Court of Queen ’ s Bench of Alberta Citation: R. v. Sharma, 2010 ABQB 722 Date: 20101125 Docket: 101291417U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Sahil Sharma, Denesh Pal Bhaskar Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The interim publication ban ended on October 17, 2012. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary

[1] Mr. Sharma, a 19 year old post-secondary school student with no criminal record, is charged with trafficking drugs,possession of drugs for the purpose of trafficking, and possession of proceeds of crime. On this bail review, Mr. Sharma asks the court torelax the bail condition which prevents him from being in a vehicle which he doesn’t own. The Crown opposes the application on thegrounds that being in a vehicle not registered in their name is a hallmark of drug traffickers. [2] The application is allowed: condition no. 8 of Mr.

Sharma’s recognizance is varied by requiring that when he is present in avehicle, other than a bus or a taxi, of which he is not the registered owner, Mr. Sharma shall carry on his person written permission fromthe registered owner of the vehicle to Mr. Sharma’s use of the vehicle. [3] Mr. Sharma is an alleged “small fry” drug trafficker.

Even though he has a reverse onus on bail, since he has no criminalrecord and since he has a viable occupation, there can be very few conditions that are “necessary”, in Parliament’s word, to prevent the“substantial likelihood” that he will commit another drug trafficking offence while awaiting trial. As it happens, the vehicle that Mr.Sharma was driving when he was charged was registered in the name of a company owned by Mr. Sharma’s family; the owner of thevehicle may well face the seizure, and potential sale, of that vehicle pursuant to provincial legislation.

In all the circumstances, Mr.Sharma has more than satisfied his burden to prove that a slightly more relaxed condition concerning vehicle is justified: the conditionimposed by the bail judge will be varied to reflect Mr. Sharma’s proposal. Cases and authority cited [4] By the court: R. v Pearson (SCC), [1992] S.C.J. No. 99 1.

Summary [5] Mr. Sharma is 19 years old; he does not have a criminal record; he is a student at Concordia University College. His co-accused is also a young person, and also a student at a post-secondary institution. Both accused live with their parents in Edmonton. [6] The police assert that, on October 22, 2010, while working in an undercover capacity, they telephoned a number and spoketo a person who agreed to sell them cocaine. Two people arrived in a Lexus vehicle at a location agreed with the police officer. Mr.Sharma was the driver of the vehicle. Mr.

Sharma’s co-accused entered the police officer’s vehicle and sold the undercover constablewhat was held out to be 2.0 grams of cocaine for $100.00. A subsequent search of the Lexus uncovered 3.5 grams of suspected crackcocaine packaged in eleven individual spitballs which an estimated street value of $440.00, a 0.3 grams piece of crack cocaine with anestimate street value of $40.00, and currency totalling $415.00, including the $100.00 that had been paid moments earlier. [7] The police state that the Lexus involved in these events is registered to a company in which Mr.

Sharma’s father or parentsappear to have an interest. [8] The police officer who represented the Crown at the bail hearing before a justice of the peace indicated that he was askingfor significant cash bail, in the amount of $1,500.00 each, because drug trafficking is a concerning crime and “these young gentlemen . ..appear to be just starting to get involved in this type of business”.

On that basis “a significant cash bail would help to deter any furthertype of behaviour the future”. [9] The police officer did not request condition no. 8 which prevents the accused from being in any motor vehicle unless theregistered owner is present. [10] The accused were not represented at the bail hearing.

[11] In articulating the reasons why conditions were imposed on the pre-trial release of the accused, the bail judge began byindicating that, if convicted of the crimes with which they were charged : there is a significant penalty attached to the offence, and for that reason there is usually a risk of flight attached. Sometimes people thatare facing significant jail sentences are the ones that are most likely to take off and not show up in court and deal with things. So that isreally one of the main reasons why we set cash bail in trafficking matters.

There is also the factor, of course, that because of the lucrative nature of this particular business, people often will go right back to thevery thing that they are charged with shortly after their release.

We want to impose a high enough incentive through bail amounts andbail conditions, a high enough umber to ensure that that does not happen, because if it does happen, and you come back before us again,there is a strong likelihood that bail will be denied, and if bail should be set once again for as subsequent offence, it is likely to be a lotmore than what the Crown is asking for this time. [12] The bail judge then went on to impose conditions for each of the accused including $1,000.00 cash deposit, each, and a seriesof additional conditions which included the following which was summarized in condition 8 of the eventual recognizance:: I will also direct that neither of you shall be found in any motor vehicle in Alberta unless the registered owner is present.

And thisobviously will not apply if you are on a city bus or a taxi cab. But if you are going to get into a private passenger motor vehicle, youbetter make sure that the person behind the wheel is the registered owner. And again a breach of this condition is an offence. You will bebrought back and charged and you will be having another bail hearing. 2. Application of the reverse onus on small fry accused of drug trafficking [13] As the S.C.C. emphasized in Pearson, although accused persons in circumstances similar to those of Mr.

Sharma bear areverse onus when applying for bail, their burden is not a heavy one: Thus s. 515(6)(

d) applies not only to hardened drug traffickers, but also to "small fry" drug dealers and even to the "generous smoker"who shares a single joint of marijuana at a party. 65 Although I believe that Proulx J.A.'s concerns about the scope of s. 515(6)(

d) are legitimate, in my view they do not lead to aconclusion that s. 515(6)(

d) violates s. 11(e). The "small fry" and "generous smoker" will normally have no difficulty justifying theirrelease and obtaining bail. This is not a situation like that in R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, where anoverbroad provision did not allow differential treatment based on the seriousness of the offence. Indeed all guilty accused had to besentenced to at least 7 years imprisonment. Section 515(6)(

d) does not mandate denial of bail in all cases and therefore does allowdifferential treatment based on the seriousness of the offence. Moreover, the onus which it imposes is reasonable in the sense that itrequires the accused to provide information which he or she is most capable of providing. If a person accused of trafficking or importingis "small fry" or a "generous smoker", then the accused is in the best position to demonstrate at a bail hearing that he or she is not part ofa criminal organization engaged in distributing narcotics. [14] Here, Mr.

Sharma did not have to prove that he was small fry; the police acknowledged that from the outset. [15] Therefore, Mr. Sharma should not have any difficulty justifying his release on minimal conditions. 3. Impositions of conditions under the secondary ground [16] When dealing with individuals who are accused of small fry drug trafficking, a court will, all other things being equal, beeasily satisfied that there are no concerns on the first ground. Small fry are not going to be calling on the resources of a criminal drugtrafficking organization to get them out of the country. Here, Mr.

Sharma has no record, lives with his parents in Edmonton, goes toschool in Edmonton and has no known ties to anyone in any place except Edmonton. Even if he is eventually convicted of the crimes

with which he is charged, it is unlikely that his penalty will be very severe. In those circumstances, it is easy for Mr. Sharma to defend a position that there are no real concerns on the first ground. In the event, Mr.

Sharma does not contest the $1,000.00 cash deposit required of him. [ 17 ] Parliament has determined that restrictions on pre-trial liberty can be imposed in reliance on the second ground of justified detention where such restrictions are “ necessary ” for the protection and safety of the public having regard to all the circumstances, “ including any substantial likelihood that the accused will, if released from custody, commit a criminal offence . . . . ” With respect to the bail judge who may have thought otherwise, Parliament requires an assessment of each individual accused ’ s circumstances: if Parliament had thought that all persons charged with drug trafficking should only be released on certain conditions, it would have said so. [ 18 ] In relation to the second basis for justified detention, Mr.

Sharma ’ s most relevant circumstance is that he does not have a criminal record of any kind.

It is therefore not logical to presume that he will traffic in drugs if released without conditions. [ 19 ] In arguing for the retention of the condition relating to registered vehicles, the Crown indicated that the use of vehicles that were not registered to them was a “ hallmark ” of drug traffickers in much the same way that the use of portable communication devices was also a hallmark of drug traffickers. [ 20 ] With respect, even adopting a broad definition of “ hallmark ” to describe the notion of distinctive mark rather than the perhaps more standard notion of distinctive mark of excellence, I am of the view that it cannot be said that the use of vehicles not registered to oneself is a distinctive mark of drug traffickers.

Indeed, I would think that many, if not most, high school and post secondary students drive cars that are not registered in their own names. In fact, in the circumstances here, the accused was driving a vehicle that appears to have been beneficially owned by one of his parents.

This is not, therefore, a situation in which a complete stranger to the accused ’ s activities -such as a rental car company for example - is the registered owner of the vehicle. [ 21 ] Moreover, at least in Alberta, in order for the state to seize - and perhaps eventually sell - a vehicle that was apparently used in drug trafficking, it does not appear to be necessary for the vehicle to have been registered in the name of the alleged drug trafficker: Victims Restitution and Compensation Act .

Therefore, it might be argued that the policy objective of deterring drug trafficking might actually be enhanced if individuals who either knowingly or unknowingly enable drug trafficking were caught up in the nefarious effects of drug trafficking. [ 22 ] In any event, the imposition of restrictions on personal freedom prior to conviction can only be justified by Parliament ’ s own standards: the restrictions must be necessary to prevent the substantial likelihood of the commission of drug offences between the time of arrest and the time of trial.

Once that test has been met, it may be appropriate to impose conditions such as the one contested here. Any such conditions must, however, also meet the standard set by Parliament in s. 515(4)(

f) of the Code, i.e. that they be “ reasonable ” conditions that the bail judge considers “ desirable ” . [ 23 ] For the reasons set out above - essentially that the accused has no criminal record, has no dependents, appears to have a supportive family and a legitimate occupation - there is no rational basis for concluding that this accused will commit crimes between now and the time of his trial.

Therefore, only a minimal restriction on his pre-trial freedom can be justified; here, the accused volunteers to carry on his person the written permission of the vehicle ’ s owner when he is in a vehicle of which he is not the registered owner. The accused ’ s request to relax condition no. 8 is more than reasonable; condition no. 8 is varied as requested. Heard on the 18 th day of November, 2010. Dated at the City of Edmonton, Alberta this 24 th day of November, 2010. J.B. Veit J.C.Q.B.A.

Appearances: Brian A. Beresh Q.C., Beresh Cunningham for the Accused Jonathan Martin Q.C., Justice Canada, Prairie Region for the Crown