R. v. Saran, 2020 BCPC 251

Citation: R. v. Saran 2020 BCPC 251 Date: 20201217 File No: 92773 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AMRITPAL SINGH SARAN ORAL DECISION JUDICIAL INTERIM RELEASE APPLICATION OF THE HONOURABLE JUDGE G. BROWN Counsel for the Crown: C. Lawlor Counsel for the Defendant: A. Sidhu Place of Hearing: Abbotsford , B.C. Date of Hearing: December 17, 2020 Date of Judgment: December 17, 2020

I. Introduction [ 1 ] On August 29th, 2020, after 9:30 in the evening, the Abbotsford Police Department received many calls about a shooting in the Mayfair Avenue and Willow Street area of Abbotsford, B.C. The police were first told that the occupants of a pickup truck were shooting at the accused, Amritpal Saran, in front of his home. However, home surveillance video later revealed that Mr. Saran was in fact the first shooter and many shots were exchanged between him and the occupants of the pickup truck. [ 2 ] Mr.

Saran has now been charged with intentionally discharging a firearm knowing or being reckless as to whether another person was present or as to the life and safety of another person. This charge is under s. 244.2(3) (

b) of the Criminal Code and was proceeded by indictment. It carries a mandatory minimum punishment of five years imprisonment. [ 3 ] Mr. Saran was also charged with possessing a prohibited, restricted or non-restricted firearm without having the required licence, contrary to s. 91(1) of the Criminal Code . Finally, he is charged with storing a shotgun contrary to the Firearms Act under s. 88(2) of the Criminal Code . [ 4 ] The sole issue for me to decide is whether Mr. Saran should be detained until trial or released with stringent bail conditions. Under s. 515(6)(a)(viii) Mr.

Saran is in a reverse onus position because a firearm is alleged to be involved. Technically, this means he must show cause why his detention in custody is not justified. [ 5 ] The Crown is seeking Mr. Saran's detention on the tertiary ground. [ 6 ] Notwithstanding the reverse onus, it is critical to bear in mind that Mr. Saran is presumed innocent of these charges and they are allegations only. Under s. 11(1)(

b) of the Charter he has the right to reasonable bail and not be detained without just cause.

Section 493.1 of the Criminal Code codifies that I am to give primary consideration to release of the accused at the earliest opportunity and on the least onerous conditions that are appropriate. [ 7 ] Crown counsel submits that Mr. Saran's detention is required on the tertiary ground to maintain confidence in the administration of justice. The Crown has a strong case of physical and video evidence, the offences are of serious gravity, a firearm was used and the accused is facing a term of imprisonment of five years.

Of significance, many gang-style shootings have occurred in suburban neighbourhoods of Abbotsford over the past few years, and sometimes innocent people have been hurt or killed. [ 8 ] Counsel for Mr. Saran submits that I ought to release him on strict conditions. The suggestion is a release order with a $10,000 deposit or as much as a $50,000 surety. He would be under a tight curfew at his parents' home with many other restrictions. Defence counsel points out that Mr.

Saran has no criminal record and he has committed no offences between the date of the incident in August and when charges were laid on November 26th. He is a young man who will be exposed to the negative influences of pre-trial custody. The strength of the Crown's case is attenuated by the fact that there are several Charter challenges to be raised at trial which may result in the exclusion of evidence. II. The Allegations [ 9 ] The Crown relies on the following allegations. As already stated, the Abbotsford Police Department received a number of calls about a shooting on August 29th, 2020 at about 9:55 p.m.

Many gunshots were heard and the focus was the front of Mr. Saran's home on Mayfair Avenue. The police attended Mr. Saran's home and bullet holes could be seen in the Volkswagen Jetta parked in his driveway. The police spoke to Mr. Saran with the initial understanding that he was the victim. Mr. Saran explained that his girlfriend was driving the Jetta when it was parked in his driveway. He was a passenger. A black pickup truck came from out of the cul-de-sac and the three or four occupants fired multiple shots at Mr. Saran. Mr. Saran ran to the back of his home. [ 10 ] Mr.

Saran's girlfriend provided a similar account but with a more accurate description of the Ford F150 pickup truck. Interestingly, the girlfriend drove the Jetta into the truck and she even temporarily drove after the pickup truck but returned shortly thereafter. Neither Mr. Saran nor his girlfriend disclosed that Mr. Saran fired a gun at the occupants of the pickup truck. [ 11 ] Mr. Saran's mother spoke to one constable and indicated that she had a DVR and surveillance cameras and she would allow the officer access to the DVR footage. [ 12 ] Over time, the police saw inconsistencies in Mr.

Saran's account and they believed there could be more than one shooter. Two groupings of spent bullet casings were located: one closer to the residence and one closer to the driveway. Mr. Saran was also becoming increasingly uncooperative. [ 13 ] The police decided to conduct a search of the Saran home for any injured persons. They also wanted to secure the residence pending the authorization of a search warrant. Mr. Saran's parents, his three sisters and a cousin were all living in the home and I understand they were asked to remain outside.

When the police entered the residence the DVR was missing from its usual location. [ 14 ] The police also took statements from nearby neighbours of the Saran residence and some of these neighbours had video footage of at least part of the incident. One neighbour saw the Ford F150 pickup truck and he heard about 15 gunshots. [ 15 ] Police forensic services arrived at the scene and what they found cast further doubt on Mr. Saran's version of events. Where the Ford F150 was previously located, they found bullet fragments, copper jacking, vehicle debris and black paint chips, glass shards and 40 calibre casings.

The debris evidence suggested that someone had shot at the pickup truck's windows. Where the Jetta was located, the police found black vehicle debris likely from the truck, copper jacking for bullets, bullets and casings from a 40 calibre weapon likely in the Ford F150. The police also found 9mm casings possibly related to a handgun held by the accused as shown in a video. [ 16 ] On August 30th, 2020 the police obtained search warrants for the DVR and other evidence in the Saran home. The DVR was not

in its usual place but was found in the kitchen island. It is obvious that someone had yanked it out of its usual position and pulled it abruptly from its power source. In any event, the police were able to remove the hard drive and extract video footage. [ 17 ] The video footage depicts the Volkswagen Jetta reversing into the Saran driveway and then a pickup truck approaches. The video footage clearly shows that Mr. Saran jumped out of the passenger seat of the Jetta and he opened fire at the pickup truck parked in front of the driveway. The video reveals that Mr.

Saran continually shot at the truck for about three seconds and the occupants of the truck then shot back. The Ford F150 reverses out and Mr. Saran ran to the back of his home. Mr. Saran's girlfriend followed the truck and then returned. The video clearly depicts a gunfight in this residential neighbourhood and Mr. Saran was the first shooter. [ 18 ] Other physical evidence was located in the Saran home pursuant to the search warrants. Mr. Saran's mother and his sister indicated that the master bedroom belonged to the accused, Mr. Saran, and other family members were not allowed in that room.

The master bedroom had a poster of gangsters, the clothing of a young man and a Scotiabank card in Mr. Saran's name. [ 19 ] In the master bedroom the police located many items of concern in a walk-in closet: A Dagger semi-automatic shotgun; a banana-style magazine loaded with nine Winchester 12-gauge shotgun shells; an American Eagle ammunition box with 10 223 calibre rifle rounds; and a Winchester ammunition box with 32 9mm rounds.

The shotgun is a non-restricted firearm and it was able to be discharged. [ 20 ] It is to be noted that 9mm rounds were also found in the back of the Jetta, and the Crown's theory is that they are consistent with the handgun held by the accused when shooting at the pickup truck. Boxes of various other ammunition are on the floor of the bedroom, and a taser rod and a firearm stock are also located. The police locate a Glock pistol magazine with nine 9mm rounds inside a suitcase in another bedroom. Mr.

Saran did not have a possession and acquisition licence for any firearm. [ 21 ] The Volkswagen Jetta was searched and it contained six spent bullets, 9mm Luger casings and bullet fragments. Someone had also placed a tracking device on this vehicle. [ 22 ] Mr. Saran's father was interviewed, and the Crown says this is relevant because it is alleged that Mr. Saran tried to mislead the police. He was somewhat intoxicated on August 29th, 2020. Mr. Saran Sr. maintained that the house cameras did not work and his statements contradict those of his wife.

He also said the master bedroom was not regularly occupied by his son, contrary to what his wife and other children said. [ 23 ] The Abbotsford Gang Crime Unit has identified Mr. Saran as a public safety risk. They allege he is known to carry a firearm. In 2019, Mr. Saran indicated he was targeted by rival gang members but he did not take advantage of any gang-exit options offered. [ 24 ] There is also an allegation that in the wee hours of the morning following the incident, an unknown male jumped the fence of the Saran property. A dog track was unsuccessful.

The Crown's theory is that this person may have retrieved the handgun which Mr. Saran hid in the backyard. Of course, this theory is speculative and the handgun held by Mr. Saran in the video was never located by police. III. Release Plan [ 25 ] It is important to remember that Mr. Saran is a young man, 22 years of age. He has no criminal record. Mr. Saran lives with his parents, three sisters and a cousin in the home where the shooting occurred. He is proposing a release order with $10,000 cash or a $50,000 surety. His mother could be the surety and she has equity in the family home. [ 26 ] Mr.

Saran is also prepared to abide by restrictions including a tight curfew with curfew checks, reporting and a no-weapons clause. He has agreed to not associate with known criminals. Counsel for Mr. Saran points out that Mr. Saran turned himself in on December 9th, 2020 as soon as he was aware of his warrant. This is some three-and-a-half months after the incident on August 29th, 2020. The Crown took no steps to arrest him at an earlier time. [ 27 ] Crown counsel submits that later charge approval is now the norm in the post- Jordan era.

The Jordan clock begins ticking as soon as charges are sworn so now it is preferable for most of the police investigation to be completed before charges are sworn. This submission does not really address why Mr. Saran was free without restrictions for a considerable period and this is the most troubling aspect of the Crown's case for detention; however, the tertiary grounds do focus more on confidence in the justice system as opposed to simply risk management as in the secondary grounds. [ 28 ] Apparently, the Abbotsford Police Department brief referred to conditions of release for Mr. Saran.

However, Crown counsel indicates this was simply a fallback position in the event the court was not inclined to detain Mr. Saran. [ 29 ] Defence counsel also suggests that I ought not place much weight on the father's behaviour with police. Mr. Saran Sr. was very distraught and he was under the influence of alcohol. At one point he even thought his son was dead. He now fully appreciates his obligation should he be named a surety. Of course, Ms. Saran can stand alone as a surety; she only works part time and could possibly monitor her son's situation.

As I explain below, I remain concerned about the family's ability to control Mr. Saran Jr.'s behaviour. IV. The Tertiary Grounds [ 30 ] I again emphasize that Mr. Saran is presumed innocent of these charges and he has the Charter right to reasonable bail and not to be detained without just cause. Pre-trial detention is the exception, not the rule. In the pre-trial context release at the earliest opportunity and in the least onerous manner is the default presumption in Canadian criminal law ( R. v.

Myers , 2019 SCC 18 ). [ 31 ] Nevertheless, it is of great significance that these offences involve firearms and the flagrant disregard for other persons' safety. Not only is the accused in a reverse onus position but also he is facing a detention order on the tertiary ground largely because firearms were involved (see s. 515(10)(c)(iii)). [ 32 ] I must place these considerations in the context of this accused who is a young man with no record, no history of non-compliance

and a fairly strong release plan. There is really no basis to detain Mr. Saran on the primary or secondary grounds; the only possible basis for his detention is on what is called the tertiary grounds under s. 515(10)(c). This ground allows for detention of the accused where it is necessary to maintain confidence in the administration of justice. I am required to consider the following four factors: 1. The apparent strength of the prosecution case; 2. The gravity of the offence. This is to be determined objectively in comparison with other offences in the Criminal Code ; 3.

The circumstances surrounding the offence, including whether a firearm was used; and 4. The fact that the accused is liable for a potentially lengthy term of imprisonment or in the case of an offence involving a firearm, a minimum punishment of a term of three years or more. [ 33 ] The tertiary ground is a distinct ground of detention. The scope of the tertiary ground ought not be restricted to the most heinous of crimes. (See R. v. St-Cloud , 2015 SCC 27 ). Under the tertiary ground the detention must be necessary to maintain the public's confidence in the administration of justice.

This member of the public is a reasonable person adequately informed about the philosophy of Canadian laws, Charter values and the circumstances of the case. He is not guided by emotion, swayed by the mob or by incomplete or distorted information. (See St-Cloud ). A. Strength of the Crown Case [ 34 ] The accused is presumed innocent of these allegations, but at first blush the Crown has a very strong case here. There is video evidence of Mr. Saran firing bullets first towards the occupants of the pickup truck.

A shotgun and other ammunition are found in what appears to be his bedroom. [ 35 ] The defence submits that the strength of the Crown's case could be attenuated by Charter challenges. The Abbotsford police do initially enter the Saran home to look for injured persons and there is another entry to locate the DVR. These entries were made without a warrant. In cases such as R. v. Pawar, 2020 BCCA 251 , evidence was excluded where there was a warrantless search to clear occupants to purportedly preserve evidence. In that case there were no objectively sustainable grounds.

Further, the overall conclusion was that there were no exigent circumstances to justify the initial warrantless search. [ 36 ] The Crown argues that there are exigent circumstances here. To begin with, as soon as the police realized that the accused was not being forthcoming, there was a concern that Mr. Saran was not a victim and an injured person could be inside the Saran home. The situation was very fluid here. Respecting the DVR, it is alleged that Ms. Saran, the mother, consented to the officers taking and examining the DVR.

There also may be legitimate concerns about preservation of evidence but I leave that to the trial. [ 37 ] Defence concerns were also raised about the execution of the search warrants to search the DVR and the Jetta. The Crown submits that the DVR download was done in accordance with the time limits in the warrant. Further, the Crown says the Jetta search was proper, notwithstanding a change in location. There are also s. 9 and 10 issues regarding the effective detention of the accused. Again, it was a difficult situation for the police as Mr.

Saran purportedly started out as a victim but ended up being the perpetrator. [ 38 ] I am not in a position to measure the success of Charter arguments to any degree at a bail hearing. In my view, the Crown has an overwhelming case without Charter challenges and it still has a strong case with the Charter challenges. B. Gravity of the Offence [ 39 ] Clearly, the offences alleged here are grave. The Crown has proceeded by indictment. Mr. Saran is accused of discharging his firearm many times in a gunfight with gang rivals. He shoots first and often.

A shotgun and other forms of ammunition are found in what is said to be his bedroom. He faces five years imprisonment if convicted. Objectively, these offences are more grave than most but less serious than manslaughter, murder or attempted murder. By some miracle no one was killed or injured in this incident. C. The Circumstances of the Offence Including Whether a Firearm was Used [ 40 ] Gun violence is serious. According to St-Cloud , at paragraph 61, criminal gang activity is something I should consider. Clearly there was some sort of gang rivalry here.

Based on the allegations and the video, occupants of the pickup truck appeared to be stalking Mr. Saran, but Mr. Saran was more than capable of carrying out a pre-emptive strike. He first fired a pistol at his rivals for about three seconds before gunfire was returned. I hasten to add that this all happened on what should have been a quiet residential street in Abbotsford on what should have been a blissful summer's evening. D. The Accused's Potential Liability [ 41 ] Mr. Saran faces a five-year minimum sentence on the first count.

A five-year minimum jail sentence may well come under Charter scrutiny; nevertheless, the sentencing range based on general sentencing principles could still approach the five-year mark, even with a first offender. V. Conclusion [ 42 ] I conclude my analysis of the tertiary ground by looking at all four of the above factors together, as well as the release plan. Looking at this case en masse , is Mr. Saran's detention truly necessary to maintain confidence in the administration of justice? On the one hand, Mr. Saran has a fairly strong release plan although, I see some frailties.

It is a strong release plan because he offers substantial cash or significant surety and he is proposing stringent conditions. The frailty is that he is proposing to live in the same home where the shooting allegedly occurred and where a shotgun is alleged to be found. His father appears to be willing to lie to the police to protect his son. Mr. Saran Jr. appears to "rule the roost" in his home and others are not allowed in his bedroom. Moreover, I have not heard now how he would occupy his time if he were to be under strict conditions in his home.

[ 43 ] Having said that, defence counsel presents a significant plan for release. Defence counsel also relies on a number of cases. In the case of R. v. A.S.C. and I.S.A. (8 April 2016), Nanaimo 81142-2-C (B.C.P.C.), our Court released two accused with significant sureties and release conditions. The charges involved a drive-by shooting and attempted murder. In R. v. Cheema (29 April 2016), Surrey 212075-2-C (B.C.P.C.), our Court noted that Surrey was experiencing a proliferation of gun violence which left the community reeling and scared. The court determined that Mr.

Cheema's release would not undermine public confidence so long as strict conditions were imposed with a surety. Many unlicensed firearms were located in Mr. Cheema's residence. [ 44 ] In the case of R. v. Dang , 2015 ONSC 4254 , Mr. Dang was allegedly involved in a drive-by shooting and he was also shot. He was earlier released and this was a bail review. The Ontario Supreme Court there did indicate that an accused's plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused is released. Mr. Dang remained on release conditions. [ 45 ] In R. v.

Hiscoe , 2017 BCSC 220 , our Supreme Court reviewed a detention order and ultimately vacated that order. The cash deposit and surety was ordered as part of the recognizance. Mr. Hiscoe was facing charges of unlawful confinement and manslaughter. [ 46 ] The Crown relies on St-Cloud and essentially one other case called R. v. Gee , 2009 BCSC 1922 . The Gee case was a bail review. Our Supreme Court did not vacate the detention order in that case.

The court said the following at paragraph 11: ... gun charges of the sort which is before me here today, have become in the public's perception a real problem in the Lower Mainland. We hear about more and more of them in the media, more and more shootings, more and more killings, more and more people being arrested with guns, more and more people being found with guns, sometimes one gun, sometimes many guns. The public has a genuine interest and a genuine right to be concerned about those kinds of things.

Having said that, the court must be vigilant against taking a simplistic stance suggesting that because the public is concerned, therefore everybody who is arrested with a gun must be denied bail based on the tertiary grounds, or the public would lose confidence. ... [ 47 ] Those remarks apply as equally today as they did in 2009, and similar concerns are noted in the Cheema case. In Abbotsford, gang violence and guns are of major concern and sometimes innocent people are injured or killed in the crossfire. Some well-known Abbotsford cases come to mind and these have been well-reported in the media.

In 2015, an elderly man was killed by errant gunfire when he was taking out the garbage. In 2018, a student was killed by gunfire in a case of mistaken identity. Just a few weeks ago, a wrongfully-targeted home with children was riddled with bullets. These stories are all too common in this area. [ 48 ] I must be vigilant against making broad conclusions that anyone arrested with an unlicensed gun should be denied bail on the tertiary grounds. I must carefully assess the four factors and the release plan. We have here a strong Crown case with physical and video evidence of a shooting.

The offences charged are gravely serious and the circumstances involve a firearm or firearms. The accused faces a potentially lengthy jail sentence. Moreover, the offences involve a wanton disregard of the safety of others in the community; this gunfire occurred in a residential neighbourhood on a summer's evening when many other persons could have been out and about. [ 49 ] In these specific circumstances the public confidence in the administration of justice would be seriously eroded if I were to release Mr. Saran back to his home where the shooting occurred.

These are allegations only but even the most reasonable and informed person would be alarmed at what occurred on Mayfair Avenue. As I said, these allegations arose at the very home where Mr. Saran proposes to reside, and his family appears ill-equipped to control his behaviour. [ 50 ] I appreciate this is a close call, but based on the allegations, Mr. Saran appears entrenched in a gangs and guns lifestyle. His family has been unable to manage him for some time. [ 51 ] I am detaining Mr. Saran on the tertiary grounds. The Honourable Judge G. Brown Provincial Court of British Columbia