Court File and Parties

COURT FILE NO.: CR-23-60000284-00BR DATE: 20231122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MOHAMMAD KHODADAD Defendant

Counsel: Katherine Rogozinski, for the Crown Bradley Pearson, for the Defendant

HEARD: October 11, 2023

MOLLOY J.

Reasons for Decision

PUBLICATION BAN pursuant to ss. 517(1) and 520(9) of the Criminal Code. [FOR CLARITY - COUNSEL ARE PERMITTED TO CIRCULATE ENDORSEMENT TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT PARTICULAR DEFENDANT’S CHARGES, AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT OR HIS PERSONAL CIRCUMSTANCES]

A. INTRODUCTION

[1] This matter was brought before me for a 90-day review, pursuant to s. 525 of the Criminal Code, R.S.C. 1985, c. C-46, to determine whether Mr. Khodadad’s detention pending trial remains justified. At that point, Mr. Khodadad had been in custody since May 8, 2023. He had applied for bail, but his application was dismissed on May 18, 2023, at a bail hearing before Justice of the Peace Ng. He did not seek a review of that decision.

[2] After reviewing the evidence and hearing submissions from counsel for Mr. Khodadad and for the Crown, I ruled that Mr. Khodadad’s continued detention was necessary under both the secondary and tertiary grounds and advised that written reasons would follow. Those reasons are set out below.

B. BACKGROUND AND NATURE OF THE CHARGES

[3] Mr. Khodadad was arrested on May 8, 2023 and charged with: conspiracy to commit the indictable offence of car theft; possession of automobile master keys; various charges related to possession of a loaded restricted firearm found in a rented car associated to him; and two counts of breaching weapons prohibition orders.

[4] Mr. Khodadad was detained following his arrest. He had a bail hearing on May 15, 2023 with his mother proposed as a surety for his release. He was in a reverse onus situation because of two prior weapons prohibition orders he was alleged to have breached. On May 18, 2023, Justice of the Peace Ng rendered his decision ordering Mr. Khodadad’s detention until trial, based on the secondary and tertiary grounds. The justice found that although Mr. Khodadad’s mother was well-intentioned, Mr. Khodadad could not be trusted to follow court orders and would likely reoffend in a violent manner. Mr. Khodadad took no steps to challenge that ruling.

C. NATURE OF THIS PROCEEDING

[5] This s. 525 hearing arose because Mr. Khodadad had been in custody for 90 days since he was denied bail on May 18, 2023. The Criminal Code requires a review by a judge at that point to determine whether his continued detention remains justified. The Supreme Court of Canada held in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 (“Myers”), that the purpose of this review is to prevent persons from languishing in pre-trial custody and to ensure a prompt trial. The Supreme Court also held that there is no requirement to show that there has been undue delay before proceeding with a 90-day review hearing. That does not mean that undue delay is an irrelevant factor at the hearing, only that it is not a threshold requirement.

[6] Prior to Myers, at least in this jurisdiction, at the reviewing judge at a 90-day review hearing would make inquiries to ensure that a person in custody had not slipped between the cracks and that his or her case was proceeding along an appropriate time frame. Persons in custody would be advised of their right to seek a bail hearing (if they had not had one) or a bail review. They would be asked if they had a lawyer, if they were able to contact their lawyer when needed, and told what they could do if they wanted a lawyer, but did not have one. Occasionally, a bail hearing would be conducted, but that was not the norm. The nature of that hearing has changed dramatically since Myers.

[7] The Supreme Court was clear in Myers that the overarching question to be determined at a s. 525 hearing is whether the continued detention of the accused is justified under the same three tests as would be applied in an original bail hearing (the primary, secondary and tertiary grounds). Where, as here, an accused person has applied for and been denied bail, the judge at the s. 525 hearing should “show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them.” In addition to the record that was before the initial decision maker, the s. 525 judge may consider new information, particularly where there has been a change in circumstances, or where the amount of time already spent in custody may be disproportionate when compared to the likely sentence if convicted at trial. The Supreme Court also held that the s. 525 judge should intervene where the initial decision maker made an error of law. The Supreme Court then concluded:

The need to revisit an initial detention order will not arise in every case, and in the absence of a basis for judicial intervention, there is no need for a s. 525 hearing to become a protracted or formal proceeding. However, the judge must be alive to these issues when they arise, and must be prepared to respond to them appropriately.

[8] The Supreme Court held in Myers that the s. 525 review is not the same as the review of a detention order under ss. 520 or 521 of the Criminal Code. A review under ss. 520 or 521 is a review of an order, whereas a s. 525 review is a review of the detention itself. While directing that s. 525 judge should show respect for the findings of fact, balancing exercise, and weighing of factors conducted by the original bail judge, the Supreme Court also directed that the s. 525 review could not be a “rubber stamp” of the initial detention order. Although saying that the hearing is not necessarily protracted, and finding that it was not Parliament’s intention for the s. 525 judge to reconduct the entire original bail hearing, the Supreme Court charged the reviewing judge with the dual responsibilities of ensuring there were no errors of law in the initial decision and reviewing any change of circumstances. With the greatest of respect, having conducted a number of these hearings, I fail to see any real difference between a s. 525 review and any other review of a detention order. Indeed, most of these s. 525 reviews are essentially hearings de novo, with some deference to the reasons of the original decision maker. For a situation in which a detention order was previously made, the only real difference in the s. 525 analysis is with respect to who bears the onus.

[9] The Crown submits that it should not be easier for an accused to obtain release on a 90-day review than on a regular bail hearing, or on a review of a detention order. I agree with that in principle. It makes sense. However, in the result, given that I must consider errors of law made by the original decision maker and any change in circumstances (which includes the impact of the passage of time), the subject matter of this hearing is the same as a review of a detention order. Further, for the reasons I set out below, I believe that there is no onus on Mr. Khodadad to justify his release, notwithstanding that he was in a reverse onus situation on his original bail application and the fact that there has been a detention order made in the first instance. Therefore, it is easier to obtain a release under s. 525, albeit only after 90 days of detention.

[10] The Supreme Court in Myers does not deal specifically with the issue of who bears the onus under a s. 525 review. In R. v. Bentley-Jean, 2023 ONSC 1384, Davies J. of this court reviewed a number of conflicting decisions as to whether the onus on the s. 525 review should be on the accused when there has already been a detention order, should remain the same as at the original hearing, or should be on the Crown. Based on the decision in Myers, she concluded that the reviewing judge has an independent responsibility to consider whether the detention is justified, and that this responsibility means that there can be no onus on the accused to show that he should be released, regardless of where the onus lay at the initial hearing. Schrek J. and Coroza J. (as he then was) reached similar respective conclusions for the same reasons: R. v. G.F., 2020 ONSC 3389, per Schreck J.; R. v. Pescon, (unreported, 16 March 2020), per Coroza J. In my view, those conclusions are consistent with the reasoning in Myers and therefore correct in law.

[11] I confess that this conclusion does not sit well with me, as it seems to conflict with other provisions of the Criminal Code. The bail provisions in the Criminal Code contain several situations where the onus is placed on an accused to demonstrate that he or she should be granted bail, applying the three grounds for detention listed in s. 515(10). These reverse onus provisions are constitutionally valid: R. v. Morales, [1992] 3 S.C.R. 711; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309. There will be many situations where a person was detained after a hearing in which a reverse onus applied. However, after 90 days, the accused is entitled to a further hearing under s. 525 at which there is no onus. The effect is that the reverse onus clauses in all these provisions are only operable in the first instance and expire after 90 days of detention. Similarly, under s. 520, the party seeking the review of the original order granting or denying bail bears the onus of showing a mistake of law or a material change in circumstances. However, at the 90-day review stage, there is no such onus, notwithstanding the duty of the presiding judge to consider any errors of law or changes in circumstances since the original order was made. In practical terms, this typically results in a complete reconsideration of the issue of detention, rather than a less onerous review of the original order. This places a further burden on an already over-burdened court to spend a lot of time conducting what amounts to de novo bail hearings. While this result strikes me as wrong, I agree with my colleagues who have found that it is the necessary implication of the Supreme Court’s reasoning in Myers. It is therefore the test I feel bound to apply. Accordingly, for purposes of this review, there will be no onus on Mr. Khodadad to establish that his detention should not be continued.

[12] Because Mr. Khodadad does not bear the onus of showing why the detention order should be set aside, he is in a better position than he was at the original hearing, and in a better position than he would have been had he sought a review of that order in the normal course. While that might not seem logical, nor even desirable, it is in my view the inevitable result of the Supreme Court’s decision in Myers.

D. PASSAGE OF TIME/DELAY

[13] Mr. Khodadad has been in custody since his arrest on May 8, 2023. As of the date of the hearing before me, there had been no undue delay by the Crown. The case was still in the Ontario Court of Justice but was not eligible for a preliminary hearing. A judicial pretrial was scheduled for the following week, at which point a trial date would be set. It was expected that the trial would be in February or March 2024. It was further expected that the trial would be completed within a reasonable time and that the case was not in any jeopardy of being dismissed for delay pursuant to s. 11(b) of the Charter.

[14] Mr. Khodadad faces serious charges involving a loaded firearm. He has a substantial and related criminal record. The time he is serving awaiting trial will not come close to exceeding the sentence he will likely receive.

[15] Accordingly, I see no basis for setting aside the detention order based on delay or the passage of time. Mr. Khodadad is represented by counsel, is not languishing in prison having somehow slipped through the cracks, has not been affected by any unreasonable delay, is not in danger of his trial not proceeding in a reasonable time, has not already served a sentence equivalent to what he would ultimately receive if convicted, and could have brought a bail review at any time. Given those circumstances, I would previously have thought that the purposes underlying s. 525 had been met. However, in light of the decision in Myers, I will go on to consider the issues of error of law and change in circumstances.

E. NO ERROR OF LAW

[16] I have reviewed Justice of the Peace Ng’s decision dated May 18, 2023, ordering Mr. Khodadad’s detention. The reasons are not lengthy, but sufficient to permit appellate review and to demonstrate that the justice understood the law and properly applied it. The basis for his decision is readily apparent from his reasons. I find no error of law.

F. CHANGE IN CIRCUMSTANCES

[17] There are two factors that may constitute a change in circumstances warranting a hearing that is, in essence, a de novo hearing. First, a different surety is proposed: Mr. Khodadad’s father (“Mr. Khodadad Sr.”), with whom it is proposed the accused will reside, and who does not work, leaving him available to supervise his son almost all the time. In addition, the accused’s mother (who was the proposed surety at the original bail hearing) will also be a surety and will be available as back-up when required. There is a legitimate question as to why Mr. Khodadad Sr. was not proposed as a surety at the first bail hearing. His testimony before me was that he would have been willing, but he did not realize it might be required. Given the onus on a hearing of this nature and the liberty of the subject that is at stake, I prefer not to decide this case based on the technical argument that Mr. Khodadad Sr. was available as a surety initially and adding him now should not be seen as a change in circumstances. It seems to me that proceeding in that manner would be a review of the detention order, rather than a consideration of whether the detention is justified, as required under Myers. My task is to determine whether any of the three grounds that would have applied at the initial bail hearing form a basis to continue Mr. Khodadad’s detention. In those circumstances, I consider it inappropriate to take a hard line on what could have been put forward at the initial hearing, but was not.

[18] The second factor that creates a different approach in this hearing is the onus. As I have indicated above, there is no onus on Mr. Khodadad in this hearing to establish that he should be released. However, there was a reverse onus at the initial hearing before Justice of the Peace Ng; Mr. Khodadad was required to demonstrate why he should not be detained. It is difficult to determine the extent to which that was a determinative factor in the justice’s decision to detain. Therefore, while I can certainly give some deference to the findings of the justice, I am essentially required to decide this issue anew.

G. THE CROWN’S CASE AGAINST THE ACCUSED ON THESE CHARGES

[19] On May 8, 2023, two plain-clothes police officers ran the licence plates on a Honda CR-V they saw parked on a Toronto street and learned that it had been stolen. The person who had been driving the Honda got out and got into a Mercedes, which had been parked in front of the Honda. The police checked those licence plates and discovered that the Mercedes had also been stolen. They followed the Mercedes to a parking lot, where it parked next to a grey Volkswagen Jetta. Mr. Khodadad and another man (Gregory Lucas) were standing beside the Volkswagen and were engaged in conversation with the driver of the stolen Mercedes. The police arrested the driver of the Mercedes and detained Mr. Khodadad and Mr. Lucas for investigation based on their interactions with him. The police did a pat-down search of Mr. Khodadad and found a master key programmer on his person. He also had the keys to the Volkswagen. In the Volkswagen, police found a box with a number of blank keys and a loaded Glock 19 handgun, with extra ammunition, some of which was hollow-point. The gun had an extended magazine, and a device designed to turn it into an automatic firearm, both of which are prohibited devices. Mr. Khodadad’s wallet and various other personal items were in the Volkswagen. It had been rented by Mr. Khodadad Sr., Abdul Khodadad, who is now the proposed main surety.

[20] At the time of his arrest, Mr. Khodadad was subject to two separate five-year weapons prohibition orders.

[21] He is now charged with possession of two automobile master keys and conspiracy to commit the indictable offence of car theft. He is also charged with multiple offences in relation to the firearm: possession; careless storage; having it in a motor vehicle; possession of the two prohibited devices; and possession in breach of the prior prohibition orders.

[22] It must immediately be recognized that Mr. Khodadad is presumed innocent of the charges he now faces. Further, he may bring Charter applications that could result in the exclusion of some of the evidence against him. Nevertheless, this is, in my view, a very strong Crown case. It was clear that the driver of the Honda and the Mercedes was in possession of two separate stolen cars. He went to a parking lot where he met up with Mr. Khodadad. There is a strong argument that the police had at least reasonable grounds to investigate Mr. Khodadad’s possible involvement, and to detain him for purposes of investigation. A pat-down search in that situation is quite reasonable. The discovery of the master key programmer constituted an important link between Mr. Khodadad and the conspiracy to commit car theft. In addition, Mr. Khodadad had on his person a black balaclava, not an innocuous item to have in the month of May.

[23] According to the police evidence, there was a box in plain view on the seat of the Volkswagen, which had the writing “Universal Remote” on it and a photograph of key fobs. One officer’s attention was drawn to an object on the floor of the front passenger side of the car. He could see part of a handgun, with three illuminated red sights glowing. These observations led to the arrest of Mr. Khodadad and a search of the car, which in turn revealed the firearm I described above and a number of blank keys in the box seen on the seat.

[24] There is an overwhelming Crown case putting Mr. Khodadad in possession of the Volkswagen. He had the keys in his pocket. His wallet and a number of personal possessions were in the car. The car was rented a few days earlier by Abdul Khodadad, who is the accused’s father and proposed surety. At the hearing before me, Abdul Khodadad testified that he specifically rented the Volkswagen for his son at his request, and that it was only put in his own name for purposes of insurance. He testified that his son was the intended principal driver, even though that was never disclosed to the car rental company.

[25] Obviously, a lot can happen between now and trial, and a lot can happen during the course of a trial. However, when considered at this point in time, this is a formidable Crown case.

H. THE CRIMINAL RECORD OF THE ACCUSED

[26] Mr. Khodadad is now 22 years old. The first entry on his criminal record is from Youth Court in 2018, when he was convicted of armed robbery using an imitation firearm. He pleaded guilty to that offence, which involved him pointing a firearm at the victim’s head and threatening to “blow his brains out.” After credit for 150 days in pre-trial custody, he was sentenced to four months in secure custody, followed by two months’ supervision in the community and 18 months’ probation. A mandatory weapons prohibition order was issued.

[27] In 2020, still in Youth Court, Mr. Khodadad was convicted of two counts of armed robbery while using a restricted or prohibited firearm. That offence was committed on November 22, 2018, two days after his custody and community supervision on the previous robbery was completed and while he was still on probation. He, acting in concert with others, was involved in robbing multiple Rogers/Fido stores in Toronto and, when arrested, was in possession of a firearm, disguises, and zip-ties. He was credited with 543 days in pre-sentence custody and sentenced to a further 18 months’ probation. Once again, a mandatory weapons prohibition order was made.

[28] In 2022, both Mr. Khodadad and his father were charged with criminal harassment and uttering threats in connection with his father’s dispute with a tenant. Both he and his father were given absolute discharges. I have not taken this into account with respect to either of them, as I have insufficient facts to make an informed assessment.

I. PRIMARY GROUND FOR DETENTION

[29] The Crown has not raised any concerns about whether Mr. Khodadad will fail to appear for future court dates if released on bail. He was born in Iran, but is a Canadian citizen and has lived here most of his life. He has roots here, including both his parents who live in Toronto. There is no basis to detain him on the primary ground, and Justice of the Peace Ng likewise did not detain Mr. Khodadad under this ground.

J. SECONDARY GROUND FOR DETENTION

[30] On the secondary ground, I am required to consider whether Mr. Khodadad’s detention is necessary for the protection or safety of the public, having regard to all of 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.” (Criminal Code, s. 515(10)(b)). On this ground, I find that detention is necessary, as did Justice of the Peace Ng at the original bail hearing.

[31] In my view, there is a substantial likelihood that Mr. Khodadad will re-offend in a similar manner if released on bail. This is now the third time in five years that Mr. Khodadad has been arrested in circumstances that involve the commission of an indictable offence with a firearm. I appreciate that he is presumed innocent of the current charges. However, there is, in my opinion, a strong Crown case against him, as discussed earlier in these reasons. The previous offences for which he was convicted also involved violence. The presence of disguises and zip-ties, along with firearms, in the second set of robberies is concerning, particularly in light of the balaclava in Mr. Khodadad’s possession at the time of his arrest on these charges and the loaded firearm in his car. The nature of the firearm found in the Volkswagen is also deeply troubling. It had an over-capacity magazine and a device that could turn the firearm into a fully automatic weapon. As if these aren’t ominous enough, some of the ammunition was hollow-point, which expands upon impact and creates maximum damage to that person’s body. In other words, the firearm (already dangerous enough by itself) came with more than the normal maximum number of bullets, the ability to fire them very quickly, and bullets that would cause maximum damage to any person hit. The firearm was being carried around in public in a motor vehicle, which represents a very serious threat to the safety of the public.

[32] Mr. Khodadad has demonstrated by his past conduct that he is undeterred by court orders. He committed the second set of robberies while still on probation for the first one. He was also in possession of a firearm, notwithstanding the prior weapons prohibition. A further prohibition order was issued at the time of his sentencing for the second set of offences on September 30, 2020. Then, a little over a year after the end of the probation period on the second offences, and while still subject to two prohibition orders, it appears that he was once again in possession of a prohibited firearm.

[33] Sometimes, a very strong plan of supervision can overcome a concern that an accused will reoffend in a manner dangerous to the public if released. This is not such a case. The proposed surety is Mr. Khodadad Sr. In theory, he is a strong surety as he has no criminal record and is in a position to supervise his son almost constantly because he is retired (or on disability pension, it not being clear which). However, I did not find Mr. Khodadad Sr. to be reliable and I would not trust him to turn in his son to the police if he violated the terms of his release.

[34] Mr. Khodadad Sr. knew very little about the charges against his son. He said in his testimony that all he knew was that a weapon was found in the car but that it did not belong to his son. Given his son’s track record with respect to firearms, I do not know why he would so readily believe that, particularly given the surrounding circumstances. Further, he seems to have turned a blind eye to the car theft conspiracy and to be unaware that ownership of the gun is not determinative of possession. To me, he seemed predisposed to make excuses for his son, which is perhaps understandable for a father, but not necessarily a good thing for a surety.

[35] I am also troubled by Mr. Khodadad Sr.’s involvement in renting the car for his son, without any apparent concern about why he needed it or what he was going to use it for. All he said was that his son’s Mercedes was being repaired because it was not running well. Further, he rented the car in his own name and did not list his son as a driver. When questioned about that, he said that he “did not know exactly” but thought there was “an issue about the insurance.” The accused was 22 years old at the time. Typically, it is more expensive for individuals under the age of 25 to rent a car and rental insurance coverage is also more costly. If this was the reason for concealing who would be actually using the car, then Mr. Khodadad Sr. was clearly prepared to engage in dishonesty on his son’s behalf, which I do not find to be reassuring.

[36] Mr. Khodadad Sr. was vague about what his son would be doing while on bail, although he proposed that Mr. Khodadad continue with a job he had previously working in the kitchen of a nursing home on weekends and also work during the week as an apprentice with the Sheet Metal Worker Association Union, Local 285. In his affidavit filed in support of the application, he said that he was advised and believed that his son would be eligible to return to the nursing home job. However, in cross-examination it appeared that the sole source of this information was his ex-wife (the accused’s mother), who also worked there. Mr. Khodadad Sr. was aware that previously when his son was in custody, his mother lied to her employer and told them that her son could not come to work because he had to stay with his father because of his heart condition. When asked if he was concerned about his wife lying to her employer in that manner, Mr. Khodadad Sr. said he “wasn’t thinking about it like that.” When pressed, he said he was concerned about the lying, but added that the reason the accused’s mother lied was because “she was concerned he would lose his job if she told the truth.” Then, when asked if the employer knew the truth now, Mr. Khodadad Sr. said he did not know.

[37] The circumstances of the union apprenticeship are equally vague. All Mr. Khodadad Sr. was able to say was that his son was supposed to start this apprenticeship in September, and that it was a five-year program which included some classes and some on-the-job training. He had no current information as to when, or if, his son could still start the program. He said he would drive his son to and from either classes or work, but did not know what the hours were, or where anything was located. When asked how he would ensure that his son was obeying the rules when doing this apprenticeship, he said that he would call the manager and make sure his son was there. No such arrangements have already been made, or even discussed. With respect to the nursing home job, Mr. Khodadad Sr. said that he would “demand” that the manager let him know if his son was not there when he should be. Again, there has been no discussion of this with the employer and some reason to believe that the job would not be available if the employer knew about the criminal record and pending charges. Previously, Mr. Khodadad’s mother had lied to the nursing home about her son’s whereabouts when he was in jail because she believed he would be fired if the employer knew the truth.

[38] Mr. Khodadad Sr. also minimized his own issues with respect to alcohol abuse and incidents of violence in the past. In 2013, he was charged with assaulting and threatening his wife. The allegations against him were that he was intoxicated and that he threatened to throw both his wife and his son off the balcony of their apartment. The police were called, and he was arrested. Ultimately, he signed a peace bond and the charges were withdrawn. At the hearing before me, he denied that he was intoxicated. With respect to the threat about the balcony, he first said, “I doubt that I made that statement,” and then that he “didn’t remember” making the statement, and later that he was “positive” that he did not say that. He was asked on cross-examination if there were other occasions when he was investigated by the police for intoxication and he denied it. However, it was put to him that on another occasion, in 2011, he was charged with intoxication while on a TTC bus. He then acknowledged the incident but said that he did not remember being so drunk as to lose control and said that the driver was picking on him.

[39] Obviously, I am not in a position to determine the truth of what he is now saying about these incidents, but it is a matter of concern. He denies that he has a drinking problem now, which may be true, but it is difficult to be confident of that.

[40] Mr. Khodadad Sr. had very little understanding of the details of the charges his son is now facing or his criminal record. He knew about the conviction for robbery with an imitation firearm in 2019, but did not know that while still on probation for that offence, his son was charged and later convicted of committing robbery with a real firearm.

[41] In his examination-in-chief, Mr. Khodadad Sr. was asked if his son would listen to him if granted bail, to which he replied, “For sure. Absolutely.” However, there is no information about why that would be the case now, when it clearly has not been the case in the past.

[42] The bottom line is that the accused, Mohammed Khodadad, is highly unlikely to pay any more attention to his parents now than he has done in the past. There is a substantial likelihood that he will reoffend if released on bail, regardless of what controls his parents try to put in place. This is not the fault of the parents; it is the fault of Mr. Khodadad himself. He simply cannot be trusted to follow the rules. Ankle monitoring provides some backup, but it cannot prevent him from reoffending. All it can do is send a signal if there is a breach. Given the history of violence and firearms, the threat to public safety if there is a breach is a significant concern.

[43] I note that Justice of the Peace Ng had the same concern, and for the same reason.

[44] Therefore, I find that Mr. Khodadad’s detention continues to be justified on the secondary ground.

J. TERTIARY GROUND FOR DETENTION

[45] In addition, I find that Mr. Khodadad’s continued detention is necessary on the tertiary ground. The test at this stage is whether “detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances.” (Criminal Code, s. 515(10)(c)). All the surrounding circumstances are to be taken into account, but there are four enumerated factors to be considered: (i) the strength of the Crown’s case; (ii) the gravity of the offence; (iii) the circumstances in which the offence was committed, including whether a firearm was used; and (iv) the likelihood of a lengthy prison sentence if convicted.

[46] This is a very strong Crown case on all the charges. Mr. Khodadad had possession of the rental car, his personal belongings were inside it, and he had tools related to stealing cars both on his person and in the car. The firearm in the vehicle was visible to him and he had ready access to it. It does not matter that the passenger in the car is also charged with possession of the firearm. Joint possession is a very likely outcome where two people in a car are engaged in other criminal activity and both are aware of the presence of the gun in the car.

[47] This is a serious offence given the loaded firearm involved. The circumstances are also a concern, particularly that a gun was involved, and that it was loaded and being carried around the city in a car. The danger to the public is already severe, even more so in light of the over-capacity magazine, the ability to make the firearm fully automatic, and the hollow-point bullets designed to inflict the maximum damage possible. The only purpose of a firearm of this nature is to shoot people. The fact that it was loaded means that it was intended to be used for that purpose, otherwise there would be no reason to load it. Even more alarmingly, the use of the hollow-point bullets reflects a willingness to kill. The extended capacity magazine and the ability to convert readily to a fully automatic weapon demonstrates, as the Crown put it, a design “to kill as many people as possible as quickly as possible.”

[48] The likely sentence for the firearm possession counts is not at the extreme end of the range, as it would be, for example, if the gun had been fired or anyone had been injured or killed. Nevertheless, the possession of a loaded firearm in a motor vehicle being driven in public on city streets is a serious offence that would typically result in a penitentiary term, even for a first offender. Mr. Khodadad has a serious and related criminal record, which puts him higher in the range. Also, the fact that this particular firearm had an over-capacity magazine, hollow-point bullets, and a device to convert it to a fully automatic weapon make it an even more dangerous object, which will be an aggravating factor on sentencing. Further, the sentence for breaching prior prohibition orders is usually an additional term of imprisonment to be served consecutively. All these factors combined are likely to result in a significant penitentiary term if Mr. Khodadad is convicted.

[49] Other relevant circumstances include Mr. Khodadad’s previous criminal record and the fact that he was already subject to two weapons prohibition orders and was now in possession of an even more lethal firearm than before. A strong release plan could potentially counteract these circumstances, but the proposed plan is not sufficient to do that.

[50] In my view a reasonable member of the public, fully versed in the Charter values at stake and the presumption of innocence, would lose confidence in the administration of justice if Mr. Khodadad was released in these circumstances. Again, I agree in this regard with the reasons of Justice of the Peace Ng, who also detained Mr. Khodadad on the tertiary ground.

K. CONCLUSION

[51] There is no reason to interfere with Justice of the Peace Ng’s detention order. Mr. Khodadad’s continued detention remains justified on the secondary and tertiary grounds. The application is dismissed.

MOLLOY J. Released: November 22, 2023