R. v. Singh, 2011 ONCJ 18

Citation: R. v. Singh , 2011 ONCJ 18 Ontario Court of Justice Toronto Region In the matter of Regina v. Pritipal Singh Before: Her Worship Mary A. Ross Hendriks, Justice of the Peace REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING Hearing Dates: December 20, 2010, January 5, 2011, and January 10, 2011. Judgment: January 12, 2011. Counsel: Ms. R. Zaied, Provincial Crown Mr. R. McKenchney, Defence Counsel

INTRODUCTION: [ 1 ] The accused is Pritipal Singh, a 45-year old Canadian citizen, who has two known Ontario residences, first, his home in Woodbridge, where he resides with his wife and three children; and his parents condominium to which he is purportedly on title and a registered tenant in the City of Toronto. The Crown also alleges that his parents own a home in India where they reside, which he frequents regularly. He has no criminal record. [ 2 ] The Crown is seeking an application under

section 524 of the Criminal Code to revoke his prior release, originally dated September 19, 2008, and amended on consent on February 20, 2009 (to permit him to travel to India), in which he faces eleven counts of alleged firearm, drug trafficking and proceeds of crime offences. At the time of his most recent arrest, he was still on this release that named his wife as his surety, in a total amount of $50,000. One of the conditions of that judicial interim release consistent throughout was that Mr. Singh was not permitted to possess any weapons as defined by the Criminal Code .

Because of his outstanding charges and the nature of his new charges, this is a reverse onus bail hearing. An exclusion order with respect to witnesses was made at the outset of the hearing. [ 3 ] The Crown alleges that Mr. Singh attempted to murder two men to whom he owes more than $600,000 on September 17, 2010. The Crown further alleges that Mr. Singh shot one of them in the neck, causing his paralysis, and that the second intended victim escaped on foot, despite being shot at by Mr. Singh. [ 4 ] The Crown is seeking his detention on the primary, secondary and tertiary grounds.

The Charges Against the Accused: [ 5 ] According to the indictment filed by the Assistant Crown Attorney with the Superior Court, dated August 21, 2009, Mr. Singh faces the following original charges, which followed a police investigation of the break-in at his parents' Toronto condominium: •possession of opium, contrary to s.4(3)(

a) of the Controlled Drugs and Substances Act (“CDSA”) •possession of heroin, contrary to s.4(3)(

a) of the CDSA •possession of oxycodone, contrary to s.4(3) of the CDSA •possession of N-methyl-3, 4-Methylenedioxymethamphetamine (“MDMA”), contrary to s.4(6)(

a) of the CDSA •possession of a prohibited firearm with ammunition, contrary to section 95(2) (a)(

i) of the Criminal Code •unauthorized possession of a firearm, contrary to section 91(3) (

a) of the Criminal Code •possess firearm knowing possession unauthorized, contrary to section 92(3) of the Criminal Code •careless storage of firearm, contrary to s. 86(3) of the Criminal Code

•possession of firearm obtained by crime, contrary to section 96(2) (

a) of the Criminal Code •possess proceeds of crime, contrary to sections 354(1) (

a) and 355 (b)(

i) of the Criminal Code [ 6 ] More recently, Mr. Singh has been charged as follows: •Two counts of attempted murder while using a restricted firearm, contrary to

section 239 (

a) of the Criminal Code •Two counts of pointing a firearm, contrary to section 87(1) of the Criminal Code •Possession of a restricted firearm with ammunition, contrary to section 95(1) of the Criminal Code •Unauthorized possession of a firearm, contrary to section 91(1) of the Criminal Code •Possession of a firearm knowing that its possession is unauthorized, contrary to section 92(1) of the Criminal Code •Weapons dangerous, contrary to section 88(1) of the Criminal Code •Fail to comply with recognizance, contrary to section 145(3) of the Criminal Code The Crown's Allegations: [ 7 ] As the result of a call to police from the security guard at the Toronto condominium owned by his parents and the accused on June 25, 2007, police attended at the unit and found that a hole had been drilled into the door, presumably to permit entry. [ 8 ] Police attended, and found a four inch hole drilled through the front door of the condominium unit.

When they entered the bedroom, they found it had been ransacked. They did not find anyone inside the unit. The police wanted to ascertain the identity of the unit's owners by finding their identification. They also searched for valuables and collected evidence. The police made efforts to contact the unit's owners, and were given the accused's name and his parents' names.

At this stage, implicitly, the police believed they were dealing with a break and enter into the unit. [ 9 ] In the corner of a bedroom, the police officers who attended the scene found a plastic shopping bag that contained three bundles of $20 bills. They found a second plastic shopping bag that contained blue diamond-shaped pills, which they believed may have been Viagara. They also found a black compact disk case in a closet, which held a Grendel model P12 .380 calibre semi-automatic pistol, a magazine, several bullets, and some compact disks.

As a result, the police officers called 22 Division, Major Crime Unit. [ 10 ] The police obtained a Criminal Code search warrant for the condominium unit, and executed it on June 28, 2007 at 1:30 a.m., taking with them the semi-automatic pistol, magazine, ammunition, identification in various names including that of the accused, two money counters, money and the following drugs: 1.0 grams of bulk opium, 0.85 grams of heroin, oxycodone, 1.39 grams of MDMA, as well as 3090 blue diamond-shaped pills.

To date, no one has been charged in connection with the blue diamond-shaped pills. [ 11 ] The occupants of the home were never contacted as a result of the break and enter, since the accused and his parents were all in India at the time. [ 12 ] The accused surrendered himself with his previous counsel upon returning from India, and provided police with an exculpatory statement, that his parents were the owners of the condominium unit, and that he and another male were responsible for watching the unit, and so he had signed the condominium information form listing himself as a registered resident. [ 13 ] As a result, the accused was released on the current bail, as described herein in paragraph 2.

New Allegations: [ 14 ] The Crown alleges that the accused, while on bail, attempted to murder two men to whom he owed more than $600,000. They are Manmohan Ghuman, also known as “Bawi” (Complainant #1), and Valker Singh, also known as “Bali” (Complainant #2).

One victim has been his friend since childhood, since they are distant cousins, and the other victim worked for him in the trucking business and was not paid what he was owed. [ 15 ] Specifically, the Crown alleges that he contacted the two complainants at 4 p.m. on Friday, September 17, 2010, and asked them to meet him at Exotic Indian Cuisine at 1850 Albion Rd., Toronto, at 8 p.m., to discuss the repayment of the debt owed. [ 16 ] Both complainants attended the restaurant and the accused was not present. They contacted the accused to confirm he was still planning to attend.

The accused arrived late, accompanied by three other males. The accused asked both complainants to step outside the restaurant with him, to which they complied. [ 17 ] The accused stood before Complainant #1, while Complainant #2 stood a short distance away. The accused then pulled out a semi- automatic from the front of his pants, pulled the slide back, and pointed the gun at Complainant #1, and pulled the trigger. The gun misfired. He pulled it back again, but there was no bullet in the second chamber.

He pointed the gun at Complainant #1's neck, and shot him, causing very serious injury. [ 18 ] The accused then pointed the gun at Complainant #2, and tried to shoot him, but the gun misfired. Complainant #2 fled through the parking lot, chased by the accused, whom he observed to continue to point the gun at him.

Complainant #2 fled by outrunning the accused, which included jumping over fences, resulting in cuts to his hands. [ 19 ] Complainant #2 called 911, explained what had happened, and identified the accused as the shooter during this initial telephone call. [ 20 ] Complainant #1 was found by police and ambulance attendants in the parking lot, and taken to Sunnybrook Hospital. At the time he was found in the parking lot, he also identified the accused to police as the person who shot him. As a result of being shot in the neck, he has a fractured spine and is paralyzed below the chest.

He is now living in a rehabilitation hospital out-of-town and is unable to live with or support his family. [ 21 ] Complainant #2 did not require medical care. [ 22 ] The police began searching for the accused. He turned himself in on September 18, 2010, pending his show cause hearing. [ 23 ] The police seized the videotape from Exotic Indian Cuisine, and the Crown states that the accused is seen on this videotape. The police also found one bullet and one spent casing in the parking lot outside the restaurant.

THE PROPOSED PLAN OF RELEASE: [ 24 ] Defence counsel put a plan of release to the court that includes full-time supervision by two sureties who are prepared to pledge a substantial amount of money, and an electronic ankle bracelet, to monitor his whereabouts. The Electronic Ankle Bracelet: [ 25 ] Defence counsel submitted an affidavit from L Beagley (Exhibit 1), who is the President of Trace Canada, located in British Columbia. His affidavit states that these ankle bracelets are used routinely in the United States. Mr. Beagley's affidavit suggests there

are 60,000 individuals on bail in the United States currently wearing such a device. Defence counsel submitted that the electronic ankle bracelet is “an added level of security” in addition to the two proposed sureties. Evidence of Christopher Downer: [ 26 ] Christopher Downer testified at this bail hearing regarding the use of electronic bracelets. He is the Prinicipal of the CD Group, and was a senior level police officer prior to becoming a private investigator, who is routinely retained by defence counsel. [ 27 ] Trace Canada has authorized Mr.

Downer, as a consultant, to install these devices on accused persons, on its behalf. He advised that Trace Canada has the licence from the Florida-based manufacturer, ProTech, to lease and distribute these devices in Canada. Mr. Downer was permitted to answer questions at this bail hearing as Trace Canada's agent, regarding the basic workings of the device. As a consultant, Mr. Downer has been paid to testify at the rate of $1040 per day, and he is also paid $300 to install such a device, if the installation is within the GTA. [ 28 ] Mr.

Downer showed the court the device, which is a one-piece black band with attached black box. The device is equipped with both a passive GPS system monitored by satellite and radio signal, so it can be programmed for inclusion and exclusion zones. For example, Mr. Downer was shown a Google Map (Exhibit 3) by defence counsel of the area in which the two sureties and the accused's family live, and Mr. Downer testified that this area could be made Mr. Singh's only permitted zone, if so ordered. Additionally, the device can be programmed so that the accused is permitted to leave his zone on specific dates and times.

If an accused leaves his zone, the device notifies authorized people of the violation within 15 seconds. Authorized people could include his own counsel, the officer in charge of the case, and his sureties, for example. [ 29 ] The passive GPS system downloads the location of the individual, and uploads this information every ten minutes if there are no breaches, and if comprised, every minute. The officer in charge could have this information sent to his or her Blackberry, or he or she could log onto or call Trace Canada. [ 30 ] Mr.

Downer said that the server and back-up system are located in Jacksonville and Odessa, Florida, and that ProTech has not had any systems crashes or outages, unlike its competitors. However, during cross-examination, he admitted that his knowledge of the system's reliability is based solely on what he has been told by Mr. Begley. [ 31 ] The accused must pay Trace Canada $500 per month for use of this device. Mr.

Downer suggested that as part of any release incorporating such a device, an accused be ordered to pay for its use several months in advance, and further be required to notify all authorized persons several months prior to the expiry of the contract, so that the contractual relationship cannot be ended prior to the ending of the term of the bail. He admitted that if an accused defaulted on payments, Trace Canada would cease to monitor the device, although they would not uninstall it. [ 32 ] He has testified at two other court proceedings regarding this ankle bracelet device.

The first time he testified, was three years ago, and the device was not permitted. The second time he testified, the sureties were accepted but the ankle bracelet was not required. The only cases in Canada in which the ankle bracelet has been accepted were for extradition matters, and he installed such a bracelet on accused charged with tax evasion. However, he is aware of twelve cases in Canada in which this device has been ordered, four that involve extradition matters, and eight that involve Criminal charges. As such, all twelve matters are judicial interim release orders. [ 33 ] While he has known Mr.

Begley for two years, this court appearance was the first time he has been testifying as an agent of Trace Canada, and he noted that he prefers the term “consultant.” [ 34 ] During cross-examination, Mr. Downer said that if any accused were to use wire-cutters, he or she could cut off the device and flee. Within 55 to 60 seconds, all authorized persons would receive a text message, email, fax or telephone call from ProTech, and the officer in charge would be notified within 15 to 20 seconds of the breach. [ 35 ] During cross-examination, Mr. Downer admitted that he did not know if Mr.

Singh could afford this device. Over the Crown's objection, I allowed Mr. Downer to clarify his remarks. If an accused were ordered to pay a significant amount of the cost of such a device upfront, the device was ordered installed prior to leaving the courthouse, and that the officer in charge could be notified immediately upon any breach, such as removal or default of payment, and that the officer in charge also be ordered to be notified six

months in advance prior to the expiry of the contract, then the use of the device would form part of the release order. The Crown found it problematic that the court could order a company based in British Columbia to notify the officer in charge, since Mr.

Begley was not in court for this bail hearing. [ 36 ] The Crown and defence counsel engaged in a lengthy debate about whether or not it would ever be possible for the Crown to prove a breach, as opposed to a malfunction of the device, given that the servers used to perform its monitoring are located in the United States, and documentary evidence from the United States may not be permitted under the Canada Evidence Act .

Any documentary evidence put forward by Trace Canada that originates from the United States may be permitted at a bail hearing, but may not ultimately be admitted in a trial, because it is hearsay. Defence counsel disagreed with the Crown's submission as to the evidentiary burden, and characterized it as “speculative.” [ 37 ] Crown counsel again asked what would happen if the accused went outside the permitted area, returned home by the time the police arrived, and claimed that the breach signal was a malfunction. Mr. Downer said that he would be arrested for a breach of his bail.

Crown counsel kept insisting that in order to prove a breach at a trial, witnesses who operate the system in Florida would have to attend to testify. [ 38 ] Mr. Downer said that the device is better than your own cell phone or the GPS system in your car, because if the satellite connection is disrupted, then the radio signal would apply. When asked if that would provide the officer in charge with longitude and latitude, he said that the authorized persons would receive an address. [ 39 ] Mr. Downer testified that the device runs on a battery that must be re-charged every 24 hours.

If the battery is not re-charged, then the system would notify the police of a breach, within 10 minutes of losing power. Thus, an accused who fails to re-charge the device has a 10-minute window, possibly 10 minutes and 57 seconds if the GPS is also unavailable, since the radio frequency would still be operational. The police would have to attend at the residence to determine if the accused was at home, and what happened to the device. [ 40 ] Mr.

Downer also explained that for any breach, the signal to the authorized persons is sent straight from Florida, and is not dependent on TraceCanada's computer equipment, located in British Columbia. The First Proposed Surety, Mr. Dalvir Khaira: [ 41 ] Mr. Dalvir Khaira is a 53 year old Canadian citizen, who was born in India. He has been married for 25 years and has 12 year old twin daughters. He has no record and is not facing any criminal charges. For the last seven years, he has resided in his five-bedroom home in Brampton with his wife, children, his parents, and his dog.

He is putting himself forward as the primary surety for Mr. Singh. [ 42 ] He has his own trucking business, and works from 6 a.m to 5 p.m from Monday to Friday. He owns eleven gravel trucks and employs eleven drivers. When a driver is absent, he drives one of the trucks himself, which he estimates occurs two to three times per week, during daytime hours. “Once in a while”, which he later estimated to be about once per month, he also drives a truck on overnight trips. [ 43 ] He earns about $50,000 per year, and has $156,000 in equity in his home, after adjustments for his mortgage and line of credit.

He testified that he is prepared to pledge all of his equity if required. [ 44 ] He has been friends with the accused since 1983, when they began playing sports together. Prior to Mr. Singh's arrest, Mr. Khaira saw him once or twice per month, typically in a coffee shop or each other's home, usually for coffee or tea. [ 45 ] Mr. Khaira knows Mr. Singh's wife and three children. He was unaware of Mr. Singh's prior charges, until recently advised by Mr. Singh's wife when asked if he would act as a surety. He said he is prepared to watch him closely and follow whatever orders are made by the court.

[ 46 ] Mr. Khaira advised that the plan of release is that Mr. Singh stay at his home overnight, either in an upstairs bedroom or in the basement, and that he will drop him off at Ms. Kaur's home in the morning on his way to work. Mr. Singh will either be picked up by Mr. Khaira at night, or dropped off by Ms. Kaur, and if Mr. Khaira needs to take an overnight trip, then Ms. Kaur will keep him. [ 47 ] He testified that he and Mr. Singh originally drove taxis together and that now Mr. Singh has a trucking business, called “Linkway.” He described Mr.

Singh's business as a home-based one involving flat truck trailers that carry cargo, but he could not say if Mr. Singh had any business partners, nor if he did any business across the border, nor where his trucks are kept. [ 48 ] During the three month period between Mr. Singh's recent arrest and his testimony at this judicial interim release hearing, Mr. Khaira neither visited him in jail nor telephoned him there. When asked why not, he simply said he had been busy with his own work and had kept in touch with Mr. Singh's wife. [ 49 ] When asked about how Mr.

Singh was supporting himself and his family if he cannot work, he responded that “he will come out and work” and that he “cannot work inside jail.” He added that Mr. Singh “drove a truck before and now also can do something.” When asked if that meant he would let Mr. Singh drive a truck, he said that he only came to court to secure his release, and that it was up to the court whether or not he could work. When asked if Mr. Singh was prepared to not work, he replied that he had talked to Mr. Singh's wife and that “she will look after that.” [ 50 ] Mr. Khaira has “no idea” whether or not Mr.

Singh has any debts. [ 51 ] He testified that Mr. Singh's parents are back in India, and that Mr. Singh visits them once per year. His parents have a home there, but he does not know if they have any businesses there. [ 52 ] He said that Mr. Singh returned to India in 2010 for one to two months, in January and February. [ 53 ] Mr. Kahira does not know the two complainants in this matter, although he does know many people in the trucking business. He denies having any business relationship with Mr. Singh. [ 54 ] Mr.

Kahira knows the second proposed surety, because she is the wife of a friend of his, who is also in the trucking business. He said, “I know her husband, I don't know her much.” He has discussed the plan of release with both of them. [ 55 ] Mr. Kahira was unable to state the names of Mr. Singh's parents, although he says that he knows them, and identified a woman sitting in court as his “aunt”, although he did not know her name, either. [ 56 ] When asked if Mr. Singh owned any property besides his house, Mr. Kahira did not know the answer. When asked if he knew anything about Mr.

Singh's business, he said, “no, I don't know.” [ 57 ] Mr. Kahira is prepared to have Mr. Singh sleep in either a spare bedroom upstairs or in a bedroom in the basement, and said that is up to the court to decide. Second Proposed Surety, Ms. Jaswinder Kaur: [ 58 ] Ms. Jaswinder Kaur is a 37-year old Canadian citizen. She is married, and has three children. She resides with her family in a house in Brampton, which is in her name, and she estimates that she has $390,000 equity in it. She is prepared to pledge all of her equity if need be. She has no criminal record and no outstanding charges.

[59] Ms. Kaur is a homemaker, and said that she is available to watch Mr. Singh during the daytime. She explained her husband'srepeated absence from this proceeding, saying, “he works most of the time – I will be the main person taking care of him.” [60] She knows Mr. Singh, because her husband is related to his wife, as first cousins. Prior to Mr. Singh's arrest, she said that theywould have combined family functions, approximately once per month. She has known Mr. Singh for 16 years. She is familiar with hishome in Woodbridge, and is also aware of a house in India, but not of any other properties. [61] Ms.

Kaur is aware of his previous charges from 2007. She testified that his wife advised her of them, within two to three months ofthem being laid. She further stated that she was aware of his bail release. When asked if she had ever spoken to him directly about thosecharges or his release, she replied, “no, I didn't.” [62] Although her husband is also in the trucking business, she testified that he does not have any business relationship with either Mr.Singh or Mr. Kahira. She said that whether or not Mr. Singh resumes work is up to the court. She described Mr.

Singh as supporting hisfamily, stating that his wife was laid off her position. She believes that their daughter is working, and that she may be contributing to thefamily's support. [63] She also testified that she does not know the two complainants in this matter, nor where Mr. Singh works. Her knowledge of hisbusiness affairs is very limited, stating, “I heard he drives a truck.” She could not provide any further details on his business. [64] Ms. Kaur testified that she did not visit Mr. Singh in prison, nor did she telephone him, even though he has been in custody for fourmonths at the time of her testimony.

She said that speaking to him was not necessary, since his “wife will tell me everything.” Whenpressed about how she could control him if released, she said that this difference is “cultural” and that when he lives under her roof, shewill “take full responsibility.” When pressed further, she said that this belief in her ability to control him was based on her “confidence inmyself.” If he steps out of line, she was firm that she would call the police. [65] She described the plan of release as having Mr. Singh spend the daytime with her, and spend the evenings at Mr. Kahira'sresidence. She will keep Mr.

Singh overnight at her residence if Mr. Kahira has an overnight road trip. ANALYSIS: The Right to Bail: [66] The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, enacted as

Schedule B to the Canada Act,1982, (U.K.) 1982, c.11, which came into force on April 17, 1982, provides that: any person charged with an offence has the right to bepresumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as persection 11(d); and not to be denied reasonable bail without just cause, as per

section 11(e). [67] In R.v. Pearson, (SCC), [1992] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections11(

d) and 11(

e) of the Charter are “parallel rights”, stating: ...Section 11(

e) entrenches the effect of the presumption of innocence at the bail stage of the criminal process.

Section 11(

d) does thesame at the trial stage. Sections 11(

d) and 11(

e) define the procedural content of the presumption of innocence at the bail and trial stagesof the criminal process, and constitute both the extent and the limit of that presumption at those stages...

[ 68 ] Section 515(10) of the Criminal Code provides that pre-trial detention is justified only when one or more of the following grounds are established: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) 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 prosecution's case, (ii)the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (I)(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 imprisonment for a term of three years or more.

Final Submissions: [ 69 ] Defence counsel believes that the onus for his release has been met, since he is offering 24-hour supervision, two credible residential sureties, an electronic ankle bracelet for further security, and a significant quantum of bail over $500,000. [ 70 ] The Crown is seeking his detention on all three grounds, and a revocation of his release, noting the strength of the Crown's case, the alleged breach of his prior bail, and the serious harm to one complainant as a result of Mr. Singh's deliberate and planned shooting.

She expressed significant concern for the safety of the complainants if he is released, and a concern that he may choose to flee the jurisdiction when faced with a possible sentence of 10 to 20 years in prison.

Primary Ground: [71] According to Justice Trotter, in his book, The Law of Bail in Canada, 3rd ed., JP ed. 2010, Carswell: 2010, at pp. 3-4 to 3-12, thereare several key considerations under the primary ground: •the nature of the offence and potential penalty •the strength of the evidence against the accused •the accused's ties to the community •the accused's record for compliance with court orders on previous occasions •the accused's behaviour prior to apprehension: evidence of flight [72] I will deal with these considerations in order. [73] The nature of the offence is extremely serious.

In examining his most recent charges, Mr. Singh has been accused of two counts ofattempt murder using a firearm, and one of his victims has been permanently paralyzed below the chest. The minimum sentence that maybe imposed under

section 239 of the Criminal Code, if he is ultimately found guilty, is five years, and the maximum sentence isimprisonment for life. [74] Clearly, this is not his trial and he is entitled to the presumption of innocence. However, in assessing what his potential sentencecould be, I am mindful of the sentencing principles articulated under sections 718, 718.1 and 718.2 of the Criminal Code.

While he doesnot have a criminal record, the Crown's case, taken at its highest, connotes a number of aggravating factors, including: breach ofrecognizance: weapons prohibition; calling the victims to arrange a meeting to discuss the outstanding debt, which may be found later tobe luring the victim's to the restaurant, thus indicating premeditation; arriving at the restaurant with three other men, which also indicatespremeditation; luring the victims outside of the restaurant to shoot them in a parking lot, which endangers members of the public as wellas the victims; firing a number of shots at each of them; use of a semi-automatic firearm; and allegedly shooting one of the victims in theneck, at close range, resulting in a devastating injury.

If proven to be true, this was not a chance encounter, or a stray shot, but a verydeliberate attempt to murder two people whom he knew very well and to whom he owed large sums of money. All of this indicates that iffound guilty, Mr. Singh is facing a sentence at the high end of mid-range, likely 10 to 15 years. See: R. v. Sellen, 2008 ONCA 623, 2008 ONCA 623, at paragraph 2; and also see: R. v.

Thompson, 2009 ONCA 243, at paragraph 26, in which the Court ofAppeal upheld an eleven-year sentence for attempted murder under similar circumstances. [75] He has also been charged with earlier offences that relate to drug trafficking and a firearm from the break and enter at the Torontocondominium.

If found guilty, he also faces a lengthy term of incarceration for those charges. [76] In terms of the strength of the evidence against the accused, at this stage and before this court, while the charges involving drugsand a weapon from the break and enter at the condominium appears to be a fairly routine matter and there are some very clearweaknesses to the Crown's case, the strength of the Crown's case against the accused on the attempt murder charges appears to be verystrong. Both victims have known Mr. Singh for many years and identified him immediately to police as the shooter, independent of eachother.

Forensic evidence of a bullet was found in the parking lot. The Crown is in possession of the restaurant's videotape, which putshim at the scene. For the purpose of this bail hearing, the Crown's case is more than reasonably capable of supporting a conviction onthe charges of attempted murder. [77] The accused has strong ties to the community, since he has a wife and three children who live with him. His wife is his surety fromhis recognizance, and she has clearly been in touch with the proposed new sureties to secure his release again. She has attended this bailhearing, along with other friends and family.

The accused, however, also has strong ties to India. His parents continue to reside in India,and according to Mr. Khaira, he spent January and February of 2010 in India visiting them. They have a home in India. Defence counseladvised that his bail had been varied, on consent, to permit him to visit India. [78] In terms of his record of compliance with court orders on previous occasions, the accused is charged with breaching his prior bail,to wit the weapons prohibition.

The breach alleged resulted in two charges of attempted murder while using a restricted firearm, causingme great concern about his willingness to comply with fundamental conditions of his bail.

[79] In terms of prior behaviour, to his credit, Mr. Singh has turned himself into the police on both occasions, which indicates that he isnot normally a flight risk. [80] Finally, I must consider his willingness to wear an electronic ankle bracelet, which is an intrusive and expensive device, meant tomonitor his whereabouts in addition to offering the court two sureties, although it is far from clear how he will pay for this expensivedevice should he be released on house arrest and his spouse is unemployed. [81] I find that Mr. Singh has not discharged his onus on the primary ground.

His alleged breach of his bail goes to the heart of hiswillingness to comply with court orders. Mr. Singh has strong family ties to India, where his parents reside in their own home, andwhich he visits for a month or two each year. While he has turned himself into the police in the past, he is now faced with a very strongCrown case against him and a significant prison sentence. [82] His sureties believe that they can control him, but their fundamental connection to him is only through his wife. Neither surety hasvisited him in prison or called him on the telephone, and his proposed primary surety, Mr.

Kahira, did not know of his earlier chargesuntil he was asked to be a surety at this hearing. While I accept defence counsel's submission that Mr. Kahira would refer to Mr. Singh'sparents as being his “aunt” or “uncle” for cultural reasons, he could not provide the court with either of their names. Ms. Kaur believesthat she can control Mr. Singh, but that belief is really based on her own strength of character to report a breach, rather than being basedon the strength of her relationship to him. I found it telling that Ms.

Kaur testified that she is unsure what goes on in his house, but thatshe thought she could control him. Secondary Ground: [83] While his two proposed sureties are both well-intentioned, neither of them possesses any deep knowledge of the details of Mr.Singh's life. Ms. Kaur is really a family friend, whose role would be to watch Mr. Singh while Mr. Khaira went to work. Mr. Khaira wasput forward as the primary surety in this proposed plan of release, and he does not have the same level of resolve as Ms. Kaur. [84] Mr. Khaira's evidence troubles me, since he is purportedly a good friend of Mr.

Singh's but admitted that he was unaware of hisprior charges and bail release until he was asked to act as a surety. Neither surety was able to provide any information concerning Mr.Singh's business or personal finances, including the location of his business, which strikes me as unusual for a good friend, given thatMr. Khaira is in the same industry as Mr. Singh. Obviously, Mr. Singh does not confide in him. [85] Mr. Khaira did not know any of the details on where Mr. Singh keeps his trucks or how many trucks he has, or if he has any otherdrivers. He is not familiar enough with Mr.

Singh's routines and his personal circumstances to provide an acceptable level of supervision.His unaccounted for number of trucks which he owns and unknown location provide the means to escape readily. My concern about hisaccess to his trucks is heightened by the testimony of Mr. Khaira regarding his desire to see Mr. Singh continue to work once he isreleased from custody, and his ongoing deference to the wishes of Mr. Singh's spouse, which was apparent throughout this bail hearing. The unaccounted for number of trucks owned by Mr.

Singh, kept at an unknown location, afford him with with a ready means oftransportation. [86] Ms. Kaur impressed the court with her resolve, but this alone does not make up for her lack of knowledge of his circumstances. Shedoes not have a close relationship with Mr. Singh, her real relationship is with his wife, who is her husband's cousin. [87] (Then) Chief Justice Lamer described the limits of detention on the secondary ground in R. v.

Morales, (S.C.C.),[1992] 3 S.C.R. 711, at paragraph 39, as follows: ...Bail is not denied for all individuals who pose a risk of committing another offence or interfering with the administration of justicewhile on bail...Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with theadministration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover,detention is justified only when it is “necessary” for public safety. It is not justified where detention would be merely convenient or

advantageous. [88] I have very grave concerns for the safety of the two complainants in this matter, given the strength of the Crown's case, theseriousness of the allegations, the devastating injury involved, and the element of premeditation. The complainants are well-known toMr. Singh, and would not be difficult to find.

I also have serious concerns for the safety of the public, since the shooting took place inthe parking lot of a restaurant, and numerous shots were fired. [89] The breach of recognizance alleged is of the most serious kind: while he was prohibited from possessing any weapons, he allegedlyused a semi-automatic firearm to attempt to murder two men, in a premeditated way. As Justice Trotter notes in his book, The Law ofBail in Canada, supra, at page 3-17: This factor is one of the strongest indicators in favour of detention on the secondary ground.

In assessing whether an accused person islikely to commit further criminal offences if released on bail, the commission of the predicate offence(

s) while subject to another order isa significant burden for an accused person to overcome. Indeed, Parliament has shifted the onus of proof to the accused person whenhe/she is charged with an indictable offence while on bail for another indictable offence. [90] Mr. Singh's alleged behaviour while on his current release is relevant at this bail hearing.

In United States of America v.Sriskandarajah, 2011 ONCA 4, at paragraph 17, the Court of Appeal allowed the bail release of individuals accused of terrorism, in part,noting that there was nothing on the record to suggest that either of them would commit crimes in Canada or elsewhere if released,stating, “They have not done so during the four years that they have each been on bail.” [91] In the Endorsement of (then) Chief Justice McMurtry in R. v. Boyle, (ON C.A.), at paragraph 2, who upheldthe detention of an accused on the secondary ground charged with murder and attempt murder.

Chief Justice McMurtry noted that thetrial judge was fully cognizant of the evidence, the Crown's case was strong, and the “evidence before him depicted a crime of extremeviolence and one of remarkable ruthlessness, given that the evidence suggested that at least part of the motivation for the murders andattempt murder was the elimination of witnesses.” Similarly, for the purpose of this bail hearing, I find that the Crown's case isoverwhelmingly strong, and that this matter is one of extreme violence and remarkable ruthlessness, motivated by money. These findingsweigh heavily against Mr.

Singh on the secondary ground, in terms of the safety of the complainants. [92] I find that Mr. Singh poses a substantial risk to the two complainants in this matter, as well as to public safety. The proposed plan ofrelease is insufficient to manage this risk. The sureties do not have a sufficiently close relationship with him, and he could easily shed theelectronic ankle bracelet using wire-cutters. Further, the allegations, taken at their highest, reflect a wanton disdain for the terms of aprevious judicial interim release order. The accused is detained on the secondary ground.

Tertiary Ground: [93] Finally, in determining whether or not detention is necessary to maintain confidence in the administration of justice, the OntarioCourt of Appeal has indicated in R.v. Dhillon, [2002] O.J. No. 3451, at paragraph 28, that “it is the confidence of a reasonable, informedand dispassionate public that provides the measure of this ground.” [94] Under our law, “there are no categories of offences for which bail is not a possibility,” and a detention order against an accusedunder section 515(10)(

c) cannot rest solely on a strong Crown case, or else the presumption of innocence is eroded, see: R. v.LaFramboise (2005), (ON CA), 203 C.C.C. (3d) 492 at paragraphs 31 and 32. [95] Detention is justified on the tertiary ground only in rare circumstances, and each of the four factors must be considered carefully. InR. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309 (S.C.C.) at paragraph 87, the Supreme Court held that s.515(10)(c) “must be readand assessed as a whole.” Similarly, as noted by the Ontario Court of Appeal in R. v. Mordue [2006] No. 3654, (ON.C.A.) at paragraph 32: Section 515(10)(

c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in adetermination that maintains the public's confidence in the administration of justice. For example, where each of the four factors is

assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected. [ 96 ] I find that the reasonable, informed and dispassionate public would consider the four factors enumerated under section 515(10)(c), and find that each of the four factors is engaged at “maximum force,” for the following reasons: •the Crown has a very strong case, particularly on the issue of identity •the offences committed are very grave •they resulted in devastating injury to one victim •they occurred while he was already on bail and prohibited from having any weapons •a firearm was used in the commission of the offences alleged, and •if found liable, the accused faces a very lengthy period of incarceration ORDER: [ 97 ] Accordingly, I hereby grant the Crown's application under

section 524, and order Mr. Singh's detention on the primary, secondary and tertiary grounds. Dated at Toronto, this 12 th day of January, 2011. _____________________ Mary Ross Hendriks