Court File and Parties

COURT FILE NO.: DR(P)193/20 DATE: 2020 04 09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent A. Mountjoy and A. Cornelius for the Crown

- and –

SHAYAN SYED Applicant M. Mattis for the Applicant defendant

HEARD: April 6, 2020

PUBLICATION BAN:

Publication is banned pursuant to S. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the alleged offence and its details, identifying information about the defendant and details of his personal circumstances.

Reasons on Bail Application

D.E HARRIS J.

[1] Shayan Syed makes application under Section 522(1) of the Criminal Code for bail release. He is charged with first-degree murder. This bail hearing was held by way of audioconference as a consequence of the shutting down of the courts in response to the COVID-19 pandemic.

Allegations

[2] The applicant, 21 years old, stabbed the deceased four times in the back on February 4, 2020 at just after 2 a.m. on a sidewalk in a residential area of Mississauga. The two were friends but they had been arguing back and forth that night. There had been some controversy between them about a cell phone and a scuffle had broken out, observed by two independent witnesses. After the stabbing, the applicant fled. The deceased was pronounced dead at the scene.

[3] The applicant and his girlfriend were apprehended at their apartment shortly afterwards. She has been charged with accessory after the fact to murder.

[4] In the hours leading up to the killing, the applicant and his girlfriend had hosted a party in their basement apartment. They had only recently moved in. The deceased and his girlfriend were at the party. There were a total of 7 people present. Alcohol and drugs were consumed throughout the evening. Three of the attendees left at 9 p.m. and the deceased’s girlfriend, because of her level of intoxication, was picked up by her father in his car at some time between 11 and 12 in the evening. Only, the applicant, his girlfriend and the deceased remained.

[5] In an inculpatory statement, the applicant admitted to stabbing the deceased using a knife from his kitchen. Obtaining and using that knife is the basis for the planned and deliberate allegation supporting first-degree murder.

[6] In his statement, the applicant said that he and the deceased were friends and would get together to experiment with heroin, cocaine and crack. On the night in question, there was evidence that the deceased was extremely intoxicated. The applicant said in his statement that there was cocaine use at the party.

[7] After the killing, a search warrant was executed on the applicant’s apartment and some bloody clothing he was allegedly wearing at the time of the homicide and the alleged murder weapon, the knife, were seized. The report from the Centre of Forensic Sciences with respect to blood typing or DNA on these and other items has not yet been received.

The Secondary Ground

[8] The applicant, given that bail from a murder charge is a reverse onus, must satisfy the secondary ground in order to be released. The secondary ground reads:

515(10) Justification for detention in custody

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(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.

[9] The applicant’s proposed plan is that he be subject to house arrest, that he live at the family home with his mother, father, brother and sister, that his mother act as his surety pledging much of her equity in the home, and that the release be supplemented by electronic monitoring.

[10] The secondary ground, as it states, is aimed at the “protection [and] safety of the public.” The substantial likelihood clause is a subset—albeit an important one--within the protection and safety of the public. But protection and safety of the public forms the ultimate legal standard under the secondary ground. As a consequence, the provision requires an examination of both the potential frequency of criminal offences and their seriousness. The likely commission of minor offences will not be a major issue on the secondary ground. On the other hand, a lower likelihood of very serious offences against the person will constitute a much more significant impediment to an accused’s release on bail.

[11] To put it more generally, the secondary ground requires an assessment of the risk to the public if the accused is released on bail. A significant part of this involves a propensity evaluation: what is the accused’s propensity to commit further criminal offences and, furthermore, how serious would such offences likely be?

Is the Crown’s Case Strong?

[12] The strength of the Crown case goes directly to the propensity to commit other offences inference. Here, there seems little doubt but that the applicant stabbed the deceased to death. Mr. Mattis did not dispute this for the purpose of this bail hearing. The applicant confessed. Clothing of the applicant with blood on it and the alleged murder knife has been seized from his residence.

[13] Mr. Mattis argues that there may be a viable self-defence plea available to the applicant. One witness saw a scuffle between the two men immediately before the stabbing. However, the deceased was stabbed four times in the back with very serious damage to his liver, kidney, right lung and diaphragm. The stab wounds were deep. There is no evidence that the deceased had any weapons in his possession.

[14] Self-defence is weak on the current state of the record. Provocation, also mentioned by Mr. Mattis, appears even weaker. There is no hint of reality to it.

[15] There is some evidence of psychosis as a consequence of mental illness and\or induced by drug use. The mental illness is an important issue on this bail application and I will consider it later in these reasons.

[16] This offence was originally charged as second-degree murder. It was only recently raised to first-degree murder. As mentioned, the basis for this was that there is evidence the applicant obtained a knife from his kitchen before going for the walk with the deceased. The inference the Crown seeks to have drawn is that the applicant took possession of the knife as part of a plan to kill the deceased.

[17] The strength of this inference is diminished by what the applicant said in his statement to the police after his arrest. The applicant stated that he always carried a knife because there were people in Mississauga who did not like him.

[18] Concluding on the issue of the strength of the Crown’s case, the case on first-degree murder is quite weak. The only evidence is the obtaining of the knife beforehand and it is significantly diminished by the applicant’s statement.

[19] The strength of the case on second-degree murder appears substantial. However, it is susceptible to defences based on the applicant’s mental illness and possibly based on intoxication. Lastly, with respect to manslaughter, there is a very strong case against the applicant.

What Led to the Killing?

[20] I do not think that in this case determining what form of homicide the applicant may likely be found guilty of is of significant importance. It seems clear that the applicant viciously killed a friend of his in cold blood for no real reason. While the absence of a substantial case on first-degree murder will assist the applicant in this prosecution down the road, it has a somewhat paradoxical effect upon his application for bail. The killing appears to have been sparked by a petty argument, with no real rhyme or reason to the killing. That, as a predictor of future behavior, together with the evidence of mental illness outlined below, is troubling and should give pause before releasing the applicant into the community.

The Evidence of Mental Illness

[21] The applicant is young, only 21 years old. His mother, testifying as his proposed surety, filled out the applicant’s background.

[22] Growing up in Montreal, he was a helpful, bright and caring child. When he was young, he scored in the top 250 children in a spelling bee out of 10,000 students. He also received an award called the Young Achievement of Canada for his intelligence and community work.

[23] At the end of 2014, when he was 16 years old, his school performance and attendance plummeted. His focus was poor. He was bullied by other students. He was more often out with friends than at school. In mid-2015, he began suffering social anxiety. He received some counselling but continued to worsen. Mr. Syed would get upset about little things, becoming angry at times.

[24] Mr. Syed was referred to anger management counselling but did not improve. Soon afterwards, in about 2017, he was diagnosed with schizophrenia and psychosis. He was put on two types of medication. There was not a lot of detail about his mental illness or treatment at the bail hearing. No reports from doctors were tendered.

[25] Mr. Syed did not finish high school and worked only sporadically. According to his mother, it was hard for him to hold down a full-time job because he would start feeling unwell and could not cope.

[26] With respect to his medication, usually he took it but sometimes he would forget. The family would keep a watchful eye to ensure he took his medication but they would not always see him taking it.

[27] His mother said that her son “does what he wants because of his mental condition.” In January 2020, the applicant moved out of the family home for the first time and moved into a basement apartment with his girlfriend. This is where the party was held just before the homicide.

[28] After his arrest, as the police escorted Mr. Syed through the police division, he made a spontaneous utterance to the escorting officer that he suffered from psychosis and that if he doesn’t take Seroquel [an anti-psychotic], he does crazy things that he does not remember the next day. It should be noted that in his confession soon afterwards, he was able to recall quite a bit of what happened, including stabbing the deceased.

The Applicant’s Criminal Record

[29] The applicant has a criminal record, all the entries being conditional discharges. There is an offence as a youth that is likely not admissible by reason of Section 119(2)((f) of the Youth Criminal Justice Act. I will disregard it. In 2017, failure to comply with undertaking; in 2018, assault and fail to comply with undertaking; and February 2019, uttering threats. At the time of the alleged offence here, the applicant was on probation and bound by a Section 109 weapons prohibition. He violated this prohibition by his possession of the knife on the night in question and also violated the keep the peace and not to possess weapons conditions of his probation order.

The Importance of the Evidence on the Threatening Finding of Guilt

[30] The complainant in the February 2020 charge was the applicant’s mother, now proposed as his surety. As she recounted the circumstances in her testimony at this hearing, the applicant came into her and her husband’s bedroom in the wee hours of the morning. He asked for the car keys, saying that he was going out. He was holding a pen in his right hand and extended it towards her. Mrs. Syed denied that at any point her son threatened her in word or gesture. The police were called by the applicant’s father.

[31] The Crown cross-examined Mrs. Syed on a statement she made to the police in which she clearly said that her son did threaten her in this incident. When confronted with this statement, Mrs. Syed claimed that their must have been a language miscommunication between her and the police officer who wrote down the statement. Mrs. Syed says she does not speak English well; she testified on this hearing with the assistance of an Urdu interpreter.

[32] Mrs. Syed’s prior statement was a quite involved description of the applicant’s threatening words and gestures. A language miscommunication could not possibly have explained supposed errors in a statement this long and detailed. Furthermore, Mr. Syed pled guilty to this charge, admitting that he had threatened his mother. Mrs. Syed claimed not to know about this plea of guilty.

[33] Although at times Mrs. Syed was refreshingly candid about her son, such as with respect to some aspects of his mental illness, I cannot believe her with respect to the evidence with respect to the threatening offence. This incident both severely damages Mrs. Syed’s credibility and adds to worrisome issues about the applicant’s tendency towards violence.

Conclusion on the Secondary Ground

[34] In evaluating the risk presented by the applicant based on the evidence of the alleged offence, his antecedents, his disposition for violence and his mental illness, I put the risk that he represents high on the scale. As is self-evident, he has violent tendencies. Furthermore, the evidence establishes that he is unpredictable.

[35] This was a horrific killing, with four deep stab wounds in the back. Mr. Syed has a criminal record for violence—assault and uttering threats. I recognize that the dispositions were conditional discharges, not criminal convictions. They are relevant nonetheless given the overall context.

[36] The applicant said in his statement that he carries a knife all of the time because some people do not like him. In addition, there was evidence from his mother that she quite recently, within a month of this homicide, confiscated a knife from the applicant at the family home.

[37] When the element of mental illness is added, the risk from the applicant is far too serious for bail release. Schizophrenia is a terrible disease. The psychosis that it brings on leads to a loss of touch with reality and volatile swings of mood. Indeed, his mother says he gets angry and has trouble coping at times. When he gets tired he cannot control himself.

[38] It appears that the applicant has been struggling with the disease and with psychosis for some time. As shown by his mother’s evidence and his spontaneous statement to the police after arrest, he cannot be depended on to take his medication. Nor is it clear that the medication completely diffuses the risk of violent behaviour.

[39] Given the seriousness of the situation, there was insufficient evidence adduced to give any comfort that the applicant’s mental illness and violent tendencies are manageable. The onus is on the applicant and it is not one he has satisfied.

[40] There is circumstantial evidence in Mr. Syed’s police statement that psychosis may have had a part to play in this alleged offence. While the element of mental illness may lower his moral responsibility for the crime, it forms a formidable obstacle to him obtaining bail release. In order to fashion a release, there must be a good measure of faith in the applicant. That would be misplaced on this record. The combination of violence and mental illness together suggest that the applicant is unpredictable and potentially ungovernable.

[41] The evidence of drug use only adds to the concern. There is evidence of alcohol and drug use at the party. Mr. Syed’s mother testified about the applicant’s use of marijuana as well. He also drinks alcohol occasionally although has been told by his doctors not to. Intoxicants whether they be alcohol or drugs may not be a major problem in some circumstances. But in this case, the applicant suffers from schizophrenia and psychosis. Alcohol and drugs in his condition, as documented in the DSM-V psychiatric manual for example, are likely to seriously aggravate his mental illness. That he indulges in them, is another reason to be cautious about his release into the community.

[42] Lastly, the applicant would be living with his sister, 20 years old, and his brother, 18 years old. It is not clear whether his father would be there or not as he has over the last few years lived separately much of the time. Given the prior threat to his mother, and all the circumstances, I have some concern for Mr. Syed’s family if he is released.

The Proposed Plan

[43] In light of my assessment of the risk in releasing the applicant, even an exemplary plan and exemplary surety would probably not be enough. But in this case, we have neither. Mrs. Syed loves her son and is, I am sure, heartbroken with what has happened. Any mother would be. It is tragic. But that is not enough to make her a dependable surety.

[44] There is a paradox in the theory of surety supervision. There must be the “pull” of bail upon the accused for a surety to be an effective deterrent on the accused. The accused does not want to cost their surety the consideration that has been pledged: Canada (Attorney General) v. Horvath and Mirza, 2009 ONCA 732, [2009] O.J. No. 4308, at paras. 40-54.

[45] But this very closeness between surety and accused can pose a conundrum. It may lead the surety to be reluctant to perform their responsibility and notify the authorities if the accused is not complying with the bail. A surety may not want their family member to go back to jail and get charged with failure to comply with their bail. In short, the surety may suffer from divided loyalty between the accused and the justice system. So while closeness between the surety and the accused is necessary and important, at the same time, it can lead to flawed and inadequate supervision.

[46] That is precisely the issue in this case. Mrs. Syed’s denial that the applicant threatened her, when he admitted that he did and she made a previous statement that he did, all but disqualifies her for the surety role. She is likely to be co-opted by the love of her son in the same way she was when she testified that he did not threaten her. For this reason, although she has pledged much of the equity in her house, I do not believe that Mrs. Syed would be an appropriate surety for her son.

[47] Furthermore, the applicant has twice been found guilty of fail to comply with bail and is in breach of court orders not to be in possession of weapons. There is real doubt whether he would abide by a strict house arrest bail order.

[48] Electronic monitoring was also proposed. I accept that in some circumstances, it can be a major safeguard in a bail order. But electronic monitoring cannot alleviate severe problems with the applicant and his proposed surety.

[49] Mr. Mattis went on to argue that the COVID-19 crisis should mollify concerns on the secondary ground. I do not agree. If an accused should be detained for the protection of the public, the risk of contracting the virus in jail does not alter that fact. A person does not become less of a risk because of COVID-19.

[50] At the moment, the heightened risk of contracting the virus in jail is an unfortunate reality. There is some evidence that the government is making efforts to attempt to reduce the risk. But the protection of the public from a dangerous person mandated by the secondary ground must remain uppermost and supersedes the threat posed by COVID-19 to inmates.

Conclusion with Respect to the Release of the Applicant

[51] The applicant has failed to demonstrate that he has satisfied the secondary ground. In the circumstances, I need not address the tertiary ground. The application for bail release under Section 522 of the Code is dismissed.

D.E HARRIS J. Released: April 9, 2020