable to the accused before the initial hearing and observed that the adoption of a narrow view regarding the “new evidence” that can be admitted under those sections could well result in the interests of justice being undermined.
[30] The "new evidence" on appeal criteria establish that the evidence should generally not be admitted and thus will not be a material change if, by due diligence, it could have been adduced at trial. Further, it must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial and be credible in the sense that it is reasonably capable of belief. Finally, 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: R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at para. 50.
[31] As the reviewing judge, I must make a case-specific determination why the accused did not tender pre-existing evidence earlier, and whether that reason is legitimate and reasonable. In this case, the reason is plain.
[32] I accept that the withdrawal of certain charges and the resolution of others occurred only after the initial bail hearing and that it does represent a “change.” I also accept that the plan put before O’Marra J. was considerably stronger than the earlier plan for the simple reasons that the sureties were obviously stronger individuals who would call 911 first and ask questions later at the slightest sign of a breach of conditions. That also was a change. The length of time Mr. Ghakar has now been detained, ten months, is also a factor, as is the effect of the claim of a mistake of fact on the suitability of the initial order.
[33] Each of these elements is a change. Without determining whether any one of them alone constitutes a material change, I find that in aggregate they do. In addition, however, as I will discuss below, one of the most significant evident changes is the change in the accused, and the evidence that is now available of his willingness to abide by the new plan of release. As such, in my view, the applicant has met the onus on him to establish a material change of circumstances
Analysis
[34] It is plain and obvious here that the only issue on a de novo consideration of whether this accused can be released is on the question whether he will abide by the terms of release and the household rules of the sureties who have gone out on a limb to offer their service, and a substantial financial pledge, should the accused be released on the proposed plan.
[35] To cut directly to the chase, the observation is often correctly made by lawyers and judges that there is no release plan that is perfect. I agree with that. It is not about the perfection of the release plan, because no doubt some might argue that the perfect release plan is one that effectively amounts to incarceration, but with a different set of jailers. But as I have observed before, it will never be about the perfection of the release plan, but rather the courts’ ability to have confidence that the accused can be trusted to abide by the plan, at all times, whether within eyesight of his sureties or not, and whether supervised or not.
[36] In many cases, notwithstanding the sincerity of the plan and the best wishes of the sureties, it is plain they would be putting themselves at inordinate risk if the accused were to be released on the proposed plan, because prior offences and continuing violation of prohibition orders imposed by the court suggests that the accused is more likely to be ungovernable and thus, the court cannot be assured to the extent required that the plan will succeed.
[37] Defence counsel here helpfully focused his submissions on recent caselaw where other jurists were facing the same question that I face here, and were assisted, or unassisted as the case may be, by the presence or absence of evidence from the accused of his or her willingness and commitment to adhere to a plan of release. Of course, the accused must benefit from the presumption of innocence, even in a strong Crown case like this one, and it is true that the granting of bail is the presumptive default position, but only in circumstances where the court can be satisfied that the accused will be compliant. In the absence of evidence on the point from the accused, the court is left with an evidentiary lacuna. The only other available evidence that can be used to fill that hole is inferential evidence derived from the accused’s prior compliance history.
[38] In her submissions, Crown counsel said there was no evidence from Mr. Ghakhar indicating that he would abide by the plan. I observed that was not correct, and Crown counsel corrected herself acknowledging that there was some evidence present in Mr. Ghakhar’s affidavit.
[39] In his affidavit, affirmed for this hearing, the accused recounts the entirety of his criminal antecedents, and the history of his applications for judicial interim release. Amongst the statements made by Mr. Ghakhar are the following:
The only outstanding charges that I have before the court are the firearm allegations from January 2022.
Disclosure has been received in relation to the January 2022 firearm allegations and my counsel is in the process of scheduling a trial in the Ontario Court of Justice.
If I am granted judicial interim release, I propose, and agree to abide by the conditions outlined in the proposed plan of release (attached at Tab 3 of this Application Record).
I am aware that if I violate any conditions of my release my sureties will lose the security that they pledge, and I will risk being charged with a criminal offence that could result in my judicial interim release being revoked.
Given the amount of money pledged by my proposed sureties I affirm that if released I will not engage in any activity that would be in breach of the proposed conditions. I would not undertake any action that would put the savings of my sureties, given their generosity and the fact that I respect them, at risk of being forfeited to the court.
I am aware that these matters may be before the courts for a lengthily period of time. If released, I will not engage in any unlawful conduct or breach my conditions of release. I will allow myself to be supervised by the proposed sureties, and I will follow their instructions without question.
[40] Further, Mr. Ghakhar did testify on this hearing after having been affirmed to tell the truth. He explained that he had been in custody for exactly ten months on these charges but had only ever previously been in detention for a day or two. He explained that he found the experience of living at Toronto South to be “very rough”, something he has never experienced before, with poor personal conditions, exposure to Covid 19, and having spent over half of those ten months in lockdown. When asked if he has learned any lessons from the experience, he vigorously asserted that he has learned from the past, has learned from his mistakes, plans to be a better man, and to live life the right way. Mr. Ghakar emphasized that he will fully comply with the terms of release. He said he has had a lot of time to reflect on the bad paths his life was on, and his intent to change roads. If permitted on release, he would continue his post-secondary education, and comply fully with the dictates of the sureties and all orders of the courts.
[41] Importantly, in cross-examination, Ms. Scott asked what was different? He had lived with his parents before and promised to abide by their rules, but he had not done so. Mr. Ghakar said he has to accept that the past is the past, and the wrongs done cannot be undone, but he explained he has a very different understanding now. He understands the dire importance of total compliance, and that there will be no more understandings or opportunities if he does not fully comply with the terms of bail, were he to be released.
[42] I have heard some counsel in other bail hearings suggest that affidavit or viva voce evidence of an accused is of little import, because the accused is never going to say that they will not abide by the plan. They will always say that they will adhere to the terms of release, whether they will, or not. That may be true, but that does not displace the potentially positive impact that an accused’s evidence may have on the result if he or she is cross-examined on an affidavit and challenged on whether they will adhere to the proposed terms of release. That was exactly the case in the very recent decision of I.M. Carter J. of this court in R. v. Yussuf, [2022] O.J. No. 3299 (S.C.J.).
[43] In that case, Yussuf applied for bail review based on material change in circumstances. Yussuf was charged with assault, and offences of possession and pointing of a loaded, restricted firearm. The offences were serious, and it was clear that if convicted, Yusuf would face a significant jail sentence. At the time of his arrest on the charge of possession and pointing of the firearm, Yussuf was subject to a conditional sentence order (CSO) from another matter. Consequently, this caused the onus to be reversed and put the burden on him to show that he could safely be released. The strength of the Crown's case was overwhelming.
[44] At the conclusion of the hearing, Lipson J. detained the accused on both the secondary and tertiary grounds. On the secondary ground, Lipson J. allowed that the proposed plan of release was not “frivolous”, but like here, emphasized that the real question was whether Mr. Yussuf could be trusted in any way to comply with the terms of a release order, were it to be granted.
[45] In light of Yussuf’s record for non-compliance with court orders, and his record for violence, the bail judge concluded that he could not. As well, he found the accused to be a model candidate for detention under the tertiary ground, concluding that the public would be appalled that an individual in the position of Yussuf could be released on bail with the proposed bail plan.
[46] Yussuf served the remainder of his conditional sentence in custody. By June 7, 2022, he had completed serving that sentence. No further action on his conditional sentence was required, but counsel brought an application under s. 520 to review the remaining detention order of Lipson J.
[47] Unlike here, there was no allegation of legal or factual error made there, but the defence submitted that there were three material changes of circumstance. First, Yussuf had completed his sentence on the CSO. Second, and most importantly, Yussuf gave evidence about his time spent in custody, disclosure of criminal past to his family and the reasons why he would abide by his conditions if released. Lastly, a revised bail plan was proposed that included an additional surety, the installation of two security cameras in the home and stricter conditions. The Crown argued that the evidence did not establish a material change of circumstance. The defence was successful in establishing a material change in circumstances, so Carter J. conducted a new bail hearing.
[48] In the result, the application was granted. Carter J. found that the fact that Yussuf had completed serving his conditional sentence did not, on its own, make it more likely that he would abide by the conditions imposed if he were to be released. However, the combination of Mr. Yussuf’s evidence on the hearing and the revised bail plan did amount to a material change, for the simple reason that they directly addressed the bail judge’s principal concern, that Yussuf could not be trusted in any way to comply with the terms of a release order. Moreover, the nature of the enhanced release plan combined with the evidence of the accused could reasonably have been expected to affect the result on the tertiary ground.
[49] Carter J. also considered both the strict release plan and s. 493.2(b) in making his determination. He concluded that Yussuf’s detention was not necessary to maintain confidence in the administration of justice. For the secondary ground, the judge found that Yussuf gave his evidence in a straightforward manner. He made concessions about his criminal record, did not argue with the Crown and did not take unreasonable positions. His evidence was largely unchallenged. He was being subjected to a very strict form of house arrest. In granting release, Carter J. observed, as we all know, that “[n]o plan is fool proof. There will always be the possibility that an accused will breach the conditions of release.”
[50] This decision is in stark contrast to two others noted by counsel, where the failure of the accused to give evidential insight into his willingness to abide by a plan of release resulted in the application for bail to be denied.
[51] In R. v. White-Wilson, 2021 ONCJ 276, the accused was charged with 15 offences involving firearms, domestic violence, and breaches of court orders. He was alleged to have violently assaulted his girlfriend on numerous occasions and pointed a handgun at her. When the police searched his residence, they found a loaded, prohibited firearm on his bedroom floor. At the time of the alleged offences, he was subject to two weapons prohibition orders and he had a significant criminal record for assault causing bodily harm, assault, and theft, and faced outstanding charges for robbery, assault, and fraud.
[52] The proposed plan of release consisted of house arrest conditions, where it was proposed that the accused would live with his mother, who would act as surety, along with supervision of his grandmother, who would also act as surety and pledge $10,000. However, P.T. O’Marra J. dismissed White-Wilson’s application for judicial interim release. At para. 46 he explains why:
46 Given the danger that the Defendant poses and his record of committing offences while on bail, in my view, the plan relies heavily on the Defendant adhering to direction and instruction from his mother. I have no confidence that the Defendant will listen to his mother. Past performance is a predictor of future behavior. The argument over “house stuff” prompted the Defendant to move out, defying a clear condition to reside at his mother’s address. The evidence was anything but clear that the Defendant even listens to his mother or accepts direction from her. Having said that, even if I assume the proposed sureties are completely adequate and the plan of supervision is appropriate, I did not hear any evidence from the Defendant that he is prepared to following the terms of his release and be supervised by his mother and grandmother. Hearing from the Defendant may have assisted me in coming to terms with the Defendant’s risk and determining the success of the plan. But without it, the prospects of the Defendant overcoming his onus on the secondary grounds are very limited. (see: R. v. A.I., [2020] O.J. No. 1690 paras. 62 and 64) (My emphasis)
[53] Finally, I refer to the referenced paragraphs in R. v. A.I., [2020] O.J. No. 1690 (O.C.J.). The accused was charged with numerous firearms offences. He allegedly fled from police who responded to a shooting. While he was in flight through a neighborhood, he was carrying three loaded handguns, but he abandoned them as he fled, in places to which the public had access. It was plain that the Crown had a strong case since DNA found on at least one of the handguns was matched to the accused. The accused had a criminal record for weapons, drug, and breach offences. The proposed plan of release included four sureties and house arrest conditions. — At the time, early in the COVID-19 pandemic, there was evidence from medical professionals that jail facilities were incapable of providing enough space between inmates to adequately protect them from COVID-19. Nonetheless, the accused’s application for judicial interim release was dismissed. At paras. 61-64, at paras. 62 and 64, G. Paul Renwick J. explained why:
61 This brings me to my second overwhelming concern with the evidence received during this show cause hearing: there is a complete absence of evidence with respect to the Defendant’s commitment and intention to follow anyone’s supervision if he is released on bail.
62 Assuming that all of the proposed sureties are completely adequate and the plan of release is appropriate, I have no confidence that the Defendant is even minimally interested in following the terms of the proposed release or the supervision of his family.
63 Until now, it seems that the Defendant has failed to abide by his parents’ counsel to stay out of trouble over the past 10 years. Moreover, in 2018, half-way through his 18-month probation order, the Defendant was convicted of failing to comply with probation. Lastly, some 13 months after the Defendant was prohibited for the second time from possessing any prohibited or restricted firearm for life, he is alleged to have possessed three loaded, firearms — two of which are restricted, while one is a prohibited firearm, pursuant to the definitions found within s. 84(1) of the Criminal Code.
64 If ever there was a case where a defendant’s testimony could possibly have made a difference in respect of overcoming his onus on the secondary grounds, this was it. Without it, I am not satisfied that this plan has any real hope of success. (My emphasis)
[54] All of which brings me back to the circumstances of Mr. Ghakhar. Crown counsel says nothing is different, that he has previously said he would not put sureties at risk but then has done so. She says the only thing that is different is that he has had the opportunity to think about it. She has no issue with the sureties or the plan of release, acknowledges that there will be GPS monitoring and the presence of new video surveillance cameras designed to reveal all access and egress to and from the surety’s home. She also acknowledges that his level of culpable conduct in the past has not been at the high end of criminality, but says his pattern is escalating.
[55] It is true that the charges he presently faces are very serious, but given that he was given the very lenient sentence of 60 days pre-trial custody time served, plus a suspended sentence and 12 months-probation for the guilty pleas to the fraud and four fail to comply charges, it seems a bit crushing to me and overreaching to attribute excessive egregiousness to his antecedents and suggest that this young man is lost, and cannot find his way back and must therefore be detained in custody pending trial.
[56] In the result, I am satisfied that the plan of release is strong, that the sureties are strong, that the additional elements are strong, and that Mr. Ghakhar is committed to abiding by the terms of release and obeying his sureties. My confidence in him, derived from his evidence before me, also serves to assuage concerns on the tertiary ground. It largely follows that if an accused is releasable on the secondary ground, it will be the unusual case where confidence in the administration of justice would be damaged by the release of an accused on a good plan of release, with a strong commitment.
[57] In the result, I am of the opinion that the detention of the accused is not necessary or justified under either the secondary or tertiary grounds in ss. 515(10)(b) or (c) of the Code. Mr. Ghakhar will be released into the supervision of the sureties under the plan of release attached.
Justice M. Quigley
Released: December 7, 2022
COURT FILE NO.: CR-22-0000352-00BR
DATE: 20221207
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Respondent
– and –
ALEX GHAKHAR
Applicant
REASONS FOR BAIL REVIEW RULING
M.G. Quigley, J.
Released: December 7, 2022