r v. SONINDER DHINGRA, 2022 QCCQ 1054

R. c. Dhingra 2022 QCCQ 1054 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01-099546-134 DATE: February 25, 2022 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

SONINDER DHINGRA Accused ______________________________________________________________________ REASONS REGARDING THE JUDICIAL INTERIM RELEASE APPLICATION [1] ______________________________________________________________________ OVERVIEW [ 1 ] Soninder Dhingra [2] is charged with the following offences: possession for the purpose of trafficking, trafficking, and importation of 94 kilograms of cocaine and 15 kilograms of crystal meth. These offences flow from events that occurred in November 2013. [ 2 ] Dhingra first appeared in relation to these offences on November 28, 2013 [3] .

The next day, he was granted judicial interim release (“bail”) subject to a deposit of $30,000. Approximately a year later, Dhingra was arrested and charged with various offences related to the importation of 182 kilograms of cocaine in December 2014. He was also charged with breaching the conditions of his bail. Dhingra applied for bail in relation to these new offences. The prosecution objected to his release and asked for the revocation of his bail conditions in relation to the 2013 offences.

Dhingra’s request for bail was denied, and his bail conditions were revoked. [ 3 ] The prosecution eventually stayed the proceedings (they filed a nolle prosequi ) in relation to the 2014 offences [4] . Thus, Dhingra never stood trial in relation to these offences. That being said, Dhingra stood trial for the 2013 offences. He was found guilty of trafficking and importation of 94 kilograms of cocaine and of 15 kilograms crystal meth. He was also found guilty of conspiring to traffic these substances [5] . He was sentenced to 15 years of imprisonment.

Dhingra appealed his conviction, alleging violations of his linguistic rights during the trial. The Court of Appeal allowed the appeal, quashed Dhingra’s convictions and ordered a new trial. In the days that followed, I was appointed as case management and trial judge. Case management conferences were held. The presentation of the evidence on the merits is scheduled to begin in October 2022 and to end in January 2023. [ 4 ] Dhingra, who has been detained since December 2014, now seeks bail.

To support this application, the defence argues that the time that Dhingra has spent in pre-trial detention exceeds that of his anticipated sentence. The defence further argues that time spent in detention has significantly reduced the risk that Dhingra reoffends and thus, that his pre-trial detention is not necessary to ensure the protection or the safety of the public.

The defence adds that in assessing Dhingra’s request for bail, the Court should take into account the following facts: Dhingra suffers from health issues, these health issues put him at risk of having complications should he be infected with COVID-19, and COVID-19 is having a serious detrimental impact on the conditions of his detention. [ 5 ] The prosecution opposes Dhingra’s application for bail, arguing that his pre-trial detention is necessary for the protection or safety of the public.

The prosecution’s opposition derives in part from the fact that Dhingra is alleged to have been involved in the 2014 importation of 182 kilograms of cocaine while he was on bail in relation to the 2013 offences.

In short, the prosecution argues that there is a substantial likelihood that if he is released, Dhingra would revert to his criminal activities, thereby endangering the protection or safety of the public. [ 6 ] Before deciding if Dhingra’s pre-trial detention is necessary, the Court will address the following preliminary issues: the jurisdiction of the Court and the nature of Dhingra’s bail hearing; the absence of impact of the Court’s factual findings on future proceedings given the nature of the bail hearing; the relevance and the weight to be given to the facts that led to the 2014 charges given the prosecution’s decision to stay these proceedings; and, the impact of the COVID-19 pandemic and of health issues on the bail decision [6] . [ 7 ] After having addressed these preliminary issues, the Court will decide the two questions at issue in this matter.

First, is there a risk that, should Dhingra remain in detention until the end of his trial, that the time spent in detention will exceed that of his anticipated sentence? Second, is Dhingra’s pre-trial detention necessary for the protection or safety of the public?

ANALYSIS I. Preliminary comments A. The jurisdiction to hear Dhingra’s bail application and the nature of the hearing [ 8 ] The first preliminary question to address deals with the jurisdiction of the Court and the nature of Dhingra’s bail hearing. The governing principles [ 9 ] When a court of appeal orders a new trial, the accused person can apply for bail, pursuant to s. 679 (7.1) of the Criminal code . If the accused person has not yet appeared before the court in which the trial will be held, a judge of the court of appeal has exclusive jurisdiction to decide the bail application.

If the accused person has appeared before the court in which the trial will be held, a judge of the court of appeal and a judge of the trial court have concurrent jurisdiction to decide the bail application. Where concurrent jurisdiction exists, court of appeal judges have often declined to hear the application and transferred it to the trial court, which has control over the accused person and the pending trial [7] .

In short, the main purpose of s. 679 (7.1) of the Code is to bridge a temporal gap by ensuring that a forum exists to decide a bail application at all time after an order for a new trial has been made [8] . [ 10 ] Section 679 (7.1) of the Code further states that ss. 515 and 522, as the case may be, apply to the bail application presented by an accused person pending his new trial as though that person were charged with the offence for the first time. This means that the judge who decides the application is not reviewing a previous detention or release order.

The judge must decide the application as if such an application had never been decided before, applying the principles set out by ss. 515 or 522 of the Code , as the case may be. In short, when a court of appeal orders a new trial, the accused person seeking bail is entitled to a de novo (“new”) hearing. [ 11 ]

Section 551.1 of the Code allows for the appointment of a case management judge before the stage at which the evidence on the merits is presented. The case management judge’s role is to exercise the power of the trial judge, before the presentation of the evidence on the merits, in order to assist in promoting a fair and efficient trial. In that regard, the case management judge can decide various issues, including those that relate to the Canadian Charter of Rights and Freedoms . [ 12 ] Section 523 (2)(

a) of the Code grants jurisdiction to the trial judge to vacate any order previously made regarding the detention or the release on bail of the accused person who is standing trial. In fact, when an accused person’s trial has begun, the trial judge alone has jurisdiction to address arising issues pertaining to bail [9] . The purpose of s. 523 (2)(

a) of the Code is to avoid a multiplicity of proceedings and allow the court before which the accused person is present to decide these issues. It also aims at minimizing the risks that the accused person’s trial be negatively impacted by another court’s ruling [10] . Usually, when bail issues arise at trial, a bail hearing has already been held. Concretely, the trial judge is asked to vacate the previous decision made at the bail hearing. Thus, the decision process is often different, as the trial judge will decide if cause to vacate the previously made order exists.

In such a situation, the accused person is not entitled to a de novo hearing. [ 13 ] Consequently, the question of when an accused person’s trial has begun can be an important issue as it can impact jurisdiction regarding bail. If the trial has begun and evidence on the merits has been presented, only the trial judge can hear a bail application, pursuant to 523 (2)(

a) of the Code . Whether a duly appointed case management judge has jurisdiction to hear a bail application, pursuant to 523 (2)(

a) of the Code, is still the subject of debate [11] . The principles applied [ 14 ] In the matter at hand, the Court of Appeal ordered a new trial on November 11, 2021. Four days later, I was appointed case management judge. I was also advised that I would preside over Dhingra’s trial. On November 25, 2021, Dhingra appeared before me. The prosecution filed the indictment. Dhingra did not register a plea to the charges pending against him; we simply forgot. That being said, the plea was eventually registered [12] .

Dates for me to hear the presentation of the evidence on the merits were set, beginning in October 2022 and ending in January 2023 [13] . A management conference was held in December 2021 during which the defence mentioned that Dhingra would be seeking bail. At that point, I asked the parties to consider the following issues: had Dhingra’s trial began, pursuant to s. 523 (2)(

a) of the Code, and if so, would Dhingra’s application for bail proceed pursuant to s. 523 (2)(

a) or pursuant to s. 515 of the Code ? [ 15 ] At the next management conference, in January 2022, the defence confirmed Dhingra’s intention to apply for bail. Both parties agreed that his application would proceed pursuant to s. 523 (2)(

a) of the Code because Dhingra’s trial had begun with my appointment as both case management and trial judge.

That being said, both parties agreed that ss. 679 (7.1) and 515 of the Code would still apply because Dhingra has the right to a de novo hearing on his application for bail. [ 16 ] In the circumstances of this case, I do not need to decide the fine points of my jurisdiction because I am satisfied that even though I am the case management and trial judge, I need to decide Dhingra’s bail application as if he were charged with the offences for the first time, in application of the principles of ss. 679 (7.1) and 515 of the Code .

Thus, while the question of whether the trial has begun and whether my jurisdiction flows from s. 515 or from s. 523 (2)(

a) of the Code is interesting, it has no concrete impact on my decision process. To be clear: I must decide Dhingra’s bail application as if he were charged with the offences for the first time. B. The absence of impact of the Court’s factual findings on future proceedings given the nature of the bail hearing [ 17 ] Preliminary comments regarding the nature of the bail hearing, the evidence that can be presented at the hearing as well as the decision process are needed to ensure that the context of the factual findings made by the Court is properly understood. The governing principles [ 18 ]

Section 11

e) of the Charter guarantees the right of an accused person not to be denied reasonable bail without just cause. This right is an essential element of our criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage

of the criminal process and safeguards the liberty of the person charged with an offence [14] . [ 19 ] Section 515 (10) of the Code states that the pre-trial detention of an accused person is justifiable if it is necessary: (

a) to ensure his attendance in court; (

b) for the protection or safety of the public; or (

c) to maintain confidence in the administration of justice. These are the only grounds for which pre-trial detention is justified. [ 20 ] In assessing whether the detention of an accused person is necessary, various factors must be weighed, including, for example, the likelihood of a conviction or the nature and length of the sentence that the accused person faces [15] . Weighting these factors at the bail hearing stage means that the judge must make factual findings on the basis of the evidence presented by the parties. [ 21 ] As it has to be held quickly, the bail hearing is informal and expeditious in nature [16] . It is a

summary proceeding in which more flexible rules of evidence apply [17] . Evidence is summarized, as opposed to being presented in detail. Evidence that is credible or trustworthy can be presented by the parties [18] . There is practically no prohibition regarding the type of evidence that can be presented [19] .

As a result, evidence presented during the bail hearing may later be excluded at trial; evidence that appears strong may later be weakened or evidence that appears weak may later be explained or amplified and become stronger [20] . [ 22 ] Despite these inherent difficulties, factual findings such as the likelihood of a conviction must be made to decide on bail. In making these factual findings, the judge who hears the bail application must be careful not to play the role of the trial judge [21] . A bail hearing is not a trial and should not become one [22] .

As a result, matters such as the credibility of the witnesses or the reliability of scientific evidence must be analyzed at trial, not at the bail hearing. That being said, the judge must nevertheless consider the quality of the evidence tendered in order to decide on the likelihood of a conviction. The focus on which this inquiry rests must be properly understood. The judge presiding the bail hearing must assess the quality of the evidence in a general manner. For example, physical evidence is often considered more reliable than a statement made by a witness.

Circumstantial evidence is often less reliable than direct evidence. The existence of ample evidence will more than likely reinforce the likelihood of a conviction [23] . [ 23 ] Thus, factual findings made by the judge presiding over the bail hearing must therefore be seen as what they really are: findings derived from a

summary analysis of the general strength of the evidence presented by the prosecution [24] . A factual finding that the prosecution’s case is strong does not mean that a guilty verdict will ensued. The accused person is still presumed innocent and the prosecution still bears the burden of showing that the accused person is guilty of the alleged offence beyond a reasonable doubt. [ 24 ] The same logic applies to the other factual findings that the judge presiding over the bail hearing must make, such as the finding that the accused person faces a lengthy jail term.

Again, such a finding does not mean that a lengthy jail term will eventually be imposed upon the accused person, should he be found guilty. The principles applied [ 25 ] In the matter at hand, because of the nature of the questions at issue, the Court has to assess the likelihood of a conviction and the potential sentence that may eventually be imposed. [ 26 ] At the bail hearing, the prosecution indicated that it would rely on the description of the facts made by Justice Longo in her verdict decision dated June 6, 2018 [25] . The defence did not adduce additional evidence to supplement these facts.

Thus, in order to assess the likelihood of a conviction, the Court will refer to Justice Longo’s description of the facts while drawing its own findings on the likelihood of a conviction [26] . [ 27 ] One must keep in mind that the evidence presented before Justice Longo may differ from the evidence that will ultimately be presented on the merits at trial. Dhingra is presumed innocent of the charges pending against him. The prosecution will eventually have to administer evidence regarding these charges.

The Court will eventually have to decide if the evidence proves, beyond a reasonable doubt, that the alleged offences were committed. Thus, the Court’s findings regarding the likelihood of a conviction, at this early stage of the proceedings, does not impact future proceedings. It only reflects the Court’s assessment of the quality of the evidence, as summarily presented at the bail hearing. [ 28 ] As for the assessment of the potential sentence that may eventually be imposed, the Court will also take into consideration the description of the events made by Justice Longo in her verdict decision [27] .

That being said, sentencing is an art. It requires careful consideration of factors relating to the offences and to the accused person while balancing various sentencing principles. The scope of the evidence tendered in the course of a sentencing hearing often goes beyond the scope of the evidence presented at trial. Thus, one must remember that the Court’s findings on this issue, at this preliminary stage of the proceedings, is only an assessment. If Dhingra is found guilty of the 2013 offences, a proper sentencing hearing will have to be held.

The evidence presented during that hearing will have to be assessed by the Court before a sentence is imposed. C. The relevance and weight to be given to the facts that led to the 2014 offences as the prosecution stayed the proceedings [ 29 ] As stated before, the offences that flow from the 2014 events were stayed by the prosecution. The defence argues that the Court should not consider these facts in assessing Dhingra’s bail application because they have not been properly tested in a court of law, as the proceedings were stayed.

Alternatively, the defence argues that the Court should attribute little weight to these facts, should it decide to consider them. Rooted at the base of the defence’s arguments is the assertion that the prosecution decided to stay these proceedings because of a lack evidence. The governing principles [ 30 ] As stated before, there are practically no prohibitions regarding the evidence that can be presented during a bail hearing. The hearing is informal and evidence that is credible or trustworthy can be presented.

This includes evidence of a confession that has not been tested for voluntariness or consistency with the Charter , evidence of bad character, information obtained by wiretap, hearsay statements, evidence of ambiguous post-offence conduct, untested similar fact evidence, or evidence of untried charges [28] . It can even encompass evidence relating to charges for which the accused person was acquitted [29] . There is thus no impediment to considering evidence of

criminal activities carried out by an accused person even though these activities may not have been the subject of a formal criminal charge [30] . [ 31 ] In short, the assertion that untested evidence of other criminal activities is not admissible at a bail hearing if it has not been tested in a court of law is unfounded in law. Untested evidence of all sorts is admissible at the bail hearing and that includes evidence of other criminal activities. Such evidence must be weighed in the same manner as any other type of evidence presented during the bail hearing.

The weight to be given to this evidence will depend on the quality of the evidence relating to those other criminal activities [31] . The principles applied [ 32 ] The governing principles are clear: in deciding Dhingra’s application for bail, the Court can consider the facts from which the 2014 charges flowed, even if these facts were not tested in a court of law because the prosecution eventually stayed the proceedings. In fact, while the appeal regarding his conviction for the 2013 offences was pending, Dhingra applied for release from detention.

In deciding Dhingra’s application, the Court of Appeal concluded that it could take into account these facts, even though Dhingra never stood trial for the 2014 offences [32] . [ 33 ] The argument presented by the defence at this time appears somewhat different than the argument made before the Court of Appeal. As explained above, the defence’s argument is rooted in the assertion that the prosecution’s decision to stay the 2014 proceedings was motivated by a lack evidence.

In support of this argument, the defence filed partial transcripts of a December 8, 2016, management conference, which was held two days after Dhingra’s bail application in relation to the 2014 offences [33] .

During this management conference, the prosecution explains that Dhingra’s attorney has indicated that she would not be requesting a preliminary inquiry in relation to the 2014 drug-related offences because the bail hearing was “exhaustive” and Dhingra’s attorney “asked a lot of questions.” The prosecution further adds, that it has asked the police officer to “re-evaluate” the file and seek an expert opinion or consult an expert so that they can “proceed correctly.” No further details are provided regarding this evaluation or this expert opinion.

The evidence further shows that the 2014 drug-related charges were stayed in December 2017 while the 2014 breach-related charges were stayed in November 2018. No further evidence was presented regarding the reason why the proceedings were stayed. [ 34 ] The prosecution has discretion to stay pending criminal proceedings and this discretion can be used for a number of different reasons. In the matter at hand, the Court does not know why the 2014 proceedings were stayed. No actual evidence was filed in this regard.

The comments made by the prosecution at the December 8, 2016, management conference refers to a need to “re-evaluate” and a need to consult or have an expert opinion. These comments are presented without any context. They refer to discussions between lawyers, but the Court does not know the nature of these discussions. Likewise, the Court does not know what happened after December 8, 2016.

In light of the foregoing, drawing the inference sought by the defence on the sole basis of the evidence adduced amounts to pure speculation. [ 35 ] With that said, evidence regarding the nature of the events that led to Dhingra’s 2014 arrest was presented by the prosecution during the bail hearing. This evidence shows that on November 24, 2014, Gregory Singh and Ariane Desgroseillers-Lafrance used a rental car to travel to the United States. While they were still in the United States, the rental car agreement was extended.

Singh came back to Canada on December 2, 2014, with the rental car. [ 36 ] Border patrol agent Stephanie McClelland was working at a gate reserved for Nexus pass users at the Lacolle border crossing station on December 2, 2014. On that day, Singh crossed the border at McClelland’s gate, at 2:07 p.m.

Even though he did not have a Nexus pass, McClelland let him through without scanning his passport and without sending him to the secondary inspection area, as she should have done according to standard operating procedure. [ 37 ] A few minutes later, at 2:15 p.m., the rental car was intercepted and searched by the police. The police found 182 kilograms of cocaine and five phones in the car. Singh was arrested. The police analyzed the phones seized.

This analysis shows that on December 1, 2014, while Singh was still in the United States, Dhingra communicated with him to confirm a meeting between Singh and another individual. On both December 1 and 2, 2014, Dhingra provided instructions to Singh with respect to an itinerary to follow. On December 2, 2014, Dhingra communicated with Singh, as Singh was approaching the Lacolle border crossing station. Dhingra communicated with Singh after Singh had crossed the border. After Singh’s arrest, Dhingra tried to communicate with Singh on several occasions. [ 38 ] McClelland was also arrested.

At the time of her arrest, she had two phones. One of these phones was given to her by Dhingra, with instructions to use it only to communicate with him. According to McClelland, Dhingra communicated with her by phone on December 2, 2014, between 1:30 p.m. and 2 p.m., to know at which gate she was working. [ 39 ] Singh and McClelland were charged for their participation in the importation of this cocaine. McClelland was found guilty [34] . [ 40 ] In addition to this, the evidence shows that in mid-October 2014, Dhingra met an undercover police officer for coffee.

The circumstances that led to this meeting as well as the discussions between Dhingra and the undercover police officer are explained at paragraphs 118 to 128 of Justice Longo’s verdict decision [35] . During this meeting, the undercover police officer asked Dhingra if he had a job for her. Dhingra asked her if she could leave for a few days and if she had a valid passport. The undercover police officer said that she was willing to do anything as long as it did not involve sex.

Dhingra told her that he was not in that type of business and that the last time he was arrested, he had 84 or 94 kilograms, which isn’t more because right now, it’s a lot more than that. [ 41 ] The facts presented as evidence during the bail hearing show that there are reasonable grounds to believe that Dhingra actively participated in the importation of 182 kilograms of cocaine on December 2, 2014. Dhingra’s involvement in this importation, while he had been released on bail, is a factor that the Court will have to consider in making its decision on bail.

The fact that the proceedings flowing from these events were later stayed by the prosecution does not weaken the weight to be given to these facts. D. The impact of the COVID-19 pandemic and of health issues on the bail decision [ 42 ] This question deals with the impact of the current COVID-19 outbreak and the health issues afflicting Dhingra.

The governing principles [ 43 ] The COVID-19 pandemic is a factor that can be taken into account when assessing if the detention of an accused person is necessary [36] . The weight of this factor will depend on the particular circumstances of each case. For example, this factor may play a role if an accused person has a documented health condition that places him in a vulnerable group that is more likely to suffer complications from COVID-19 [37] . However, an ongoing pandemic will rarely be decisive in itself [38] .

The sole fact that there is a pandemic is not, in itself, a ground on which to give bail to an accused, who will for example, reoffend and jeopardized the safety of the public [39] . [ 44 ] The conditions in which inmates are detained as a result of the ongoing pandemic are harsher than they were before. But these conditions are not, in themselves, a reason to give bail to an accused person.

In addition, the bail hearing is, in most circumstances, not the proper procedural vehicle to seek a review of the measures implemented by the detention center in response to the COVID-19 pandemic [40] . [ 45 ] The same logic applies to health issues. Documented health issues can be taken into consideration when assessing if the detention of an accused person is necessary. However, the weight of this factor will depend on the particular circumstances of each case.

For example, a documented health issue may have a direct impact on the likelihood that the accused person will reoffend and therefore have an impact on the bail decision. That being said, the sole fact that an accused person suffers from a health issue, is not, in itself, a ground on which to give bail to an accused, who will for example, reoffend and jeopardized the safety of the public. The principles applied [ 46 ] In the matter at hand, Dhingra testified that he suffers from asthma as well as from a heart condition.

He could not, however, provide information regarding an actual existing diagnosis for his heart condition. Nursing staff notes refer to the fact that Dhingra suffered two heart attacks: one in 2016 and one in June 2021 [41] . Dhingra also testified that because of his health condition, the conditions of his detention, during the COVID-19 pandemic, are more stringent than that of other inmates. For example, he was placed in quarantine three times in the last three months. He assesses his loss of liberty at 48%.

In a reply to a question asked by Dhingra regarding the existence of a “high-risk individuals list” for COVID-19, an employee of Correctional Service Canada confirmed that Dhingra is on that list because his heart condition puts him at a higher risk of complications from COVID-19. However no further information is provided regarding the risks that Dhingra faces [42] . [ 47 ] On January 21, 2022, Dhingra suffered a serious health scare, which is described by the prison’s nursing staff called upon to intervene. In short, when the nursing staff arrived, Dhingra appeared in a state of panic.

He was coughing a lot, holding an asthma pump. He eventually lost consciousness and the nursing staff called for an ambulance. He stopped breathing and the nursing staff could no longer feel his pulse. Breathing assistance and cardiopulmonary resuscitation (CPR) had to be administered. Dhingra was transferred to the hospital by ambulance. The next day, Dhingra was back at the detention center. Nursing staff notes show that he was able to move and walk by himself and was complaining of headaches. These notes also show that Dhingra tested negative for COVID-19 [43] . Again, no further information is provided.

Not knowing what brought on this health scare makes it difficult for the Court to know what risks or limitations Dhingra faces, if any. [ 48 ] In short, the evidence shows that Dhingra suffers from a heart condition but the evidence provided in this regard is limited. Without more information, it is difficult for the Court to assess the potential impact of this condition on Dhingra’s life if he were to be released. The same can be said for the health scare of January 2022.

Thus, in assessing Dhingra’s application for bail, the Court will consider his health issues but, given the evidence tendered, the weight to be given to these issues is limited. [ 49 ] The evidence that Dhingra suffers from asthma and from a heart condition is also relevant to his argument regarding the risks that he faces should he remain detained during the COVID-19 pandemic. That being said, and as stated above, the evidence tendered provides limited information regarding the nature or seriousness of these conditions and the risks that they entail.

The evidence shows that Correctional Service Canada has placed Dhingra on a list because his heart condition places him at risk of having complications if he is infected with COVID-19 and that they have taken steps to limit this risk. This is why Dhingra experienced more stringent detention conditions during the COVID-19 pandemic. Because of the limited information provided to the Court, it is difficult to assess the actual risk that Dhingra faces should he remain detained while the pandemic is ongoing.

Thus, the Court will consider the overall impacts of the current COVID-19 pandemic when assessing Dhingra’s application for bail, but with limited weight. II. Questions at issue [ 50 ] As stated above, there are two questions at issue: first, is there a risk, should Dhingra remain in detention until the end of his trial, that the time spent in detention will exceed that of his anticipated sentence? Second, is Dhingra’s pre-trial detention necessary for the protection or safety of the public? The Court will address these questions in this order. A.

Is there a risk, should Dhingra remain in detention until the end of his trial, that the time spent in detention will exceed that of his anticipated sentence? The governing principles [ 51 ] S ociety places a high value on the liberty of each individual, and the loss of that liberty should not be taken lightly, even if it is only for one day [44] . Liberty lost is never regained. Where the potential exists for the loss of liberty, the justice system must place the highest emphasis on minimizing the chances of an unwarranted denial of liberty [45] .

An accused person should not be required to serve more time in custody pending his trial than he would have to serve as a sentence for the offences charged [46] . [ 52 ] The R. v. Whyte [47] case of the Ontario Court of Appeal stands for the principle that the time served in pre-trial detention is a material fact that must be considered when deciding on bail. In that specific case, the Court of Appeal noted that Whyte would, should she remain detained until the beginning of her trial, have served a sentence at the upper limit of the sentencing range for the offence that she was facing [48] .

In that regard, in the Whyte case, the prosecution admitted that if Whyte were to immediately plead guilty, she would

most likely be released on the basis of time served, given the applicable sentencing range [49] . [ 53 ] When looking at the Whyte case, it is important to understand that the Court of Appeal first came to the conclusion that Whyte’s personal situation had changed, thereby reducing the risks of her interfering with the administration of justice, the ground for which she had initially been detained.

Thus, bail was granted to Whyte for two reasons: one, because changes in her personal circumstances lowered the risks of her interfering with the administration of justice; two, because the time that she would serve in pre-trial detention would amount to a sentence in the higher range of the applicable sentencing range. In that regard, it is worth noting that the Court of Appeal considered the applicable sentencing range to assess whether Whyte had served her time.

In the same manner, the Court of Appeal referred to the sentencing range, when considering the prosecution’s admission that if Whyte were to immediately plead guilty, she would most likely be released on the basis of time served. [ 54 ] The defence provided the Court with numerous decisions in which the question of the time served by the accused person in pre- trial detention was of relevance for bail. In the R. v . Ahmad [50] , R. v . Racaniello [51] and R. v .

Riaz [52] cases, the bail review judge summarized the case law to identify the applicable sentencing range before deciding if the pre-trial detention of the accused through the trial would exceed the expected range of sentences [53] . In the Piazza v . R. [54] case, the prosecution had indicated that it would, after conviction, seek a term of imprisonment between two and four years. The bail review judge noted that the pre-trial detention of the accused, on the first day of his trial, would amount to three years, five months and 12 days.

Relying on the prosecution’s assertion regarding the sentence sought, the judge concluded that the accused’s pre-trial detention would be, at the time of his trial, close to his actual sentence [55] . The same logic was applied in the Alieh v . R. [56] case. The Kuhn v . R. [57] case is different. The bail review judge considered the time spent in pre-trial detention when analyzing the question of whether Kuhn’s detention was necessary to maintain confidence in the administration of justice.

In doing so, the bail review judge did not review the applicable range of sentences but instead relied on the parties’ position on sentencing to conclude that Kuhn’s detention through her trial would surpass that of her sentence [58] . [ 55 ] For its part, the prosecution filed one decision, D’Urso v . R. [59] In that case, the accused D’Urso and Fensore had been detained for the equivalent of six years and six months if one applied the 1:1.5 credit. A case management judge had been appointed, but the proceedings were suspended as applications for certiorari were pending. As a result, trial dates were unknown.

D’Urso and Fensore applied for bail review arguing that they had served their time. On that issue, both accused argued that the appropriate sentencing for the offences that they were facing was six to seven years, while the prosecution argued that it was between ten and 15 years.

The bail review judge considered various cases on sentencing and decided that D’Urso and Fensore had not demonstrated that they had or were about to have served their sentence [60] . [ 56 ] A guiding principle flows from the cases submitted by the parties: when assessing an accused person’s claim that his pre-trial detention will exceed that of his sentence, bail review judges tend to assess the applicable range of sentences by reviewing case law, except in situations where the actual time served is within (or close to) the sentencing range proposed by the prosecution.

There is a good reason behind this guiding principle. Sentencing requires the consideration of information that is often not available before the sentencing hearing. It is thus difficult to assess what the accused person’s sentence will be with the information available at the bail review hearing.

This difficulty was addressed in the D’Urso case, in which the bail review judge stated that the information relevant to sentencing and which is available to the bail review judge is often incomplete, approximate and without comparison to the information that will eventually be available to the sentencing judge [61] . [ 57 ] In the matter at hand, the defence focused the Court’s attention on paragraph 24 of the Ahmad case, in which the bail review judge, citing the article, R. v .

Whyte : “Protecting the Innocent (and the Guilty)” [62] , points out that in Whyte , the Court of Appeal considered the sentence not based on a conviction after trial but on a guilty plea. Relying on this statement, the defence argues that in assessing the time spent in pre-trial detention at the bail hearing stage, the bail judge should consider what the sentence of the accused person would be if he were to plead guilty immediately, even in situations where there is no evidence in this regard.

When asked to clarify this argument, the defence went as far as to suggest that the bail hearing judge should consider the sentence that could be suggested on the basis of a joint submission after a plea agreement. [ 58 ] The Court disagrees with the defence’s proposition. First, to properly understand the statement made in Ahmad , one has to remember that in the Whyte case, the prosecution had conceded that if Whyte were to plead guilty immediately, she would most likely be released on the basis of time served, a sentence which was within the applicable sentencing range.

Thus, as there was no debate on the quantum of the sentence that Whyte would most likely get if she pled guilty, there was no need for the Court of Appeal to speculate about what sentence the parties would suggest to the Court as a joint submission. [ 59 ] Second, in assessing an argument that time has been served by the accused person, bail judges will most likely refer to the case law and look for the applicable sentencing range, unless the parties agree on that range or unless one of the parties makes a concession in this regard.

The process of assessing the sentencing range at the bail stage is not, as explained above, without its hurdles as the information relevant to sentencing is often incomplete and approximate. That being said, a joint submission often results from negotiations during which the parties considered multiple factors, including, factors that are not directly related to the offence. For that reason, a joint submission is not evaluated for its fitness [63] and loses much of its value as a comparator [64] .

Thus, assessing, at the bail stage, what could potentially be a joint submission on sentence is a task that would, in most cases, require speculation from the bail judge. [ 60 ] After reviewing all the cases submitted by the parties, the Court sees no reason to depart from the guiding principle stated above. Thus, in assessing an accused person’s claim that his pre-trial detention will exceed that of his sentence, bail judges should assess the applicable range of sentences unless, for example, the actual time served is within (or close to) the sentencing range proposed by the prosecution.

In that process, bail judges should not speculate on the nature of a joint submission that could be presented if a plea agreement were to be reached. The principles applied [ 61 ] Dhingra has been detained since December 3, 2014. At a ratio of 1:1, his detention now amounts to 86 months and three weeks, or fairly over seven years and two months. At a ratio of 1:1.5, his detention now amounts to 130 months and two weeks, or slightly over

ten years and ten months. Dhingra’s trial is scheduled to end on January 20, 2023, that is in ten months and 23 days from now. At a ratio of 1:1, this brings the total of Dhingra’s pre-trial detention to 97 months and 17 days or approximately eight years, one month and two weeks. At a ratio of 1:1.5, this brings the total of his pre-trial detention to 146 months and ten days, or approximately 12 years and two months [65] . [ 62 ] The defence argues that Dhingra’s pre-trial detention will exceed that of his potential sentence.

In this regard, the defence essentially contends that 12 years is at the top of the applicable sentencing range [66] . For its part, the prosecution argues that the sentencing range proposed by the defence is for a courier in a large-scale importation [67] . The sentencing range for principals and leaders of a large-scale importation, such as Dhingra, is higher. In fact, the prosecution informed the Court that, should Dhingra be found guilty of the offences for which he is now charged, they would seek a sentence of 15 years of imprisonment. [ 63 ] In the case Ifezue v .

R. [68] , the Quebec Court of Appeal considered that a sentence of 14 years imposed for the offence of conspiracy to import cocaine was within the sentencing range applicable to a principal who instigated the importation of 20 kilograms of cocaine. In doing so, the Court endorsed the statement that a courier who is involved in large importation of cocaine typically receives custodial sentences of between eight and 12 years [69] .

The Court added that the position that one occupies in the criminal enterprise is a relevant factor in the sentencing process and referred to cases in which principals received a sentence between 16 and 19 years for the importation of large quantities of cocaine [70] . On that topic, in the case R. v . Duncan [71] , the Ontario Superior Court mentioned that the range, for principals who import between three and 20 kilograms of cocaine, is between 12 and 17 years. [ 64 ] In the matter at hand, the

summary evidence presented at the bail hearing regarding the 2013 offences tend to show that Dhingra organized and supervised the importation of 94 kilograms of cocaine and 15 kilograms of crystal meth. He used Lacoursière to transport the drugs and McClelland to ease their entry into Canada. Relying on this evidence, Dhingra would not be considered as a courier but rather, as a principal or a leader. Thus, the sentencing range suggested by the defence, with a higher end at 12 years, is too low. It does not reflect Dhingra’s alleged participation in the offences nor the state of the law.

The appropriate sentencing range applicable to the offences for which Dhingra is charged would most likely be closer to the range identified in the Duncan case, if not higher, as the quantity of drugs that Dhingra is alleged to have imported is larger than the quantities to which the range refers.

On that same topic, but in Quebec, the Court of Appeal confirmed the reasonableness of a 14-year sentence for a principal who instigated the importation of 20 kilograms of cocaine. [ 65 ] In light of the foregoing, the Court finds that while Dhingra’s pre-trial detention has been uncommonly long, it has not yet, and will not by the time that his trial is scheduled to end, reached the point where it exceeds the sentence that he would be facing, should he be found guilty of the offences for which he is charged. [ 66 ] The defence further argues that were he to immediately plead guilty, Dhingra would most likely be released on the basis of time served.

This argument rests on a statement made by the prosecution in front of the Court, on November 25, 2021, the day of his appearance. I was present when the statement was made and I have had the opportunity to hear the statement again during the bail hearing.

The statement can be summarized as follows: the prosecution is more than open to discuss settling this matter to avoid a trial; in the course of these negotiations, the prosecution is open to take into consideration the impact of the COVID-19 pandemic on the conditions of Dhingra’s detention (the prosecution refers to an enhanced credit); and, the prosecution suggests scheduling a Court date in December, stating that it would be in the best interests of the parties to be back in court before Christmas.

In making this statement, the prosecution never said that, should a settlement be reached, a joint submission for time served would be presented to the Court. In that sense, this matter differs from the Whyte case, in which the prosecution clearly stated its position on the record. Otherwise said, the Court does not have any information on what would be the sentence that the parties would agree upon if they were to reach a plea argument and make a joint submission on sentencing. There is thus no evidence to support the argument presented by the defence. B.

Is Dhingra’s pre-trial detention necessary for the protection or the safety of the public? The governing principles [ 67 ] As stated above, s. 11

e) of the Charter guarantees the right of an accused person not to be denied reasonable bail without just cause. This right entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal process and safeguards the liberty of the person charged with an offence [72] . [ 68 ] In general, the prosecution has the burden to show that the pre-trial detention of the accused person is necessary. That being said, there are exceptions, provided for at s. 515 (6) of the Code, where the burden shifts and the accused person must show why his detention is not justified.

One of these exceptions finds application when the accused person is charged with possession for the purpose of trafficking, trafficking or importation of cocaine. As explained by Justice Lamer’s writing for the majority in the Supreme Court case R. v . Pearson [73] , the offence associated with trafficking in narcotics, such as cocaine, have unique characteristics and are committed in a very different context than most other crimes. While most offences are not committed systematically, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting.

It is often a business and a way of life. It is highly lucrative. There is a huge incentive to continue trafficking even after the arrest and release on bail [74] . [ 69 ] Section 515 (10) of the Code states that the pre-trial detention of an accused person is justifiable if, amongst other grounds, it is necessary for the protection or safety of the public having regard to all the circumstances, including any substantial likelihood that the accused person will, if released from custody, commit a criminal offence or interfere with the administration of justice. The wording of this

section is clear: bail is not denied for an accused person who poses a risk of committing an offence while on bail. Bail will be denied only if there is a “substantial likelihood” that the accused person will commit a criminal offence and only if this substantial likelihood endangers the protection or the safety of the public [75] . [ 70 ] In that regard, one must keep in mind that one objective of the criminal justice system is to stop criminal behaviour.

Obviously, the bail system does not function properly if the accused person commits crimes while on bail and thereby endangers the protection or the safety of the public. Bail must be on the condition that the accused person will not engage in such criminal activity pending trial [76] . [ 71 ] Assessing the future dangerousness of an accused person is thus an integral part of the analysis to be done to decide if detention

is necessary for the protection or safety of the public. In the case R. v .

Rondeau [77] , the Quebec Court of Appeal listed the following eight factors that must be considered when making this assessment: (1) the nature of the offence, (2) the circumstances surrounding the commission of the offence, (3) the likelihood of a conviction (4) the degree of involvement of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused including his lifestyle, employment, previous convictions, family environment, mental states …, (7) the accused post-offence conduct and (8) the danger for the community of releasing the accused on bail [78] . [ 72 ] No factor is in itself determinative.

Rather, one must weigh the applicable factors, taking into account all of the relevant circumstances and decide if there is a substantial likelihood that if he is released from custody, the accused person will commit a criminal offence and endanger the protection or the safety of the public [79] . [ 73 ] In the matter at hand, time is an additional consideration that comes into play. Indeed, the Whyte and R. v .

Baltovich [80] cases of the Ontario Court of Appeal stand for the principle that the time that an accused person has spent in custody awaiting trial may diminish the chance that the accused person interfere with witnesses and evidence. The word “may” is important, as in both of those cases the evidence showed that the actual risk that the accused would interfere with witnesses had “substantially diminished [81] .” The Quebec Superior Court cases Alieh and D’Urso stand for the principle that time spent in pre-trial detention may be relevant to the risk that an accused person reoffends [82] .

On this topic, the bail review judge in D’Urso stated that while time spent in pre-trial detention is an important incentive for an accused to abide by his bail conditions, this incentive is a factor amongst others to consider when assessing the risk that the accused will reoffend [83] . [ 74 ] Finally, Dhingra’s health issues and the COVID-19 pandemic are also additional relevant considerations. The principles applied [ 75 ] Dhingra is presumed innocent of all the pending charges.

Because of the nature of the offences for which he is charged, he bears the burden of proving that his detention is not necessary for the protection or the safety of the public [84] .

Thus, the Court will analyze the factors listed in the Rondeau case that are applicable in this matter, while keeping in mind the impact of time, of Dhingra’s health conditions and of the COVID-19 pandemic. [ 76 ] The Court will begin by assessing the factors that relate to the nature of the alleged offences, the circumstances in which the offences were allegedly committed and the degree of involvement alleged on Dhingra’s part. [ 77 ] The objective seriousness of an offence, which is reflected in the punishment that attaches to it, is of relevance when looking at the first factor, which is the nature of the alleged offence.

In that regard, the offences allegedly committed by Dhingra are serious, as they are punishable by a maximum sentence of imprisonment for life. [ 78 ] The circumstances in which these offences were allegedly committed are described in Justice Longo’s verdict decision. These alleged circumstances refer to a large-scale importation of cocaine and crystal meth, organized and supervised by Dhingra, and which involved using Lacoursière to transport the drugs and McClelland to ease their entry into Canada. The description of Dhingra’s alleged involvement places him high in the hierarchy of this criminal enterprise.

The drugs imported, cocaine and crystal meth, cause serious and well-document damages to both public health and the health of the users. The importation of these drugs is a vital link in ensuring their availability on the market. In short, the alleged circumstances in which these offences were committed are serious and the degree of Dhingra’s involvement appears high. [ 79 ] As for the likelihood of a conviction, the Court reiterates that it must, at the bail hearing stage, consider the quality of the evidence in a general manner.

In the matter at hand, the evidence against Dhingra rests on the following elements: • police surveillance carried out on November 13, 2013; • video footage of the Ikea parking lot on that day; • video footage of two cars crossing the border at McClelland’s gate on the morning of November 13, 2013; • the testimony of a supervising border patrol agent who confirmed that the cars seen crossing the border at McClelland’s gate that morning were driven by Lacoursière and Dhingra; • specialized police witnesses’ testimony on narcotics accounting, on the information found in the GPS in Lacoursière’s car and on the communications between Dhingra and Lacoursière and Dhingra and McClelland; • the testimony of an undercover police officer to whom Dhingra said that the last time he was arrested, he had 84 or 94 kilograms; and, • the testimony of Dhingra’s accomplice, Lacoursière.

The evidence against Dhingra is circumstantial, but it rests on various elements. In that sense, there appears to be sufficient evidence available to the prosecution to potentially secure a conviction. Thus, the likelihood that Dhingra will be convicted for the offences that he faces, is real and present. [ 80 ] The Court will turn its attention to Dhingra’s profile, the sixth factor. Dhingra, who has no prior convictions, has now been detained for more than seven years. He has been married to Labrini Tsimulaki since 2008. He has two children, a 12-year-old daughter and an eight-year-old son.

While in detention, he lost both his parents. He also lost touch with the company he kept before his detention. [ 81 ] The Court does not know if Dhingra was employed before his arrest in December 2014. That being said, during his detention, Dhingra worked. At the Bordeaux Institution, he was working with the cleaning team. At the Cowansville Institution, he cleaned the officers’ locker room and eventually worked as an office clerk in accounting [85] . His security classification was lowered over the years.

While he was detained at the Cowansville Institution, [86] he was housed in what he called a “responsibility units” [87] and received no disciplinary report, was not involved in incidents, adopted a conformist behaviour and showed respect to staff members [88] . In short, he abided by the rules. [ 82 ] At his bail hearing, Dhingra explained how his detention has affected him. He could not see his children grow up. He was not able to be with his parents before their death and he was not able to ensure that they received the last rites.

If he were to be released, he would abide by all of the conditions that the Court would impose upon him because he knows what he will lose if he is re-incarcerated. As for his release plan, he is willing to remain at the family residence 24 hours a day. He is also willing to work as a truck driver, if the Court allows it. He has his licence and he believes that it will be easy for him to find a job in this field.

Finally, he added that he only has $600 in his bank account and that he has nothing else in his name. [ 83 ] The circumstance that led to the 2014 offences are relevant to the seventh factor, Dhingra’s post offence behaviour. As explained above, the facts presented as evidence during the bail hearing show that there are reasonable grounds to believe that Dhingra actively participated in the importation of 182 kilograms of cocaine on December 2, 2014, while he was on bail, under strict conditions, guaranteed by a deposit of $30,000.

The description of the 2014 importation scheme shows that it is similar to the alleged 2013 scheme. Participating in a major drug importation scheme while being on bail shows contempt for the law and the authority of the courts. It also shows that there is a huge incentive to continue trafficking, even after arrest and release on bail. [ 84 ] The last factor is the danger for the community of releasing Dhingra on bail.

In the matter at hand, the danger derives from the fact that Dhingra was allegedly involved in the importation of large amounts of cocaine, a drug which causes serious damages, as explained above. [ 85 ] As previously stated, no factor is, in itself, determinative.

The Court must weigh all of the applicable factors while taking into consideration all of the relevant circumstances, including the time that has passed, Dhingra’s health conditions and the ongoing COVID- 19 pandemic, to decide if there is a substantial likelihood that if he is released from custody, Dhingra will commit a criminal offence and endanger the protection or the safety of the public. [ 86 ] In short, the offences and the circumstances in which they were allegedly committed are serious. Dhingra’s alleged involvement in these offences appears to be important.

While the evidence available to the prosecution is circumstantial, the likelihood of a conviction is real and present. There are reasons to believe that after having been arrested and granted bail for the 2013 offences, Dhingra participated in an even larger-scale importation of cocaine showing disregard for the law and the authority of the courts. The fact that there is a huge financial incentive for people trafficking in narcotics to continue their business even after having been arrested and granted bail is well known. That incentive appears to have gotten to Dhingra in 2014.

At his bail hearing, Dhingra testified that he has nothing in his name but $600 in a bank account. He testified that he could easily find work, but there is no additional evidence in this regard. There is thus a serious risk that if he were to be released, Dhingra would not be able to provide for himself and would again revert to criminal activities, even if time has passed.

While it is true that the time spent in detention awaiting trial may diminish the chance that an accused person reoffend, if release from detention, this factor has a limited impact on the matter at hand given Dhingra’s personal circumstances. Indeed, in 2014, Dhingra was married and had children.

These personal circumstances did not, at that time, impede his actions. [ 87 ] In light of the foregoing, the Court concludes that there is a substantial likelihood that Dhingra will, if released from custody, commit a criminal offence and endanger the protection or the safety of the public. [ 88 ] In reaching this conclusion, the Court considered the time that has passed since Dhingra’s arrest in December 2014, including the following facts: that he has now been detained for slightly over seven years; that his record in detention shows that he was working and that his behaviour was good; that he testified on his motivation to abide by the Court imposed conditions because he knows the cost of being incarcerated and that he mentioned no longer being in contact with the company that he used to keep before being incarcerated.

The Court also considered Dhingra’s health issues, the COVID-19 pandemic and the conditions in which Dhingra is detained, as a result thereof. [ 89 ] The next question to address is whether the release plan proposed by Dhingra sufficiently mitigates the risks that he poses to the protection and the safety of the public. [ 90 ] One feature of the release plan proposed by Dhingra is his wife’s willingness to act as a surety. When a surety is proposed that surety must be suitable. The surety’s obligations include ensuring that the accused person abides by his bail conditions.

As the surety must “supervise” the accused person, it is important to know if the relationship between the surety and the accused person is one which will realistically permit the infusion of the surety’s obligations and their potential enforcement. In short, a surety must be prepared to exercise control over the accused person and report him to the authorities should he not abide by his bail conditions [89] . There are no specific criteria that govern the suitability of sureties. The question of suitability must be decided on a case-by-case basis, taking into account all of the circumstances.

The approach must be functional, that is the assessment of suitability should be derived from what the law expects of sureties and whether they can realistically discharge their obligations and willingly exercise the powers of a surety [90] . [ 91 ] In the matter at hand, Dhingra was intercepted by the police at 9:23 p.m. and arrested at 9:28 p.m. on November 13, 2013. A few minutes later, at 9:40 p.m., the police intercepted a car that had departed from Dhingra’s residence. Dhingra’s wife, his daughter and their nanny were in the car.

Before their interception by the police, they were seen leaving the family home quickly and placing something in the trunk of the car. In fact, Dhingra’s daughter was in her pyjamas. The car was searched and approximately $150,000 in cash and gold bars was seized. The behaviour of Dhingra’s wife, on that night, raises serious questions as to her willingness to exercise the powers of a surety, including denouncing her husband should he breach his conditions. [ 92 ] The second feature of Dhingra’s release plan is his wife’s willingness to sign an undertaking for $2,000, without deposit.

Bail conditions can include monetary conditions, such as a recognizance to pay a sum of money if bail conditions are breached [91] . Deciding on the proper amount to set for bail involves competing interests. That being said, the amount needs to be significant enough to achieve its coercive purpose and give the accused person a reason to abide by his bail conditions [92] .

[ 93 ] In the matter at hand, the defence chose to provide little to no information on the couple’s financial situation. In fact, the affidavit signed by Dhingra’s wife is silent on financial issues except to mention that she works as a hairdresser and that she can support her husband financially. The affidavit does not mention the assets that she has and makes no reference, for example, to potential equity that exists in the family home.

Without proper financial information, it is impossible for the Court to assess the coercive impact of the proposed undertaking. [ 94 ] In conclusion, the release plan proposed by Dhingra does not sufficiently mitigate the risks that he poses to the protection and the safety of the public. In light of the foregoing, the Court concludes that Dhingra has not met his burden to show that his detention is not necessary for the protection or the safety of the public. FOR THESE REASONS, THE COURT: ORDERS Soninder Dhingra’s pre-trial detention pursuant to 515 (10)(

b) of the Criminal Code . __________________________________ MÉLANIE HÉBERT, J.C.Q. Mtre Richard Audet Mtre Éric Poudrier Director of Criminal and Penal Prosecutions For the Prosecutor Mtre Fanie Lacroix For the Accused Hearing dates: February 8 and 11, 2022