



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Isaac, 2022 ONCA 156

DATE: 20220217

DOCKET: M53203 (C68663)

Paciocco
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Joshua Isaac

Applicant/Appellant

Margaret Bojanowska, for the applicant/appellant

Jennifer Conroy, for the respondent

Heard: February 16, 2022 by video conference

REASONS FOR DECISION


[1]

On February 28, 2017, Mr. Joshua Isaac was arrested and
    charged with offences arising from an investigation into narcotics trafficking.
He
was released pending trial and complied with the
    terms of his release.
On January 20, 2020, Mr. Isaac was convicted of
    two counts of possession of Schedule I narcotics for the purpose of
    trafficking, and one count of possession of the proceeds of crime, arising from
    the February 28, 2017 charges. The narcotics consisted of cocaine and a
    heroin/fentanyl mix. On October 2, 2020, Mr. Isaac was sentenced to 6 years
    imprisonment less three months pre-sentence custody for those offences, which
    for ease of reference I will call the drug trafficking charges. The Crown
    consented to Mr. Isaacs bail release pending his appeal of those convictions and
    he was released that day.

[2]

On June 24, 2021, the police searched an apartment, locating two
    firearms. On October 2, 2021, having been instructed by police to do so, Mr. Isaac
    surrendered into custody and was charged with three firearms offences relating
    to one of those firearms. He was also charged with possession of property
    obtained by an indictable offence over $5,000 and failing to comply with his
    bail release order described in paragraph 1. For ease of reference, I will
    describe these charges against Mr. Isaac as the firearms charges.

[3]

Mr. Isaac has now secured bail release in connection with the firearms
    charges. Due to the firearms charges, however, his bail release pending appeal
    on the drug trafficking charges was not renewed after it expired. He now
    applies for bail release pending appeal on the drug trafficking charges. He
    bears the onus on this application.

[4]

The Crown strongly contests Mr. Isaacs release. The Crown does not rely
    directly on the primary or secondary ground, but urges that lingering concerns
    relating to whether Mr. Isaac would attend court as required, and whether he
    would commit further offences if released, are relevant to the tertiary grounds
    which is the focus of the Crowns concern. The Crown does not suggest that the
    public safety leg of the tertiary ground requires his detention on its own, but
    argues that, in all the circumstances, Mr. Isaacs detention is necessary to
    maintain confidence in the administration of justice. It submits that the
    grounds of appeal Mr. Isaac offers are not strong enough for the reviewability
    interest to overcome the enforcement interest.

[5]

To assist in their submissions, both Mr. Isaac and the Crown have made
    liberal mention of a decision I rendered denying bail pending appeal to Mr. Jamal
    Daye. Mr. Daye was one of two men who was also convicted alongside Mr. Isaac of
    drug trafficking charges arising from the investigation that led to Mr. Isaacs
    drug trafficking convictions, which are the subject of the instant appeal:
R. v. Daye
, 2021 ONCA 671. There are parallels between
    the two bail pending appeal applications because Mr. Daye was also arrested and
    charged with firearms offences in connection with the June 24, 2021 search that
    led to the firearms charges against Mr. Isaac. Mr. Dayes bail pending appeal,
    which had also been initially granted on consent, was revoked as the result of
    Mr. Dayes firearms charges. When he applied again to be released pending
    appeal, I denied his application. The Crown argues that the decision in
Daye
resolves most of the issues raised by Mr. Isaac in
    his application to be released pending appeal and therefore points the way. Mr. Isaac
    submits that his case is materially different than Mr. Dayes case because his
    appeal relating to the drug trafficking charges is stronger than Mr. Dayes
    is, and the case against him on the firearms charges is weak, whereas the case
    against Mr. Daye on the firearms charges is overwhelming.

[6]

I want to make clear that there is only limited utility that arises from
    my decision in
Daye
. I will determine Mr.
    Isaacs bail application on its own right in its own circumstances, based on
    the legal considerations that apply.

[7]

With respect to the reviewability interest, Mr. Isaac raises grounds of
    appeal relating to the drug trafficking charge that clearly surpass the not
    frivolous criterion. His contention that the trial judge erred in failing to
    conduct a s. 24(2) analysis after finding a s.10(b) breach is certainly a
    credible ground of appeal, although Mr. Isaac does face the prospect that an
    appeal panel, even if persuaded that there has been an error, could find that
    the evidence was properly admitted. Mr. Isaac also presents credible grounds of
    appeal relating to s. 11(b), which could, if successful, require the drug
    trafficking charges against him to be stayed. His grounds of appeal relating to
    sentence clearly surpass the minimal standard of not frivolous. Once again,
    however, even if errors of law or principle or law are identified, the sentence
    imposed could still be affirmed. Put simply, Mr. Isaacs grounds of appeal are
    clearly not frivolous, but the success of those grounds of appeal is far from
    certain.

[8]

The parties agree that this appeal can be perfected promptly and heard
    without long delay. This reduces to some degree the risk that Mr. Isaac could
    languish in custody pending what could be a successful and dispositive appeal,
    but I must bear in mind that it is a matter of concern whenever any time is spent
    in custody before potentially successful grounds of appeal can be reviewed.

[9]

In terms of the enforceability interest, the drug trafficking charges
    are serious and generally carry a significant sentence. These factors can require
    that a premium be placed on the enforceability interest, but not always. A more
    subtle evaluation is required, lest bail pending appeal always be denied for
    serious charges. In
R. v. Oland
, [2017], 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 50, Moldaver J. noted that where crimes
    are serious the public interest in enforceability will often outweigh the reviewability
    interest, particularly where there are lingering public safety or flight
    concerns and/or the grounds of appeal appear to be weak. However, he observed,
    at para. 66, that where there are no public safety or flight concerns and the
    grounds of appeal clearly surpass the not frivolous criterion, a court may
    well conclude that the reviewability interest overshadows the enforceability interest
    such that detention will not be necessary in the public interest.

[10]

I
    have already made plain that Mr. Isaacs grounds of appeal are not weak, but
    nor are they strong. The factors requiring closer examination relating to the public
    confidence evaluation are concerned with whether there are lingering flight and
    public safety concerns, and if so, how intense those concerns are.

[11]

The
    Crown grounds its submissions about a lingering flight concern on Mr. Isaacs
    2016 fail to attend court conviction, and the delay that occurred when he was
    asked to surrender on the firearm charges. A fail to attend court conviction is
    always concerning, but it is evident that Mr. Isaacs conviction did not
    involve flight. He received one day in jail for the offence, consistent with a
    failure to attend on a set date. The impact of the failure by Mr. Isaac to
    surrender immediately on the firearms charges is blunted by the Crowns
    appropriate concession in accepting Mr. Isaacs counsels assurance that she
    was negotiating and arranging Mr. Isaacs terms of surrender during this period,
    hence the delay in surrendering. Moreover, the fact that Mr. Isaac did surrender
    materially reduces any concern I have that he might flee pending his appeal.
    Therefore, flight concerns play only a minimal role in my ultimate
    determination.

[12]

However,
    there are lingering public safety concerns. There is evidence of Mr. Isaacs
    readiness to engage in drug trafficking, based on his prior trafficking
    conviction in 2016 and the fact that he is no longer presumed innocent of the
    trafficking charges that are the subject of this appeal. Those public safety concerns
    are aggravated by the firearms charges Mr. Isaac now faces, which are alleged
    to have occurred in breach of this courts prior bail pending appeal order.

[13]

I
    agree with Mr. Isaac that the firearms charges against Mr. Isaac are
    circumstantial and not as strong as the firearms charges that Mr. Daye faces. But
    I do not share Mr. Isaacs contention that the firearms charges are weak. It is
    not my role to conduct a minitrial on those charges, but I must look
    realistically and in a broad way at the strength of the charges. In this case,
    there is real reason to be concerned that the alleged firearms offences may
    well have occurred. The Crown has evidence that Mr. Isaac was connected to the
    apartment where the firearm was found and that the firearm was discovered in a
    satchel that can be circumstantially tied to Mr. Isaac. Although Mr. Isaac is
    presumed to be innocent of the firearms charges, there is a rational and real
    basis for concern that he may well have committed a serious firearms offence
    while on bail pending appeal.

[14]

Moreover,
    although Mr. Isaacs surety is suitable and prepared to pledge her entire
    savings to assist Mr. Isaac, I have concerns about the position she will be put
    in if Mr. Isaac breaches his terms of release. The surety is Mr. Isaacs
    girlfriends mother. It is proposed that Mr. Isaac live in her residence, where
    his girlfriend also resides. This is the same residence he was required to live
    at under the terms of his previous bail pending appeal release order that he is
    alleged to have breached. Moreover, Mr. Isaacs girlfriend was a surety for Mr.
    Isaac on that previous bail pending appeal order, and there is evidence before
    me that when the police were seeking Mr. Isaac in September 2021 at a time of
    day when he was required to be at that residence, he was not there. This
    information not only provides additional evidence that Mr. Isaac breached the
    terms of  his prior release pending appeal, it is also evidence that his
    girlfriend, despite being a surety, refused to provide the police with contact information.
    I appreciate that the girlfriends mother  the proposed surety  bore no legal
    responsibility at the time for controlling Mr. Isaac, and I do not wish to be
    taken as suggesting that she did anything wrong. I do have concerns, however,
    that given the girlfriends demonstrated loyalty to Mr. Isaac and given her
    presence in the residence where Mr. Isaac will be supervised, the dynamic may
    not be conducive to effective supervision on the proposed suretys part.

[15]

I
    have considered the strict bail release terms that have been proposed,
    including the ankle monitoring plan, with both its strengths and limitations. However,
    the ultimate focus in this application is on the impact of my decision on public
    confidence in the administration of justice, in the eyes of a reasonable person
    who is thoughtful, dispassionate, informed of the circumstances of the case and
    respectful of societys fundamental values. In my view, the spectre of
    disrepute looms large when an appellant who has already been released on bail
    pending appeal and who is no longer presumed to be innocent of the charges
    under appeal, seeks to be re-released after being arrested based on credible
    evidence that he committed a serious offence despite being on conditions of
    bail.

[16]

In
    my view, a reasonable person would be seriously troubled by the re‑release
    of Mr. Isaac, a prior drug trafficking offender, pending appeal from conviction
    of a serious drug trafficking charge given the following circumstances: the
    appeal, though credible, is not particularly strong; there is reason to believe
    that Mr. Isaac violated the curfew condition of his prior terms of release; Mr.
    Isaac has been rearrested while on bail release on credible firearms charges;
    and Mr. Isaacs bail release plan depends on supervision by his
    girlfriends mother in a residence where his girlfriend resides, and his
    girlfriend has demonstrated greater loyalty to Mr. Isaac than she did to her oath
    as a surety. In my view, a reasonable person would conclude that re-release pending
    appeal in such circumstances is ill-advised. Mr. Isaac has not met his onus in
    the circumstances of showing that his release pending appeal would not diminish
    public confidence in the administration of justice.

[17]

Mr.
    Isaacs application for bail pending appeal is denied.

David M. Paciocco J.A.


