Publication Notice: The order restricting publication in this proceeding made under s. 517 of the Criminal Code is no longer in effect. These reasons for decision were published on April 17, 2023.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Dosanjh, 2018 ONCA 193
DATE: 20180227
DOCKET: M48810 (M48718)
Sharpe, Pepall and Fairburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Raja Dosanjh
Applicant
Julianna Greenspan and Brad Greenshields, for the applicant
David Finley, for the respondent
Heard: February 21, 2018
REASONS FOR DECISION
[1] The applicant, charged with first-degree murder, was denied judicial interim release by a Superior Court judge on the tertiary ground that his detention was necessary to maintain public confidence in the administration of justice. On this review pursuant to s. 680(1) of the Criminal Code and the order of the Associate Chief Justice of Ontario, the applicant submits that the bail judge erred in law by restricting his analysis to the four factors listed under s. 515(10)(c), which focus on the seriousness of the offence, and by failing to consider other relevant factors that favoured release.
[2] For the following reasons, we dismiss the application.
The offence and the case against the applicant
[3] The applicant is 25 years old and has no criminal record. He was arrested in late February 2017 for first-degree murder in a shooting that occurred in early March 2016, described by the police as a professional killing. The victim was apparently involved in criminal activity and was shot multiple times from close range by an automatic weapon affixed with a silencer.
[4] The case against the applicant is entirely circumstantial. In brief, the Crown’s case consists of a DNA mixture found on the murder weapon left at the scene. The mixture includes the DNA profiles of three people. It is 3.7 million times more likely than not that the applicant’s DNA is part of that mixture.
[5] There is also evidence that arguably ties the applicant to a rented vehicle used in connection with the shooting. Gunshot residue was found on the vehicle. The man returning the vehicle to the rental company, shortly after the killing, told an employee at the company that he would be returning to British Columbia the next day. Consistent with this statement, the applicant flew from Ontario to Vancouver the day after the murder. As well, the applicant’s sister’s vehicle was seen close to the rental company around the same time that the rental vehicle was returned.
[6] The Crown described the case against the applicant as “moderately strong”. The bail judge essentially agreed with that characterization and found, at para. 41, that the case against the applicant “appears moderately strong despite the presence of many triable issues.” The applicant does not take serious issue with that characterization of the prosecution’s case.
The bail judge’s decision
[7] The applicant presented a release plan that would place him under house arrest at the residence of his proposed sureties: his mother, stepfather and stepsister in Etobicoke. The proposed sureties filed affidavits indicating that they have significant assets to support the security of $500,000 sought by the Crown. The home is equipped with an alarm system that would allow the sureties to monitor the movements of the applicant. The bail judge was satisfied as to the adequacy of the sureties.
[8] The Crown did not dispute that the release plan would ensure the applicant’s attendance in court and that the applicant had met the onus of satisfying the primary ground.
[9] The Crown resisted release on the secondary ground, but the bail judge found, at para. 29, that the release plan was sufficient “to negate any substantial likelihood that [the applicant] will commit a criminal offense or interfere with the administration of justice.”
[10] The bail judge, however, accepted the Crown’s primary submission, namely, that the applicant should be detained on the tertiary ground. The bail judge set out s. 515(10)(c), which addresses the tertiary ground and states:
if the detention is 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.
[11] The bail judge expressly addressed the four enumerated factors. As already indicated, the bail judge found: (i) that the strength of the prosecution’s case was moderately strong despite the presence of many triable issues. The bail judge also found that: (ii) first-degree murder “is clearly a serious offence”; (iii) the circumstances surrounding the commission of the offence charged, if proved, could not be more serious; and (iv) if convicted, the applicant would receive a substantial period of imprisonment.
[12] For the purposes of this review, the crucial portions of the bail judge’s reasons are paras. 45 and 46:
Balancing
Taking all of these circumstances into account, I would expect that an informed person would lose confidence in the administration of justice if an individual facing a moderately strong case alleging that he committed a brazen contract murder were released to his family prior to his trial.
Despite the plan put forward by the defence, I am satisfied that [the applicant] has not shown that his continued detention is unjustified.
Analysis
[13] This is a review, not a hearing de novo, and this court is required to show deference to the bail judge’s factual determinations and balancing of the relevant circumstances. We are entitled to intervene only if the bail judge erred in law or made a determination that was “clearly inappropriate”: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121.
[14] The applicant submits that the bail judge erred in law by restricting his consideration of the tertiary ground to the four factors enumerated in s. 515(10)(c) and denied release solely because of the gravity and strength of the case against him. We agree that if that is so, it would constitute an error of law contrary to the direction of the Supreme Court in St-Cloud. There the court rejected the argument that the four enumerated factors are exhaustive and held, at para. 87, that “[a] court must not order detention automatically even where the four listed circumstances support such a result.” Although a bail judge must pay “particular attention” to the four enumerated factors under the tertiary public interest ground, a judge is also required to “consider the combined effect of all the circumstances of each case to determine whether detention is justified.”
[15] However, in our view, a fair reading of the bail judge’s reasons in the context of the case that was presented to him indicates that he did not restrict his consideration of the tertiary public interest ground to the four factors listed in s. 515(10)(c).
[16] The bail judge was certainly made aware of the point relied upon by the applicant on this review. It was fully and forcefully argued before the bail judge. The bail judge was clearly familiar with St-Cloud. Although the bail judge did not refer to the specific passages in St-Cloud relied upon by the applicant, he did refer at length to that judgment in response to submissions by counsel and at para. 35 of his reasons. Where a judge’s reasons are open to interpretation, a reading that “is consistent with the trial judge’s presumed knowledge of the applicable law” is to be preferred: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 524. As mentioned, the bail judge also recited s. 515(10)(c), which expressly directed him to have “regard to all the circumstances, including” the four enumerated factors.
[17] In our view, the bail judge’s reasons indicate that he was aware of and took into account the legal principle that consideration of the public interest was a balancing exercise involving more than the four s. 515(10)(c) factors. The impugned passage at para. 45 is preceded by the heading “Balancing”, indicating that he realised the need to consider more than the strength and gravity of the case against the applicant. We do not agree that when he started para. 45 with the phrase “[t]aking all of these circumstances into account” he should be taken as having restricted his attention to the four s. 515(10)(c) factors. The following paragraph, para. 46, specifically adverts to “the plan put forward by the defence” and states that despite that plan, the applicant had not shown that his continued detention was not justified. Moreover, his reasons reflect that he understood the broader circumstances involved. For instance, he specifically references the applicant’s age, his lack of criminal record, the fact he is a Canadian citizen, his employment, and his good behaviour while observed under surveillance for six part days. The bail judge also made reference to the specific circumstances involved in this offence, including the professional nature of this broad daylight execution style killing at “point-blank range with an automatic weapon affixed with a silencer.” Read as a whole, the reasons provide sufficient assurance that the bail judge did not fall into the error of denying release simply because he focussed only on the four enumerated factors under s. 515(10)(c).
The Crown’s fresh evidence application
[18] On the oral hearing of this appeal, the Crown sought to introduce fresh evidence. Given our disposition of the review, we do not find it necessary to consider whether the Crown met the test for admission of that evidence and it plays no role in our determination of this review.
Disposition
[19] The applicant has failed to identify any legal error in the bail judge’s decision or to show that his decision was clearly inappropriate. Accordingly, the application to review the denial of release is dismissed.
“Robert J. Sharpe J.A.”
“S.E. Pepall J.A.”
“Fairburn J.A.”