Court File and Parties

Court File No.: CR-24-51-DR (Brampton) Date: 2024-04-17 Superior Court of Justice - Ontario

Re: R. v. Gurjit Dosanjh

Before: Mr. Justice M.M. Rahman

Counsel: Amita Persad-Ford, for the Crown/respondent Ayesha Abbasi, for the accused/applicant

Heard: March 22, 2024

Endorsement

[1] The applicant, Gurjit Dosanjh, is charged with a single count of possessing a loaded firearm. He was detained after his bail hearing before a justice of the peace on January 19, 2024. He applied to review the detention order on the grounds that the bail justice erred in law in ordering his detention. After hearing from the Crown, I granted his application with reasons to follow. These are those reasons.

[2] The applicant appeared before the bail justice on a single charge possessing a loaded firearm under s. 95 of the Criminal Code . Under recent amendments to the Criminal Code, that offence requires accused persons to show cause why they should be released. At the applicant’s bail hearing on that single charge, the Crown filed a synopsis containing the allegations against the applicant. The relevant part of the synopsis begins by referring to a shooting that happened on December 20, 2023. That shooting happened at 5:35 am. Later that day, at 3:45pm, the truck allegedly involved in the shooting was located by police in Toronto. I set out the entirety of the allegations against the applicant respecting the firearm charge, below:

At this time, the accused DOSANJH, GURGIT SINGH (along with 4 other accused parties) was arrested [sic] for Discharge Firearm Section 244(1) CCC.

As the investigation continued, there was insufficient evidence to support the charge for Discharge Firearm. Simultaneously during the investigation, a search warrant was approved Justice of the Peace Henderson, for the Ram Pick up truck.

The warrant was executed at Peel Police FIS and a search of the vehicle revealed a loaded firearm with no additional bullets in the attached magazine.

The firearm was located in the rear-seating cabin of the truck inside a compartment. At 2:35am, DOSANJH, GURGIT SINGH was advised of charges the firearm possession charges listed above of Count 1 to 4.

[3] The synopsis does not explain what connection the applicant had to the firearm or to the truck in which it was found. There is nothing from which anyone could discern what connects the applicant to the firearm. The Crown does not allege that the applicant owns the truck, was sitting in the truck, had ever driven in the truck, or otherwise has any connection to it. The synopsis does not even set out where the applicant was in relation to the truck. It just says that the police found the truck and arrested the applicant and four other people for discharging a firearm, they executed a warrant on the truck, and they found a firearm in a compartment in the truck. The synopsis amounts to a bald assertion that the applicant possessed a firearm. In fact, it does not even directly allege that he possessed it. The Crown filed nothing on this application to supplement the information it relied on at the bail hearing.

[4] At the applicant’s bail hearing, Crown counsel (not Ms Persad-Ford) said that the applicant posed a risk on the secondary ground. Crown counsel acknowledged that there were “concerns about the strength of the Crown’s case” but then referred to the “very serious secondary ground concerns raised by this weapon in a vehicle in our community.” The Crown argued that the secondary ground risk was “exacerbated” by the applicant’s lengthy record. The Crown argued that it was doubtful those risks could be controlled because of his record, which included numerous breaches.

[5] The bail justice’s main reason for detaining the applicant was his concern about the lack of an adequate plan. The bail justice acknowledged that he had to “take into account the strength of the Crown’s case, which the Crown concedes is a knowledge and control issue.” The bail justice incorrectly stated that the applicant had been arrested for discharging a firearm and released, and then was later found in “with others that were either in or close proximity to a truck that is alleged to have been involved in an earlier shooting.” He then went on to say he had to consider “the safety of the public and alleged victims in the matter” and referred to concerns about gun violence in Peel Region. The justice then expressed concerns about the applicant’s father’s suitability as a surety, in part, because he did not initially acknowledge the applicant’s prior bail breaches. The justice concluded that the applicant was releasable, but not without a stronger release plan than he had proposed.

I think Gurgit is releasable, but he needs a stronger plan. I even considered if I could craft some type of plan here today. However, I was not presented any real options. I also considered the number of different opinions from the Superior Court of Justice level, which, some say you can't craft a plan in a reverse onus situation, others say you can. So, the way I read 515 (6) of the Criminal Code is, I'm paraphrasing but, "The accused in a reverse onus matter shall be given the opportunity to show a cause, and if they do not, then detention must follow." And that's despite anything else written in any other section. So, that's clear to me that I must detain. And in my view, had a stronger plan been presented today, I likely would have released Gurgit. Therefore, in my view, he's not met his onus, and I must detain on a secondary ground. [Emphasis added]

[6] On this application, the applicant alleged that the bail justice committed several errors. Principal among the errors is that the Crown and the bail justice were preoccupied with the applicant’s record and ignored the nature of the Crown’s case and the presumption of innocence. The applicant also argued that the bail justice erred in detaining him because of an insufficient release plan despite finding that the applicant was releasable.

[7] The Crown opposed this application on the grounds that the bail justice’s reasons disclose no error of law. The Crown argued that the bail justice recognized the triable issues in the Crown’s case, but was entitled to come to his own conclusion about the relative strength of the Crown’s case. The Crown further supports the bail justice’s decision to detain the applicant even though the justice found that the applicant was releasable. The Crown contends that since the applicant bore the onus of showing why he should be released, the applicant’s failure to present an adequate plan of release meant that he had not met his onus and a detention order necessarily followed.

[8] I agree with the applicant that the bail justice erred in detaining the applicant. I find that the bail justice erred in focussing almost exclusively on the suitability of the sureties and the strength of the release plan, without considering at all whether it was necessary to have such a strict plan.

[9] The applicant’s bail hearing turned into a trial of his release plan. Neither the Crown nor the bail justice acknowledged that the Crown’s own allegations said virtually nothing about what evidence it had against the applicant. The bail justice’s reasons demonstrate that he inferred that the applicant was in proximity to the firearm, even though the police synopsis said nothing about where the firearm was in relation to the applicant, or to any of the other people arrested at the scene.

[10] Given the complete absence of evidence against the applicant, it was not necessary for the bail justice to conduct such a searing examination of the sureties. It was not necessary to look for some kind of airtight plan. The nature of the allegations, including the strength of the Crown’s case, will inform what kind of plan an accused person requires to discharge their onus. The examination of the sureties here occupies over 30 pages of transcript. Most of this was cross-examination. Respectfully, the time spent cross-examining the applicant’s parents about whether they had tried to stop their son from committing crimes before, and about the applicant’s heroin addiction, could have been better spent on other bail matters, given the more fundamental problem with the Crown’s case. I appreciate that Crown counsel and justice of the peace may have had valid concerns about the presence of firearms in the community. But where there is little to no attachment between an accused and the firearm in question, those concerns should be directed elsewhere.

[11] Where accused persons have the onus of showing cause why they should be released, they will ordinarily have to call evidence about a release plan. But just because the onus is reversed does not mean that the bail hearing should turn into a surety trial, where the singular focus is on the release plan. The justice at a bail hearing should not simply look at the section number, determine it is a reverse onus offence, and then put the accused’s plan of release on trial. It is incumbent on a bail justice to consider the allegations themselves, and whether they are strong or weak. The police cannot simply lay an information charging a reverse onus offence, give no details about the strength of the case, and then rely on the onus to keep someone in custody. That is so even where, as here, the accused has an unenviable record. A justice must give some consideration to the strength of the Crown’s case, regardless of what grounds the Crown relies upon to have an accused detained. The relative strength of the Crown’s case does not become irrelevant because the Crown is not relying on the tertiary ground. It would be a neat trick if the Crown could remove the weakness of its case (or the absence of any case) from consideration at a bail hearing by not relying on the tertiary ground.

[12] Given my conclusion of the first ground for review, I need not consider any of the other alleged errors.

[13] For the foregoing reasons, I granted the application and ordered the applicant released in accordance with the release conditions proposed in the application.

Rahman, J. Date: April 17, 2024