Court File and Parties

Court File No.: CR-20-00000360-00BR Date: 2020-12-17 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Muhammad Hassan

Counsel: D. Hogan, for the Crown C. Szpulak, for Mr. Hassan

Heard: 3 December 2020

Before: S.A.Q. Akhtar J.

[1] The accused, Muhammad Hassan, is charged with possession of a loaded restricted firearm and related offences, as well as possession of cocaine for the purposes of trafficking. He applies to review the detention orders made by Dunphy J. of the Superior Court of Justice and Moore J. of the Ontario Court of Justice. On 8 December 2020, I dismissed his application with reasons to follow, which I now release.

[2] On 10 August 2019, at approximately 11 pm, police observed a large group of males gathered in Leonard Linton Park. Other cars began to arrive at the scene and their drivers joined the group of males. Police ran checks and found that one car was linked to a shooting that occurred in May 2019.

[3] Plainclothes officers entered the park and were met by the applicant who was carrying a satchel and another male named Haaris Khan. When the officers identified themselves, the applicant threw his satchel to the ground and both males fled the scene. As the bag hit the ground it made a metallic sound. Believing the satchel contained a firearm, the officers searched it and found a loaded Smith & Wesson pistol with one round of ammunition in the chamber. The satchel also contained spare 10-round magazines, fully loaded. The officers called out to the males to stop. The applicant went to ground and was subsequently arrested. Mr. Khan continued to run but was later detained and arrested and also charged with firearms offences.

[4] Forensic tests showed the firearm found in the satchel to be a restricted firearm within the definition set out in the Criminal Code, R.S.C., 1985, c. C-46. A later search of the applicant’s car, a red Toyota, following the seizure of keys found on his person, resulted in the discovery of 130.6 grammes of cocaine wrapped in 4 Ziploc baggies in the centre console. As a result, the applicant was also charged with possession of cocaine for the purposes of trafficking.

[5] The police continued to search the park and found another gun: a Taurus G2C .40 calibre pistol, discarded near the area where the two accused had chosen to run from the police officers.

[6] The other male, when caught, was also found to be in possession of a loaded firearm in his trouser pockets.

[7] At trial, the Crown will advance the position that the applicant is a drug dealer who uses the gun in conjunction with his transactions.

The Applicant’s Prior Bail History

[8] At the time of these events, the applicant was on bail for two other drug related offences.

[9] On 9 November 2018, the applicant was arrested for possession of drugs for the purpose of trafficking. He was released the next day on a $5000 surety recognisance with the condition that he reside with his sureties (his mother and sister) and not to leave the home between 11 pm to 6 am, not to consume or possess drugs, and not to possess any weapons defined by the Criminal Code.

[10] Five months later, in March 2019, the applicant was again charged with trafficking and possession of 11 grammes of crack cocaine. On this occasion he was released on bail with his father acting as surety. His release conditions specified that he remain in his residence at all times and not possess any weapons.

[11] At his first bail hearing, on the firearms charges, at the Ontario Court of Justice on 16 August 2019, the applicant was detained on all three grounds contained in s. 515(10) of the Criminal Code.

[12] Subsequently, the applicant brought a bail review on 9 April 2020 in front of Dunphy J. at the Superior Court of Justice, who held that there had been a material change of circumstances but dismissed the applicant’s application on the basis that he had failed to discharge his onus on the secondary and tertiary grounds.

Material Change of Circumstances

[13] When seeking a review of his bail before Dunphy J., the applicant faced three sets of charges: the November 2018 and March 2019 charges of possession for the purpose of trafficking in drugs, and the August 2019 possession of firearms and drugs.

[14] However, on 5 October 2019, he was acquitted of the November 2018 charges and, in July 2020, the Crown stayed the March 2019 offences leaving only the August 2019 firearms charges before the courts.

[15] The Crown concedes that this is a material change of circumstances warranting a de novo bail hearing.

[16] Although affidavits from the proposed sureties were filed, the Crown indicated that there was no need to cross-examine them as both parties agree that the transcripts from the previous bail review could be considered in determining their suitability.

The Plan

[17] The applicant seeks release on a house arrest plan to be supervised by two potential sureties.

[18] Umair Khan is the applicant’s brother in law and is 26 years old. He has recently purchased a house in Oshawa where he resides with his wife. If released, the applicant will reside at this property. He is currently self-employed in the automotive/film industry and co-owns a window tinting business with his father. Mr. Khan states that he can work from home running the business. He also proposed himself a surety in the applicant’s first bail application at the Ontario Court of Justice.

[19] Humaira Said is a family friend who is 23 years old. She resides with her mother in a rented apartment in Scarborough and is employed, part-time at a bank where she works approximately 22 hours a week, usually on Tuesdays, Wednesdays, Thursdays and occasionally Sundays. She starts at around 7 am and finishes at 3 pm. She is also enrolled in online classes, studying business management, although she is the beneficiary of a flexible schedule.

[20] Ms. Said has known the applicant for approximately 5 years and, like Mr. Khan, proposed herself as a surety in his first unsuccessful bail application. She would supplement Mr. Khan’s supervisory duties by filling in for Mr. Khan when he is unable to supervise the applicant. She insists that she would report any breaches of the bail conditions.

[21] The proposed plan of release is that the applicant reside with Mr. Khan at his home in Oshawa, under strict house arrest conditions, with Mr. Khan overseeing the applicant’s activities at all times. Ms. Said would supplement that role when he is unable to do so.

[22] The applicant also proposes, as he did in the bail review hearing before Dunphy J., that he be subject to electronic monitoring using the services of the Recovery Science Corporation to ensure compliance with his bail conditions.

[23] Mr. Khan is willing to offer $25,000 in his role as surety although he is prepared to offer a higher amount using the equity in his house if so required by the court.

Secondary Ground Concerns

[24] Section 515(10)(b) of the Criminal Code, sets out what is commonly described as the “secondary ground” of detention and states:

Where the detention is necessary for the protection or safety of the public, … 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.

[25] An accused’s release is only denied when there is a substantial likelihood of committing further offences or interfering with the administration of justice and when it is necessary for the public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Jaser, 2020 ONCA 606, at paras. 67-8.

[26] There are clearly secondary grounds concerns in this case, in particular that the applicant might obtain another firearm and continue to sell drugs. The applicant was on two separate bails when these allegations occurred. Both sets of release conditions required him to remain in his residence and carry no weapons. The allegations demonstrate that he showed little regard for either of these orders.

[27] Whilst I agree that the evidence linking the Taurus G2C firearm to the applicant is weak, the same cannot be said for the Smith & Wesson pistol found in the satchel and the drugs found in the Toyota. On the facts, as alleged, the applicant fled the police and abandoned the satchel by throwing it to the ground. The drugs were found in the applicant’s rented car. When searched after his arrest, he was found in possession of the car keys and his fingerprints were located on the centre console of the inside of the vehicle where the cocaine was stored.

[28] Given the prior bail breaches and the seriousness of this offence, the accused would require sureties capable of providing a significant measure of control to ensure that the applicant complies with any release conditions.

[29] Having reviewed the transcripts of the hearing that took place in front of Dunphy J., I come to the same conclusion as my colleague that these sureties, whilst sincere and well meaning, would not be able to prevent him from committing further criminal activities, particularly in light of the allegations concerning drug dealing which appears to be a significant source of his income.

[30] Both sureties testified that they were aware of the applicant’s drug trafficking past and had sought to dissuade him from continuing in these activities but were ignored. Neither are in a position of authority or influence over the applicant. Both are only slightly older than him. Ms. Said is a friend whilst the other, Mr. Khan, is a relative being married to the applicant’s sister. It is noteworthy that Mr. Khan was actually living with the applicant, at his parents’ house, when the applicant was subject to and in breach of his bail conditions.

[31] Like Dunphy J., I am of the view that neither would prevent breaches of bail and I am inclined to the view that, whilst they might seek to persuade the applicant to comply with any release conditions, they would not report any breaches for fear of exposing the applicant to a further period of incarceration.

[32] Even though I agree that electronic monitoring might be a useful tool when used in conjunction with strong sureties, I do not find that on its own it is a panacea in assuaging secondary ground concerns. Electronic monitoring might reveal the applicant’s location but would not inform what he was doing. These limitations have been acknowledged by the courts: R. v. Palijan, [2012] O.J. No. 6549 (S.C.); R. v. Sotomayor, 2014 ONSC 500, at paras. 40-41; R. v. Ma, 2015 ONSC 7709, at para. 56; R. v. Osman, 2020 ONSC 965, at paras. 30-35.

[33] The Recovery Science Corporation, the company tasked with the implementation of the electronic monitoring scheme, concedes, in its program summary that it is not a tool that prevents offences or allows for rapid police responses. At para. 9 of its Overview document, it notes:

The question of whether the inclusion of a monitoring requirement is sufficient for a proposed plan to meet the court’s requirements and objectives will be a case by case decision made by the court. In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress.

[34] Electronic monitoring is only effective when paired with the presence of strong sureties. As I have already noted, I find that the sureties in this case would not be able to adequately supervise the applicant if released.

The Tertiary Ground

[35] The applicant also fails to satisfy his burden in justifying release under the tertiary ground.

[36] Section 515(10)(c) of the Criminal Code sets out the following statutory factors requiring consideration in deciding whether detention is necessary to maintain confidence in the administration of justice:

(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[37] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground had to be considered separate and apart from the secondary ground. In determining release under the tertiary ground, the question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[38] The four factors in s. 515(10)(c) are not exhaustive and, further, must be analysed together and not separately: R. v. E.W.M. (2006), 223 C.C.C. (3d) 407, 215 O.A.C. 125 (C.A.), at para. 31. However, where all four factors have “maximum force” detention is “entirely to be expected”: E.W.M., at para. 32.

[39] As I have already described, the Crown’s case appears strong in relation to the Smith & Wesson pistol and drugs found in the car. The offence is clearly serious and the circumstances involve the applicant fleeing police and throwing away a firearm.

[40] There is also no doubt that the applicant is also liable for a lengthy term of imprisonment if convicted. However, this is one area that causes me some concern. The applicant’s preliminary inquiry is set for February 2021 and a Superior Court trial would not be scheduled until months later.

[41] The defence argues that if the applicant is held in custody to the 30 month time limit set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, he will have served a sentence equivalent to 45 months after calculating pre-sentence custody credit endorsed in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. This, says the applicant, would effectively constitute a time served sentence. The Crown, on the other hand, argues that the range of sentence after trial for guns and drug offences is between 6 and 8 years.

[42] I find that the range is somewhere in between these two positions. However, it is also speculative to try and decide the exact sentence so far in advance of the conclusion of the trial, particularly when it is not known when the actual trial will take place. In light of the clear concerns on both the secondary and tertiary grounds, this concern does not tip the balance into release.

[43] The applicant also asks this court to take into account the threat of the COVID-19 pandemic when assessing the tertiary ground. The pandemic is a factor to be taken into account but does not form an overriding element: R. v. Jesso, 2020 ONCA 280, at para. 36; R. v. Omitiran, 2020 ONCA 261, at para. 26.

[44] It is important that there is no evidence that the Toronto South Detention Centre, where the applicant is currently being held, is suffering any type of outbreak of the virus: R. v. S. M., 2020 ONCA 427, at para. 26. The data tendered by the Crown shows a very small number of positive tests.

[45] Moreover, the applicant in this case is a young man with no underlying health conditions, making him one of the less vulnerable members of the population which would also lead to according this factor less weight: R. v. T.S.D., 2020 ONCA 773, at para. 59. I would also add that the threat of COVID-19 is omnipresent, meaning that the applicant is just as likely to catch the virus outside the institution as he is inside. This is the unfortunate reality of the pandemic that has gripped the world.

[46] For these reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 17 December 2020