R. v. Raheem-Cummings, 2015 NUCJ 28

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Raheem-Cummings , 2015 NUCJ 28 Date: 20150917 Docket: 07-15-18 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Stephane Raheem-Cummings ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): B. MacLaren Counsel (Accused): D. Berg Location Heard: Iqaluit, Nunavut Date Heard: July 17, 2015 Matters: Controlled Drugs and Substances Act , SC 1996, c 19, s. 5(3)( a.1 ), Bail Review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication : Restriction on Publication: By court order made under

section 517 of the Criminal Code ,

(1) If the prosecutor or the accused intends to show cause under

section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as o (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or o (

b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. Publication ban lifted as of 04/14/2016 at the direction of the authoring justice. I. INTRODUCTION [ 1 ] Mr. Raheem-Cummings, along with two co-accused, is facing a charge of possession of marijuana for the purposes of trafficking. He was denied bail on the secondary grounds at a show cause hearing held before a Justice of Peace. He is seeking a review of that decision. II. BACKGROUND [ 2 ] Police in Igloolik received information that drugs were being sold out of a local residence.

Police executed a search warrant at the residence and seized over 400 grams of marijuana, six cell phones, documentation believed to be “score sheets” and receipts of cash transactions, a scale, and just under $40,000 in cash. The accused was staying in the home at the time and there is evidence to suggest that the bedroom from which most of the items were seized was his bedroom. [ 3 ] At the initial bail hearing, Crown opposed release on the primary and secondary grounds.

[4] The accused was represented by counsel at the bail hearing. Counsel put forward a release proposal whereby the accused wouldreside with his mother in Toronto. III. STANDARD OF REVIEW [5] The Supreme Court of Canada in R v St-Cloud, 2015 SCC 27, 2015 SCC 27 [R. v.

St-Cloud], clarified that a reviewunder s. 520 or 521 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code] is available where: a. there is admissible new evidence; b. the initial decision contains an error in law; or c. the initial decision is clearly inappropriate. [6] In the event one of the pre-conditions to a review is met, the review itself proceeds not as a de novo hearing or as an appeal, but asa hybrid process with greater scope for varying an initial decision than might be available under an appeal process, but also with somedeference to the initial decision. [7] Counsel for the Defence submits that a review is available in this instance because an alternate, more comprehensive, release planis being put forward.

The Crown does not oppose having the initial decision proceed to a review and focused his submissions on thegrounds for detention set out in s. 515 of the Criminal Code. IV. ANALYSIS [8] At the initial hearing, the Crown bore the onus of satisfying the Justice of the Peace that detention was necessary.

The Crownrelied upon both the primary and the secondary grounds for detention, those being that detention was necessary to ensure the accusedwould attend court and that detention was necessary for the protection or safety of the public. [9] At the review, the Crown argued that in addition to the primary and secondary grounds for detention, the detention of the accusedwas necessary pursuant to the tertiary ground, that being that detention is necessary to maintain confidence in the administration ofjustice. [10] Mr. Raheem-Cummings is 22 years old.

He has family connections in Ottawa and appears to have spent considerable time there.He also has some connection to Regina. He has lived in Regina for just over a year with his common-law girlfriend of four to five years.It is proposed that he be released on a condition that he reside in Regina with his common-law. [11] The Court heard from Mr. Raheem-Cummings’ common-law, who also filed an affidavit. She is 24 years old and does not have acriminal record. She is self-employed as a nail technician and earns between $20,000-$25,000 a year. She is prepared to act as suretywith a $5,000 cash deposit.

I accept that this is a significant amount of money for this young couple. [12] Mr. Raheem-Cummings has a serious criminal record, as follows: Feb. 6, 2008 youth court -possession of

schedule I substance -breach of recognizance 1 year probation, 1 year probation

Jan. 28, 2009 youth court -robbery (firearm) -possession of restricted or prohibited firearm or ammunition 200 days custody, 100 days supervision, 12 months’ probation, firearms prohibition Jan. 29, 2009 youth court - breach of recognizance -armed robbery - possession of property obtained by crime 14 months supervision, 7 months supervision, 12 months’ probation Nov. 9, 2010 youth court -breach disposition -possession of firearm or ammunition contrary to order -possession of restricted or prohibited firearm or ammunition -possession of

schedule I substance 240 days custody, 120 days supervision, 12 months’ probation, firearms prohibition May 14, 2012 -aggravated assault -flight from police officer 2 years, less of 9 months credit, pre-trial custody [ 13 ] Mr. Raheem-Cummings attests that he was released from custody in January of 2013. He had a couple of jobs in Toronto following his release and in January of 2014, he moved to Regina. He and his common-law leased an apartment together in August of 2014. Although they have been together for approximately 4-5 years, they have lived together for only a short time, from August of 2014 to when Mr.

Raheem-Cummings was in Nunavut in May of 2015. While in Regina he worked as a fork lift operator and for a landscaping company. Both of these jobs were on an occasional basis. The work situation with respect to the landscaping company is not clear, as the company is based in Edmonton and Calgary, but Mr. Raheem-Cummings was living in Regina. I am told that he commuted to Alberta for work. [ 14 ] Mr. Raheem-Cummings' former employer from the landscaping company has provided a letter in which he praises Mr. Raheem- Cummings as an employee and stating that he is willing to hire him again.

The former employer advises that he would like to expand the company into Saskatchewan and would hire Mr. Raheem-Cummings to assist. The former employer is not aware of the pending charges. [ 15 ] There are two co-accused in this matter, both of whom have been released pending trial. Of note, one of the co-accused also has no connection to Nunavut and also has a serious criminal record including convictions for attempted murder, uttering threats, possession of ammunition contrary to a prohibition order, breach of a youth court disposition, assault, failure to stop at an accident and dangerous driving.

He was on a two-year probation order at the time of this alleged offence. A. Is detention necessary to ensure the accused attends court? [ 16 ] The Crown argues that because Mr. Raheem-Cummings has no connection with Nunavut there is a likelihood that he will fail to attend court as required. They submit that having him provide confirmation of a return ticket will not be sufficient as tickets can be easily cancelled for little financial penalty. [ 17 ] The Defence argues that, although there is a prior criminal record, there are no convictions for failure to attend court.

Defence submits that the Crown's position would have the consequence of every accused person from outside of Nunavut being denied bail and that is not a proper application of the law.

[ 18 ] I agree with the Defence. The purpose of a bail hearing is to determine if release conditions can be crafted in a way that manages and reduces risk to an acceptable level. There is never a guarantee that an accused will show up for court or comply with conditions. Courts regularly release accused persons who have greater connections with other provinces, with appropriate steps taken to ensure attendance in court. There is nothing to suggest that such conditions would not be sufficient to ensure Mr. Raheem-Cummings returns for court as required. B.

Is detention necessary for the protection or safety of the public? [ 19 ] The accused's prior criminal record is of concern. He appears to have been in more or less continual contact with the justice system since 2008, with some convictions for very serious offences. He has two convictions for breaching release conditions. [ 20 ] Although the prior record includes convictions for serious offences, I must consider if release conditions can be crafted in such a way to minimize any risk of reoffending to an acceptable level. In my view, release conditions which maintain a high level of contact between Mr.

Raheem-Cummings and law enforcement will assist in mitigating the risk of reoffending. C. Is detention necessary to maintain confidence in the administration of justice? [ 21 ] In the recent Supreme Court of Canada decision of R v St. Cloud , the court considered the proper

interpretation to be given to s. 515 (

c) of the Criminal Code , which states that one of the grounds for detaining an accused in custody prior to trial is: […] if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

i) the apparent strength of the crowns case, ii) the gravity of the offence, iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment of three years or more. [ 22 ] The court rejected a narrow

interpretation of s. 515(c). D. The apparent strength of the Crown's case [ 23 ] The allegations against Mr. Raheem-Cummings are that he was located in a residence in Igloolik in which just over 400 grams of marijuana was located in a bedroom. Approximately $40,000 in cash and related drug paraphernalia were also found in the residence. Two other people in the house are jointly charged. The Crown alleges that there is circumstantial evidence that ties Mr. Raheem- Cummings to the bedroom in which the drugs were found.

Further, he has no apparent links to the community or the territory. [ 24 ] It is difficult at this early stage of the proceedings to assess the strength of the Crown's case. The drugs and other items located are highly reliable physical evidence. It was submitted that there may be issues as to who owned the drugs. Having said that, the fact that Mr. Raheem-Cummings was found in a local residence, in a remote northern community, with no apparent credible reason for being there, lends support to the Crown's allegations.

As is not unusual for these types of cases, I am advised that there may triable issues regarding the validity of the search. [ 25 ] Of course, Mr. Raheem-Cummings benefits from the presumption of innocence throughout the proceedings and one would expect

the Crown's case to appear strong at these early stages. E. The gravity of the offence [ 26 ] If convicted, Mr. Raheem-Cummings is liable to a sentence of not more than five years less a day. There is no mandatory minimum sentence. F. The circumstances surrounding the commission of the offence [ 27 ] The Court has stated many times that drug trafficking in small communities will be taken seriously. Having said that, there is nothing about the allegations in this matter that take it beyond those typical in a case of this nature. There are no allegations of violence, firearms, or weapons.

It is not alleged that children or other vulnerable people were recruited to assist in the operation. G. The potential length of imprisonment [ 28 ] As previously stated, the Controlled Drugs and Substances Act, SC 1996, c 19 , provides for a penalty not exceeding five years less a day for a conviction for this offence. The Crown has submitted that the likely range of sentence upon conviction is a sentence of 18-24 months.

The Court must be careful that accused are not held in pre-trial detention for periods that meet or exceed what they might receive for sentence if ultimately convicted. [ 29 ] In considering whether detention is necessary to maintain confidence in the administration of justice, the Court must have regard to a reasonably informed member of the public. This is a person who understands the fundamental principles of our criminal justice system, including the presumption of innocence and the values reflected in the Canadian Charter of Rights and Freedoms,

Part I of the Constitution A ct, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. The administration of justice can be undermined not only by the release of accused persons, but also by the detention of accused persons. V. CONCLUSION [ 30 ] I am of the view that the Crown has not discharged the burden of showing cause why Mr. Raheem-Cummings should be detained pending trial. I am of the view that strict conditions on release will address the concerns which have been raised. [ 31 ] Mr. Raheem-Cummings will be released on a Recognizance with [his common-law spouse] as surety and a $5,000 cash deposit.

The conditions will be as follows: a. keep the peace and be of good behaviour; b. reside at [the designated residence], Regina, Saskatchewan; c. remain in your residence between the hours of 10:00 pm and 6:00 am daily; d. report in person to the Royal Canadian Mounted Police [RCMP] in Regina two days a week (days and location to be verified); e. not to leave the municipal boundaries of Regina, Saskatchewan, without the prior approval of the Court; f. deposit your passport with the RCMP in Iqaluit, Nunavut; g. not to apply for a passport;

h. not to possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; i. deposit with the Court and the RCMP, Iqaluit, a copy of a non-refundable airline ticket, Iqaluit-Regina; j. no communication directly or indirectly with [co-accused] and , k. fourteen days prior to your required attendance in court in Nunavut, submit to the Court and the RCMP in Iqaluit, Nunavut, proof of a non-refundable airline ticket to the community where you are required to attend court. [ 32 ] Counsel are required to make the necessary inquiries and provide confirmation from an RCMP detachment in Regina, Saskatchewan, that they are aware of the proposed plan of release and what days and times they would prefer Mr.

Raheem-Cummings to report. Counsel will provide this information to the court through the Trial Coordinator, at which time the terms of release will be finalized. [ 33 ] If counsel have any concerns regarding the conditions or would like to address further conditions they may contact the Trial Coordinator so a date and time may be set to speak to the matter. Dated at the City of Iqaluit this 17th day of September, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice