Court of Appeal for Ontario

R. v. Rajab

Date: 2003-05-27

Counsel: Edward L. Greenspan and Vanessa Christie, for the appellant; Susan Chapman and Paul Amenta, for the respondent.

(M29293;M29294)

Reasons for Decision

[1] By the Court [orally]: The applicants who are husband and wife are charged with the second degree murder of their eleven month old son. They were arrested in August 2002, some eight months after his death. The applicants were denied bail in October 2002 by German, J. In December 2002, the Chief Justice of Ontario ordered a review of that denial of bail. A preliminary inquiry is scheduled for July 2003.

[2] The case against the applicants appears to be formidable. There is evidence that the young child suffered multiple trauma injuries on at least three occasions prior to his death. The injuries which resulted in death occurred shortly before death and there is evidence that the applicants had exclusive opportunity to inflict those injuries.

[3] The applicants have no record and have strong support from family and friends.

[4] German, J., relied on the secondary ground in concluding that the applicants had not shown cause why they should be released. She was concerned that if released, the applicants might gain access to or custody of Sabrina, their other child. Sabrina was born in August 2002. German, J., was concerned that some harm could come to Sabrina if the applicants gained access or custody of her. German, J., also expressed concern that the applicants' parents could not be relied on to comply with or enforce any bail order purported to prevent the applicants from seeing Sabrina. German, J., was not impressed with the parents who testified before her on the bail hearing.

[5] In denying bail, German, J., concluded:

"The birth of Sabrina in August 2002 is a very complicating factor in this bail application. Mrs. Gail Rajab is so biased in favour of her son's innocence that I believe she would not report any breaches of his bail order to the police if she felt that it would be the cause of returning him to jail. Even if I made orders that Tania and Joe could not see Sabrina, in all the circumstances I am not satisfied that Joe Rajab and Tania Rajab would comply with the order, and I do not have any faith that the sureties would enforce it."

[6] We agree with the concerns of German, J., and we accept her assessment of the witnesses. We do not, however, agree that the detention of the applicants was the only way to adequately protect Sabrina. Sabrina is currently in the custody of the Children's Aid Society, which has commenced wardship proceedings and is strongly opposed to any contact between the applicants and Sabrina. We are satisfied that Sabrina can be protected without denying the applicants, who are presumed innocent at this point, their freedom. We have in mind release on a term which would prohibit the applicants from any contact or any attempt to contact Sabrina either directly or through any intermediary. In making this order, we have relied on the undertaking of Vivia Williams, the mother of Tania Rajab, to withdraw her custody application and her undertaking that she would not attempt to gain any access to Sabrina while these charges are pending.

[7] We think that the authorities, both the Crown and the Children's Aid Society, are well positioned to guard against any attempt by the applicants to make any kind of contact with Sabrina. We are not satisfied that the detention of the applicants is the only way that Sabrina can be adequately protected. Detention is not necessary on the secondary ground.

[8] German, J., declined to make a detention order on the tertiary grounds. We see no error in her assessment of that ground. The Crown does not suggest that detention is necessary on the primary ground.

[9] In the light of our conclusion, it is unnecessary for us to consider the fresh evidence tendered on this application, or the jurisdictional issue raised by the Crown which, in our view, arises only if we were disposed to rely on the fresh evidence.

[10] We will receive further submissions from counsel as to any other appropriate terms and appropriate sureties. In our view, the parents of the applicants should be sureties if for no purpose other than to impose a term upon them requiring them to abstain from any contact with Sabrina.

Order accordingly.