



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hussain, 2018 ONCA 147

DATE: 20180216

DOCKET: C62047

Sharpe, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Suleman Hussain

Appellant

Jennifer Penman, for the appellant

Michael Perlin and Jennifer Epstein, for the respondent

Heard: December 18, 2017

On appeal from the conviction entered on February 19,
    2015 by Justice M.L. Edwards of the Superior Court of Justice, sitting without
    a jury, and the sentence imposed on November 17, 2015, with reasons reported at
    2015 ONSC 7115.

Sharpe J.A.:

[1]

The appellant was convicted of five offences
    arising from the allegation that he transferred a firearm while on bail for
    other unrelated charges. He was sentenced to a total of 4 years and 6 months
    custody, less 3.92 years credit for pre-sentence custody. He appeals his
    conviction and seeks leave to appeal his sentence on the ground that the
    portion of s. 719(3.1) denying enhanced credit for pre-sentence custody on
    grounds of misconduct while on bail violates the s. 7
Charter
right
    not to be deprived of liberty except in accordance with the principles of
    fundamental justice. This appeal was argued together with
R. v.
    Meads
,
2018 ONCA 146
which raised
    the same
Charter
issues, the reasons for which
    are being released at the same time as these reasons.

Conviction Appeal

[2]

The sole ground for Hussains appeal from
    conviction is the submission that the verdict was unreasonable. At the oral
    hearing of this appeal, we did not call upon the Crown to respond to the
    conviction appeal and indicated that these reasons for dismissing the
    conviction appeal would follow.

[3]

The police believed that Hussain was selling
    drugs and that he might be in possession of a firearm. The crucial evidence
    relied on by the trial judge in convicting Hussain of the firearms offences was
    that of Officer Campbell, a member of the police surveillance team observing
    the house where Hussain lived with his mother. A car arrived at the house and
    the driver spoke to the appellant for approximately 30 minutes. The driver then
    backed his car into the driveway. Officer Campbell, the road boss of the
    surveillance team, was in a car which he testified was parked across the street
    and one or two houses down from that of the appellant. Officer Campbell
    testified that after the car backed into the driveway, the trunk opened and he
    saw Hussain walking towards the car carrying something that looked like a
    firearm wrapped in a white patterned blanket. Officer Campbell admitted that
    this observation took place within a second and was really quick. Another
    officer saw the appellant carrying an object towards the back of the car but
    could not see what it was. Officer Campbell relayed his observation to another
    officer so that the driver of the car could be arrested and searched. Within
    minutes the car was stopped and searched and a shotgun wrapped in a blanket was
    found in the trunk along with a tent and a toolbox. The driver of the car did
    not implicate Hussain and there was no other evidence, finger-print or DNA,
    connecting Hussain to the firearm.

[4]

Hussain submits that the verdict was
    unreasonable. He does not attack Officer Campbells credibility but submits that
    the trial judge erred by failing to recognize that Officer Campbells evidence
    was not reliable.

[5]

The appellant submits that Officer Campbells
    ability to make a reliable observation was impaired by several factors:

·

it was dark;

·

the distance between Officer
    Campbell and the driveway;

·

the fact that he was
    not using binoculars;

·

the fact that his view
    was at least partially obstructed by a school bus parked in the driveway;

·

the item he saw was
    wrapped in a blanket; and

·

his observation only
    took place in a split-second.

[6]

The appellant contends that there is a real risk
    that Officer Campbells evidence was tainted by hindsight bias flowing from the
    discovery of the firearm in the trunk of the car. The appellant also points out
    that there is no mention of a firearm in the notes of any members of the
    surveillance team; no evidence that the broadcast instructing the take-down of
    the driver mentioned a firearm; that the officers who stopped and arrested the
    driver did not immediately search the trunk of the car; and that Officer
    Campbells description of the blanket having a floral pattern is implausible
    given the conditions under which he made his observation.

[7]

I agree with the respondent Crown that Hussain
    has failed to meet the high threshold required for establishing an unreasonable
    verdict. I am not persuaded that no properly instructed judge or jury acting
    judicially could be reasonably satisfied that guilt was the only rational
    inference on this record. The trial judge, who had the advantage of seeing and
    hearing the witnesses, considered and rejected the submission that Officer
    Campbells observation was unreliable because of possible hindsight bias. He
    recognized the frailty of eyewitness evidence and carefully considered the
    contention that Officer Campbell could not have seen what he claimed. He
    pointed out that Officer Campbells observation that the appellant was carrying
    an item to the back of the car was corroborated by that of the other officer,
    even though that officer could not identify the item. Officer Campbell
    demonstrated for the court the way the blanket-wrapped object was being
    carried. This supported his evidence that the wrapped object was a firearm. The
    defence called a witness to show that Officer Campbell could not have made his
    observation because of the school bus partially obstructing his view. However,
    that witness conceded in cross-examination that if the school bus had been parked
    further down the driveway than he had assumed, Officer Campbell could have made
    his observation.

[8]

On this record, I am not persuaded that the
    trial judge committed any reviewable error by relying on the evidence of
    Officer Campbell to convict Hussain of the firearms offences or that the
    verdict was unreasonable.

Sentence Appeal

[9]

The trial judge sentenced the appellant to 4
    years and 6 months custody less 3.92 years credit for pre-sentence custody.
    The sole ground for his sentence appeal relates to the credit he was given for
    pre-sentence custody.

[10]

The time the appellant spent in pre-sentence
    custody is complicated by the fact that at the time he was arrested on the
    charges that are the subject of this appeal (the Ajax charges), the appellant
    was on bail in connection with earlier robbery with a firearm charges (the
    Toronto charges). He was arrested on the Toronto charges on January 7, 2012 and
    remained in custody until he obtained bail on April 20, 2012. He was arrested
    on the Ajax charges on November 20, 2012 and did not seek bail. On September
    30, 2014, the Crown sought and obtained an order pursuant to s. 524 of the
Criminal
    Code
revoking the appellants bail on the Toronto charges. The appellant
    was convicted of the Ajax charges on February 19, 2015 and sentenced on
    November 17, 2015 as follows:

·

s. 99(1)(b) firearm
    trafficking: 3 years

·

s. 92(3) knowing unauthorized possession of a
    firearm: 1 year (concurrent to the 3 years imposed for firearm trafficking)

·

s. 117.01 possession of
    a firearm contrary to a court order: 18 months (consecutive to the 3 years for
    firearm trafficking)

·

s. 145(3) breach of
    recognizance: 18 months (consecutive to the 3 years for firearm trafficking but
    concurrent to the 18 months for possession of a firearm contrary to a court
    order)

[11]

The appellant pleaded guilty to the Toronto charges
    after the disposition of the Ajax charges and was sentenced on January 6, 2016.
    He received 1.5:1 credit on the Toronto charges for the period of pre-sentence
    custody from the time of his arrest on January 7, 2012 until the time he
    obtained bail on April 20, 2012 but no credit for the period following the
    order revoking his bail on the Toronto charges on September 30, 2014.

[12]

The appellant brought a successful
Charter
challenge
    to the validity of the mandatory minimum three year sentence required for s. 99(2)
    firearm trafficking offences. No appeal is taken by the Crown from that ruling.

[13]

The appellant also brought a
Charter
challenge to the bail misconduct exclusion barring 1.5:1 credit for
    pre-sentence custody found in s. 719(3.1). The trial judge rejected that
    challenge and found that while the appellant was entitled to 1.5:1 credit for
    the 680 days from the time of his arrest on the Ajax charges (November 20,
    2012) until the Crown obtained an order revoking the appellants bail on the Toronto
    charges (September 30, 2014), the appellant was only entitled to 1:1 credit for
    the period following the revocation of bail.

[14]

At the hearing of this appeal, the court raised
    with counsel the issue of whether ss. 719(3) and (3.1) apply to the facts of
    this case. Subsections 719(3) and (3.1) provide:

719 (3) In determining the
    sentence to be imposed on a person convicted of an offence, a court may take
    into account any time spent in custody by the person
as a result of the offence

but the court shall
    limit any credit for that time to a maximum of one day for each day spent in
    custody.

(3.1) Despite subsection (3), if the
    circumstances justify it, the maximum is one and one-half days for each day
    spent in custody unless the reason for detaining the person in custody was
    stated in the record under subsection 515(9.1) or the person was detained in
    custody under subsection 524(4) or (8).
[Emphasis added.]

[15]

Was the appellant detained as a result of the
    offence[s] for which he was being sentenced, namely the firearms offences,
    after his bail on the Toronto charges was revoked? I am satisfied that the
    answer to that question is yes on the basis of this courts decision in
R.
    v. Barnett
, 2017 ONCA 897, [2017] O.J. No. 6102. While the facts of this
    case are not on all fours with those in
Barnett
, in that case, Doherty
    and Rouleau JJ.A. provided guidance to judges called upon to sentence offenders
    who face different sets of charges and who obtain bail on the initial charges
    but then are remanded on new charges. The court stated, at paras. 30-31:

What we draw from the case law is that ss. 719(3)
    and (3.1) require that there be some causal connection, a sufficient link or
    relation between the offence for which the offender is being sentenced and the
    pre-sentence custody. That relation or link can exist with more than one
    offence. It is not limited to the offence that directly triggered the detention,
    but will include offences that contributed to the denial of bail or, in the
    trial judges assessment, factored into the offenders decision to not seek
    bail on the charges that triggered the detention order.

There is no strict rule dictating what constitutes
    a sufficient link or relationship between the given charge and the pre-sentence
    custody so as to meet the as a result of standard. The sentencing judge will
    take into account relevant factors that might include the reasons for bail
    having been granted on the first set of offences and denied for the second set
    of offences; whether bail was sought on the later offences; whether there has
    been revocation of the bail on the first set of offences; the impact if any of
    the reverse onus provisions of ss. 515(6) or 522(2) of the
Criminal Code
;
    whether subsequent charges remain outstanding, have been withdrawn or stayed;
    the amount of pre-sentence custody accumulated; the nature and seriousness of
    the various charges; and the relationship, if any, that charges have to one
    another. In sum, the sentencing judge must be satisfied that the offences upon
    which he is sentencing the accused have some meaningful causative connection to
    the accuseds pre-sentence custody.

[16]

In my view, the application of that test indicates that the appellant
    was detained as a result of the Ajax charges following the revocation of his
    bail on the Toronto charges. Nearly two years passed between the appellants
    re-arrest on the Ajax charges, and the revocation of his bail on the earlier Toronto
    charges. However, he did not re-apply for bail. In the words of
Barnett
, common sense suggests that the appellants decision not to seek
    bail was likely influenced by the fact that the Ajax charges were laid while he
    was on bail for the Toronto charges:
Barnett
, at para.
    28. I note also that the presence of a firearm was a common feature in both sets
    of offences. I therefore conclude that the Ajax charges had some meaningful
    causative connection to the accuseds pre-sentence custody. This conclusion is
    supported by the fact that when he was sentenced on the Toronto charges, the
    sentencing judge only considered the appellants pre-sentence custody up to the
    time of his arrest on the Ajax charges, and did not address any time served in
    custody thereafter. If the appellant was not entitled to credit for that time
    in relation to the Toronto charges, he should be entitled to it on the Ajax charges.

[17]

The trial judge denied enhanced credit for the post-bail revocation
    period of pre-sentence custody for two reasons. First, he rejected the
    appellants
Charter
challenge to the bail misconduct exclusion. It
    follows from my reasons in
Meads
that I am of the view that the trial
    judge erred in his
Charter
ruling. In fairness to the trial judge, I
    would point out that he decided the point before the Supreme Court changed the
    landscape in this area with its decision in
R. v.
    Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180.

[18]

However,
    it is clear that if the trial judge had come to a different conclusion on the
    constitutional question, he would still have exercised his discretion to deny
    enhanced credit. Quite apart from the statutory bail misconduct exclusion,
    there is a discretion to deny enhanced credit where the detention was a result
    of the offenders bad conduct:
Summers
, at para. 71.

[19]

The
    appellant submits that the trial judge erred by denying enhanced credit on the
    facts of this case because the appellant had already been punished for the
    breach of recognizance and breach of the firearm prohibition order.

[20]

I
    agree with the appellants submission. He received what was, in my view, an
    entirely appropriate consecutive eighteen month sentence for the two breach
    offences, consecutive to the firearm trafficking sentence. The breach offences
    were serious and a significant deterrent sentence to maintain public confidence
    in the justice system was fully justified. However, while the fact that an
    offence was committed on bail may be taken into account in determining the
    appropriate amount of pre-sentence credit, the extent to which the breach has
    already been punished must also be considered: see
R. v. Colt
, 2015
    BCCA 190, 324 C.C.C. (3d) 1, at paras. 24-27. To impose an eighteen month
    sentence for the breaches, and then further deny the appellant the usual credit
    for pre-sentence custody on the basis of the same breaches would, in effect,
    punish him twice for the same misconduct: see
R. v. Campbell
, 2017
    ONSC 26, [2017] O.J. No. 633, at para. 62;
R. v. Bonneteau
, 2016 MBCA
    72, 330 Man. R. (2d) 139, at para. 22;
R. v. Allen
,

2015
    BCCA 479, 381 B.C.A.C. 19, at para. 20;
R. v. Vinepal
, 2015 BCCA 349, 375 B.C.A.C. 189, at para. 22
.

[21]

I
    realize that the discretion to deny enhanced credit for pre-sentence custody
    has been exercised in some cases where the accused was sentenced at the same
    time for the breach charges that led to the revocation of bail: see, e.g.,
R.
    v. Warren
(1999), 127 O.A.C. 193, [1999] O.J. No. 4591 (C.A.);
R. v.
    Morris
, 2013 ONCA 223, 305 O.A.C. 47. However, those cases did not involve
    sentences as significant as the sentence imposed for the breaches in this case
    and the double punishment point was not considered. In my view, where an
    offender is simultaneously being sentenced for breach charges and the charges
    that led to the recognizance or court order that was breached, it will
    ordinarily be preferable for the sentencing judge to deal with the breach by
    imposing a sentence commensurate with the seriousness of the breach. Such a sentence
    reflects the aggravating factor of committing an offence in breach of a court
    order and serves the purposes of sentencing, including deterrence, more
    directly and more appropriately than by denying enhanced credit for
    pre-sentence custody. In this case, the appellant was sentenced for the breach
    offences directly. He should not also be denied enhanced credit for the period
    of incarceration between the revocation of his bail and the imposition of his
    sentence due to the same breaches.

[22]

I
    do not, however, exclude the possibility that in some circumstances, such as where
    an offender attempts to game the system by causing delays in order to accrue additional
    enhanced pre-sentence credit, the denial of enhanced credit in addition to the
    sentence imposed for the breach may be justified. In such a case, however, it
    is the manipulation of the pre-sentence credit regime, and not the bail breach,
    that is targeted.

Disposition

[23]

Accordingly,
    I would dismiss the conviction appeal, grant leave to appeal sentence and order
    that the sentence be adjusted to reflect credit at the rate of 1.5:1 for the
    entire period of 1,092 days pre-sentence custody from November 20, 2012 to
    November 17, 2015, which I calculate to be 1,638 days credit, or 4.488 years
    credit rather than the 3.92 years given by the trial judge.

Robert J. Sharpe J.A.

I agree L.B. Roberts
    J.A.

I agree Fairburn J.A.

Released: February 16, 2018


