R. v. Rahman, 2013 NSCA 100

Nova Scotia Court of Appeal Citation: R. v. Rahman , 2013 NSCA 100 Date: 20130909 Docket: CAC 406301 Registry: Halifax Between: Ashiqur Rahman Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Chief Justice J. Michael MacDonald Motion Heard: Motion proceeded by way of written submissions Held:

Section 680 of the Criminal Code motion for bail review is dismissed. Counsel: Appellant, in person Mark Scott, for the respondent Decision: [ 1 ] In a decision released last month [2013 NSCA 93], my colleague, Justice Peter M. S. Bryson denied the appellant Ashiqur Rahman bail pending appeal. Mr. Rahman now asks me, as Chief Justice, to direct a review of this decision. He writes: I had a bail hearing before a JUDGE of NOVA SCOTIA COURT OF APPEAL on August 8, 2013. I am eligible for full parole on January 6, 2014 and I have no other charges.

Currently, I am waiting for the JUDGE’s decision regarding my bail application. In the event that my bail is denied or if the surety is ordered to deposit cash in advance or if there is an unreasonable delay in decision making, I would request a review of the JUDGE’s decision regarding my bail pursuant to

section 680 of the Criminal Code . I would also request that you

schedule that review before the same PANEL who would hear my disclosure motion on October 1, 2013. Please

schedule both hearings on the same day. If that is not possible, please

schedule the review before the disclosure motion. [ 2 ] My authority to grant this relief is found in the Criminal Code : 680.

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made. [ 3 ] Should a proposed review have potential merit, I would be inclined to direct it. See R. v. Finck , 2005 NSCA 146 , and R. v. West , 2006 NSCA 123 . However, in this matter, Justice Bryson has provided a thorough and careful analysis that offers no realistic chance for a successful review. For example, he fully appreciated Mr. Rahman’s situation: ¶1 Ashiqur Rahman was convicted of manslaughter and aggravated assault relating to his seven week old daughter.

He received a sentence of six years and six months, less credit for remand time for a net total of 51 months’ incarceration. ¶2 Mr. Rahman now seeks bail pending appeal. No appeal date has yet been set. A motion for fresh evidence will be heard by a panel of this Court in October of this year.

¶3 The Crown opposes release of Mr. Rahman. ¶4 The trial turned largely on credibility. Mr. Rahman’s common-law partner, Jane Gomes, testified for the Crown under an immunity agreement. Nova Scotia Supreme Court Justice Felix Cacchione rejected Mr. Rahman’s evidence as untruthful and not raising a reasonable doubt. He found that Mr. Rahman was dominant, controlling and manipulative. Based on evidence that he accepted, Justice Cacchione found that the Crown had met its burden on both counts of the Indictment. ¶5 In response to questions from the bench, Mr.

Rahman confirmed that he wished to proceed with the bail hearing acting for himself. He did say that he may retain legal counsel at a later stage in the appeal proceedings. He also wanted to “hand up” additional materials in response to the Crown’s brief. Accordingly, the hearing was adjourned to give the Crown and the Court an opportunity to peruse the additional materials. The Crown made no objection to the Court receiving them. ¶6 Mr. Rahman filed extensive materials in support of his motion, including his affidavit and an affidavit from his proposed surety, Sandra Eagles of New Minas. Mr.

Rahman was cross-examined on his motion materials as was Ms. Eagles on her affidavit. ¶7 Mr. Rahman is a citizen of Bangladesh. He spent some years studying at Acadia University. Apparently both his parents are physicians. He has a privileged background. He is intelligent and well-spoken. For a lay person he has a good knowledge of the law relevant to the substance and process of release pending appeal.

He was familiar with the tests that need to be addressed under s. 679(3) of the Criminal Code and he acknowledged in his written materials that he carries the burden of meeting the three conditions for release. [ 4 ] Justice Bryson then appropriately addressed the three criteria that Mr. Rahman would have to meet to be granted bail. They are set out in the Criminal Code : 679.

(3) In the case of an appeal referred to in paragraph (1)(

a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [ 5 ] In addressing the first criterion, Justice Bryson acknowledged that Mr. Rahman’s appeal was not frivolous: ¶9 Much of Mr. Rahman’s written and oral submissions focussed on this first criterion. Some of his arguments involved reference to materials which are the subject of the fresh evidence motion to be heard in a couple of months by the Court. ¶10 Owing to the low threshold acknowledged by the Crown regarding s. 679(3) of the Code , the Crown restricted its submissions to the second and third branches of the test.

I accept that the appeal is not frivolous. However, reference will be made to Mr. Rahman’s merits argument under the other two branches. [ 6 ] However, Justice Bryson was concerned about Mr. Rahman’s second hurdle, namely, his duty to surrender himself into custody when so directed. After reviewing Mr. Rahman’s plan in considerable detail, Justice Bryson was left with these reservations: ¶28 The Crown also points out that Mr. Rahman has no substantial connections to Nova Scotia or indeed Canada. He is not a Canadian national. He has no resources here and is not legally able to work here. On the other hand, Mr.

Rahman points out that he will have financial assistance from his family and that he did substantially honour the terms of his pre-trial recognizance. He has no previous criminal record. But Mr. Rahman’s circumstances have changed. He has been convicted of manslaughter. He is subject to ongoing incarceration if his appeal is unsuccessful. While it is true that he does not have a passport, that is no guarantee that he cannot disappear, particularly with access to resources from his family. ¶29 While Ms. Eagles is no doubt well intended, she offers no security in support of her promise to act as surety.

Her suggestion that Mr. Rahman could live with her in her mobile home appeared to be an expedient response to a failure to make that representation initially. The present living arrangements with her son do not suggest a secure or supervised environment in her home. Ms. Eagles’ work prevents her from being home for lengthy periods of time and she obviously could not actively monitor Mr. Rahman. Mr.

Rahman’s plan for release and proposed surety arrangements are completely inadequate and give me no confidence that compliance with the proposed recognizance can be achieved. ¶30 I agree with the Crown that there are substantial concerns that Mr. Rahman may not surrender into custody as required by his proposed terms of interim release. I am not satisfied that Mr. Rahman has discharged his burden of establishing that he will surrender into custody. [ 7 ] Regarding the third public interest criterion, again Justice Bryson had concerns: ¶31 The Crown does not argue that Mr.

Rahman presents a safety risk to the public. The Crown submits that Mr. Rahman’s lack of ties to the community, his remand pending sentence, his poor plan for interim release and the seriousness of the offence are all proper considerations under this branch of the s. 679 test. The Crown also says that a possible review of the strength of the grounds of appeal is appropriate citing R. v. Porisky ; R. v. Gingras , 2012 BCCA 467 .

The Crown argues that the proposed fresh evidence materials are unlikely to be admitted; that the trial decision was largely based on credibility and requires a palpable and overriding error standard of review which is not met with respect to the amended grounds of Mr. Rahman’s appeal. ¶32 In R. v. Ryan , 2004 NSCA 105 , Justice Cromwell explained the competing principles with respect to bail in an appeal setting: [23] Underlying the law relating to release pending appeal are the twin principles of reviewability of convictions and the enforceability

of a judgment until it has been reversed or set aside. These principles tend to conflict and must be balanced in the public interest. AsArbour, J.A. (as she then was) pointed out in R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 at 48: Public confidence in the administration of justice requires that judgments be enforced. ... On the other hand, public confidence in theadministration of justice requires that judgments be reviewed and errors, if any, be corrected.

This is particularly so in the criminal fieldwhere liberty is at stake. [24] Justice Arbour then went on to discuss how these two competing principles may be balanced in the public interest: Ideally judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be putin place which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and thepossibility of irreparable and unjustifiable harm being done in the interval.

This is largely what the public interest requires to beconsidered in the determination of entitlement to bail pending appeal. [25] This statement was cited with approval by my colleague Chipman, J.A. in R. v. Innocente, supra. ¶33 In R. v.

Janes, 2011 NSCA 10 Justice Beveridge noted some of the factors that come into play: [31] Factors that should be considered are the circumstances of the offence, as far as they are known, the circumstances of the offender,the seriousness of the offence, and the degree to which the public can feel protected by appropriate terms of release. ¶34 In Janes, Justice Beveridge observed: [34] I find this to be a close case. The offence in issue is one of common assault.

However, it arises out of a domestic relationship whichheightens the seriousness of the offence. … [35] The proposed terms of release by the appellant envisage a virtual house arrest. He is prepared to live at home with his father inHarrietsfield, and has confirmed employment for what is likely to be six days a week, 7:00 a.m. to 7:00 p.m.

To guarantee hiscompliance with strict terms of release, he is willing to enter into his own recognizance and have two sureties, his father and hisemployer and long-time friend, in amounts that are significant. … [40] Were it not for the two sureties present and available here willing to guarantee the appellant's compliance with strict termsof release, it would not be in the public interest to release the appellant. I also take into account the apparent strength of theappellant’s complaint that late disclosure during his trial hampered his ability to effectively respond to a very much changed case.

Theappellant will be required to remain in his residence except for specified exceptions, the principal one being employment, which will befull time and in the presence of Mr. Paquin. I grant the application by the appellant for release pending his appeal upon the followingterms: [Emphasis added] ... ¶35 In this case Mr. Rahman’s lack of any criminal record obviously tells in his favour. On the other hand, he has been convicted of amore serious crime than Mr. Janes and his proposed surety arrangements are far too casual in comparison with Janes. At this stage Iprefer not to comment on the merits of Mr.

Rahman’s grounds of appeal. But weighing the other factors, Mr. Rahman has not satisfiedme that his detention is not necessary in the public interest. [8] In short, Justice Bryson’s complete analysis, in my view, leaves nothing to question. A review would therefore be futile. Ideny the request. MacDonald, C.J.N.S