R. v. Rahman, 2013 NSCA 93

Nova Scotia Court of Appeal Citation: R. v. Rahman , 2013 NSCA 93 Date: 20130822 Docket: CAC 406301 Registry: Halifax Between: Ashiqur Rahman Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M.S. Bryson Motion Heard: August 8, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion for interim release dismissed. Counsel: Appellant in person Mark Scott, for the respondent Decision: [ 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. Law on Judicial Release [ 8 ] Section 679(3) of the Criminal Code permits: 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. Appeal 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. 679(3)(b) – Surrender Into Custody: [ 11 ] In his initial plan presented with his motion materials, Mr. Rahman proposed that he wear an ankle bracelet at all times; that Sandra Eagles act as his surety and that “if she ever suspects that I might breach any condition of my bail, she must immediately notify the police”; that he should physically report to the police once a week; that he should remain in Nova Scotia; and that he not be permitted primary care or custody of any minor children. [ 12 ] The Crown pointed out that an ankle bracelet is not available.

That in part prompted Mr. Rahman to amend his submissions on terms of bail. [ 13 ] Ms. Eagles filed an affidavit in support of the motion that says amongst other things “That if Mr. Rahman is granted bail, I will maintain regular contact with him and if I ever suspect that he might breach any condition of his bail, I will notify the police immediately … that Mr. Rahman lived in my house before and I consider myself a friend of him”. [ 14 ] Ms. Eagles is a personal care worker and works between 20 and 48 hours a week, often at night.

She confirms she was not proposing to post any cash by way of security as she “understood she didn’t have to”. She says she owns her mobile home which is unencumbered. [ 15 ] At the conclusion of his initial written submissions on proposed conditions of bail Mr. Rahman added “Depending on the Crown’s position regarding my bail, I might submit additional documents including a reply-brief”. As previously described, Mr. Rahman handed up extensive further submissions during oral argument in response to the Crown’s written materials. At this point, Mr.

Rahman was now prepared to mirror many of the conditions of his December 2010 pre-trial recognizance, but without any cash deposit from his surety because of what he argued was “an improvement of circumstances”. Amongst other things he says he faced a potentially longer sentence pre-trial than he actually received, so his flight-risk was now lower. In this submission, Mr. Rahman overlooks the fact that he has now been convicted of manslaughter. The pre-trial presumption of innocence no longer applies. The trial judge remanded him following trial, pending sentencing. [ 16 ] Although Mr.

Rahman did not propose that he actually live with Ms. Eagles, she responded in cross-examination that Mr. Rahman could live with her in her mobile home where she currently resides with her son. It turns out that Ms. Eagles’ son has had trouble with the law. She has acted as his surety on two occasions. On each of these occasions, her son breached the conditions of his release. Ms. Eagles reported those breaches. [ 17 ] During cross-examination Ms. Eagles was not able to say how her son and Mr. Rahman might get along. She proposed that Mr.

Rahman sleep on the couch in the living room because there are only two bedrooms in her home. But during final argument, Ms. Eagles interrupted submissions and spontaneously offered that her son could move to another mobile home and Mr. Rahman could have his bedroom. It was troubling that Ms. Eagles did not offer this solution during cross-examination when it was clearly an issue. [ 18 ] Ms. Eagles acknowledged that she had told Mr. Rahman’s probation officer that she did not believe Mr.

Rahman is guilty, although she admitted she did not attend his trial so there is no informed basis for her belief. [ 19 ] The Crown argues that Mr. Rahman breached the terms of his December 2010 recognizance by living with Ms. Eagles when he was required to reside with his surety, Ms. Lalonde. Mr. Rahman admits he resided with Ms. Eagles in the winter-spring of 2012 for some months. During cross-examination of Ms. Eagles, she said she did not then know who Mr. Rahman was and knew nothing about his recognizance. [ 20 ] The Crown has expressed concern about Mr. Rahman’s candour with the courts.

The Crown observes that the trial judge found Mr. Rahman to be untruthful. He appears to hold back information from the court in instances where being forthright is his responsibility – the Crown refers to Mr. Rahman’s original reservation in his bail terms that he may present further terms of bail pending consideration of the Crown’s submissions. [ 21 ] There is some basis for the Crown’s concern. Mr. Rahman was dismissive of his breach of recognizance pending trial. He said that he spoke to the police who told him that it was fine for him to reside with Ms. Eagles.

He said any misunderstanding by him “came from the police”. He claimed he told them about his proposed move to Ms. Eagle’s home from Ms. Lalonde’s. They said “it was

okay he had no curfew”. He used that expression more than once. I found his evidence on this point very careful. There was a subtle shift from “residing” with Ms. Eagles to not breaching a “curfew”. It may be that he discussed a curfew with the police. It is difficult to believe that the police would have knowingly advised him that he could breach his recognizance by residing elsewhere than his recognizance required. [ 22 ] Mr. Rahman’s attitude to this breach of recognizance was also unsettling.

He submitted that he had not been charged or convicted of any breach of recognizance so “why are we even talking about that”. This betrays both a casual attitude toward the terms of his recognizance and an indifference to its breach. [ 23 ] In his supplementary submissions Mr. Rahman wrote “Today’s proposed surety successfully acted as a surety before, multiple times, without cash deposit”. In fact, as described above, Ms. Eagles has acted as surety for her son twice who she admitted breached the terms of his release without her knowledge. Mr. Rahman’s

interpretation of this is that she successfully acted as a surety because she reported her son’s breach of recognizance. At best, Mr. Rahman’s assertion that Ms. Eagles has acted as a surety “multiple times” is an exaggeration. [ 24 ] Mr. Rahman’s evidence shifted on a number of points. He was cross-examined on the $20,000 cash deposit posted by Ms. Lalonde with respect to his December 2010 trial recognizance. At first he said that Ms. Lalonde posted that deposit “as far as I know”. Then he said his parents had arranged everything including Ms. Lalonde acting as his surety.

Later he said “it’s probable that my parents put up the cash”. [ 25 ] In his initial written submissions to the Court Mr. Rahman suggested that potential fresh evidence would include Exhibit E1 which he described in this way: “Alleged 2009-2010 library note of the co-accused, where she confessed that she “framed” me to stop police interrogation”. However, in cross-examination Mr. Rahman admitted that his co-accused did not write the note and that it was not in her handwriting. He said he did not mean to suggest by his submission that Ms. Gomes wrote the note. [ 26 ] In Mr.

Rahman’s initial written submissions he asserted that “Correctional Services Canada (CSC) recommends my full parole, which is not contingent to my [sic] performance in any correctional program because CSC determined that I do not need any correctional program”. It is true that CSC determined that Mr. Rahman was not a suitable candidate for correctional programs. But none of Mr. Rahman’s CSC materials say that he has been recommended for parole.

In fact, in a July 31, 2013 letter to the Crown from Marise Leger, Parole Officer at the Dorchester Penitentiary, she advises: Ashquir Rahman’s case will automatically be reviewed by the Parole Board of Canada (PBC) for Full Parole prior to his eligibility date of 2014-01-06. At the present time, based on available information, the Correctional Service Canada (CSC) will likely not be supportive of this form of conditional release. Mr. Rahman is not accepting any responsibility for his offence. He maintains that he did nothing wrong to his infant daughter and therefore he is not responsible for her death.

At the present time, offering a professional recommendation to the PBC is premature. [ 27 ] The Crown argues that Mr. Rahman’s credibility is very much in issue and that this should affect how the Court assesses the likelihood that he would honour conditions of release. I agree that Mr. Rahman’s submissions and his responses in cross-examination and to queries from the Court give rise for some concern about his candour. I also agree that this raises doubts about his willingness to honour conditions of interim release. [ 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.

Section 679(3)(c) – Public Interest: [ 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 relationshipwhich heightens 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 convictedof a more 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. [36] Mr. Rahman’s motion for interim release is dismissed. Bryson, J.A.