R. v. Akram

R. v. Akram Collection Decisions of the Court of Appeal Date 2025-02-28 Neutral citation 2025 ONCA 158 Docket numbers COA-24-CR-1189, M55747 Judges Fairburn, J. Michal; Zarnett, Benjamin; Wilson, Darla A. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Akram, 2025 ONCA 158 DATE: 20250228 DOCKET: M55747 (COA-24-CR-1189) Fairburn A.C.J.O., Zarnett and Wilson JJ.A. BETWEEN His Majesty the King Respondent and Karm Akram Applicant (Appellant) Chris Rudnicki, for the applicant Jeremy Tatum, for the respondent Heard: February 20, 2025 Fairburn A.C.J.O.: A. Overview [1] The applicant was convicted of pointing a firearm, assault with a weapon and possession of a weapon for a dangerous purpose: Criminal Code, R.S.C. 1985, c. C-46, ss. 87(1), 267(a) and 88(1). He received a sentence of two years less a day and probation. [2] The applicant filed a Notice of Appeal from conviction and sentence. He then filed a Notice of Application for bail pending appeal and scheduled a hearing. As is standard practice, Crown counsel informed the court by e-mail communication of his position a couple of days ahead of the hearing. He indicated that he would consent to bail with some adjustments to the terms of release that had been proposed by the applicant. The parties agreed to a form of order. [3] Given the Crown’s consent, the matter could have proceeded in writing. As is sometimes the case, though, the parties were informed that the bail judge still wanted them to appear at the motion. At the hearing, the bail judge expressed concern about whether the applicant had met his onus on the public interest criterion for release. The parties provided submissions, after which bail was denied. The reasons were provided a few days later: R. v. Akram, 2024 ONCA 892. [4] The applicant then filed a Notice of Application pursuant to s. 680(1) of the Criminal Code, requesting that the decision denying bail pending appeal be reviewed by a panel of this court. Crown counsel consented to a panel review. [5] At the panel review, Crown counsel maintained his original position, that the applicant’s release was appropriate. The application was granted on the terms agreed to by the parties, with reasons to follow. These are the reasons. B. Background Facts [6] This matter arises from a two-day trial in the Ontario Court of Justice. [7] Mr. Bruce Giasson owed the applicant $220. The debt arose from a cocaine transaction. The two men were involved in a dispute over the failed payment. [8] Mr. Giasson’s mother was in the driveway of the home where she lived with her son and husband. She testified that the applicant drove by slowly, rolled down the window, raised and extended one arm, followed by the other, pointed a gun at her and then pulled the trigger. She ducked and heard a “pop pop”, a “too too”, a “tick tick” or a “whatoo whatoo”. [9] The applicant testified at trial. He agreed that he had sold cocaine to Mr. Giasson on a previous occasion by delivering it to his home. Mr. Giasson owed him $220 for those drugs. The applicant said that when he tried to collect the debt, Mr. Giasson had threatened him, which made him angry.[1] Accordingly, the applicant acknowledged that he drove by Mr. Giasson’s home during the morning of the alleged incident. While the applicant admitted that he drove by the residence, he denied that he bought, owned, pointed, or shot a firearm or imitation firearm. [10] No firearm or imitation firearm was ever found. No projectiles or casings were located. The trial judge accepted that there was no evidence of any damage to the property consistent with bullets having been fired from a gun. While there was surveillance video that showed the applicant driving by the residence, the video did not show anything consistent with a shooting. [11] There were three central issues at trial: (1) whether Mr. Giasson’s mother had invented the story about the shooting to protect her son from the applicant who was intent on being paid the outstanding drug debt of $220; (2) the potential use of the applicant’s text messages to Mr. Giasson; and (3) whether the Crown could prove the applicant possessed a “firearm” caught within the s. 2 Criminal Code statutory definition of the term, including that it had to be capable of, at a minimum, discharging a projectile that could cause “serious bodily injury or death to a person.” [12] The trial judge rejected the applicant’s evidence as unreliable and lacking in credibility. Conversely, he accepted the mother’s version of events. In April 2024, the applicant was convicted. [13] In October 2024, the applicant was sentenced to a reformatory term of two years less a day in jail and probation. C. Bail Pending Appeal Application [14] The application materials placed before the bail judge addressed numerous subjects. [15] First, the application itself provided a summary of the applicant’s release history, including: (i) that he had been on bail without incident from July 26, 2021, up to the point of sentencing on October 25, 2024; (ii) that he is a first-time offender; and (iii) that if denied bail, there was “a high likelihood” that he would serve most if not all of his reformatory sentence before his appeal could be heard and decided. [16] The application materials also addressed the merit of both the conviction and sentence appeals. The applicant focussed upon two grounds of appeal from conviction, explaining how the trial judge erred by placing: (i) improper reliance upon text messages; and (ii) improper reliance upon post-offence conduct evidence. The applicant also focussed upon two grounds of appeal from sentence, explaining how the trial judge erred by: (i) failing to give appropriate effect to the principle of restraint; and (ii) failing to properly consider the applicant’s established mental and physical health challenges when calibrating the sentence. [17] As is typically the practice, Crown counsel informed the court by email correspondence, a couple of days before the scheduled hearing, of his position on the bail application. In this case, he informed the court that he would consent to the release. He noted a few suggested changes to the draft terms of release that had been proposed by the applicant. A final draft order, as consented to by both parties, was then submitted for the court’s consideration. [18] The day prior to the scheduled hearing, despite the Crown consent, the parties were informed that it would still be necessary to appear and address the matter. They did so. At the hearing, the bail judge expressed concern over whether the applicant had met his onus, specifically as it related to the public interest requirement. Of course, that requirement involves two components: public safety and public confidence in the administration of justice, the latter involving consideration of the competing interests of enforceability and reviewability: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. [19] The applicant’s written materials addressed all aspects of the public interest criterion, but applicant’s counsel focussed her oral submissions upon reviewability as it related to the sentence appeal. She also offered to make submissions on the strength of the conviction appeal but did not do so. Finally, she emphasized that the applicant would be eligible for release on June 20, 2025, meaning that if he was not released on bail, it was likely that he would serve out the custodial portion of his sentence before the appeal could be heard and decided. This was a reasonable position given that there was only just over six months between the date of the bail application and the date of potential release, yet counsel’s retainer had to be firmed up, exhibits needed to be transferred, transcripts and the appeal book needed to be produced, both the conviction and sentence appeals needed to be perfected by busy appellate counsel and, once that was all done, the Crown needed time to respond. [20] When called upon, Crown counsel addressed all components of the public interest criterion, explaining why he was consenting to release on the terms agreed to. He addressed why he was satisfied that public safety was not at risk through release. I will detail the Crown’s efforts to satisfy himself about public safety later in these reasons. He also addressed what he perceived to be the strength of the conviction and sentence appeals. As for the sentence appeal, he acknowledged that the reformatory sentence was fit, if not lenient, but that there were still arguable errors in the reasons for sentence. [21] The bail application was then dismissed with reasons to follow. At the same time, eight possible dates in February and March of 2025 were given for when the appeal could be heard on an expedited basis. Ultimately, the bail judge set the appeal down for March 4, 2025. D. Reasons for Dismissing the Bail Application [22] The bail judge briefly reviewed the law, setting out the three preconditions for bail pending appeal in s. 679(3) of the Criminal Code: (1) the appeal is “not frivolous”; (2) the applicant will surrender into custody in accordance with the terms of the order; and (3) the applicant’s detention is not necessary in the public interest. He also correctly identified the burden on the applicant to satisfy the elements on a balance of probabilities: Oland, at para. 19. [23] The bail judge first commented upon the “not frivolous” standard setting “a very low bar.” He then explained that, while the applicant had raised numerous grounds of appeal against conviction, his emphasis during oral submissions had been on the sentence appeal. As for the Crown, the bail judge noted that he had acknowledged that the sentence was fit but still maintained that there were arguable grounds of appeal. In light of the Crown’s concession that the sentence was fit, the bail judge noted that it was “unclear to [him] why the Crown believes that the applicant has met his onus that bail should be granted.” [24] The bail judge did not provide any comment on whether he thought that the “not frivolous” standard had been surpassed. [25] Turning to the second consideration, the bail judge was satisfied that the applicant met his onus on the issue of surrender. [26] The bail judge then turned to the public interest requirement. He reviewed the seriousness of the crime and recounted the indisputable fact that gun crimes must be “treated with the utmost seriousness” and that “gun violence is a scourge in our society”. [27] The bail judge concluded that the sentence for this crime appeared to be on the “lenient end”. He ultimately dismissed the application as he was not satisfied that the court would “likely interfere with the sentence”, describing it as a “weak ground of appeal.” In light of counsel’s submission that the applicant could likely be released prior to his appeal being heard, the bail judge set the appeal down for hearing on March 4, 2025. E. Section 680 Bail Review: GoverninG principles [28] Section 680 of the Criminal Code sets out a two-step process for reviewing orders made pursuant to various enumerated provisions on applications for bail pending trial and appeal: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 42; Gary Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at ss. 8:19-8:24. The same standard of review applies to both: Jaser, at para. 45. [29] The first stage of a s. 680 application requires that the Chief Justice (or acting Chief Justice) decide whether to direct a review of the order made by the bail judge. If a review is directed, either a panel of the court or, on consent of the parties, a single judge will review the order: Jaser, at para. 40.[2] [30] In Jaser, the first stage of a s. 680 review was referred to by Doherty J.A. as akin to a motion for leave to appeal, intended to “weed out cases with no realistic possibility of success”: at para. 41. Determining whether a case has a reasonable chance of success if a review is ordered requires consideration of the scope and nature of the review contemplated by a s. 680 application: Jaser, at para. 41; R. v. Nygard, 2024 ONCA 828, at para. 8. [31] There are three core principles that guide the scope and nature of that review, as set out by Moldaver J. in Oland, at para. 61: First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [32] To be clear, a s. 680 review does not present an opportunity for a reviewing court to simply substitute its own opinion for that of the bail judge. Rather, the reviewing court may only intervene “where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision” or where the bail decision was “clearly unwarranted”: Oland, at para. 64. [33] In assessing the strength of an appeal, the reviewing court must have regard to the grounds addressed in the Notice of Appeal with “an eye to their general legal plausibility and their foundation in the record”: Oland, at para. 44; R. v. J.B., 2023 ONCA 741, at para. 6. [34] An inquiry into whether a bail decision was clearly unwarranted is closely analogous to an inquiry into whether a decision is so contrary to the facts and law that it could not have been reasonably arrived at: R. v. K.M., 2017 ONCA 805, 137 O.R. (3d) 721, at para. 33. The “clearly unwarranted” standard demands deference to fact finding, but allows the reviewing court to consider whether there was a clearly inappropriate weighing of the competing factors resulting in the bail decision. As noted in Jaser, at para. 48: “If the reviewing court is satisfied the bail judge’s weighing of those factors was sufficiently skewed to produce a ‘clearly inappropriate’ order, the court will intervene on the bail review.” F. Analysis (1) Overview [35] On January 31, 2025, the parties asked that the March 4, 2025, hearing date be vacated as it had become clear that, despite their best efforts to meet the deadline set by the bail judge, the appeal could not proceed on that date. Among other difficulties, with less than five weeks remaining before the hearing date and the Crown factum already due, the parties were still waiting on some transcripts required for the appellant to perfect the appeal. Accordingly, the hearing date was vacated. [36] At the same time, the first stage of the s. 680(1) application was addressed. The Crown acknowledged that the threshold test under the first stage had been met and consented to the matter being placed before a panel for determination. That relief was also granted, and the matter was set down for a panel review. [37] At the panel review, the applicant asked the court to invoke its jurisdiction pursuant to s. 680(1)(b) and substitute the original decision denying bail with a release order. He advanced two overarching arguments in favour of that result: (i) the bail judge erred in principle when he failed to consider the grounds of appeal against conviction; and (ii) the bail judge’s decision was clearly unwarranted. The applicant argued that, upon proper consideration, he is a clear candidate for release pending appeal. [38] The Crown respondent agreed that the bail judge erred in his analysis, including in the failure to consider the merit of the conviction appeal and the failure to consider the full record, which included information regarding the public safety component of the public interest test. [39] It is unnecessary to consider all of the arguments made. I will focus strictly upon the errors in relation to the public interest component of the test. In my view the bail judge made errors in law or in principle which were material to the outcome, allowing this panel to intervene and substitute its own decision. (2) The Public Interest Criterion [40] The public interest component of the bail pending appeal test has two prongs: public safety and public confidence in the administration of justice. The public confidence component involves consideration of enforceability and reviewability. Enforceability is generally about respecting the need to immediately enforce judgments. Reviewability is generally about a recognition that the justice system can make mistakes and that those seeking to have decisions reviewed should be “entitled to a meaningful review process”, one that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25, citing R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-49. [41] The two prongs of the public interest test – public safety and public confidence in the administration of justice – are not to be treated as silos, independent of one another: Oland, at para. 27. Rather, there is some natural cross-over. For instance, public safety concerns that fall short of the substantial risk mark may well still inform the enforceability component of the public confidence in the administration of justice test: Oland, at para. 39. To this end, there is nothing wrong with considering the seriousness of the crime for which a person has been convicted when determining the enforceability interest and, indeed, it may well play an important role in determining that interest. At the same time, as reinforced by Moldaver J. in Oland, at para. 39, “other factors should also be taken into account where appropriate.” a. Public Safety and Enforceability [42] The bail judge’s reasons for denying bail focus strictly upon what he perceived to be the seriousness of the crime, combined with what he perceived to be the weakness of the sentence appeal. [43] There is no dispute about the inherent seriousness of gun crimes and that the possession of guns are indeed a scourge on society. At the same time, the conviction appeal, which I will address next, is entirely predicated on errors that go to the heart of whether there was even a gun used in this case and, if there was, whether it may have been a BB or pellet gun. [44] In addition, despite the perceived seriousness of the offence, the Crown gave nine reasons at the bail application for why he was consenting to release, many of which went to the heart of the public safety consideration under the enforceability interest. None of those factors were considered by the bail judge when he said that it was unclear to him why the Crown thought that the applicant had met their onus that bail should be granted. The public safety reasons given by the Crown were as follows: 1. the applicant had complied with all bail conditions for the over three years pending trial and sentencing; 2. the applicant’s father (a Canadian citizen with no criminal record, a homeowner and employed), who was the residential surety during that period of time, was prepared to remain the surety on bail pending the appeal; 3. there were no outstanding charges, including no breaches of recognizance; 4. the applicant’s mother was “an active player in his supervision” while on bail pending trial and sentencing; 5. that although the mother is on “ODSP”, there were no “physical/psychological issues as far as her ability to actively supervise him”; 6. the Pre-Sentence Report had provided helpful information about the role of the mother in the applicant’s life; 7. the Victim Witness Assistance Program and the police had no concerns regarding safety should the applicant be released on bail; 8. the complainant and her son no longer lived in the same location; and 9. there were no firearms in the family home where the applicant would be living. [45] All of the factors that Crown counsel explained and outlined during the bail hearing, which were taken into account when deciding to consent to release in this case, were inextricably linked to the public interest test, both when considering the risk to public safety and the impact on the public’s confidence in the administration of justice. None of them were taken into account by the bail judge who simply said it was unclear why the Crown was consenting. b. Reviewability [46] Moving onto the reviewability interest under the public confidence test, regard must be had to the strength of the grounds of appeal. Here, there were two appeals: one from conviction and one from sentence. The bail judge only considered the appeal from sentence. [47] The “not frivolous” criterion in s. 679(3)(a) of the Criminal Code operates as an “initial hurdle”, allowing the rejection of a bail application “in the face of a baseless appeal”: Oland, at para. 41. As the bail judge said, it is a “very low bar.” [48] It is unclear from the reasons whether the bail judge considered the “not frivolous” threshold to have been crossed. While he set the law out correctly, he immediately moved to summarize the parties’ positions and then moved onto the issue of surrender under s. 679(3)(b). [49] While there is a suggestion that the bail judge erred by failing to come to a decision on the s. 679(3)(a) criteria, this is inconsequential because, ultimately, he concluded under the reviewability criterion of the public confidence test that the sentence appeal was so weak that the applicant was unlikely to succeed on appeal. [50] Therefore, the real issue does not lie in failing to confront the “not frivolous” criterion. That matters not. The issue lies in failing to confront the legal plausibility of the conviction appeal. Only with that in mind, along with all of the other factors for consideration, could a proper final balancing be done. [51] Of course, it will be for the panel hearing this appeal to sort out the merit of the conviction appeal. However, at this preliminary stage, based upon the record that was before the bail judge, and combined with some additional information now available with the passage of time, the conviction appeal clearly surpasses the minimal “not frivolous” standard: Oland, at paras. 44, 69. In explaining why this is so, I will focus only on the issue pertaining to the admissibility and use of the text messages. [52] After the alleged shooting, Mr. Giasson texted the applicant and said that the police were at his home because someone had shot at his mother. The applicant replied: “Bro, you got bullet holes? Was there damage?” When Mr. Giasson said there was video (which there was not of a shooting), the applicant said: “Cool. U shod of paid me man, but u wanna talk big.” [53] The applicant argued at trial that these messages were taken out of context; however, even on their own, they were consistent with his denial of the shooting. He maintained at trial, and continues to maintain on appeal, that after being confronted with Mr. Giasson’s lie – that his mother had seen the applicant shoot a gun – his response back was merely a reflection of his knowledge that there was no gun damage because he knew he had not used a gun. That explanation was supported by the lack of any physical evidence suggesting there had been a shooting. [54] Even so, the trial judge used the applicant’s reaction, expressed in the partial text messages, including what she saw as a failure to outright deny the shooting, to infer guilt. [55] There is some merit to the applicant’s suggestion that it was erroneous to: (i) treat what Mr. Giasson conceded were only a few screen shots involving partial text messages as the applicant admitting to having committed the crime: see R. v. Merritt, 2023 ONCA 3, 165 O.R. (3d) 413, at paras. 81-84; (ii) infer from the partial text messages that the applicant’s reaction was a guilty one given that he would have specifically and clearly denied the shooting had he not shot a gun: see R. v. J.S.W., 2013 ONCA 593, at para. 47; and (iii) fail to consider that the post-offence conduct evidence tied up in the partial text messaging had an equally exculpatory meaning, one consistent with the applicant’s testimony at trial that he never shot a gun. [56] For purposes of this stage of the proceedings, and leaving aside the sentence appeal, the conviction appeal alone “clearly surpasses” the “not frivolous” threshold: Oland, at para. 69. (3) Bail Pending Appeal Should be Granted [57] Having found legal errors in the bail judge’s approach, the question is whether the decision denying bail should be set aside and substituted for a release order. [58] Undoubtedly a bail order is that of the bail judge and not the Crown. Bail judges are not engaged in a task of rubber stamping a Crown consent and should reject Crown concessions where appropriate. At the same time, joint proposals for bail should not be “routinely” second-guessed: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 68; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 105. [59] The Crown bears a significant burden when considering whether to consent to bail pending appeal. That burden includes the Crown’s responsibility toward the public, along with the obligation to take all necessary steps to ensure its safety. Accordingly, inherent in a Crown consent to bail is the requirement that the Crown has used the means available to it, including mobilizing police and victim witness resources, to achieve satisfaction that the proposed release plan will address public safety considerations. As catalogued by Crown counsel, that is what happened in this case. [60] Crown counsel did exactly as the administration of justice demands of a quasi-judicial officer. He made numerous and important inquiries and, having considered the matter in its entirety, came to a principled decision about release. Having regard to all of the inquiries that lay behind the Crown position, it is an understandable one. [61] At a minimum, the grounds of appeal against conviction clearly surpass the “not frivolous” threshold in this case. Those grounds go directly to a question as to whether a firearm was used. The applicant was on bail without incident for well over three years prior to being incarcerated on a reformatory sentence. The applicant has no prior criminal record. The Pre-Sentence Report noted that he is an appropriate candidate for community supervision. The police and the complainants have no ongoing safety concerns. The applicant will continue to live with his parents in the home that they own. His mother and father, both Canadian citizens, both without criminal records, both upstanding, contributing members of the community, are committed to continuing to monitor their son’s behaviour. Since the bail was denied, the applicant’s sister, a Canadian citizen and homeowner with significant equity in her house, has also agreed to act as a surety. [62] Finally, the applicant’s original concern, that the reviewability interest may be completely negated because he might serve out the custodial portion of his sentence before his appeal can be heard and decided, is a very real possibility with the necessary vacating of the March 4, 2025, date for hearing this appeal. At the time of this application, the parties were still awaiting some transcripts and the applicant’s earliest release date remains now less than four months away. [63] As Moldaver J. said in Oland, at para. 51: “[W]here public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the ‘not frivolous’ criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of…very serious offences.” This is such a case. G. Conclusion [64] Bail should be granted on the terms proposed by the parties. Released: “February 28, 2025” “JMF” “Fairburn A.C.J.O.” “I agree. B. Zarnett J.A.” “I agree. D.A. Wilson J.A.” [1] Mr. Giasson confirmed in his testimony that he had indeed threatened to break the applicant’s nose. [2] Frequently, the two stages will be collapsed into a single hearing before a single judge on consent of the parties: see R. v. Nygard, 2024 ONCA 828, at para. 7; R. v. J.B., 2023 ONCA 741; and R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 1.