Court File and Parties
Newmarket Court File No.: CR-20-4550/4551 Date: 2020-04-14 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Abdelaziz Ibrahim
Counsel: Kevin Stewart, for the Crown Jaime Stephenson, for Mr. Ibrahim
Heard: April 9, 2020
Endorsement
Bird J.:
[1] Abdelaziz Ibrahim is charged with first degree murder and possession of cannabis for the purpose of distribution. He brings an application for bail pursuant to Sections 515 and 522 of the Criminal Code of Canada.
[2] Mr. Ibrahim was arrested and charged with both offences on March 18, 2020. On that date, a Controlled Drugs and Substances Act search warrant was executed at his home at 111 Celestial Drive in Hamilton. Mr. Ibrahim and one other person, Ahmad Hassan, were present at the time. Police located several items of note in the home including 3.5 pounds of cannabis, a magazine for a Glock firearm capable of holding 10 rounds of ammunition, a bullet proof vest and a set of handcuffs. They also found a firearms acquisition licence application in Mr. Ibrahim’s name. The document was signed by his guarantor on March 5, 2019. Mr. Ibrahim had $3,000 in cash on his person when he was arrested.
[3] One of the guarantor’s chosen by Mr. Ibrahim to support his application for a firearms licence was Muayad Abdelgadir whose address was listed as 10 Coral Drive in Hamilton. While under surveillance by the police, Mr. Ibrahim attended that address on March 17, 2020. He entered the home empty handed and came out carrying a duffel bag that appeared to be full. Mr. Ibrahim was a passenger in a white Infiniti motor vehicle being driven by Mr. Hassan. When the search warrant on Celestial Drive was executed, the police also searched the Infiniti which was parked in the driveway of the home. They found a duffel bag which appeared to be the one Mr. Ibrahim took from 10 Coral Street the previous day. It contained 4 pounds of cannabis and a digital scale.
[4] The police also executed a search warrant at 10 Coral Drive. Mr. Abdelgadir was arrested and charged with numerous offences as a result of items that were found in his home including cocaine, ketamine, fentanyl, a semi automatic handgun, 2 revolvers, an air pistol with a silencer that was converted to fire 22 calibre ammunition and a rifle.
[5] The charge of murder relates to the shooting death of Soheil Rafipour which occurred on a residential street in Richmond Hill on December 24, 2018. Mr. Rafipour was at a Christmas party hosted by his friend’s family. His presence at that party was not expected as it was a last minute decision for him to attend. As Mr. Rafipour walked from the home towards his car (a Corvette), a dark coloured SUV believed to be a Volkswagen Touareg pulled up. A person got out of the passenger side and fired repeatedly at Mr. Rafipour. He was able to run a short distance before collapsing. The SUV followed him and a second series of shots was fired at him.
[6] The SUV then fled the scene along with a red Mazda 6 that was also nearby in the area. Mr. Rafipour suffered 13 gunshot wounds. The police found 10 shell casings at the scene. Forensic analysis determined that Mr. Rafipour was shot with at least two firearms. Those weapons have not been recovered.
[7] Mr. Ibrahim was not one of the people who shot Mr. Rafipour. He was not present in either the Volkswagen or the red Mazda 6. The evidence establishes that Mr. Ibrahim was in Hamilton at the time of the shooting. It is the Crown’s position that he is a party to the first degree murder of Mr. Rafipour by virtue of his actions in the days leading up to the shooting. Specifically, the Crown alleges that Mr. Ibrahim conducted both physical and electronic surveillance of Mr. Rafipour on December 22 and 23, 2018.
[8] The case for the Crown against Mr. Ibrahim is largely circumstantial. There is a witness who claims to have some direct knowledge that implicates Mr. Ibrahim in the murder. Thomas Sliwinski was arrested for an unrelated attempted murder in September of 2019. While in police custody, he gave a statement and spoke about someone he knew by the nickname of “Z”. The police believe that person is Mr. Ibrahim who was known to use the name Zezo. According to Mr. Sliwinski, Z is an assassin who lived in Hamilton. Mr. Sliwinski claimed that he was recruited to be a driver in the assassination Z was involved in. He said the target of the hit was a member of the Russian mafia and drove a Corvette. Mr. Sliwinski told the police Z had the contract for the assassination. He said that at some point prior to the murder actually occurring, he was driving the Volkswagen and Z was in the car with him. Mr. Sliwinski said that he intentionally drove in such a way as to allow the target of the hit to escape. Z became upset with him and put a gun to the back of his head and threatened to “expose his brains”. Mr. Sliwinski also advised that a red Mazda 6 was driven by another member of the team who spoke Arabic.
[9] At the time he gave his statement to the police, Mr. Sliwinski was under arrest and eager to be released from custody. The police attempted to re-interview Mr. Sliwinski on another date and he was much less cooperative. He became agitated when Z’s name was mentioned and he said he did not know anyone by that name. Mr. Sliwinski did tell the police that there was a GPS device placed on the deceased’s car.
[10] Mr. Sliwinski was not in the area when the murder occurred. As a result, he has no firsthand knowledge of how the event unfolded and who fired the shots at the deceased. Mr. Sliwinski has a criminal record and hoped to be released from custody in exchange for providing information to the police. Even if he testifies in accordance with his first statement, he will be a witness who will require a strong Vetrovec caution. It appears that there is some corroboration for certain aspects of what Mr. Sliwinski told the police including the presence of a tracking device on the deceased’s car and the involvement of a red Mazda. Video surveillance footage obtained from the Monte Carlo Inn in Vaughan showed Mr. Ibrahim associating with Mr. Sliwinski days before the shooting. Mr. Sliwinski was stopped by a Toronto Police officer driving the Volkswagen involved in the shooting on December 18, 2018.
[11] Although the police did not recover a tracking device on the deceased’s car, the theory of the Crown is that one must have been placed on it. The Crown takes this position for a number of reasons including the fact that it explains how the shooters knew that the deceased was at a Christmas party he was not expected to attend. This was an execution style shooting. Mr. Rafipour was gunned down almost immediately after he left the home. Video surveillance footage gathered from the area places the Volkswagen and Mazda vehicles in the vicinity of the shooting for some time prior to it occurring. The people who shot Mr. Rafipour were lying in wait for him.
[12] Cellular phone tower evidence is also consistent with there being a GPS tracking device on the deceased’s car. The number associated with this device is believed to be 437-215-0136 (“the 0136 number”). The police obtained the phone records for that number and analysed its use of cellular phone towers. The 0136 number used tower sites consistent with the Corvette’s location even after the shooting when the car was in police custody.
[13] Prior to the murder, the 0136 number regularly used the same cellular phone tower sites at the same times as Mr. Rafipour’s personal cellular phone. This is consistent with the 0136 number and Mr. Rafipour being in the same places at the same time.
[14] The police determined that four cellular phone numbers were obtained on December 20, 2018 including the 0136 number. The Crown alleges that these numbers were acquired specifically for use in this offence. They were all prepaid plans which means that the person acquiring them does not need to provide identification and can register them in any name he or she wishes. One of the numbers was registered in the name of James Brown.
[15] There is strong evidence that Mr. Ibrahim was using the phone number 647-809-8802 (“the 8802”) number in December of 2018. The person in whose name that number was registered provided a statement to the police saying she got an iPhone and that number for Mr. Ibrahim. It is the phone number that he included on his firearms licence application. Mr. Ibrahim rented a room at the Monte Carlo Inn on December 17, 2018 and listed the 8802 number as his contact number.
[16] Mr. Ibrahim is also connected to the Volkswagen Touareg used in the shooting. The vehicle, which was stolen, was recovered by the police in a parking lot close to the scene. When it was examined it was found to have a bullet hole in it. On December 21, 2018 while Mr. Ibrahim was staying at the Monte Carlo Inn police observed the Volkswagen Touareg in the parking lot of the hotel.
[17] Further, the car’s HMI (infotainment) system was analysed. There were two devices synced to the system. One was the 8802 number which was listed as “Abdelaziz’s iPhone”. It was synced to the Volkswagen on December 23, 2018.
[18] Through the Volkswagen’s HMI system, the police were able to access the contact list for the 8802 number. The 0136 number was listed as “GPSK” in the contacts of the 8802 device. The James Brown phone number was listed as “GPS1” in the contacts of the 8802 device.
[19] On December 22 and 23, 2018 there were over 500 contacts between the 8802 phone number and the 0136 phone number. In addition, between 9:50 p.m. on December 22 and 5:30 a.m. on December 23 Mr. Rafipour’s phone, the 8802 number and the 0136 number were using cellular phone towers in the same areas at the same time. This supports the Crown’s assertion that Mr. Ibrahim was conducting physical surveillance on the deceased.
[20] One other person named Mohamad El-Zahawi has been arrested in connection with the murder. The cellular phone tower evidence is consistent with Mr. El-Zahawi being present when the four phone numbers obtained on December 20 were activated. Mr. El-Zahawi also made calls to 911 using two of the phones the Crown alleges were crime phones. One of those phones, which was registered to Frank Luc, was in contact with the 0136 number 350 times.
[21] The Crown’s theory is that Mr. El-Zahawi used the Frank Luc phone to track the deceased’s whereabouts on December 24, 2018. Prior to attending the Christmas party, the deceased and his friend, Maral Ashoury went to a McDonalds and a Tim Hortons in the area. Cellular phone tower evidence establishes that Mr. El-Zahawi and the Frank Luc phone were using cellular phone towers in the same area at the same time. Further, based on the phone records, the Crown will allege that Mr. El-Zahawi was in the red Mazda 6 at the time of the shooting. Video footage from the Monte Carlo Inn on December 17, 2018 shows Mr. Ibrahim associating with Mr. El-Zahawi when he checked in.
[22] All of this evidence amounts to a strong circumstantial case against Mr. Ibrahim. He stayed at a hotel in Vaughan days before the shooting. Video footage shows Mr. Ibrahim in the company of Mr. El-Zahawi who is also charged with the murder of Mr. Rafipour. His cellular phone was synced to the HMI system of the Volkswagen which was used in the murder. Mr. Ibrahim’s phone was in contact with the 0136 number which is believed to be a tracking device placed on the deceased’s car over 500 times. In addition, cellular phone tower records are consistent with Mr. Ibrahim conducting physical surveillance of Mr. Rafipour on December 22 and 23. Finally, Mr. Sliwinski gave a statement alleging that he was hired to be the driver in an assassination Mr. Ibrahim had the contract for.
[23] In light of the strength of its case and the seriousness nature of the allegations against Mr. Ibrahim, the Crown submits he ought to be detained on the secondary and tertiary grounds. In contrast, Mr. Ibrahim takes the position that he can be safely released on a strict bail involving house arrest and electronic monitoring. He relies on the fact that he has no criminal record and no outstanding charges. Further, he asserts that even if the Crown can establish that he was involved in conducting some kind of surveillance on the deceased, it cannot prove that he did so for the purpose of aiding in a planned and deliberate murder.
[24] This bail hearing was held during the suspension of the in-person sittings of the Superior Court of Justice caused by the COVID-19 pandemic. The hearing was conducted via conference call with the consent of all parties. Across the province, many accused persons are seeking release on bail because of the risk COVID-19 poses. They rely on the fact that medical experts strongly recommend self-isolation and social distancing to protect against the spread of the virus. These practices are difficult, if not impossible, to accomplish in jail.
[25] Mr. Ibrahim has had asthma since he was a child. His proposed sureties, his mother and sister both testified to this effect. He also filed a letter from his family doctor attesting to the fact that he has asthma. Mr. Ibrahim’s sister acknowledged that while his asthma was serious when he was a young child, to her knowledge Mr. Ibrahim has not needed any medication to treat his condition for more than 15 years. Mr. Ibrahim has told her that since he has been in custody he has been having increased symptoms. It is accepted that people with underlying health conditions including asthma are more likely to experience serious symptoms of COVID-19 if they contract the virus.
[26] The Crown filed a document outlining the steps the correctional facilities are taking to minimize the risk of COVID-19 to the prison population in Ontario. Significant efforts have been made to reduce the number of people in custody. Enhanced screening measures have been implemented and personal visits to the institutions have been suspended. All court appearances are being done by telephone or video to minimize the movement of inmates. At present, there are very few confirmed cases of COVID-19 in the inmate population in Ontario. However, there is no doubt that confined, densely populated living spaces such as jails, are at risk for the virus spreading rapidly if it is introduced into the population.
[27] The impact of COVID-19 was recently considered in R. v. Kazman, 2020 ONCA 251. In granting the applicant bail pending his application for leave to appeal to the Supreme Court of Canada, Harvison Young J.A. found that taking into account the applicant’s health issues in the context of COVID-19 and the limited period for which bail was sought, his detention is not necessary in the public interest. However, she went on to say that this does not mean that bail will be granted in every case where COVID-19 is raised as an issue.
[28] For example, in R. v. Morgan, unreported, March 31, 2020 (Ont. C.A.), Trotter J.A. dismissed an application for bail pending appeal notwithstanding the concerns created by the COVID-19 pandemic. He found that the appellant posed a risk to public safety that was not attenuated by his proposed plan of release.
[29] I must weigh the risk posed by COVID-19 to people in custody against the factors enumerated in Section 515(10) of the Criminal Code, particularly the safety of the public, in light of the serious nature of the offences Mr. Ibrahim is charged with. COVID-19 is a factor to be considered but is not determinative of a bail application. If it were dispositive, no one would be detained in custody pending trial until the pandemic is over.
[30] The impact of COVID-19 is serious and I accept that the prison population is at greater risk for contracting the virus because of the limited ability of inmates to practice self-isolation and social distancing. The efforts made by The Ministry of Community Safety and Correctional Services, Crown counsel and defence counsel to reduce the number of people in custody are commendable and ought to continue. Whenever an accused person can be safely released on a reasonable bail that should occur as promptly as possible.
[31] Notwithstanding the risks posed by COVID-19, there will be accused persons who must be detained in custody pending their trial in order to satisfy concerns on the primary, secondary or tertiary grounds. The question on this application is whether Mr. Ibrahim is one of those people taking into account his background, the allegations he faces and his proposed plan of release.
[32] Mr. Ibrahim is 23 years old. He has no criminal record or outstanding charges. Prior to his arrest he was living in a rented home on Celestial Drive in Hamilton. He was responsible for paying the monthly rent which was $1,750. Mr. Ibrahim told his mother that he was living with a friend named Mohamed Ahmed. However, when the search warrant was executed on the home on March 17, 2020 someone named Ahmad Hassan was present.
[33] Mr. Ibrahim is seeking his release on a house arrest bail with electronic monitoring. He would live with his family in Windsor. His mother and older sister are his proposed sureties and both testified on this application. They understand the responsibilities of a being a surety and both appear to be fully committed to carrying out the task. Mr. Ibrahim’s sister works from home so would be available to supervise him every day. Mr. Ibrahim’s mother is not currently working due to COVID-19. She runs her own business providing catering and meals to an Islamic Centre. She testified that when she returns to work, Mr. Ibrahim can work with her under her constant supervision.
[34] There were three occasions in late 2017 when Mr. Ibrahim’s mother called the police because of concerns about his behaviour. On November 2, 2017 Mr. Ibrahim and his mother got into a verbal argument. He became upset and damaged the tire of her car. Mr. Ibrahim’s mother did not want him charged but did ask the police to tell him that he was no longer welcome in her home. Mr. Ibrahim also had his mother’s phone which she wanted back. The police were able to locate him a short distance away from the home. Mr. Ibrahim was cooperative and apologetic. He provided the phone to the police and said he would pay for the damage he caused to his mother’s car.
[35] On November 28, 2017 Mr. Ibrahim’s mother called the police again, this time to report that he had taken her van without her permission. Mr. Ibrahim entered the home in the middle of the night, snuck into his mother’s bedroom and took the keys for the van from her purse. When the police contacted Mr. Ibrahim, he denied taking the vehicle and said he was at a friend’s home that night. He also said that his sister Abir, who is his proposed surety, may have the van. Mr. Ibrahim did admit to his mother that he took the van and told her where she could find it. The police spoke with Mr. Ibrahim a second time and he still denied having taken the vehicle.
[36] On December 2, 2017 the police attended the Ibrahim home in response to a call for family trouble. Mr. Ibrahim and his sister Abir were having a dispute over property. Mr. Ibrahim had his sister’s computer and she was withholding his cellular phone as a result. There was an airsoft pistol in the home that Mr. Ibrahim’s mother turned over to the police. Once again, Mr. Ibrahim was told by the police that he was not welcome in the family home.
[37] Both Mr. Ibrahim’s mother and sister testified about these three incidents in a manner that was consistent with the police reports. They said that for a short period of time, Mr. Ibrahim’s behaviour was poor due to problems the family was having. Those problems have been resolved and both proposed sureties testified that Mr. Ibrahim’s behaviour improved.
[38] While the incidents show a lack of respect by Mr. Ibrahim for his mother and sister in 2017, they also demonstrate that his family is prepared to call the police if he behaves poorly. This supports their evidence that they are committed to enforcing bail conditions and are willing to call the police immediately in the face of non-compliance.
[39] However, having suitable sureties is only part of the equation. The person being released on bail must be willing to comply with the conditions. It appears that Mr. Ibrahim has withheld some significant information about his life from his family and failed to follow their advice. His mother made it clear that she has no tolerance for drugs including marijuana. Despite this, Mr. Ibrahim had 3.5 pounds of marijuana in his home and another 4 pounds in a duffel bag that he obtained from Mr. Abdelgadir’s home on March 17, 2020.
[40] Mr. Ibrahim’s mother had told him to stay away from Mr. Abdelgadir because in her opinion he did not come from a good family. Mr. Ibrahim appears to have disregarded this advice. It is extremely concerning that he was associating with someone who had a large quantity of drugs and several firearms in his home. The evidence suggests that Mr. Ibrahim obtained 4 pounds of marijuana from Mr. Abdelgadir on March 17, 2020. Clearly such a significant amount of marijuana is not consistent with personal use. The amount of marijuana and the fact that Mr. Ibrahim had $3,000 in cash on his person when he was arrested suggest that he was involved in the drug trade. The presence of a bullet proof vest in his home and a magazine for a Glock handgun are also indicative of involvement in an antisocial lifestyle.
[41] The evidence about Mr. Ibrahim’s source of income is conflicting. As noted, Mr. Ibrahim was responsible for paying rent in the amount of $1,750 per month for the Celestial Drive home. His sister said that he sometimes rented out rooms through Airbnb to help with this expense. In his affidavit in support of his application for bail, Mr. Ibrahim stated that he was self-employed and owned a bakery. His mother and sister testified that, to their knowledge, his sole source of income was through a business called Kunafa King. This business supplies baked goods to restaurants and other customers.
[42] The police spoke with Mr. Ibrahim’s partner in this business, Mr. Aly. He confirmed that he and Mr. Ibrahim started the catering business together in October of 2018. However, he described Mr. Ibrahim as having very little involvement with it. Further, the business only generates a small amount of money each month which Mr. Aly does not share with Mr. Ibrahim. Based on the information from Mr. Aly, Mr. Ibrahim could not have been earning enough income from Kunafa King to support himself. Mr. Aly told the police that he believed that Mr. Ibrahim worked at an auto body shop in Vaughan. He said that Mr. Ibrahim used rental cars that he got from the body shop. Mr. Ibrahim’s sister had no knowledge of any of this.
[43] The evidence supports a finding that Mr. Ibrahim was living a lifestyle that he hid from his family. He was likely supporting himself by distributing marijuana that he obtained, at least on one occasion, from Mr. Abdelgadir. Prior to conducting surveillance on March 17, 2020, the police had received information that Mr. Ibrahim was selling drugs.
[44] With respect to the factors enumerated in Section 515(10) of the Criminal Code, there is no basis upon which to detain Mr. Ibrahim on the primary ground. He is a Canadian citizen and his family has resided in Canada for many years.
[45] Mr. Ibrahim’s antisocial lifestyle and his alleged involvement in the planned and deliberate execution of Mr. Rafipour give rise to significant concerns on the secondary ground. The circumstantial evidence against him is compelling. It supports an inference that Mr. Ibrahim was actively involved in conducting surveillance on Mr. Rafipour both electronically and physically shortly before the murder. This was a sophisticated and well-planned hit. The murder did not occur spontaneously. Four phones that were used in the murder were purchased four days in advance. Somehow, a tracking device was placed on the deceased’s car on or before December 22, 2018. The surveillance of Mr. Rafipour allowed his assailants to track him down to a Christmas party he was not expected to attend.
[46] While Mr. Ibrahim may argue at trial that the Crown cannot prove that anything he may have done by way of surveillance was knowingly in furtherance of a murder, it will be open to the jury to find that is the only offence that was planned in relation to Mr. Rafipour. There is no evidence that Mr. Rafipour was shot during a drug deal or attempted robbery. To the contrary, he was shot multiple times by at least two guns almost immediately after leaving the home he was in. This has all of the hallmarks of a planned execution.
[47] Mr. Ibrahim’s alleged involvement in such a sophisticated and violent offence, combined with the findings of the police during the execution of the search warrant on March 18, 2020 demonstrate that there is a substantial risk that Mr. Ibrahim will commit other offences if released from custody. The nature of the offences with which he is charged and the items found in his home create a significant concern for the safety of the public.
[48] The question is whether his proposed plan of release can adequately address those concerns. Despite the admirable intentions of Mr. Ibrahim’s mother and sister and their genuine commitment to make their best efforts to supervise him, I am not satisfied that they can effectively do so. The problem lies not with the proposed sureties but rather with Mr. Ibrahim. He has demonstrated a lack of respect in the past for both his mother and his sister. Most significantly, he was associating with people and living a lifestyle that he knew his mother would not approve of. She told him to stay away from Mr. Abdelgadir, clearly for good reason and yet Mr. Ibrahim was at his home on March 17, 2020 picking up a large quantity of marijuana. Mr. Ibrahim mislead his family about how he was supporting himself. They also had no idea that he was involved with marijuana and were quite surprised to learn that he had a bullet proof vest and a magazine for a firearm in his home. Mr. Ibrahim painted a picture of his life for his family that was quite different from reality.
[49] Given the nature of the offences with which Mr. Ibrahim is charged and the information about his lifestyle, I find that there is a significant risk that he will endanger the safety of the community if released from custody. Further, I am not satisfied that this risk can be sufficiently attenuated by his plan of release. As a result, Mr. Ibrahim is detained on the secondary ground.
[50] While it is not necessary to consider the tertiary ground, I note that the offence of first degree murder is the most serious in the Criminal Code carrying with it a mandatory sentence of life imprisonment without eligibility for parole for 25 years. Two firearms were used in the commission of the offence and there is a compelling circumstantial body of evidence implicating Mr. Ibrahim in it. In these circumstances, public confidence in the administration of justice will be maintained by detaining Mr. Ibrahim notwithstanding the increased risk people in custody face as a result of COVID-19.
[51] For these reasons, Mr. Ibrahim’s application for judicial interim release is dismissed. Pursuant to Section 515(12) of the Criminal Code he is prohibited from having any contact directly or indirectly with Ahmad Hassan, Muayad Abdelgadir, Shahob Manteghi, Maral Ashoury, Mohamed El-Zahawi, Thomas Sliwinski, Marinea Leachman, Jessica Gortych, Salloum Jassem and Corey Chung.
The Honourable Justice L. Bird
Released: April 14, 2020