Court File and Parties

COURT FILE NO.: CR-24-00101875-00BR

DATE: 2024-06-12

SUPERIOR COURT OF JUSTICE-ONTARIO

RE: Nitin Malik, Applicant

AND:

His Majesty the King, Respondent

BEFORE: Gibson J.

COUNSEL: A. Capulli, Counsel for Applicant

N. Klein, Counsel for Respondent Crown

HEARD: June 12, 2024

ENDORSEMENT ON BAIL REVIEW

[1] The Applicant Nitin Malik (“the Applicant”) is charged with multiple offences contained on 12 separate Informations in Kitchener and Hamilton, that allege offences of: using a forged document; attempted fraud; uttering a false statement; failing to comply with an undertaking x 3; failing to attend court x 2; dangerous operation of a motor vehicle x 2; failing to stop after an accident; trafficking in a Schedule I substance x 2; identity theft; failing to comply with a release order; and flight from police.

[2] The Applicant was arrested on 17 January 2024, and has been in custody since that time. He was detained in custody by order of Justice of the Peace Zeigler on 30 January 2024. He is currently in custody at Maplehurst in Milton.

[3] Mr. Malik applies pursuant to s.520 of the Criminal Code for a review of the Order that he should be detained in custody on the secondary ground and tertiary grounds made by Justice of the Peace Zeigler following a bail hearing on 30 January 2024. He requests an Order for judicial interim release with surety.

[4] Mr. Malik is 21 years old and is a Canadian citizen who previously lived with his parents in Mississauga. He acknowledges that he has drug addiction issues. He does not have a criminal record.

[5] The Applicant proposes release from custody with the following provisions:

a. That he reside with his proposed sureties, his parents Subodh Malik and Neelu Malik, at their residence at 1359 Applewood Road, Mississauga, Ontario, and abide by all the rules of the household;

b. That he be bound by a house arrest condition;

c. That he does not possess any keys or be in the driver’s seat of any vehicle;

d. That he be subject to GPS monitoring;

e. That he does not possess any weapons or apply for any authorization, licence or registration certificate; and

f. That surety be provided by his two parents, each in the amount of $5,000, plus a cash deposit of $2,500 each.

[6] The Applicant submits that the proposed plan reduces any risk that he will reoffend while on bail below the point where it can be said to be substantially likely, such that his continued detention is not necessary for the protection of the public.

[7] The Crown opposes the application and submits that Mr. Malik should be detained in custody on the secondary and tertiary grounds.

[8] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada comprehensively explained the review process set out in s.520. They establish not a de novo proceeding, but a hybrid remedy. The reviewing judge must determine whether it is appropriate to exercise his or her powers of review. Exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

[9] In the present case, the Crown concedes that there is a material and relevant change in circumstances, in that some charges against Mr. Malik have recently been stayed, and that it would be appropriate to conduct a de novo bail hearing. Accordingly, I did so. The affidavits of Mr. Malik and his parents as proposed sureties, along with a letter from the Peel Addiction Assessment and Referral Centre (“PAARC”), were made exhibits on the hearing. I then heard submissions from the parties.

[10] Under s. 11(d) of the Charter, an accused person is presumed innocent until proven guilty. Pursuant to s. 11(e) of the Charter, an accused person is entitled to reasonable bail and not to be denied bail without just cause. The concept of reasonable bail includes that the terms of release be reasonable and no more onerous than what is necessary in the circumstances.

[11] In R. v. Myers, the Supreme Court of Canada stated that "in accordance with the principles articulated in Antic, we must not lose sight of the fact that pre-trial detention is a measure of last resort." However, pre-trial detention is sometimes necessary and appropriate. If just cause exists, reasonable bail may be denied.

[12] In the present case, which is a reverse onus situation due to the nature of the alleged offences, the Applicant bears the onus of demonstrating why he should not be retained in custody.

[13] In assessing this case, I have had particular regard to the direction given by the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27, R. v. Antic, 2017 SCC 27, R. v. Myers, 2019 SCC 18, and R. v. Zora, 2020 SCC 14.

[14] I am guided in the present hearing by the direction given by the Supreme Court of Canada in R. v. Myers. In Myers, the Supreme Court of Canada stated that at the hearing, the overarching question is whether the continued detention of the accused is justified withing the meaning of s.515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order. I have done so in this case.

[15] In R. v. Zora, 2020 SCC 14, the Supreme Court of Canada has once again considered the general principles governing bail conditions. Writing for the Court, at paras. 83-89, Martin J. emphasized restraint and the ladder principle from R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, and that consideration is required of the risks in s.515(10) at issue: is the person a flight risk, will their release pose a risk to public protection and safety, or is their release liable to result in a public loss of confidence in the administration of justice. Justice Martin for the Court emphasized the requirements that bail conditions must be reasonable and linked to the defined statutory risks. They must be tailored to the individual risks posed by the accused.

[16] The present matter is a reverse onus situation pursuant to s.515(6) of the Criminal Code. In such a situation, the ladder principle does not apply: R. v. Ishmael, 2019 ONSC 596 at para. 30; R. v. Sakhiyar, 2018 ONSC 5767 at para. 7.

[17] The evidence before me on this Application consists of: the affidavits of Mr. Malik and his proposed sureties, and a letter from PAARC indicating that Neelu Malik, with Mr. Malik’s agreement, contacted PAARC to schedule an initial intake appointment for him.

[18] This is a reverse onus situation.

[19] In this situation, a risk analysis is required by s.515(10)(b); R. v. Ishmael, 2019 ONSC 596; R. v. Young, 2010 ONSC 4194. I am required to weigh the gravity of the harm against the possibility that the accused might commit another offence.

[20] The secondary ground assessment requires an assessment of all the circumstances: R. v. Manasseri, 2017 ONCA 226. These include the following:

a. The nature of the offence;

b. Its circumstances;

c. The likelihood of conviction;

d. The degree of participation of the accused;

e. His or her relationship with the victim;

f. The accused’s circumstances (lifestyle, prior criminal involvement, family, mental health);

g. The accused’s after the fact conduct; and

h. The accused’s dangerousness to the victimized community if released.

[21] The strength of the Crown’s case is a consideration under the secondary ground. The Crown has a strong case on these charges.

[22] The gravity of the harm that would ensue should the Applicant reoffend is significant. He is facing serious charges involving allegations of trafficking in a Schedule I substance, methamphetamine, and driving in a manner dangerous to the public.

[23] Reviewing courts must be particularly alert to the possibility that the amount of time spent by an accused person in pre-trial detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: R. v. Myers, at paras. 50-52.

[24] The Applicant submits that this is a concern in this case, as he has now been in custody for some six months, and that he is approaching a time-served situation. I do not assess that this is a significant concern in this case. If Mr. Malik is ultimately convicted at trial of the offences with which he is charged, he will face a potential penitentiary sentence that would almost certainly exceed the amount of time that he has spent in pre-trial custody.

[25] Mr. Malik has repeatedly shown that he will not follow the terms of his release. He was originally released on an undertaking which terms he failed to follow, and he is now charged with re-offending. He was then released to his parents as sureties. He again failed to follow the rules and is alleged to have re-offended. He was released a third time, again with his parents as sureties, this time on a strict house arrest bail. He left his parents’ residence within a short interval.

[26] He now asks to be released for a fourth time. He has clearly shown he will not abide by conditions imposed by the Court, and he will not listen to his parents.

[27] I assess that there is a substantial likelihood that the Applicant will commit further offences or interfere with the administration of justice if released from custody pending his trials.

[28] Once the Court determines that there is a substantial likelihood that the accused will commit further offences or interfere with the administration of justice, the question becomes whether that risk can reasonably be managed so that the likelihood is no longer substantial.

[29] The Applicant submits that, in conjunction with the proposed GPS monitoring program, that he would reside with the proposed sureties.

[30] The Crown submits that the bail plan proposed is very similar to the one proposed at the initial bail hearing. It agrees that the two parents are suitable sureties, and that it has no issue with them per se. Rather, it submits, as was found by Justice of the Peace Zeigler, the issue is that the Applicant cannot be trusted to abide by his commitments. The proposed sureties have been sureties twice before for their son. Both times the Applicant failed to follow his release terms and ignored his parents’ supervision.

[31] The plan of release now also includes drug treatment. At the present time, however, the Applicant has not been accepted into a program. He only has an intake appointment scheduled with PAARC, should he be released. Further, PAARC is not a residential treatment program.

[32] There are also limits as to what GPS monitoring can accomplish.

[33] GPS monitoring can provide very valuable assistance in deterring the commission of further offences by an accused person, and in providing timely indication of their location. It can potentially provide very significant after-the-fact evidence in the case of a breach of bail conditions. However, it is not a panacea. There are potential gaps. No system is perfect. Its efficacy as a deterrent may be less in cases such as the present one involving allegations of offences of an impetuous and violent nature. A case specific contextual analysis is required to evaluate GPS monitoring as a component of a proposed bail plan.

[34] In the present case, the nature of the alleged offences, and the Applicant’s repeated failure to be amenable to the supervision of his parents as sureties, must lessen confidence that he would be deterred solely by the condition that he be subject to GPS monitoring. As stated by Stribopoulous J. in R. v. Williams, 2020 ONSC 2237 at para. 119, deterrence invariably depends on rationality - an inclination towards weighing costs and benefits. On the basis of the evidence before the Court, I am far from persuaded that Mr. Malik is such a person.

[35] The Court’s decision turns in some degree on its degree of confidence in the proposed sureties, and their ability and willingness to supervise the Applicant, and to report a breach of bail conditions. Unfortunately, in the present case I assess that such confidence does not find a secure foundation in the evidence before the Court. I agree that there are no concerns with Mr. and Mrs. Malik in themselves. They are both suitable sureties, and I have no reason to doubt their commitment or their willingness to perform the duties of a surety. However, I have concerns with the Applicant’s willingness to abide by their supervision. He has twice before been released to his parents as sureties. His history demonstrates a disregard for conditions imposed by the Court, and that he will not listen to his parents.

[36] I therefore conclude that the proposed plan does not sufficiently minimize or mitigate the Applicant’s risk to re-offend.

[37] Having regard to the nature and strength of the Crown’s case, and risk of harm to the public, I find that the Applicant has not satisfied the onus upon him in this case with regard to the secondary ground.

[38] I have considered the principles elaborated by the Supreme Court of Canada in Zora, and in particular the individual risks posed by the Applicant. I conclude that the continued detention of the Applicant in custody is justified on the secondary grounds specified at s.515(10) (b), that the detention is necessary for the protection and safety of the public.

[39] With respect to the tertiary ground s. 515(10)(c) analysis, guidance was provided by the Supreme Court of Canada in R. v. St-Cloud. The principles may be summarized as follows:

▪ 1)S. 515(10)(c) is a distinct ground that, in itself, provides a basis to order pre-trial detention of an accused. In other words, the tertiary ground is not a residual ground that only comes into play where the first two grounds of detention do not apply. The application of this ground is not limited to exceptional circumstances, to unexplained or inexplicable crimes, to the most heinous crimes or to certain categories of offence.

▪ 2)When deciding whether to apply s.515(10)(c), the court should instead consider all the circumstances of the particular case before it, paying particular attention to the four enumerated circumstances in s.515(10)(c): (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, to a potentially lengthy term of imprisonment.

▪ 3)The four circumstances are not exhaustive, and no single circumstance is determinative. The court must balance all relevant circumstances.

▪ 4)The court must not order detention automatically even where the four listed circumstances support such a result. At the end of the balancing exercise, the question that is to be asked by the court is whether detention is necessary to maintain public confidence in the administration of justice.

[38] I share the perspective aptly expressed by Allen J. at paragraph 49 in her reasons on the bail review in R. v. Mohammed, 2018 ONSC 7709:

“Ultimately the review court must balance the four factors and all the relevant contextual circumstances and decide at the end of the balancing exercise whether detention is necessary to maintain confidence in the administation of justice. It is a difficult exercise. There is no science or mathematical formula that can assist with this determination.”

[39] At the end of the balancing exercise, the question that is to be asked by the court is whether detention is necessary to maintain public confidence in the administration of justice.

[40] To answer this question, the court must adopt the perspective of a reasonable person, who, while not a legal expert, is properly informed of the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

[41] With regard to the four factors enumerated at s.515(10)(c), the present case could be described as almost a paradigm case. The Crown’s case is strong.

[42] The alleged offences are objectively grave. The circumstances of the alleged offences involved his flight from police officers. He is accused of dragging a police officer with his vehicle. He is accused of twice refusing to stop for police and driving away when ordered to exit a vehicle.

[43] In the circumstances of this case, the Applicant would be potentially liable on conviction for a penitentiary sentence.

[44] When the four factors enumerated in s.515(10)(c) are viewed in the context of the relevant surrounding circumstances, I conclude that, in the circumstances of this case, the detention of the Applicant in custody is necessary to maintain confidence in the administration of justice. Indeed, a knowledgeable member of the public would very likely have very grave concerns at what is proposed.

[45] In summary, I consider that the Applicant has failed to demonstrate that his detention in custody is not justified on the tertiary grounds.

[46] The Applicant’s detention continues to be justified on both the secondary and tertiary ground specified at s. 515(10) of the Criminal Code.

[47] The application is dismissed.

[48] Mr. Malik is remanded in custody at the Maplehurst Correctional Complex to his next appearance in the Ontario Court of Justice.

M. Gibson J.

Date: June 12, 2024