R. v. Irama, 2013 BCSC 2439

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Irama, 2013 BCSC 2439 Date: 20131220 Docket: 26477, 26478 Registry: Vancouver Regina v. Robert Irama Before: The Honourable Madam Justice Fenlon On judicial review from: An order of the Provincial Court of British Columbia, dated November 4 and 7, 2013 ( R. v. Irama , North Vancouver 59804-1 and Vancouver 219589-1) Oral Reasons for Judgment Counsel for the Crown: J.R. Neal Counsel for the Accused: D. Markovitz A. Jun, A/S Place and Date of Hearing: Vancouver, B.C. December 9, 2013 Place and Date of Judgment: Vancouver, B.C.

December 20, 2013 [ 1 ] THE COURT: Before the court is a bail review. The accused, Robert Irama, applies under s. 520 of the Criminal Code to vary the terms of his judicial interim release to reduce the cash deposit required from $950,000 to $100,000. The Crown applies for a detention order under s. 521(1) of the Criminal Code . [ 2 ] On November 7, 2013, a judge of the Provincial Court ordered Mr. Irama released on a recognizance with a cash deposit of $950,000 without surety. She ordered other terms as well, including what amounts to house arrest. Mr.

Irama has been unable to perfect the cash deposit but says through counsel he could post a $100,000 cash deposit consistent with his proposal at the bail hearing of a $50,000 to $100,000 sum. [ 3 ] It is helpful to begin with a brief history of Mr. Irama's circumstances. [ 4 ] Mr. Irama is charged with offences under two indictments. The first indictment was laid in Vancouver in March 2011. It arose out of Mr. Irama's efforts to obtain a pardon for convictions in 1999 and 2000 for fraud and attempt fraud, two over $5,000 and one under, as well as one attempt fraud in 2001.

He received conditional sentence orders with respect to the first offences but one year in jail with respect to the last, followed by one year probation. [ 5 ] In the process of applying for a pardon, Mr. Irama is alleged to have supplied forged documents to convince Pardons Canada that he had complied with restitution orders that were part of his sentence for the 1999 and 2000 convictions. [ 6 ] The Vancouver indictment charges one count of obstruction of justice and four counts of uttering forged documents. This is referred to by counsel before me as “the Vancouver indictment”.

The trial date for that matter was adjourned for various reasons and is now set for January 2014. Mr. Irama was released in 2011 pending that trial. [ 7 ] While on bail, he is alleged to have been involved in 11 incidents in which cheques payable by one corporation or large entity to another were stolen, shell companies set up with a name very similar to the payee of the cheque, the cheque then deposited, and money moved out of the country. Fourteen charges were laid against Mr. Irama related to these incidents. The frauds alleged involve a total of about $2.3 million, $946,000 of which is unaccounted for.

This is referred to by counsel as “the North Vancouver indictment”. A trial date has not yet been fixed in that matter. Crown and defence agree that the trial will probably occur 18 to 24 months out. Because of the volume of disclosure involved and the number of witnesses, it is expected to be a lengthy trial. [ 8 ] In addition to an order detaining Mr. Irama in relation to the North Vancouver charges, Crown seeks to revoke the release order made in relation to the Vancouver charges under s. 524 of the Code . [ 9 ] In R. v. Wilcox , 2006 BCSC 1785 , Mr.

Justice Barrow summarized the standard of review on a hearing of s. 520 and s. 521 applications:

[2] The [applicant] has the burden of showing cause [on a balance of probabilities] why the order of the Provincial Court judgeshould be vacated or varied. As the reviewing judge, I am required to give due consideration to the initial order, but I am also entitled toexercise an independent discretion. [3] Further, I am entitled to consider any additional evidence and, in light of that evidence, consider whether the judge who made theinitial order erred in law or in principle or whether it would be unjust not to [make the order sought]. [10] In

summary, the review I must conduct is a hybrid of an appeal and a new hearing. First, I will consider the errors alleged byCrown and defence, the appeal part of the review. [11] The Crown submits the learned judge below erred in granting release to the accused because she concluded that the accused hadnot shown cause why he should be released but granted release nonetheless. This was a reverse onus situation because the offences arealleged to have occurred while Mr.

Irama was on bail for earlier charges. [12] The Crown's submission is based on the following passage from the Provincial Court judge's reasons given November 7, 2013,at para. 1: I think before we proceed further, I should make clear that, in my view, the Crown had established grounds for Mr.

Irama's detention andalso that he had not met the onus upon him for his release but for the fact that he is apparently able to post a significant cash deposit. [13] I do not, with respect, accept the Crown's submission that the judge below found the accused had not met the onus ofestablishing that his detention in custody was not justified. Although expressed in a somewhat convoluted way, this passage must meanthat, on balance, Mr.

Irama had convinced the judge that he did not need to be detained if he could post an extremely large cash deposit,a deposit so large that it would create a powerful incentive for him to comply with the terms of his release and thereby counter the court'sconcerns that Mr. Irama might flee the jurisdiction. That this primary ground was of particular concern to the learned judge below isevident from the attention she gave to assessing Mr. Irama's family and community ties. [14] I turn now to the errors alleged by the defence. [15] Although Mr.

Markovitz described them as three errors, I am going to group them into two main errors: first, that the judgefailed to set reasonable bail, and second, that she fixed the amount of the cash deposit based on the sum Crown alleges remainsunrecovered as a result of the frauds described in the indictment. [16] I agree with defence counsel that the learned judge made these errors. As noted by Chief Justice Lamer in R. v. Pearson, (SCC), [1992] 3 S.C.R. 665 at page 689, s. 11(

e) of the Charter guarantees the right of any person not to be denied reasonablebail without just cause. "Reasonable bail" refers to the terms of bail. [T]he restrictions imposed on the accused's liberty while on bail must be "reasonable". [17] The terms of bail imposed on Mr. Irama were not reasonable. First, the judge imposed house arrest comparable to punitiverestrictions imposed on a conditional sentence order. Crown agreed at the hearing before me that a fixed curfew rather than house arrestis sufficient to meet the legitimate objective of enabling the police to know whether Mr.

Irama was to be at home so that they couldcheck that he was indeed where he was supposed to be. [18] Second, the learned judge set the cash deposit at $950,000. That is an exceptionally high cash deposit. As noted in R. v. Brost,2012 ABQB 696, an Alberta Queen's Bench decision in 2012 at para. 40: The principle that bail should not be set so high as to amount to a detention order has become a constitutional guarantee . . .

Thisguarantee involves a positive obligation on the part of [a] judge setting bail to make inquiries into the ability of the accused to pay. [19] At the hearing, the judge heard evidence about the willingness of Mr. Irama's common-law partner, Ms. Landers, to provide asurety of $50,000 to $100,000. The judge also heard evidence about a property owned by Ms. Landers on the Musqueam reserve inVancouver which had equity of at least $412,000. There was evidence as well that Ms. Landers had about $900,000 in her bank accountfrom the sale of other properties she had inherited from her grandmother.

However, the amount of bail must take into account theaccused's personal financial circumstances. The only evidence before the judge about the accused's finances was first, that everything heowned had been taken as a result of a civil forfeiture order, and second, that Ms. Landers was willing to put up $50,000 to $100,000 in aneffort to secure his release but, refused to be interviewed about acting as a surety. [20] In

summary, there was no evidence before the judge to support a finding that Mr. Irama would be able to deposit $945,000 incash, and that term was therefore not reasonable. [21] My conclusion in this regard is closely linked to my finding that the learned judge made a second error. She appears, from herreasons, to have chosen the figure of $950,000 based on the amount the Crown says has not been recovered by the institutions affectedby the frauds perpetrated upon them: $946,000. [22] To paraphrase R. v.

Brost at para. 46: [46] The allegation that [the accused] has money tucked away is one of the very issues for which he has been charged. [Theaccused's] guilt or innocence has not yet been determined in any of the . . . proceedings against him arising from this factual matrix. Thisdetermination is properly the function of a trial, not a bail hearing. To presume [the accused] still possesses large assets overseas . . . is topresume him guilty of the charges he faces. No amount of cash bail based on a presumption of guilt can be reasonable under s. 11(e). [23] To similar effect is the decision in R. v.

Garrington (1972), (ON SC), 9 C.C.C. (2d) 472 (Ont. H.C.J.), adecision of the Ontario High Court.

[ 24 ] I come now to the exercise of my independent discretion. In light of these errors I have identified, I do not give weight to the judge's decisions on the appropriate terms of release. I do give consideration to her finding that Mr. Irama should be released only if he faced a very significant penalty if he failed to attend trial, a significant enough penalty, in short, that the court could be satisfied that he would indeed attend to face the charges against him. In other words, I give consideration to the judge's evident concerns about Mr.

Irama on the primary ground. [ 25 ] At the hearing before me, defence agreed that Mr. Irama continues to have the reverse onus of establishing that his detention is not justified. The Crown laid out the case against Mr. Irama in significant detail on each of the 11 incidents that form the basis for the 14 charges in the North Vancouver indictment. I conclude that the case against Mr. Irama appears very strong but is not without its challenges. [ 26 ] The strength of the Crown's case is not a separate ground for detention. It is, rather, one factor to be considered in relation to the primary ground.

Is detention necessary to ensure Mr. Irama's attendance in court to be dealt with according to law? Put simply, when a case is strong, the accused has a stronger sense that he could be convicted and the temptation to flee and avoid “facing the music” is correspondingly stronger. [ 27 ] The Crown points to evidence that hundreds of thousands of dollars, almost $1 million, are missing, and there is evidence that it has been moved to other countries, including China and Nigeria. The Crown submits that it is probable Mr. Irama has considerable means offshore and would see the loss of Ms.

Landers' $100,000 cash deposit as the cost of his freedom, and a good bargain at that. The Crown asserts there is a risk Mr. Irama will leave the jurisdiction. [ 28 ] There is evidence from a warranted search conducted at Mr. Irama's residence that he has some facility with creating false identification. There is also evidence that he has in the past applied for and obtained extended visas for Brazil, China, and Nigeria. Mr. Irama has some connections in Uganda, having come from that country as a refugee in 1995. He became a Canadian citizen in 1999. [ 29 ] Defence argues detention is not justified. Mr.

Irama is not charged with violent offences, and the victims of the offences charged were all institutions like the Royal Bank of Canada, not vulnerable individuals. Defence also points to Mr. Irama's ties with the community, a job as an instructor at a golf course, his relationship with Ms. Landers, his two children who live in the Lower Mainland with another expected in May of 2014. [ 30 ] Defence submits that the trial on the North Vancouver charges is a considerable distance away, 18 to 24 months likely, with a lengthy trial to follow.

Defence submits that a man who is presumptively innocent should not be in custody so long before and during trial before a determination is made that he is, in fact, guilty of the offences charged. [ 31 ] I have given this application careful consideration. I conclude that Mr. Irama's detention is justified on the primary ground and the secondary ground. The burden is on Mr. Irama, and he has not met it. Even recognizing that more latitude should be given on a bail hearing in terms of establishing the facts asserted by the defendant, the evidence before the court of Mr.

Irama's ties with this community is just not compelling. [ 32 ] Ms. Landers says she has one child with Mr. Irama and is expecting a second this spring. She says they have had a strong relationship since 2008. The transcript of the hearing indicates that the impending arrival of Mr. Irama's second child was news to him when his defence counsel raised it. Ms. Landers says Mr. Irama acts like a father to her second child, who was born of another relationship. She says she is willing to have Mr. Irama live with her if he is released on bail. [ 33 ] The accused has not been living with Ms. Landers.

He was not living with her prior to or at the time of his arrest, at least immediately prior to or at the time of his arrest. He had his own apartment in Coquitlam. Ms. Landers lives on the west side of Vancouver. I have referred to Ms. Landers earlier as a common-law spouse, but that is, I think, an exaggeration. They are in a relationship, certainly, but it is not at all clear how strong that relationship is. [ 34 ] A letter written by Ms. Landers in 2005 on the occasion of their son's first birthday demonstrates that Mr. Irama had not even met his son and was not in his life at all. Ms.

Landers had a son from another relationship in 2006. There is evidence Mr. Irama was in a relationship with Alice Thuo, a relationship which produced a child in 2010. As I have noted, Ms. Landers and Mr. Irama have not been living together. [ 35 ] And what of his employment? There is no satisfactory evidence before the court that Mr. Irama has a steady job.

To the contrary, the Crown asserted that the accused has never filed income tax returns in the 15 years he has lived in Canada, and that submission was not challenged by defence. [ 36 ] In letters found in the accused's apartment, he is described variously as an accountant for a company called FirstOnSite from 2006 to 2012; as an investment consultant for City Financial Investments for 2005 to 2011; as a private golf instructor from 2007 to 2012; and as a youth counsellor for a two-year period or so in the same range of years. [ 37 ] I have nothing before me from an employer confirming employment, as would be expected in light of the circumstances and Mr.

Irama's burden and, in particular, in light of the charges against him and these other documents which indicate that there are varied descriptions of what he has been doing. [ 38 ] This too raises concerns about the need to detain on the secondary ground. There is a substantial risk, in my view, that without steady employment, Mr. Irama will fall back on the type of offence for which he was convicted in 1999, 2000, and 2001, and for which he now stands charged in the latest North Vancouver indictment. [ 39 ] In this regard, I note that these offences are alleged to have been committed while Mr.

Irama was on bail for the Vancouver offences. Furthermore, he was initially charged with offences relating to 9 of the 11 incidents ultimately included on the North Vancouver indictment. He was charged with those offences in July 2012; the Crown stayed the charges in the early part of September 2012 but informed Mr. Irama that there was a good chance they would be re-laid. Despite being aware of the Crown's view that he had

been engaging in criminal conduct and the likelihood he would be charged with fraud, Mr. Irama appears to have engaged in two further incidents which are now described in the re-laid indictments. It appears one of those transactions or incidents began while Mr. Irama was on bail for the first nine. [ 40 ] Although Mr. Irama did not flee when the charges were stayed and he knew more charges were likely, he now has a much clearer sense of the jeopardy he is in because the Crown has laid out its case in extraordinary detail, including cell phone communications which seem to show that Mr.

Irama was, if not the mastermind, very involved in the schemes to defraud banks and others of very large sums of money. [ 41 ] In coming to my decision, I am mindful that Mr. Irama has not been convicted of any offences since 2001. I am also mindful that the trial of the North Vancouver charges is likely to take place in 18 months at the earliest. [ 42 ] Finally, I am mindful of the presumption of innocence. To paraphrase R. v.

Pearson at page 684, however, the presumption of innocence does not mean that a person may not be deprived of their liberty even at the risk of detaining an innocent person for a lengthy period before trial if there are reasonable grounds for that deprivation of liberty. [ 43 ] I conclude, based on both the primary ground, s. 515(10) (

a) of the Code , and the secondary ground, s. 515(10) (b) , that detention of Mr. Irama is necessary. [ 44 ] In

summary, I make the following orders:

a) The application of the accused to vary the terms of bail is dismissed.

b) The Crown's application for a detention order under s. 521 is granted on the North Vancouver indictment number 59804-1.

c) The Crown's application to revoke the order of release on the Vancouver indictment number 219581 is granted. The Honourable Madam Justice L.A. Fenlon