



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Iraheta, 2018 ONCA 229

DATE: 20180305

DOCKET: M48877 (C63271)

Fairburn J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Renzzo Iraheta

Moving Party

Mark Halfyard, for the moving party

Philippe Cowle, for the respondent

Heard: March 1, 2018

ENDORSEMENT


Overview

[1]

Renzzo Iraheta seeks bail pending appeal.

[2]

He was convicted on December 16, 2016 of
    possession of a loaded prohibited firearm under s. 95(1) of the
Criminal
    Code
and possession of a prohibited firearm under s.
    92(1). He was sentenced on January 17, 2017, receiving 96 months on the s.
    95(1) offence and a concurrent 80 months on the s. 92(1) offence. He was
    granted a total of 44 months credit for pre-sentence custody and lockdown
    conditions, leaving four years and four months to serve. As of today, he has
    about 3 years and 2.5 months left to serve.

[3]

Accepting that the appeal is not frivolous and
    that the accused will surrender himself into custody in accordance with the
    terms of any release order that may be imposed, Crown counsel does not oppose
    bail under s. 679(3)(a) or (b) of the
Criminal Code.
Instead, the Crown opposes bail on the basis that the appellant has
    failed to demonstrate that his detention is not necessary in the public
    interest. Accordingly, the parties focus their submissions on this issue.

[4]

I agree that the appellant has met his onus on
    the first two prongs of the analysis. I am satisfied that the appeal is not
    frivolous and that the appellant will surrender himself into custody as
    required. The question for determination is whether the appellant has shown, on
    a balance of probabilities, that his detention is not necessary in the public
    interest:
R. v. Oland,
2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 19
.
For the reasons that
    follow, I find that the appellant has failed to meet his burden under s.
    679(3)(c).

Analysis

[5]

There are two components to be considered under
    the public interest criterion: public safety and public confidence in the
    administration of justice (
Oland
,
at para. 26). I start with the safety
    consideration.

[6]

As fairly acknowledged by counsel, the appellant
    has been convicted of serious offences. A brief review of the factual backdrop
    for the offences suffices to make the point. I take these facts from the
    written reasons of Himel J., dismissing the appellants
Charter
arguments.

[7]

The appellant was arrested while in a motor
    vehicle on December 3, 2014. Two shivs were located in his jacket pocket during
    a search incident to arrest. Another shiv was found in the car that he had been
    driving. Shortly after his arrest, a residence that he had been associated to was
    searched under warrant. Among other things, a Remington sawed-off shotgun and a
    loaded Ruger handgun were located in the residence. A vehicle parked behind the
    residence was later searched under warrant. The car contained a Ruger machine
    pistol and a magazine holding 30 rounds of ammunition, as well as ammunition
    for other types of firearms.

[8]

On their own, these facts engage serious public
    safety concerns. The concerns are heightened by the fact that, at the time of these
    offences, the appellant was the subject of a firearms prohibition order resulting
    from his previous conviction for possession of a firearm.

[9]

The appellant acknowledges his criminal record,
    which includes youth offences, including a breach of probation. He also has an adult
    conviction for possessing a firearm, where he received a 3.5 year sentence. He
    twice violated his parole while serving this sentence, leading to his
    re-incarceration and the requirement that he serve the duration of the sentence
    in custody. Although the appellant explains that his parole breaches arose from
    the consumption of marijuana, a substance he was ingesting to regulate pain
    arising from a motor vehicle accident, this explanation does not diminish the
    fact that he breached his parole on two occasions.

[10]

In respect to the offences giving rise to the
    most recent convictions, the appellant was not successful in obtaining bail
    before trial. He explains that he was denied bail because of the number of
    additional charges he was facing at the time, including a heroin related charge.
    Leaving aside the reasons for why the appellant was denied bail pending trial,
    the reality is that he finds himself without a track record for bail
    compliance, something that he might otherwise point to in an effort to assuage concerns
    over public safety.

[11]

To the extent that the appellant has developed a
    track record for modifying his behaviour based on directions given, it is an
    unenviable one. The parole and weapons prohibition order breaches point toward
    real concerns about the likelihood of reoffending. With his most recent
    convictions, the appellant has now been found guilty of being in possession of
    multiple different prohibited firearms, one of which was loaded. He also had
    weapons on him when he was arrested and had access to an abundance of
    ammunition. I find that the public could be at real risk if the appellant were
    to be released.

[12]

My concerns are not allayed by the plan proposed
    for release. Although the surety put forward, the appellants uncle, seems like
    an upstanding citizen, despite his best efforts, I have little confidence that the
    uncle could control his young nephew. The uncle works full time as a mechanic
    at an autobody shop. Although he says that his nephew can work with him, and
    that he will monitor his nephews work, there is no information from the
    employer that this can occur. Nor am I satisfied that, in the circumstances of
    this case, the proposed plan would effectively counterbalance the risks to
    public safety.

[13]

Although the public safety considerations alone
    call out for detention pending appeal, I will go on to briefly consider the
    broader inquiry into the publics confidence in the administration of justice, an
    inquiry that rests on both enforceability and reviewability interests.

[14]

These are serious offences and there is no real dispute
    that the enforceability component points toward detention. Public safety
    concerns also inform the enforceability component. As noted by Moldaver J. in
Oland,
at para. 39, public safety concerns that fall short of
    the substantial risk mark remain relevant when considering the public
    confidence component and, in some cases, tip the scale in favour of
    detention. Even if the appellant does not represent a substantial risk to the
    safety of the community, he certainly represents a considerable risk. The facts
    of the offence and the lengthy period of imprisonment directly intersect with
    the application of the criteria set out in s. 515(10)(c)(ii), (iii) and (iv) of
    the
Criminal Code,
as adapted for
    consideration under s. 679(3)(c):
Oland,
at
    para. 38. There is little that diminishes the pull of enforceability in this
    case.

[15]

The interest in enforceability is to be balanced
    against the interest in reviewability, reflecting societys acknowledgement
    that our justice system is not infallible and that persons who challenge the
    legality of their convictions should be entitled to a meaningful review
    process:
Oland,
at para. 25. The strength of
    the grounds of appeal must be taken into account.

[16]

The appellant focusses on three of his grounds
    of appeal. Although I find that the grounds of appeal are not without merit, my
    preliminary assessment is that they are a good ways from being sure to succeed.

[17]

The first ground relates to whether the police
    were duty bound to obtain another search warrant when they realized that the
    residence they were authorized to search was split into two units. The
    appellant relies upon
R. v. Ting,
2016 ONCA
    57, 333 C.C.C. (3d) 516, in support of this proposition. I simply note that
Ting
is a
factually different case than this one and, in my
    estimation, falls some distance from being determinative of the suggested error.

[18]

The second ground of appeal relates to the
    sufficiency of grounds supporting the reliability of the confidential
    informant. The appellant relies heavily on
R. v. Debot,
[1989] 2 S.C.R. 1140. I observe that the trial judge was well aware
    of the criteria by which to assess confidential informant information, she
    considered the facts related to the relevant criteria and appears to have
    correctly applied the
R. v. Garofoli,
[1990] 2
    S.C.R. 1141 standard of review.

[19]

The final ground of appeal relates to whether
Garofoli
step six can be applied when considering the sufficiency
    of grounds for arrest. The appellant maintains that this issue is yet to be
    commented upon in this court. He also argues that there is a live issue about
    whether, even if step six can be invoked in this context, evidence gathered
    incident to the arrest can be admitted at trial. I accept that the appellants
    argument in this regard is somewhat novel and to be developed. On the basis of
    the law as it currently stands, though, the appellant will have to persuade
    this court of the correctness of his novel position. In other words, there is
    no authority that currently supports the suggestion of an error.

[20]

I now move to the final balance. As Moldaver J.
    noted at para. 49 of
Oland
, in the final
    analysis, there is no precise formula that can be applied to resolve the
    balance between enforceability and reviewability. A qualitative and contextual
    assessment is required.

[21]

This assessment leads me to conclude that the
    appellant is not a good candidate for release. His record for a firearm related
    offence, the shivs he had on him when he was arrested, his breaches of parole,
    his conduct in the face of a weapons prohibition order, and the seriousness of
    the offences with which he has been convicted, all point toward serious public safety
    concerns. The interest in enforceability is strong. Although the grounds of
    appeal are not frivolous, there is nothing that currently suggests that,
    pending his appeal, the appellant is at risk of continuing to serve a sentence
    that he will not have to serve one day.

[22]

The appellant has failed to show why his
    detention is not necessary in the public interest. Having regard to the entire
    context of this matter, I find that a reasonable member of the public would
    lose confidence in the administration of justice if the appellant were to be
    released pending his appeal:
Oland,
at para.
    47;
R. v. St-Cloud,
2015 SCC 27, [2015] 2
    S.C.R. 328 at paras. 74-80.

[23]

In reaching this conclusion, I have had regard
    to the fact that the appellant is well along in his sentence. His earliest day
    parole date is in April of this year and he will reach full parole eligibility
    in December 2019. The parties are encouraged to do what they can, as I am sure
    they will, to move the matter along.

Conclusion

[24]

The application for release pending appeal is dismissed.

[25]

Thank you to counsel for their assistance in this matter.


Fairburn J.A.


