



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noor, 2021 ONCA 469

DATE: 20210624

DOCKET: M52557

(C69495)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Responding
    Party)

and

Feisal
    Noor

Appellant

(Applicant)

Jessica Parise, for the applicant

Craig Harper, for the responding party

Heard: June 16, 2021 by video conference

ENDORSEMENT

BACKGROUND

[1]

The
appellant, Feisal Noor, applies for release
    pending the determination of his appeal from convictions on two gun-related
    charges: possessing a loaded restricted firearm without an authorization,
    licence or registration certificate; and, possessing a firearm, knowing the
    serial number had been removed.

[2]

The circumstances resulting in the charges against Mr. Noor were
    summarized by the trial judge in her reasons for sentence:

On November 16, 2019 at 3:23 a.m., Constables Perelli and
    Sottile arrived at the Shell gas station at 2435 Finch Avenue West in response
    to a 911 call about a man with a gun. The caller described buying a package of
    cigarettes at the gas station, then being approached by a stranger, who asked
    for a cigarette. After the caller gave him a cigarette, the stranger flashed
    a gun that was under his jacket, in his waistband, and said peace. While
    driving away, the caller saw the man knocking on the window of the gas station.
    The 911 operator was given the following description: male, black, about six
    feet tall, slim build, in his late 20s,  wearing light blue pants and a hoodie
    that was yellow, blue and a little bit of red with the hood down, more like a
    sweater type.

The gas station attendant, Ashkar Patel, advised the officers
    that the suspect had come up to the window and asked Mr. Patel to call him a
    taxi. When Mr. Patel refused, the suspect walked east, away from the gas
    station. Mr. Patel described the suspect as male, black, with a gold earring in
    each ear, possibly having a gold tooth or teeth, wearing an orange hoodie.

The two officers began a search for the suspect. They drove
    slowly along Finch Avenue West, going east in the direction taken by the man
    with the gun. At 2400 Finch Avenue West, a plaza roughly 350 metres northeast
    of the gas station, both officers noticed a group of between six and eight men
    standing outside of a restaurant. One member of the group appeared similar to
    the description of the suspect. That man was Mr. Noor, who was a young, black
    man, about six feet tall, with a slim build, short hair, a goatee and facial
    hair along his jawline. He did not have gold teeth. The defendant had gold hoop
    earrings in his ears. He was wearing a light coloured pants, an orange
    sweatshirt and a red, orange and black jacket that had no hood and had large
    and distinctive white number 8s on the sleeves and back.

As Constables Perelli and Sottile approached the group on foot,
    Mr. Noor appeared startled. The defendant quickly moved away from the other men
    and tried to evade the officers. Constable Perelli said hold on, man and
    reached for Mr. Noors arm with the intention of placing the defendant under
    investigative detention. When Mr. Noor attempted to flee, a violent struggle
    ensued. The defendant was taken to the ground but put up such strong resistance
    that Constable Perelli was not able to get control of him. Mr. Noor had his
    arms under his body and appeared to be trying to reach into his jacket with his
    right arm. Constable Perelli was concerned that the defendant was reaching for a
    firearm. Ultimately, with the assistance of other officers, Mr. Noors arms
    were extricated from under his body, and he was handcuffed. When the defendant
    was rolled onto his side, his jacket fell open revealing the grip of a handgun
    in a pocket inside the jacket.

Mr. Noor was in possession of a restricted firearm, a Para USA,
    1911 Elite Commander 45 caliber semi-automatic handgun with an obliterated
    serial number that had six rounds of ammunition in the magazine and another
    round in the chamber. The defendant was not the holder of a firearms
    acquisition certificate, license, or firearms registration certificate.

[3]

Mr. Noors trial took place in the Ontario Court of Justice before a
    judge alone. On January 12, 2021, the trial judge held that the Crown had met
    the burden of establishing the lawfulness of Mr. Noors detention and the
    search incident to that detention. Given the defences admission of the
    essential elements of the offences, the trial judge entered convictions on both
    counts.

[4]

On April 20, 2021, the trial judge gave oral reasons explaining how she
    decided that the appropriate total sentence would be 467 days in jail, followed
    by two years of probation. The trial judge released written reasons for
    sentence on June 16, 2021.

[5]

Mr. Noors notice of appeal from conviction identifies two grounds of
    appeal: the trial judge erred in finding there was no violation of his rights
    under ss. 8 and 9 of the
Canadian Charter of Rights and Freedoms
; and,
    she erred in failing to exclude the gun from evidence pursuant to s. 24(2) of
    the
Charter
.

[6]

The Crown opposes bail pending appeal on two grounds. First, the Crown
    submits that the grounds of appeal do not rise above the not frivolous
    standard in s. 679(3)(a) of the
Criminal Code
. Second, Mr. Noor has
    failed to discharge his burden to prove his continued detention is not
    necessary in the public interest: s. 679(3)(c).

[7]

Since the transcripts of the trial are not yet available, on this
    application Mr. Noor relies upon the written reasons of the trial judge.

ANALYSIS

Not frivolous: s. 679(3)(a)

[8]

The bar for establishing that an appeal is not frivolous is very low:
R.
    v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by
    Watt J.A. in
R. v. Manasseri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at
    para. 38: An appeal is not frivolous if the proposed grounds of appeal raise
    arguable issues. An applicant need not establish a likelihood, much less a
    certainty of success on appeal, but must be able to point to a viable ground of
    appeal that would warrant appellate intervention if established. The purpose
    of the not frivolous threshold is to require the applicant to demonstrate
    that the appeal has some merit. If this were not so, the appellate process
    could be abused by those intent on forestalling the execution of a custodial
    sentence:
R. v. T.S.D.
, 2020 ONCA 773, at para. 24.

[9]

Mr. Noor submits that the police officers notes disclosed that they had
    arrested him, rather than detain him for investigative purposes as they
    testified on the
voir dire
. The trial judge noted that the detaining
    officer conceded, in essence, that there were no grounds to arrest Mr. Noor
    until the gun was discovered after he had been subdued. As well, Mr. Noor
    submits that the officers did not have reasonable grounds for an arrest as
    there were substantial differences between the description of the suspect and
    his own appearance. Therefore, the trial judge erred in characterizing the
    interaction as an investigative detention instead of an arrest. Even if it was
    an investigative detention, the police violated Mr. Noors
Charter
rights because they failed to explain to him the reasons for his detention, the
    fact of the detention or his rights under detention.

[10]

On
    its part, the Crown argues that the trial judge turned her mind to the issue of
    identity and detailed the applicable standard for reasonable suspicion and the
    information available to the officer. The Crown contends that all deficiencies
    alleged by Mr. Noor were explicitly addressed by the trial judge in her reasons
    and the grounds of appeal do not rise above the frivolous standard.

[11]

I
    am satisfied that Mr. Noor has demonstrated his appeal is not frivolous. On May
    22, 2019 the Supreme Court of Canada released brief reasons in
R. v. Omar
,
    2019 SCC 32, [2019] 2 S.C.R. 576. A week later, the court released reasons in
R. v.
    Le
, 2019 SCC 34, 434 D.L.R. (4
th
) 631. Both were split
    decisions, reaching different results on the admissibility of seized handguns. Both
    cases involved ss. 8 and 9
Charter
issues arising out of police interactions
    with the accused in outdoor places and their implications for the admissibility
    of seized handguns. Arguably, the decisions applied different appellate
    approaches to the facts found by the trial judges and the resulting
    characterization of the interactions between the police and the accused for
    purposes of ss. 8 and 9 of the
Charter
: see, for example, the majoritys response in
Le
at para. 24 to the criticism of the minority at
    paras. 244 and 308
. Given that differing jurisprudence from the
    Supreme Court, and notwithstanding the deference usually accorded to a trial
    judges findings of fact, I cannot say that Mr. Noors arguments are frivolous.

Public interest: 679(3)(c)

[12]

The
    public interest criterion in s. 679(3)(c) of the
Criminal Code
consists of two components: public safety and public confidence in the
    administration of justice:
Oland
, at para. 23.

[13]

The
    Crown submits that the offences for which the applicant was convicted are
    serious ones. I agree. The seriousness of the offences is apparent to anyone
    living in Toronto where firearms offences now occur with great frequency.

[14]

In
    respect of the reviewability interest, the Crown submits that even if Mr.
    Noors grounds of appeal are not frivolous, his appeal amounts to a request for
    this court to substitute a different view of the evidence, a power not open to
    the court absent palpable errors. I do not accord much weight to this
    submission, for the reasons given in para. 11 above.

[15]

The
    Crown argues that even if Mr. Noors release plan adequately addresses public
    safety concerns, analysis under the enforceability factor would show that
    public confidence would be undermined if an offender, such as Mr. Noor, who
    does not dispute his illegal possession of a loaded handgun that he carried and
    displayed in public is released.

[16]

There
    is merit to the Crowns submission. However, as
Oland
teaches, the
    assessment of the competing interests of enforceability and reviewability
    requires an individual qualitative and contextual assessment: at para. 49.

[17]

Notwithstanding
    the serious nature of Mr. Noors offences and the lack of dispute about his
    unlawful possession of a loaded firearm in public places, balancing the
    enforceability and reviewability interests leads me to grant the application
    for bail pending appeal for three reasons.

[18]

First,
    as mentioned, the divided nature of higher authorities on the ss. 8 and 9
    principles applicable to police detentions and resulting seizures of guns in
    public places establishes arguable grounds of appeal by the applicant.

[19]

Second,
    the applicant complied with his interim release terms pending sentence. The
    three individuals who acted as his sureties on pre-sentence interim release are
    prepared to act again as sureties on bail pending appeal: his mother, Zahra
    Abdalla Noor; his older brother, Mohamoud A. Abdirahman; and his uncle, Mohamed
    Abdi. They are prepared to increase the amount of bail from $11,000 to $25,000.
    It is clear from their affidavits that $25,000 represents a significant amount
    of money for them. The willingness of members of the applicants family to
    increase significantly the amount of bail strongly influences my decision to
    grant bail. It indicates that family members are materially invested, so to
    speak, in ensuring that the applicant complies with his conditions of bail
    pending appeal.

[20]

Third,
    during the hearing I advised Mr. Noors counsel that granting bail would
    require the applicant to agree to a firm, quick perfection date. Applicants
    counsel subsequently advised that the transcripts should be ready by August 18,
    2021 and counsel undertook to perfect this appeal by September 30, 2021. I
    accept that as a reasonably expeditious perfection date in the circumstances.

[21]

My
    insistence on a firm, quick perfection date in part is a function of the
    serious nature of the offence for which the applicant has been convicted and in
    part a reaction against the unduly lengthy time it takes to perfect too many
    appeals in this court. A quick perfection date ensures that this appeal should
    be heard later this year or early next year, thereby limiting the amount of
    time Mr. Noor is out on pre-hearing bail. Given the frequency of bail variation
    applications in this court as a result of the failure to perfect in a timely
    fashion, I wish to emphasize, for the benefit of any colleague who might later
    have to consider an extension of this bail order, that had Mr. Noor not agreed
    to a quick perfection date, I would not have granted this application.

[22]

Accordingly,
    on balance, I am satisfied that Mr. Noor has established that his detention
    pending the hearing of his appeal is not necessary in the public interest.

DISPOSITION

[23]

For
    the reasons set out above, I grant the application for bail pending appeal, on
    the terms and conditions set out in the draft release order sent by Crown counsel
    by email dated June 18, 2021, at 5:36 p.m., from which I delete Condition 3
    (You must pursue the appeal with all due diligence) and replace it with the
    following new Condition 3:

3. You must perfect your appeal by September 30, 2021.

[24]

Counsel may submit a revised Release Order for my signature.

David Brown J.A.


