Court File and Parties

Court File No.: Halton, 10-3898 Date: 2012-04-24 Ontario Court of Justice

Between: Her Majesty the Queen — and — Tola Omar

Before: Justice F. L. Forsyth

Heard on: March 6, April 17 and 24, 2012

Written Reasons for Judgment released on: May 11, 2012

Counsel:

• Mary Ward, John Dibski, for the Crown
• Vincenzo Scaramuzza, for the accused Omar Tola

FORSYTH J.:

Background and Charges

[1] Mr. Omar was charged with three counts of robbery and two counts of being masked with intent arising out of November 25, 2010 robberies at an Oakville Mac's Milk Store and in Mississauga, a Rabba Fine Foods Store. He was charged with four co-accused. All of the accused elected trial by judge and jury and a preliminary hearing was conducted. The evidence on the preliminary hearing revealed that there were no weapons used by any of the robbers in these incidents. Identification was almost the sole issue at the preliminary hearing and all counsel argued that there was insufficient evidence of identification of their respective clients, including Mr. Scaramuzza on behalf of Mr. Omar, to order them to stand trial.

[2] After receiving written submissions from four counsel, including the Crown, and oral submissions from Mr. Scaramuzza, I ordered all of the accused, including Mr. Omar to stand trial on the Oakville Mac's Milk Store robbery which is represented by counts 1 and 2 on the Information on which the preliminary hearing was conducted.

[3] I then found that there was insufficient evidence upon which to order any of the co-accused, including Mr. Omar, to stand trial on counts 3, 4, and 5, the Rabba store robbery and I discharged all accused on those counts. These orders pursuant to s.548 of the Criminal Code were issued by this court on February 23, 2012.

Bail Review Application

[4] At the conclusion of the preliminary hearing pursuant to s.523(2)(b), Mr. Scaramuzza brought a bail review application before this court. That matter was conducted on March 6, and April 17, 2012.

[5] The evidence on the bail review revealed that Mr. Omar had been detained by Justice of the Peace Mills on December 23, 2010 on these charges. On this application for a review of his bail the onus is on Mr. Omar to show cause on a balance of probabilities why his detention order should be vacated at this time. Absent an error in principle or law by the justice of the peace, a material change in circumstances is necessary to justify such a vacation of the existing order, see R. v. Ferguson [2002] O.J. No. 1969, par. 13 Hill J., SCJ.

Evidence from Preliminary Hearing

[6] I will set out the summary of the evidence on which I ordered Mr. Omar to stand trial on counts 1 and 2 from my written reasons for that ruling on February 23, 2012:

[161] Mr. Omar was also found as a passenger in the motor vehicle with Mr. Sheikh-Hussein when it was stopped by P.C. White shortly after the Mac's Oakville robbery.

[162] In the Mac's robbery still photos, I observed that one of the robbers was wearing shoes with a white sole border and what appeared to be a white ribbed bottom, clearly visible. Similar shoes were located in Mr. Omar's residence and seized. The fact that there may have been two other male parties living in the same apartment at the same time as Mr. Omar who, as Mr. Scaramuzza argued, might have been the owners of those shoes, I find would be the proper subject of competing inferences which should be left to a properly instructed jury.

[163] Again, in the Mac's Milk still photos, I find that one of the robbers was clearly wearing a white hoodie with a dark square patch at the neckline. This was clearly visible on one of the photos when looking at this person from the rear and it was only visible on one of the robbers at the Mac's store. That particular robber, I also observed, was one and the same who was wearing the white bordered shoes with the white ribbed soles. The white hoodie which was seized from his residence has a black square patch visible when the hoodie is turned inside out.

[164] I find that the totality of this evidence would be the proper subject for consideration by a properly instructed jury in the context of all of the other indicia from the Mac's Milk still photos on the issue of whether or not Mr. Omar was a s. 21 party in that Oakville robbery.

[165] As an aside, I find that the evidence of the blue jeans that were seized from Mr. Omar's residence with white stitching on the rear pockets is irrelevant evidence because no such design was visible in the Mac's Milk Oakville still photos on the rear pockets of any of the Mac's robbers. I should qualify this finding by saying that this is my view and I realize that a properly instructed jury would be given the opportunity of coming to their own conclusion on that point.

Bail Review Hearing - March 6, 2012

[7] On March 6, the first day of the bail review hearing, Mr. Scaramuzza called Marian Salad as a proposed surety for Mr. Omar. She testified that she is 44 years of age and is employed as a nurse at St. Joseph's Hospital in Brampton. She is divorced and is raising four children. She is a friend of Mr. Omar's mother and she knows that Mr. Omar and his mother live at 90 Jamestown Avenue address in Toronto and that address is only 15 minutes away from her own address.

[8] She testified that she was well aware of the responsibilities of a surety and she hoped that Mr. Omar would obey her if she was supervising him in any way. She acknowledged that she realized he has a record for drug and weapon offences that occurred while he was in custody in Maplehurst Correctional Complex after his initial detention order. She said that she would be able to recognize drug use if he was to engage in that type of activity on bail and she would make sure that he did not associate with his co-accused if he was prohibited from doing so.

[9] In cross-examination she conceded that she was not aware of additional misconducts that Mr. Omar had incurred in Maplehurst as recently as December 2011.

[10] She also said that she works 12 hour shifts three or four days a week. She said that she had $5,000.00 equity or more in her house that she could offer as no deposit monies on a bail recognizance.

[11] She said that she would check on Mr. Omar mostly by phone and keep on touch on a constant basis with his mother.

[12] In re-examination she pointed out that her duty, she felt, was to the judge if Mr. Omar was released on bail, and she would do everything possible to supervise him given her own circumstances. The matter was then remanded to April 17, 2012 for continuation.

Bail Review Hearing - April 17, 2012

[13] On April 17th, Kedir Ali was called as another proposed surety by Mr. Scaramuzza. He testified that he is Mr. Omar's stepfather. He has been married 20 years to his mother and they live at 90 Jamestown Avenue in Toronto. He stated that Mr. Omar himself has one young child.

[14] Mr. Ali said that he had signed bail before for Mr. Omar and if Mr. Omar does not obey this proposed recognizance on review he would certainly call the police.

[15] He stated that Mr. Omar had been on bail for one year before his arrest on these current charges. His bail concerned a charge of assault against his girlfriend at the time which eventually was resolved by way of a s.810 peace bond recognizance. He said that Mr. Omar had not breached that bail and indeed the Crown eventually withdrew the assault charge in favour of the peace bond.

[16] However, he also testified that Mr. Omar had failed to appear in court on one occasion on the assault charge before it was withdrawn and he was charged for that offence. He said that his mother then took Mr. Omar to the police station to turn him and it had something to do with a misunderstanding, he felt, about the importance of Ramadan, the sacred Muslim holiday and the competing requirements of that holiday with Mr. Omar's obligation to attend court. In any event, he said that his information was that the Crown had eventually withdrawn that failing to appear charge as well. I can say at this point that the Crown did not challenge Mr. Ali's understanding on the withdrawals of these charges.

[17] Mr. Scaramuzza asked him if he was aware of the charges that had arisen in Maplehurst while Mr Omar was in detention on his detention order by Justice of the Peace Mills. Indeed Mr Ali was aware of them and it was established through his evidence that Mr. Omar had been charged with a s.4(1) CDSA offence, possession of cocaine, and a s.90 Criminal Code offence involving the possession of a weapon. He eventually entered a plea of guilty on those charges, said Mr. Ali, and he served a sentence of four months in jail while being held in Maplehurst. He understood that his sentence was imposed on May 19, 2011.

[18] He confirmed that Mr. Omar had previously worked at the airport but now plans to return to school.

[19] Mr. Ali said that he has no criminal record and he would ensure that Mr. Omar had no contact with the two co-accused who are still at large on bail and he would enforce any curfew imposed by the court.

[20] He explained that he is not working at the present time and therefore has time at home to supervise Mr. Omar because he has had a back problem for two years that has prevented him from working.

[21] He testified that he has $500.00 in his personal bank account and he would offer that money as a surety deposit if required. He also said he was familiar with Ms. Salad and he would work with her to help supervise Mr. Omar.

[22] In cross-examination he conceded that he and Mr. Omar had been at home between 7:30 and 8:00 p.m. on the night of November 25, 2010 when the subject robberies were alleged to have been committed by Mr. Omar and his co-accused. But, he guessed that Mr. Omar had left the home while Mr. Ali was asleep. Mr. Ali said that he went to bed at 10:30 p.m. and the next time he saw Mr. Omar was the next morning.

[23] With the respect to the fail to appear charge he discussed the fact that it had been the Muslim celebration Ramadan, and although he, Mr. Ali had told Mr. Omar to go to court, Mr. Omar nevertheless missed the court date on that day.

[24] He said that he was not really sure if Mr. Omar had completed his high school education or not. He simply knows that he does not attend high school any more. The Crown pointed out to him that in a bail review that Mr. Omar had already taken on March 25, 2011 with Mr. Justice Gray of the Superior Court of Justice in Milton, he had presented an affidavit to that court in which he said that he had completed his high school education. Mr. Ali had no comment one way or the other on that.

[25] With respect to Marian Salad, he said that she comes over every day to the house. However, the Crown challenged him on that evidence and after being challenged, Mr. Ali said that actually she came over "when she wants" or about twice a week.

[26] This concluded the evidence being called by Mr. Scaramuzza on behalf of the applicant Mr. Omar and the Crown was then asked to respond.

Crown's Evidence

[27] Mr. Dibski filed a Halton Regional Police Service occurrence report package as Exhibit #2 on consent in this hearing. This package contains documents from the records of Mr. Omar's detention period in Maplehurst from the date of his arrest to the date of the bail review which, both counsel agree, was approximately 5 ½ months. Exhibit #2 also contains a Maplehurst "client profile".

[28] Mr. Dibski informed the court that two of the co-accused of Mr. Omar whom I ordered to stand trial by this court on February 23rd on these charges, Mohamed Sheikh-Hussein and Mohammed Abdulle, were likely to be pleading guilty in the Superior Court. Mr. Dibski informed the court that they would likely admit all facts of the robbery, including Mr. Omar's role in the robbery of the Mac's Milk Store in Oakville.

[29] The Maplehurst records in Exhibit #2 revealed that on January 13, 2011 while serving his detention order of Justice of the Peace Mills, Mr. Omar was found with a 3 inch homemade knife wrapped in plastic, known as a "shiv" and various separately wrapped packages of crack cocaine concealed in his rectum. Both the knife and cocaine were concealed in his rectum. Halton Regional Police charged him with a s.90 Criminal Code offence and a s. 4 [1] CDSA offence arising out of that occurrence. These charges were outstanding at the time of the Superior Court bail review by Mr. Justice Gray on March 25, 2011. The records reveal that although in his affidavit on his bail review Mr. Omar indicated that he would be pleading not guilty to these charges, his CPIC record, also included within the material of Exhibit #2, reveals that he later entered a plea of guilty and was sentenced to four months of incarceration by Justice Brown of the Ontario Court of Justice in Milton on May 17, 2012. These facts are not in dispute.

[30] The Maplehurst records also reveal that on December 30, 2011 staff at Maplehurst observed Mr. Omar and another inmate, Mr. Manning, crouching down near the fire door that separates E wing from D wing. The staff entered the unit and found located on the floor at the fire door two small white envelopes, both containing a small amount of suspected marijuana. As a result of this occurrence Mr. Omar and Mr. Manning were removed from the unit and they initially denied any knowledge of the drugs. The report states that all indications are that it was Mr. Omar who was trying to pass the envelope under the door to the adjacent wing. Because of the minimal amount of evidence available, the report states that Halton Regional Police used their discretion and decided not to charge Mr. Omar with a CDSA possession offence. Instead, the matter was cleared by internal discipline procedures at Maplehurst.

[31] Mr. Dibski indicated that he had no further evidence to elicit in response to this application. Therefore I received submissions from both counsel and Mr. Scaramuzza as counsel for the applicant addressed the court first.

Position of the Defendant/Applicant

[32] Mr. Scaramuzza supplied a decision upon which he relies heavily in support of Mr. Omar's application. It is the case of R. v. Barlow [2002] O.J. No. 5652, a decision of Mr. Justice Blair, as he then was in the Ontario Superior Court of Justice on a bail review. Mr. Scaramuzza submitted that the rationale of Mr. Justice Blair in the Barlow case when appropriately applied to the evidence of Mr. Omar's application, almost mandates that this court release Mr. Omar on bail. I will cover the rationale of the Barlow case and compare it to Mr. Omar's case in my analysis.

[33] Mr. Scaramuzza argues that since the original charges of assault against Mr. Omar's girlfriend and the failing to appear charge that created the reverse onus in the first place on Mr. Omar's bail hearing in front of Justice of the Peace Mills have now been withdrawn by the Crown, this should be a relevant factor for the court's consideration at this time.

[34] He emphasizes that Mr. Omar has spent 12 months in pre-trial custody to April 17, 2012 inclusive after discounting the four month sentence which he received for the s.4(1) CDSA and s.90 Criminal Code charges which he had committed while incarcerated at Maplehurst on his detention order.

[35] Mr. Scaramuzza urges the court to find that Mr. Ali would certainly be a good prospective surety because he is not working and has the time available to supervise Mr. Omar. He acknowledges that Mr. Ali only has a limited amount of money available to put up as a surety on the bail, but he argues that should not be the determining factor.

[36] He commends Ms. Salad to the court as a reliable and conscientious person who would make a good surety and she has $5,000.00 that she feels that she can put up with no deposit on a prospective bail.

[37] Mr. Scaramuzza acknowledges that Justice Gray in the Superior Court of Justice was definitely concerned about the fact that the s.90 and s.4(1) charges were outstanding against Mr. Omar on the date of his bail review in front of Justice Gray on March 25, 2011. Because those matters have now resulted in a sentence being imposed on and served by Mr. Omar, Mr. Scaramuzza argues that he comes before this court now with a clean slate.

[38] Finally Mr. Scaramuzza certainly acknowledges that the onus on this bail review is on Mr. Omar on the standard of a balance of probabilities to demonstrate why his original detention order should be vacated.

Position of the Crown

[39] Mr. Dibski asked the court to find that the Barlow case can be significantly distinguished from this particular bail review application to such an extent that it should have little or no weight with this court. Once again I emphasize that I will deal with the Barlow decision in my analysis.

[40] Mr. Dibski submits that the mere fact that the court discharged Mr. Omar on counts #3, 4, and 5, the Rabba Fine Foods robbery occurring on the same evening as the Oakville, Mac's Milk robbery, should not be considered to be a material change in the circumstances of Mr. Omar to such an extent that the court should find that this should result in a finding that Mr. Omar has met his onus and shown cause why the original detention order ought to be vacated. At this point Mr. Scaramuzza did agree that he was asking the court to find that the discharge did amount to some material change in Mr. Omar's circumstances with respect to his eligibility for bail at this time.

[41] Mr. Dibski argues that the words "upon cause being shown" in s.523(2) of the Code should be interpreted as meaning that the applicant has to show a material change in circumstances when the matter is a reverse onus.

[42] Mr. Dibski argues that in essence all that Mr. Omar has been able to present to this court at this time is a set of proposed new sureties by comparison with the sureties that he proposed on his initial bail review in the Superior Court to Mr. Justice Gray. It was common ground between Mr. Scaramuzza and Mr. Dibski that three sureties had been presented to Justice Gray on March 25, 2011 and they did not include Ms. Salad. Mr. Ali, Mr. Omar's stepfather, was, however, one of the three original sureties presented on March 25, 2011 to Justice Gray.

[43] Mr. Dibski questions the influence that Mr. Ali could have over Mr. Omar on the basis that he was not even sure about Mr. Omar's school plans and there seemed to be some discrepancy between his evidence and the affidavit evidence supplied by Mr. Omar on that subject to Mr. Justice Gray on March 25, 2011.

[44] In particular, Mr. Dibski argues that Mr. Omar's behaviour while in Maplehurst which has been summarized already in this ruling shows that there is a risk of Mr. Omar committing criminal offences if he is released at this time or at the very least not obeying the conditions set by this court if I should release him.

[45] Mr. Dibski argues that the Crown's case is now stronger against Mr. Omar than it was at the time when I ordered him to stand trial almost exclusively on circumstantial evidence because two of his co-accused are now likely going to be entering pleas of guilty and implicating him. Mr. Dibski submits that this is a relevant factor to be taken into account and of course he is correct pursuant to s.518(1)(d) of the Bail Reform Act.

[46] Actually, Mr. Scaramuzza admits the relevance of this evidence but cautions the court against the pitfalls of co-accused and their intentions. In other words he submits that sometimes the best laid plans for the Crown involving co-accused or accomplice testimony do not bear fruit. In any event Mr. Scaramuzza's argument is based largely upon the rationale of R. v. Barlow and he argues that the prospect of conviction on the Barlow case was far stronger than it is against Mr. Omar in this case and yet Mr. Justice Blair allowed the bail review.

[47] In conclusion the Crown argues that Mr. Omar has not satisfied the onus upon him on this application on a balance of probabilities to show cause why this court should vacate his detention order imposed by Justice of the Peace Mills on December 23, 2010.

ANALYSIS

R. v. Barlow - Applicable Principles

[48] I agree with Mr. Scaramuzza that R. v. Barlow supra is applicable both from a standpoint of the principles enunciated by Mr. Justice Blair and his rationale for granting the bail review application of Mr. Barlow. However, I also agree with Mr. Dibski that the Barlow case is significantly distinguishable from the Omar application.

[49] The essential facts involving the bail review conducted by Mr. Justice Blair in Barlow are to be found in the following paragraphs:

[3] Philip Barlow is charged with breaking and entering and committing the indictable offence of sexual assault, and with sexual assault in relation to an incident that is alleged to have taken place on February 1, 1997. He was arrested on those charges in April of this year after police-obtained DNA evidence linked him to the offence. It is said that there is only one chance in two hundred and forty trillion that Mr. Barlow is not the perpetrator of the crime.

[4] On April 27, 2002, Mr. Barlow was denied bail by Justice of the Peace Hudson on the secondary ground. An application to review that decision was dismissed by Ewaschuk J. on May 16, 2002. Ewaschuk J. felt that detention was justified on primary, secondary, and tertiary grounds. A further review of the detention order, pursuant to Section 520 of the Criminal Code was heard yesterday. These are my reasons with respect to that application.

[5] The offence with which Mr. Barlow is charged is a particularly serious and egregious one. He is alleged to have broken into the complainant's residence in the early morning of February 1, 1997, while she was asleep, and to have forced her to perform the act of fellatio on him. The complainant and Mr. Barlow are complete strangers.

[6] It goes without saying, given the DNA match, that the Crown's case is an extremely strong one. Mr. Barlow is, nonetheless, entitled to the presumption of innocence at this stage of the proceedings, and to his right under Section 11(e) of the Charter not to be denied bail without just cause. It is the balancing of these two dichotomies -- the Crown's very strong case, and an accused's right to bail pending trial -- that poses the problem for the court in a case like this.

[7] ...

[8] Generally speaking, an accused person is entitled to be released from jail pending trial unless the Crown can show why the detention of the accused in custody is justified. Pursuant to Section 515(10) of the Criminal Code, detention is justified only on one or more of the following grounds:

a) where it is necessary to ensure the accused's attendance in court in order to be dealt with according to law;

b) where it is necessary for the protection and safety of the public, having regard to all the circumstances, including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice; and,

c) where it is necessary in order to maintain confidence in the administration of justice.

[11] Mr. Barlow has a criminal record. In 1991, he was convicted of breaking and entering. In 1997, he pleaded guilty to a charge of petty trespass, at which time a more serious charge of prowling at night had been withdrawn. It was in connection with the investigation of these latter matters that the police obtained the DNA evidence that apparently matches Mr. Barlow to the sexual assault crime for which he presently stands charged. The sexual assault charges are set for trial for three weeks in the Ontario Court of Justice commencing March 31, 2003.

[14] Finally, the Crown argues that given the virtual certainty of a conviction and the gravity of the crime, detention is required on the tertiary ground in order to maintain public confidence in the administration of justice.

[16] A very strong and responsible group of people have come forward on his behalf, and they have put forward a sensible plan for Mr. Barlow's release on strict "house arrest" terms, which adequately meets the Section 515(10) concerns. In addition, Mr. Adler contends the court should take into account the fact that Mr. Barlow will have served almost a year in pre-trial custody by the time his trial is reached at the end of March, 2003.

[17] The release plan proposed is that Mr. Barlow will live with his sister, Lara, with whom he has lived before, and that he not be allowed to leave the house at any time unless accompanied by one or more of the six sureties proposed, and then only for strictly limited purposes. Other conditions are proposed as well.

[18] A very impressive phalanx of family members and friends have come forward to pledge their support to Mr. Barlow, and to act as sureties and supervise his release, if that is granted.

[19] His father, David Barlow, testified here and at the earlier hearings. He is a retired professional engineer with many years experience with a major Canadian company. He is very involved at present caring for his quite ill wife, Philip Barlow's mother, but he is willing to put up the entire equity of three hundred thousand dollars in his home as security for his son's release, and to participate actively in his supervision.

[20] Mr. Barlow's two sisters, Lara and Christine, and Lara's husband, Christopher, are all solidly rooted in the community and employed as well, and prepared to risk posting substantial security, as well as to supervise Mr. Barlow directly if he is released.

[21] In spite of the allegations he faces, his girlfriend, Victoria Chant, is prepared to post seven thousand dollars in security and to supervise as well. She is a full time student at the University of Waterloo, but lives with her mother in Toronto when she is not at school or is on one of her co-op programmes. Her mother, Diana Chant, has sent a letter of support.

[22] Dawn McPhail, a long time friend and a manager at a research company in Waterloo, also testified and indicated her willingness to come to Toronto on weekends to help supervise Mr. Barlow, if released, and is willing, as well to post security in the amount of one thousand dollars.

[26] As to the secondary ground, I am similarly satisfied that the same terms of supervision and "house arrest" are adequate to meet concerns about the protection of the public pending Mr. Barlow's trial, including the complainant's fears. It is natural in any crime such as this that the complainant will be fearful if the alleged assailant is released.

[27] The question is whether terms of release can be fashioned that reasonably protect against those fears turning into reality pending trial. In my view, in the circumstances of this case, they can. As to the rest of the public, and the likelihood of Mr. Barlow committing other offences while released on bail, the evidence does not support such a likelihood.

Tertiary Ground Analysis in Barlow

[50] At paragraphs 31 and 32 Mr. Justice Blair stated what he felt to be the principal issue on Mr. Barlow's bail review application:

[31] The principal difficulty on this application is whether Mr. Barlow should be detained on the tertiary ground, that is, on the ground that "detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment".

[32] Put bluntly, it boils down to determining whether, when the offence is a serious one, the Crown's case is apparently very strong, and the accused faces a lengthy term of imprisonment, an accused's right to bail becomes academic. In other words, if conviction and lengthy imprisonment are almost certain, should society therefore just lock up the accused immediately and keep him or her there while the trial process ultimately confirms that eventuality.

[51] After quoting with approval from Mr. Justice Barr in R. v. Haidu (1984), 14 C.C.C. (3d) 563 at p. 570 that: "Imprisonment prior to trial should be the last resort, and, in my view, that is the spirit of the bail legislation", Mr. Justice Blair refers extensively to the decision of R. v. Stevenson [1998] O.J. 4390, a decision of Mr. Justice Glithero of the Ontario Superior Court of Justice. Mr. Justice Glithero was focusing upon the issue of whether or not the public would think justice was being properly administered if an accused was released in circumstances where the prospect of conviction was considerably high. Mr. Justice Blair was also addressing himself largely to that issue as it was advocated by the Crown in Barlow.

[52] At paragraph 37 Mr. Justice Blair quotes Justice Glithero as saying at paragraph 37 of Stevenson supra:

[37] Finally, at paragraph 37, he stated:

In my opinion, the notional member of the public whose confidence we should seek to maintain is that reasonable, fair minded and informed individual who would take all of the circumstances into account. In my best assessment, that person would remain confident in the administration of justice if a person were released on bail, even on a serious charge, and even in the face of what appears, at the initial stages, to be a strong Crown case, as long as it is likely that the accused would attend trial, would not commit further offences, and would not otherwise interfere with the administration of justice. If these concerns are satisfied, then the granting of bail does nothing more than delay incarceration, if in fact the Crown's case is as strong as it is billed. To deny bail, in circumstances of an allegedly strong case, in order to maintain public confidence runs the risk of invoking the end result prior to the proper unfolding of the due process.

Sureties in Barlow

[53] At paragraph 40 and 41 Mr Justice Blair refers to the excellent and considerable sureties that were brought forward as prospective guarantors of Mr. Barlow's bail. At paragraph 41 Mr. Justice Blair vacated the previous detention orders in order that Mr. Barlow be released on a recognizance with sureties and various conditions. The sureties were listed as follows:

David Barlow $150,000.00 (Mr. Barlow's father)

Lara Barlow (sister) $25,000.00 (jointly with her husband, Chris Coughlin)

Chris Coughlin $25,000.00 (brother-in-law, joint with his wife Lara Barlow)

Christine Barlow (sister) $25,000.00

Victoria Chant (girlfriend) $7,000.00

Dawn McPhail (friend) $1,000.00

[54] At paragraph 42 Mr. Justice Blair stated:

…I am very impressed by the commitment and resolution of your family members and supporters, and by their integrity, and I have been satisfied that they will be able to ensure that you abide by the terms I have just outlined, and that you will do so. …

[55] At paragraph 43 Mr. Justice Blair stated:

So in the end, in my opinion, the Crown does not meet the onus of establishing just cause for the continued detention of Mr. Barlow in the circumstances presented here….

Distinguishing Barlow from Omar

[56] It is to be noted that the onus on this particular bail review application is on Mr. Omar on a balance of probabilities and not on the Crown as seemed to be the case in the Barlow decision.

[57] With respect to the number and quality of the sureties being advanced by Mr. Omar by comparison with those in Barlow I would simply state that a bail review is most certainly not meant to be a contest of sureties by comparison with the quality of previously advanced sureties per se. However, Mr. Justice Hill in R. v. Ferguson [2002] O.J. No. 1969, stated at paragraph 17 and 18:

As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validly of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention. For example in Regina v. Baltovich (2000), 131 O.A.C. 29 (C.A.) at 33, Rosenberg J.A. consider the post-detention changes in surety availability to be significant enough to constitute a material change.

While the matter is far from free of doubt on this issue, for the purposes of this application, I am prepared to assume the nearly five-fold increase in the quantum of surety commitment with the availability of the applicant's parents to enforce house arrest conditions could be seen as capable of being a material change in circumstances.

[58] While I am certainly not faulting the sincerity of Ms. Salad or Mr. Ali in their desire to assist Mr. Omar by whatever supervision they can offer to this court for a prospective bail release, nevertheless I agree with the Crown that their evidence does not describe a potential supervisory situation that would be akin to that which was provided to Mr. Justice Blair in the Barlow case. I am not simply referring to the monetary amounts but rather to the nature and quality of the supervision that would be able to be exercised by Ms. Salad and even to some extent, by Mr. Omar's stepfather, Mr. Ali. Although Mr. Ali is residing at home and unable to work at the present time, he was very candid in admitting that on the night in question that gave rise to the alleged robberies and his step-son's participation in them on November 25, 2010, Mr. Omar could well have left the home and returned the next morning while Mr. Ali was asleep without his knowing it.

Misconduct in Custody - Determinative Factor

[59] However, in my view the factor that informs my ruling on this application to such an extent that I find that Mr. Omar had been unsuccessful in satisfying me on a balance of probabilities that he has shown cause or a material change in circumstances from his original detention order that would necessitate that I vacate his detention order and release him on a recognizance with conditions, is the pattern of behaviour by him within Maplehurst Correctional Complex since his detention order was imposed on December 23, 2010. If anything, I suppose that it could be said that the material change in circumstances that has occurred since his detention order was imposed on December 23rd/10 would be the fact that he committed the offences of concealing illicit contraband in the form of a very serious drug, cocaine, in his rectum, along with a homemade weapon similarly concealed while being detained in Maplehurst and awaiting his trial on these charges.

[60] In addition, his subsequent misconduct involving the envelope of a small amount of marijuana in his cell in late December 2011 or early January 2012 which occurred even after he served his four month sentence for the previous two charges after he entered a plea of guilty, and while he was in the midst of the conduct of this particular preliminary hearing on which I have just ordered him to stand trial, is troublesome to this court with respect to relying upon him to obey conditions of a release order at this time. In that sentiment I agree with the Crown's argument.

Decision

[61] I therefore find that Mr. Omar has not satisfied me that he has shown cause on a balance of probabilities that I should vacate the detention order of Justice of the Peace Mills and this bail review application is dismissed. The applicant's detention order remains in force and effect.

[62] These are my written reasons for my summary oral ruling on April 24, 2012. I wish to thank both counsel for their very professional carriage and presentation of this application.

Released: May 11, 2012

Signed: "Justice Frederick L. Forsyth"