Publication Ban Order

Pursuant to Section 517(1) of the Criminal Code of Canada (Bail Hearings)

Information #: 10016657/12-40009095

Court: Ontario Court of Justice Region: Toronto Region Division: Metro North

Order

There will be an Order that the evidence taken, the information given or the representations made and the reasons given or to be given at this Bail Hearing, shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a Preliminary Inquiry or if the accused is tried or ordered to stand trial, before the trial is ended.

Dated at the City of Toronto in the Province of Ontario on the 14th day of December 2012.

Signed

P. Kowarsky Justice of the Peace Ontario Court of Justice

R. v. Ramy Nassar

Between: Regina and Ramy Nassar

Court: Ontario Court of Justice Location: Toronto, Ontario Judge: P. Kowarsky J.P.

Heard: December 14, 2012 Judgment: December 19, 2012

Crown Counsel: Mr. D. Caruthers Defence Counsel: Ms. S. Pennypacker

Reasons for Judgment

P. KOWARSKY J.P.

A. Overview

[1] These are my reasons for Judgment in the matter of Ramy Nassar, who appeared before me on December 14, 2012 seeking an Order for Judicial Interim Release.

[2] At the commencement of these proceedings, Defence Counsel requested that I impose a Publication Ban. Being bound by law to grant the request, I imposed a Publication Ban pursuant to the provisions of section 517(1) of the Criminal Code.

B. Outstanding Charges

[3] On October 18, 2012 Mr. Nassar was charged with:

• Assault causing bodily harm to his girlfriend, Stacie Ikka; and
• 2 counts of breaching his 'keep the peace and be of good behaviour' condition of the Probation Order made on October 3, 2011.

[4] On October 18, 2012, after a contested Bail Hearing, he was ordered detained in pre-trial custody by a Justice of the Peace.

[5] On November 5, 2012, the accused brought an Application for Review to the Superior Court of Ontario. The court granted an Order for Mr. Nassar's release on a Recognizance of $106,000.00 with three named sureties.

[6] The allegations with respect to those charges are that the accused and the complainant were in a dating relationship, and had just moved into a home together. An argument caused her to leave the home. After a telephone discussion with the accused at midnight, she agreed to return to the home to try and resolve the dispute.

[7] At about 1:00 am, Ms. Ikka made a 911 call in which she stated that she had been seriously assaulted. According to the Police Synopsis, Ms. Ikka had suffered serious injuries to her face and body, and was taken to the hospital for medical treatment. Amongst her injuries were a swollen face, black eye - swollen and closed, and fracture of facial bones. On consent, the Crown submitted two photographs reflecting the significant injuries to Ms. Ikka. These photographs were entered into evidence collectively as Exhibit #2.

[8] At the commencement of these proceedings the accused was bound by a Superior Court Recognizance and a Probation Order made by the Ontario Court of Justice.

C. Current Charges

[9] On December 7, 2012 in a six-count Information the accused was charged with the following:

• Three counts of failing to comply with Recognizance;
• One count of failing to provide a Breath Sample; and
• Two counts of failing to comply with Probation.

[10] The allegations in regard to these charges are as follows:

• On December 7, 2012 at about 10:40 p.m. police officers knocked on the door of the residence located at 34 Brightwood Street in Toronto at which the accused was supposed to be residing with his mother who is one of his three sureties. They were conducting a Bail Compliance check. They asked his mother, Salwar Kamar, where the accused was. According to the synopsis of the police, the mother told them that the accused was residing at another address, and refused to provide that address to them.

• According to the testimony of Salwar Kamar, when the police came, she did give them the address at which the accused was then residing, namely at 14 Heathcote Avenue, Toronto. The synopsis indicates that the police went to that address where they saw the accused running out of the house and get into his mother's Ford motor vehicle. As he drove onto the street, the police stopped him. They detected an odour of alcohol on his breath, and his eyes were bloodshot. When the police requested that he provide them with a sample of his breath, he refused.

• It is common ground that the accused had given notice of his change of address as required by his Bail Order, and that he was entitled to reside at the 14 Heathcote Avenue address at that time. Consequently, the Crown withdrew the breach charge in respect of the residence condition.

• However, when the police stopped him, he was outside of his residence and the lone occupant of the vehicle. Consequently, he was charged with breaching the 'no alcohol' condition and the 'house arrest' condition of his Recognizance, and thereby breaching the 'keep the peace and be of good behaviour' condition of his Probation Order on two counts.

D. Revocation of Bail

[11] On consent, I granted the Crown's application for revocation of the accused's bail pursuant to the provisions of section 524 of the Criminal Code, and as I was required to do, I signed the Certificate of Default.

E. The Onus of Persuasion is Reversed

[12] The onus is on the accused to satisfy the court, on a balance of probabilities, on all three grounds under section 515(10) of the Criminal Code that, notwithstanding the aforegoing, he should be released on bail with respect to all eight charges which he is facing.

[13] The Crown's concern is specifically on the secondary ground under section 515(10)(b), which provides that the detention of an accused in custody is justified—

where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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.

F. The Rights of the Accused

[14] The foundation of our criminal justice system is the presumption of innocence, which means that an accused is held to be innocent throughout his passage through the criminal justice system until such time as he has been found guilty by a court of competent jurisdiction.

[15] Section 11(e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause, and Section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security except in accordance with the principles of fundamental justice.

[16] The abundant jurisprudence with respect to these rights makes it clear that:

Imprisonment prior to trial should be the last resort. See R. v. Hajdu (1985), 14 C.C.C. (3d) 563 (Ont.H.C.)

Pre-trial detention is extra-ordinary in our system of criminal justice. See R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont.C.A.)

There are no categories of offences for which bail is not a possibility. See R. v. Blind (1999), 139 C.C.C. (3d) 87 (Sask. C.A.); R. v. Framboise, [2005] O.J. No. 5785 (Ont.C.A.)

Bail will be denied only in a narrow set of circumstances. See R. v. Pearson, [1992] 3 S.C.R. 665.

[17] Defence Counsel provided me with two Superior Court cases for consideration:

R. v. Thomson is a case where the accused was charged with serious crimes, including attempted murder, conspiracy to commit murder and aggravated assault, all related to a nearly fatal knife attack on her lover. She was initially released, and then charged with breaching her 'house arrest' condition. In granting an Order for judicial interim release, the court said the following at paragraph 54:

When there is a breach of release conditions, the court should not automatically conclude that tighter conditions are required. The court should look anew at the entire circumstances of the case and the accused, and then devise the least restrictive conditions consistent with the goals of interim release. The object of interim release is not to establish a regime of ever tightening restraint on liberty designed to set the accused up to fail.

The second case is R. v. A.B. which involved an accused charged in the tragic Boxing Day murder of a 15-year-old girl during a gunfire battle between rival gangs in downtown Toronto. In ordering the release of the accused, the court said the following at paragraph 11:

In R. v. Pearson (1992), 77 C.C.C. (3d) 124 (S.C.C.) Chief Justice Lamer held that section 11(e) contained two distinct elements. The first is the right to bail that is "reasonable" in terms of quantum of any monetary component and other applicable restrictions. The second element, the right not to be denied bail without 'just cause' means that bail can only be denied in 'a narrow set of circumstances' where denial is necessary to promote the proper functioning of the bail system. Consequently, section 11(e) makes it clear that pre-trial detention is extraordinary in our system of criminal justice.

G. Analysis

[18] In R. v. Ljeskovica, [2007] O.J. No. 5227 (O.S.C.) the accused was facing charges of attempted murder, aggravated assault and threatening death. After being released on bail he was charged with breaching his curfew, and the Crown sought his detention. The Ontario Court of Justice ordered his release. The Crown applied to the Superior Court for a review of that decision. In reversing the decision of the court below, the Superior Court held as follows:

At paragraph 21:

It must be remembered that the accused was originally detained on the attempted murder and related charges. A member of this court concluded that the public could be protected by a release order that included a requirement that the accused abide by a curfew between the hours of 9:00 p.m. and 6:00 a.m., and reside with his surety at an address on LaRose Avenue in Toronto. By violating these requirements, and then trying to mislead the police by providing a false name, address and date of birth, the accused clearly upset the balance that was imposed by this court to protect the public, and left the public vulnerable. In failing to examine the effect of unhinging the balance created by the bail order, the justice erred in principle. The justice appears simply to misunderstand the significance of a breach.

And at paragraph 22:

It is quite clear that the justice does not understand that a serious breach of bail is a major consideration when adjudicating an application under s. 524, and not simply misconduct on the part of the accused that might result in the imposition of additional punishment if he is convicted. That is not only a proposition supported by logic, but was obviously Parliament's intent in providing a scheme for the vacating of a judicial interim release under s. 524.

[19] In the case at bar, the Superior Court saw fit to grant Mr. Nassar an order for judicial interim release on the assault and breach of probation charges from October 18, 2012.

The question before me is whether, when considered in conjunction with the charge of failing to submit to a breathalyser test, the alleged breach of both the 'no alcohol' condition and the 'house arrest' condition by being outside of his residence without a surety, which gave rise to the charges of two counts of breach of probation with respect to the condition of 'keep the peace and be of good behaviour' are of such a serious nature as to culminate in a Detention Order. In other words, has the accused clearly upset the balance that was imposed by this court to protect the public, and left the public vulnerable. R. v. Ljeskovica (supra).

[20] The court noted in Ljeskovica (supra) at paragraph 22 that:

Of course, not every breach of a recognizance should result in a detention order; but a serious breach, left unexplained, generally should.

H. The Apparent Strength of the Crown's Case

[21] Defence counsel submitted a copy of the Event Information in relation to the 911 call alleged to have been made by the complainant, Ms. Ikka, and contends that the Crown's case with respect to the assault charges are significantly reduced thereby. I respectfully disagree.

[22] The 911 call was made by Ms. Ikka informing the operator that "the husband was hitting her and tried to choke her." After she hung up, the operator called back, and the phone was answered by a male, which I infer was the accused. He said: "She fell and hit her forehead after throwing up." When considered in conjunction with the two photographs of the serious injuries which she sustained, and her hospitalization, I do not accept the veracity of the accused's statements as set out in the 911 Event Information.

[23] After the police and ambulance arrived, Ms. Ikka was rushed to the hospital. She sustained the injuries which I detailed earlier in this decision, and the photographs submitted appear to confirm that her injuries did not occur from a fall but rather from a beating which she received from the accused. I accept this evidence as credible, reliable and trustworthy. Moreover, the police arrested the accused in a motor vehicle while he appeared to be attempting to drive away. Consequently, in my view, the Crown's case appears to be supported by a strong evidentiary foundation.

[24] However, the kink in the Crown's case seems to be the contents of the complainant's affidavit dated the day before this hearing, and submitted, on consent as Exhibit #4. In this affidavit, the complainant swears that she was highly intoxicated when she made the 911 call, and was not in her right mind. At paragraph 15, she states:

I know that these allegations that I have made against Mr. Nassar are not correct and feel the need to come forward to clarify and clear up the inaccuracies contained in my statements [to the police but not a KGB] as I do not wish for an innocent man to be wrongly charged.

And at paragraph 16:

I do not fear Mr. Nassar in any way. In my view he does not pose any threat to myself whatsoever.

[25] This affidavit clearly purports to significantly undermine the strength of the Crown's case with respect to the assault charges. However, the affiant has not been cross-examined on the contents thereof, and when viewed against the backdrop of the 911 call, the photographs and the accused antecedents, I do not accept the affidavit evidence as credible or trustworthy.

I. The Plan of Release

[26] If the plan of release is sufficient to reduce my concerns on the secondary ground to an acceptable level, the accused must be released.

[27] The plan of release is almost identical to the previous plan which was acceptable to the Superior Court judge. The same three sureties would pledge a total of $106,000.00 to secure the release of the accused, who would reside with one of them. Defence counsel is requesting the court to impose a curfew in place of the house arrest, and, since he is involved in alcohol counselling, she is asking that I not impose a 'no alcohol' condition, but only a condition that he continue with alcohol abuse counselling. In effect, therefore, the accused is requesting less onerous terms than those on the recognizance which I revoked. Although this may well be acceptable as the court held in R. v. Thomson (supra), each case must be decided on its own merits, taking into account all the circumstances.

[28] Exhibit #5 is a Report dated November 6, 2012 from "Just for Today Harm Reduction Services" indicating that the accused is enrolled in the Domestic Abuse Anger Program and the Relapse Prevention Program. This will involve counselling for one and a half hours once a week, and after completing that program he would be placed in an Alcohol Relapse Prevention Program.

[29] Exhibit #6 is a letter dated December 10, 2012, from the same organisation, confirming that the accused has completed three sessions in the Anger Management component of the program, and is to enter the Alcohol and Drug Program "as soon as possible upon his release."

[30] In light of the thread of alcohol in relation to the accused's criminal conduct and his proposed entry into alcohol abuse counselling, I reject the evidence of his mother who testified that her son "does not drink at all." She also testified that she had been sleeping when the police knocked on the door. She was "very scared" but she told the police that he was at 14 Heathcote Avenue. The police officer who came to her house that night informed the Crown that the accused's mother had refused to provide the officer with the whereabouts of her son. She then called her son to tell him what had happened. Defence counsel submitted that the accused had panicked. However, logic suggests that if the accused had nothing to hide, why did he attempt to flee? Why did he not simply tell his mother to direct the police to the Heathcote address, and wait for them to come? I am satisfied that he panicked only because he had consumed alcohol, thereby breaching his Release Order.

[31] The third proposed surety testified that he was also residing at the 14 Heathcote Avenue address with the accused, but went to sleep at around 10:00 p.m. on the night in question, and that the accused had not consumed any alcohol prior to that. He told the court that he did not witness any of the activities that occurred in relation to the arrest of the accused, and that he only realised that the accused was not there when he awoke in the morning.

J. Sufficiency of the Plan of Release

[32] It is established law that the court must take into account the root causes of the accused's criminal behaviour and the steps being taken to address those root causes when considering judicial interim release. The accused's Criminal Record and his outstanding charges clearly point to problems of alcohol abuse and a lack of ability to manage his anger, perhaps when they both converge.

[33] On November 8, 2012 the accused signed a Recognizance of $106,000.00 with three named sureties. He clearly undertook that he would abide by all the conditions including that he abstain from the consumption of alcohol.

[34] According to the synopsis, upon arrest on December 7 there was an odour of alcohol emanating from him, and he refused to submit to a breathalyser test. Defence counsel did not concede that the accused is an alcoholic, but asked that I do not impose a 'no alcohol' condition; rather that the accused be involved in alcohol counselling.

K. Accused's Involvement with the Criminal Justice System

[35] On October 25, 1990 the accused was convicted of Dangerous Operation of a Motor Vehicle, and was ordered to serve a 90–day intermittent custodial sentence, and to comply with a Probation Order, the length of which I was not provided.

[36] On May 5, 2011, the accused was charged with Assault, Assault with a Weapon, and Threatening Death. He was released on a Recognizance. The complainant was his wife at the time.

[37] On July 1, 2011 he was charged with breaching the 'no contact' condition of his bail by allegedly attending at her home, assaulting her and Threatening Death. He was once again released on a Recognizance, one of the conditions of which was to abstain from the consumption of alcohol.

[38] On August 23, 2011 he was charged with breaching the 'no alcohol' condition of that Recognizance, and was sentenced to serve a thirty-day intermittent custodial sentence.

[39] On October 3, 2011, after pleading guilty, the accused was convicted of:

• 2 counts of assault;
• 2 counts of threatening death;
• 1 count of assault with a weapon; and
• 1 count of failing to comply with recognizance.

[40] After serving 45 days pre-sentence custody, his sentence was suspended, and he was placed on a Probation Order for 3 years. In respect of all of these convictions the victim was his wife at the time.

[41] On October 31, 2011, he pleaded guilty to failing to comply with his Probation Order by contacting his wife on October 26, 2011. I was not provided with the disposition of the court in relation to this conviction.

L. Disposition

[42] The ultimate question before me is whether the plan of supervision is such as to reduce my concerns on the secondary ground to an acceptable level. In other words, has the accused met his onus?

[43] Section 515(10)(b) requires the court to determine whether having regard to all the circumstances, there is or is not a substantial likelihood that the accused would commit further criminal offences which would endanger the welfare and safety of the community or interfere with the administration of justice, if he is released on the plan submitted.

[44] In R. v. Morales (1992), 17 C.R. (4th) 74 S.C.C., Chief Justice Lamer expressed the difficulty of evaluating the meaning of "substantial likelihood" when he said:

While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated.

[45] Although there are some inconsistencies in the evidence of Salwa Kamal and Karen Johnson-Basra, I do accept that the three proposed sureties would do their best to try and control Mr. Nassar and to ensure that he complies with all the conditions of his release. However, it is really up to the accused himself to ensure his compliance with each and every condition of release. I am not convinced that the plans for anger management and alcohol abuse counselling are strong or intensive enough to allay my concerns on the secondary ground.

[46] The current charges are alleged to have occurred on December 7, 2012, a mere one month after having been released on bail by the Superior Court on a Review of the Detention Order made by this Court, and about a month and a half after being charged with the very serious assault causing bodily harm offence. I am of the view that the accused's alleged breaches are serious, and clearly upset the balance that was imposed by this court to protect the public, and left the public vulnerable. R. v. Ljeskovica (supra).

[47] I take into account all the circumstances, as I am required to do, including the accused's criminal and alleged criminal behaviour over the last year and a half or so. I am satisfied on a balance of probabilities that, having regard to his criminal behaviour, if released on the proposed plan, the accused would commit further criminal offences which would endanger the welfare and safety of the community or interfere with the administration of justice. In regard to the latter, I make no finding save to say that the affidavit of the complainant gives me concern.

[48] For these reasons, I am not satisfied that Mr. Nassar has met his onus, and I order his detention primarily because of his previous convictions. I will endorse the Information accordingly pursuant to the provisions of section 515(9.1) of the Criminal Code.

[49] I thank both Crown Counsel Mr. Caruthers and Defence Counsel Ms. Pennypacker for the excellent manner in which they presented their respective cases to the court.

P. Kowarsky J.P.