Court File and Parties
Court File No.: 4811 998 12 10002210 01
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Hanif Jamal
Before: Justice P. Harris
Interim Release Judgment delivered on: April 13, 2012
Counsel:
- Brian Puddington for the Federal Prosecutor
- David Berg for the Defence
HARRIS J.
[1] Hanif Jamal has been charged with 35 offences related to firearms and controlled substances allegedly found in his possession. He is facing a reverse onus by reason of the possession for the purpose charges, the firearms offences, and the fact he was on a prohibition order at the time these allegations arose. The Crown is seeking his detention on the primary, secondary and tertiary grounds as a result of the quantity of drugs and the handguns allegedly found in his possession.
The Allegations
[2] On February 21, 2012 police officers from the major crime unit at 43 Division in Toronto were making observations at 14 Tamora Court while they were in the process of waiting for a search warrant for the aforementioned premises. They observed Mr. Jamal leaving that residence and proceeding to drive away in a motor vehicle. Shortly thereafter Mr. Jamal was stopped and arrested on the grounds alleged in the warrant. Incidental to arrest the police searched the defendant and located marijuana, cocaine and Canadian currency in his possession.
[3] When the search warrant arrived, police officers entered the residence at 14 Tamora Court in the company of Mr. Jamal and in various locations in the home they located loaded firearms, marijuana, cocaine, ecstasy and a quantity of Canadian currency described as a few thousand dollars. Mr. Jamal is said to have assisted the police in entering the residence with a key and directing them to a handgun in a bedroom. In addition, Mr. Jamal allegedly admitted ownership of the drugs in the residence.
[4] Upon arrest, it was alleged that Mr. Jamal was found in possession of 274 g. of marijuana, just less than 1 oz. of cocaine and $345 CDN. In the residence, the police found 6843.54 g of marijuana, 1370.84 g. of cocaine, 194.71 g. of ecstasy, and a few thousand dollars CDN in a safe. Counts 1 to 6 and 25 refer to a loaded Smith & Wesson 44 Magnum handgun found in the residence, with six rounds in the cylinder. Counts 7 to 12 refer to a 40 calibre Kahr handgun found in a box in the residence which contained six rounds of ammunition. Counts 13 to 18 refer to a Davis 32 calibre handgun, with five rounds in the magazine located in the home. Counts 19 to 24 refer to a 40 calibre Heckler and Koch handgun with 10 rounds in the magazine found in the residence in a holster. As well, there was a separate magazine in the holster in which there were 10 rounds of ammunition. Count 25 alleges that the Smith & Wesson handgun was stolen in a break and entry in November 2011. Counts 26 to 33 refer to breaches of prohibition orders involving four handguns and four separate sets of ammunition, for a total of eight charges. In addition, the police found 34 cell phones in the residence. In the bedroom where the Heckler and Koch handgun was found in a holster in the night table, there were also numerous pieces of identification, including a social insurance card and a driver's licence, in the name of Hanif Jamal. Evidence was lead that Mr. Jamal had a criminal record (2003) for possession for the purpose of trafficking in a cannabis product in respect to which he was sentenced to serve a conditional sentence of four months.
The Evidence
[5] Alnasir Jamal Ismael, the 54 year old uncle of Hanif Jamal testified that he would be prepared to have the defendant live with himself and his mother, Zarina Jamal at 671 Huntingwood drive in Toronto, a residence that he jointly owns with his mother. He stated he would be willing to act as surety in the amount of $200,000.00 ─ the entire equity he and his mother own in the home. He gave evidence that the residence is a 3 bedroom townhouse and the plan would be for the defendant to reside there under house arrest. He stated that he worked weekdays between 9:30 am and 6:00 pm and when he was at work his 75 year old mother would be present in the home at all times to supervise the defendant. He would be prepared to call the residence daily, while at work, to check on Mr. Jamal ─ a communication he currently maintains to stay in contact with his mother throughout the day.
[6] Francois Roach, a 29 year old friend of Mr. Jamal, gave evidence that he would act as surety in the amount of $5000.00 and would assist with supervision by taking the defendant out of the residence under his control from time to time. He stated he was employed in security work and was not aware of any prior drug involvement by Hanif Jamal. He said he met Mr. Jamal some years ago while working in night clubs in the entertainment district of Toronto as a bouncer and his more recent contact with the defendant has evolved into a social relationship.
[7] Sean DeFreitas, a 37 year old construction worker from Ajax Ontario, was prepared to act as surety in the amount of $50,000.00. He knew Mr. Jamal from a soccer league and in recent years they would go out once or twice a week to parties in clubs in Toronto that the defendant had organized as promoter. He would also be prepared to supervise Mr. Jamal while out of Mr. Ismail's residence as one of the persons authorized to accompany him while in the community. He said he was not aware of any drug involvement on the part of Mr. Jamal.
[8] Zarina Jamal, the defendant's 75 year old grandmother, stated that she was willing to supervise Mr. Jamal and ensure he stays in the residence at all times with a few exceptions ─ when accompanied by authorized persons. She was prepared to sign bail in the amount of the equity in the residence she jointly owns with her son and would contact the police if she became aware that Mr. Jamal had left the residence or was in breach of any other bail condition. She appeared to be aware of the defendant's record for possession for the purpose of trafficking in cannabis in 2003 but was not sure about what he did with his time besides taking courses and helping out in his father's video store. It was evident that Ms. Jamal faced some challenges in terms of mobility and cognitive awareness.
Analysis
[9] This is another Toronto case involving a determination of whether pre-trial release is appropriate for a person charged with a number of offences involving drugs and firearms. Each case must be decided on its individual circumstances with particular scrutiny of any specific plan for proposed release. Counsel for the defendant is correct in pointing out that there are no criminal offences that preclude an individual from being admitted to interim release. And of course the underlying principles contained in the Criminal Code must be uniformly applied. Where firearms are involved, public interest and concern in respect to the tertiary ground is often the primary issue at a judicial interim release hearing. The case law is clear that "public clamour" alone cannot justify the detention of an accused on the tertiary ground. Yet there are many bail cases in which the strength of the Crown's case in combination with allegations involving the possession of guns and drugs, often result in a detention order on both the secondary and tertiary grounds. If I have not referred to every submission made by counsel today, it should be understood that I have taken all arguments into account in reaching my decision on interim release.
[10] In this case, Mr. Jamal has a record for trafficking, and the evidence against him is strong, particularly in terms of his directing the police to the handgun found in the residence and his admission of ownership of the large quantity of drugs. There are four firearms with ammunition found in his residence, three of which were loaded. In addition there are very significant quantities of drugs, including more than a kilogram of cocaine. Most telling is the fact the police found 34 cell phones in the residence and personal identification belonging to Mr. Jamal in close proximity to the handgun found in the bedroom. The holstered gun is a particular concern because the normal and regular use of a holster is to facilitate the carrying if a firearm on the person. In addition, upon arrest, Mr. Jamal was found leaving his residence in a vehicle and in possession of a quantity of marijuana and nearly an ounce of cocaine.
[11] An argument has been made that Mr. Jamal should be detained on the primary ground on the basis of R. v. Pearson [1972] 3 S.C.R. 665. The position taken is that the sentences for these offences will create a risk that an accused will abscond rather than face trial. I am satisfied that on the basis of the roots Mr. Jamal has in this community, the sizeable sureties being offered, and the fact his immediate family is facing many of the same charges, there is no significant risk he will fail to appear for trial and I would not be prepared to detain him on the primary ground. On the secondary ground, and notwithstanding the willingness of his sureties to offer a fairly extensive plan of supervision, I believe there still exists a significant likelihood of the commission of an offence or offences if released and I am not satisfied that Mr. Jamal has met the onus on the secondary ground. Notwithstanding the virtual house arrest and controls proposed by his sureties, I am not satisfied the public could be adequately protected from an individual who, while presumed innocent of these offences, has the appearance and profile of someone heavily involved in the narcotics business at a commercial level and using loaded firearms as the tools of his trade. As well, I have serious doubts that his 75 year old grandmother is up to the challenge of monitoring his every movement and his use of telecommunication services on a daily basis. Finally, the eight allegations of possessing firearms and ammunition while under a prohibition order raise serious questions as to whether he would comply with a release order requiring that he not have in his possession any firearms or other weapons. I agree with counsel that there is little concern about any interference with the administration of justice given the fact that virtually all of the prosecution evidence will come from police witnesses ─ still, there remains a substantial likelihood that this defendant, who is seemingly so heavily involved in such a highly lucrative commercial enterprise as a way of life will be able to discontinue his criminal activity if released.
[12] On the tertiary ground, there are a number of factors that support detention. (1) The allegations create an inference of trafficking at a relatively high level involving the possession more than a kilogram of a controlled drug the Ontario Court of Appeal has described as a pernicious substance (cocaine). This suggests a drug trafficking involvement in the mid to upper range and having regard to 34 cell phones on the premises and a four (three loaded) handguns including one that was stolen in a break and enter in 2011, and one in a holster, a very significant level of participation in the criminal drug subculture. The gravity of these offences is very high and his admission of ownership of the guns and drugs make this a very strong case for the Crown. (2) The allegations here describe the presence of readily accessible, loaded firearms and suggest an ever-present awareness of the likelihood of sudden gunplay in and outside his family home in a residential neighbourhood. The purpose of these handguns can only be to injure or kill. While there is no evidence firearms were used, the circumstances of the search and seizure create the spectre of an 'armed camp' rather than a family residence. (3) While the facts of this case remain unclear at this stage and one recognizes that there may be a successful attack on the constitutionality of the search warrant, at least at present it may be said that there have been no preliminary suggestions that the search warrant in this case was obtained by a breach of Mr. Jamal's rights under the Charter. (4) If convicted, Mr. Jamal faces a very significant sentence of imprisonment for the drugs and a minimum sentence of three years for each loaded firearm. In my view, the maintenance of confidence in the administration of justice militates against Mr. Jamal's release.
Conclusion
[13] In conclusion, the alleged involvement of Mr. Jamal in the possession of loaded firearms, and in drug trafficking at a relatively high level has resulted in factors and considerations that impact in a significant way on the question of pre-trial detention and I have determined that Mr. Jamal has not met the onus on a balance of probabilities of satisfying this Court that he should not be detained on both the secondary and tertiary grounds.
[14] As a result of the foregoing reasons, Mr. Jamal will be ordered detained.
Released: April 13, 2012
P. A. Harris J.