



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fundi, 2012
    ONCA 227

DATE: 20120410

DOCKET: M41130 (C51151)

Hoy J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Abraham Fundi

Applicant

Breese Davies, for the applicant

Michael Bernstein, for the respondent

Heard: April 2, 2012

On an application for bail pending the determination of an
    application for leave to appeal to the Supreme Court of Canada.

Hoy J.A.:

[1]

The applicant, Abraham Fundi, was involved in the violent, armed robbery
    of about $500,000 of jewellery and $35,000 of cash from a jewellery store in
    November 2006. Cell phone records were used by the police in their
    investigation. Jewellery and cash were found at the applicants home. The
    applicant was convicted of conspiracy to commit robbery and possession of
    property obtained by crime and sentenced to five years imprisonment. This court
    upheld his conviction:
R. v. Mahmood
, 2011 ONCA 693, 107 O.R. (3d)
    641. He is currently incarcerated in a minimum security institution.

[2]

The applicant now seeks bail pending the determination of his
    application for leave to appeal to the Supreme Court of Canada. The Crown
    opposes bail.

[3]

The test for bail pending an application for leave to appeal to the
    Supreme Court of Canada is set out in s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46
. This court may
    grant bail if the applicant establishes: (a) his application for leave to appeal
    is not frivolous; (b) he will surrender himself into custody in accordance with
    the terms of any release order; and (c) his detention is not necessary in the
    public interest.

[4]

For the reasons that follow, bail is denied.

(a)

Merits of the leave
    to appeal application

[5]

In the course of their investigation, the police obtained conventional
    search warrants under s. 487 of the
Criminal Code
to obtain cell phone
    records and to search the homes of the applicant and other suspects. The trial
    judge found that the warrants were improper.  However, the trial judge admitted
    the cell phone records obtained under one of the two warrants issued in respect
    of phone records and the evidence seized under the residential warrants under
    s. 24(2) of the
Charter
. In the case of the cell phone records
    admitted, the trial judge concluded that, while the information furnished did
    not support the issuance of a warrant under s. 487 of the
Criminal Code
,
    it would sustain a telephone records order under s. 492.2(2). Section 492.2(2)
    allows a justice to order provision of a copy of telephone records if there are
reasonable grounds to suspect
that an offence has been or will be
    committed and the information would assist in the investigation of the offence.

[6]

The applicants ground for appeal is that s. 492.2, which permits access
    if a reasonable suspicion is made out, is unconstitutional. He submits that s.
    8 of the
Charter
requires a reasonable grounds standard before
    citizens privacy interests in cell phone records gives way to the states
    interest in law enforcement. Counsel for the applicant concedes that this court
    declined to entertain argument on the constitutionality of s. 492.2 on the
    basis that it was not argued at trial, there was an insufficient evidentiary
    foundation, and the Crown would be prejudiced. The applicant argues that this
    court erred in doing so, because s. 492.2 affected the trial judges s. 24(2)
    analysis. Counsel for the applicant submits that the pervasive use of cell
    phones makes the constitutionality of s. 492.2 of national interest.

[7]

The Crown agrees that the constitutionality of s. 492.2 is an important
    issue. The Crown argues, however, that given this court declined to consider
    the issue as it was not argued at trial, it is so remote that leave would be
    granted by the Supreme Court of Canada that the appeal is, in fact, frivolous.
    An order was not issued under s. 492.2(2). The existence of s. 492.2(2) was
    simply a factor in the trial judges s. 24(2) analysis. Moreover, the Crown
    submits that there is no conflicting appellate authority on the issue.

[8]

Leave to appeal is granted sparingly by the Supreme Court of Canada.
    Given that the constitutional issue was not argued at trial, or before this
    court, and the lack of inconsistent appellate authority, in my view the chances
    of leave being granted are remote. However, as Doherty J.A. observed in
R.
    v. Drabinsky,
2011 ONCA 647, 276 C.C.C. (3d) 277, it is difficult for a
    judge of this court to determine whether an application for leave to appeal to
    the Supreme Court of Canada is frivolous. Like Doherty J.A. in
R. v.
    Drabinsky,
I am prepared to accept that this application clears that low
    hurdle, because the applicant has not, in my view, shown that his release is in
    the public interest.

(b)

Flight Risk

[9]

The applicant was on bail, without incident, for an aggregate of nearly
    five years, before trial, pending appeal to this court, and again pending the
    release of this courts decision. He surrendered himself into custody when
    required. His home, his family, including his children, and the family business
    are in Toronto. Family members are again proposed to be his sureties.

[10]

The
    Crown does not argue that the flight risk criterion warrants the denial of bail
    in this case. I am satisfied that the applicant will surrender into custody in
    accordance with the terms of any release order.

(c)

Public Interest

[11]

Counsel
    for the applicant concedes that the applicant was convicted of a serious crime,
    and that it is in the public interest that those convicted of crimes serve
    their sentences. Counsel for the applicant argues, however, that if the court
    is satisfied that the applicant will surrender into custody, that interest will
    ultimately be satisfied if the applicant is unsuccessful.

[12]

The
    public interest criterion in s. 679(3)(c) was discussed by a five-judge panel
    of this court in
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.). Arbour J.A., for the court, explained the meaning of the public
    interest in this context:

The concerns reflecting public interest, as expressed in the
    case law, relate both to the protection and safety of the public and to the
    need to maintain a balance between the competing dictates of enforceability and
    reviewability. It is the need to maintain that balance which is expressed by
    reference to the public image of the criminal law, or the public confidence in
    the administration of justice. The public interest criterion in s. 679(3) of
    the [
Code
] requires a judicial assessment of the need to review the
    conviction leading to imprisonment, in which case execution of the sentence may
    have to be temporarily suspended, and the need to respect the general rule of
    immediate enforceability of judgments.

[13]

As
    noted by Doherty J.A. in
R. v. Drabinsky
, at para. 9:

Where an accused is convicted of a serious crime and sentenced
    to a significant jail term, public confidence in the effective operation of the
    justice system must suffer if years go by before the accused serves that
    sentence.

And at para. 10:

The pendulum must swing towards enforceability and away from
    bail pending further review after the correctness of the convictions entered at
    trial has been confirmed on appeal.

[14]

On
    this application, the balance is in favour of enforceability.  The applicant
    has been convicted of a serious and violent crime, and remained at liberty for
    almost five years after committing the crime. His conviction was confirmed on
    appeal to this court. The applicant has no further right of appeal and only has
    what I consider a remote chance of obtaining leave from the Supreme Court. Any
    right of review that the applicant has is tenuous. The public interest requires
    that the general rule of immediate enforcement of judgments be observed.

[15]

Counsel
    for the applicant argues that if leave is granted, and bail has not been
    granted, the applicant risks completing the entire custodial portion of a
    sentence in respect of a conviction that may be overturned. The parties expect
    that the Supreme Court will determine whether leave will be granted by June of
    this year. If leave is granted, it is open to the applicant to then seek bail,
    on the basis of the change in circumstances.

Released: April 10, 2012                                        Alexander
    Hoy J.A.

AH


