Updated: Dec 20, 2020
On March 31, 2013, the applicant was transporting illegal firearms in a rental car from Windsor to Toronto. The applicant and two other companions abandoned the car in an apartment complex as they believed they were under surveillance; shortly after, the police arrived, searched the car, and found multiple weapons. At trial, the evidence linked the car to the applicant. The applicant argued that the translator that was used as an expert witness had unreliable opinions as there were “significant frailties in his knowledge, training and expertise as a translator of Somali” (RvAbdullahi, ONCA 350 at para 9[Abdullahi]) The trial judge found that although the applicant’s concerns could impact the translator’s credibility, it should not be excluded as evidence. Therefore, the method of translation could be challenged by the jury (Abdullahi at para 9). The trial judge sentenced him to 12 years in custody, less almost three years’ credit for time spent in jail prior to sentencing. Reason being that although the applicant’s motivation for selling the firearms was purely financial, the applicant knew “of the lethal character of trafficked firearms and the risks they presented to the lives and safety of the people in the Toronto area … this was a high-risk crime to facilitate more high-risk crime” (Abdullahi at para 11). This was not one occurrence, but multiple, as 10-15 firearms were the subject of the organization’s efforts in the distribution. The trial judge noted that there existed a criminal organization from March 2013 to June 2013; the applicant was one of its important members, their leader, and was known as such. He established the group, selected its members, and maintained its cohesion.
Analysis on Appeal
In order to obtain bail pending appeal, under s 679(3) of the Criminal Code, the applicant must establish that:
1. the appeal or application for leave to appeal is not frivolous
2. he will surrender himself into custody in accordance with the terms of the order, and
3. his detention is not necessary in the public interest.
In this case, the Crown disputes that the applicant has met the factors outlined by s 679(3)(c) of the Criminal Code which has two elements that must be satisfied: 1) public safety, and 2) public confidence in the administration of justice, which were established in R v Oland, 2017 SCC 17 at paras 23, 26 [Oland].
1) Public Safety
There are 3 considerations to be denied bail under public safety;
1. An individual must pose a “substantial likelihood” of committing an offense or interfering with the administration of justice
2. The “substantial likelihood” must endanger the “protection or safety of the public” and
3. The individual’s detention must be “necessary”
Public safety concerns alone are a strong enough consideration to justify the denial of bail. The applicant noted that there are no public safety concerns that justify his continued detention as he has put a strong plan in place for his supervision. On the other hand, the Crown argued that his release would have enormous public safety concerns as he was convicted of a very serious offence, being the leader of a criminal organization. The judge agreed with the Crown’s argument because the applicant’s involvement as the leader of the criminal organization which trafficked guns, coupled with his desire to kill those who stole the trafficked guns, “raises the substantial likelihood that he would commit a criminal offense if released” (Abdullahi at para 23).
2) Public Confidence
There are two competing factors when it comes to the public confidence component: enforceability and review-ability. Enforceability refers to respecting the rule of the immediate enforceability of all judgments. The more serious the crime, the greater the risk that the public confidence in the administration of justice will be undermined. Looking at the facts at hand, releasing the head of a criminal organization back into the public, the judge accepts that this is a greater risk in undermining the public confidence in the administration of justice.
On the other hand, reviewability plays an integral role in the strength of the appeal of this case, as it encompasses reviewing the grounds in the notice of the appeal to determine whether they exceed the “not frivolous” criterion. The applicant raises four grounds of appeal and the judge notes that only one of those grounds surpasses the “not frivolous” criterion, as the others are weaker. This stronger ground for appeal is based on the applicant’s argument at trial regarding the reliability of the translator, where the trial judge erred by allowing the translator's opinions of the evidence up to the jury to be challenged. The applicant notes that pursuant to White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, at para 54, this should be a factor considered by the trial judge. The motions judge in this court found that the applicant’s argument surpasses the “not frivolous” criterion. The other three grounds, the judge stated, were weak and could not meet the threshold.
Lastly, balancing the enforceability and reviewability mechanism within the public confidence is achieved by using the perspective of a reasonable member of the public—one who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” (Oland at para 47). The rise of COVID-19 and its delay to this appeal is not a stringent factor that arose as the applicant is not vulnerable to COVID-19. However, the enforceability component demonstrates that there is a significant risk of public safety concerns due to the severity of the applicant’s offenses. Hence, the applicant has failed to show that his detention is not necessary and for these reasons, the motions judge dismissed the application for bail pending appeal.