



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ahmed, 2020 ONCA 572

DATE: 20200918

DOCKET: M51389 (C68112)

Hourigan J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Rashid
    Ahmed

Applicant/Appellant

DOCKET: M51391 (C68113)

AND BETWEEN

Her Majesty the Queen

Respondent

and

Liiban
    Yusuf

Applicant/Appellant

Alan Gold and Laura Metcalfe, for Rashid Ahmed

Lindsay Board, for Liiban Yusuf

Katie Doherty, for the Crown

Heard: September 15, 2020

REASONS FOR DECISION

(a)

Introduction

[1]

On the evening of March 23, 2017, the Toronto Police Service
    investigated reports of gunshots in the area of 3001 Finch Ave. West. The
    police observed a vehicle pull up to that address. Mr. Ahmed was the driver and
    Mr. Yusuf was in the right rear passenger seat.  A search of the appellants
    revealed no weapons. However, a search of the vehicle yielded a loaded
    restricted firearm and extended magazine, which were located on the floor close
    to where Mr. Yusuf had been seated.

[2]

Mr. Ahmed was convicted of (i) occupying a motor vehicle knowing that
    there was in that vehicle a restricted firearm, contrary to s. 94 (2); and (ii)
    occupying a motor vehicle knowing that there was in that vehicle a prohibited
    device, contrary to s. 94 (1). He was sentenced to a total of 18 months
    imprisonment, less credit of 141 days, resulting in a net sentence of one year,
    one month and 10 days.

[3]

Mr. Yusuf was convicted of (i) unauthorized possession of a loaded
    restricted firearm, contrary to s. 95 (1); (ii) possession of a weapon for a
    dangerous purpose, contrary to s. 88 (1); (iii) possession of a prohibited
    device (an extended magazine) for a dangerous purpose, contrary to s. 88 (1);
    (iv) unauthorized possession of a restricted firearm, contrary to s. 91 (1);
    (v) possession of a restricted weapon knowing its possession is unauthorized,
    contrary to s. 92 (2); and (vi) possession of a prohibited device knowing its
    possession is unauthorized, contrary to s. 92 (2). He was sentenced to a total
    of 40 months imprisonment, less credit of 137 days, for a net sentence of two
    years, 11 months, and 15 days.

[4]

The appellants seek bail pending appeal. The Crown opposes the orders
    sought on the public interest criterion. For the reasons that follow, the
    applications are granted.

(b)

Analysis

[5]

There are two components to the public interest criterion: public safety
    and public confidence in the administration of justice:
R. v. Oland
,
    2017 SCC 17, at para. 23.

[6]

The appellants have satisfied me that there is no concern regarding the
    public safety component. Neither appellant has a criminal record and they have
    been on bail related to these charges for almost three and a half years,
    including 19 months of post-conviction bail, without incident. There is no
    substantial risk for public safety in the circumstances.

[7]

Regarding the public confidence component, I note that rarely does the
    public interest component play a role, much less a central role, in the
    decision to grant or deny bail pending appeal:
Oland
, at para. 29.

[8]

The Crown submits that the combination of weak grounds of appeal and the
    serious nature of the offences establishes that there is a strong public
    interest in the enforcement of the convictions. I accept that the offences are
    serious, and that this factor weighs in favour of the enforceability interest,
    as does the fact that Mr. Yusuf was on bail at the time of his arrest.
[1]


[9]

On balance, however, I am satisfied that the appellants have met their
    onus of establishing that their detention is not necessary in the public
    interest. The grounds of appeal asserted surpass the frivolous standard and are
    clearly arguable. Without undertaking a detailed review of the merits of the
    appeals, I observe that there is a serious issue about whether the Crown proved
    beyond a reasonable doubt Mr. Ahmeds knowledge of the presence of a restricted
    firearm and extended magazine. Regarding Mr. Yusuf, there are good arguable
    grounds of appeal about the trial judges analysis of the investigative
    detention and his reliance on photographs of a similar weapon found on Mr.
    Yusufs phone.

[10]

The
    length of the sentences imposed is also a significant factor. As first-time
    offenders, it is very possible that both appellants would be released before
    their appeals can be heard. This is almost undoubtedly the case for Mr. Ahmed. 
    There are also no residual flight risk or public safety concerns. In my view,
    an order that is essentially a continuation of the appellants bail of over
    three years would not adversely affect public confidence in the administration
    of justice.

(c)

Disposition

[11]

The
    applications are granted. The parties have agreed on the terms of Mr. Ahmeds
    bail and the draft order they have filed shall issue. The only issue regarding
    Mr. Yusufs bail order is whether he should be subject to a curfew (the
    position of the defence) or to house arrest (the position of the Crown). Mr.
    Yusuf has been abiding by his curfew in his most recent bail order and I see no
    reason why a house arrest order should be made. Accordingly, Mr. Yusufs bail
    order including a curfew shall issue.

C.W.
    Hourigan J.A.





[1]
Those charges did not proceed to trial.


