Court File and Parties
Date: February 5, 2016
Court File Nos.: Brampton 14-9718, 15-6685, 15-11150
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mazin Hadi
Before: Justice J.W. Bovard
Heard on: January 28, 29 and February 3, 2016
Reasons for Ruling released on: February 5, 2016
Counsel:
- Ms. S. Anderson, counsel for the Crown
- Mr. B. Adetunji and Ms. C.E. Isaacs-Reynolds, counsel for the defendant Mazin Hadi
BOVARD J.:
Introduction
[1] Mr. Hadi brought an application for bail pursuant to s. 523(2)(a) of the Criminal Code. These are the court's reasons for its ruling on his application.
[2] Mazin Hadi is on trial for 14 charges related to domestic violence. He has been in custody on these charges since June 19, 2015. The Crown closed her case on January 22, 2016. The defence began its case, but the trial could not be finished that day. It was adjourned for a further 3 days of trial to April 4, 5 and 6, 2016.
The Nature of the Bail Application Proceedings
[3] Section 523(2)(a) of the Criminal Code states:
(2) Despite subsections (1) to (1.2),
(a) the court, judge or justice before which or whom an accused is being tried, at any time,
may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
[4] Mr. Hadi bears the onus on a balance of probabilities to show that a material change in circumstances has occurred since his detention on these charges, and that he should be released from custody. It is not a de novo hearing.
In R. v. Boston, the court held that on an application by the Crown to revoke the accused's bail at completion of a preliminary hearing, pursuant to s. 523(2)(b), the onus is on the Crown to show cause "by demonstrating a substantial or material change in circumstances as justification for vacating the release order made by the justice of the peace" (paras. 2, 3).
[5] The court held that it is not a de novo hearing. In paragraph 11, Justice Then cited The Law of Bail in Canada, as follows:
the better view is that the subsection permits the justice to vacate a previous release order upon the party demonstrating a change in circumstances of sufficient magnitude. I would go further and say that these changes ought to be focused on the events that transpired at the preliminary inquiry. That is why an avenue of review was provided at this juncture. This view is more in keeping with the structure of the review provisions as a whole. It is also bolstered by the fact that the general review provisions (ss. 520 and 521), which afford a broader scope of review, remain available to the parties until the time of trial. Given that s. 523(2)(b) applies to orders made under ss. 520, 521 and 525, permitting a free-standing review under this section would equip preliminary inquiry judges to conduct wholesale reviews of bail decisions made in the superior courts of criminal jurisdiction, a result that was never intended.
[6] In R. v. Prete, Justice Watt (as he then was) held that:
it is incumbent upon an applicant under subsection 457.8(2) [the predecessor to s. 523(2)] to demonstrate, on a balance of probabilities, a substantial change in circumstances in a respect material to the basis upon which detention has been ordered, namely, the primary or secondary ground, in order to discharge the onus of showing cause placed upon him or her under the subsection. The subsection does not envisage a hearing de novo akin to that held at first instance under Section 457.7(1), [now s. 515] nor an examination of such a hearing to identify error, which is clearly the function of a review under Section 608.1 [now s. 520 and s. 521].
The Grounds in Issue
[7] The primary and secondary grounds are the main grounds in issue, although both counsel made submissions on the tertiary ground as well.
Chronological Order of the Charges
[8] For the purpose of the bail application it will be easier to list the charges in chronological order.
| Date | Count |
|---|---|
| 15 DEC 13 | 1. Assault on Asma'a Rehan |
| 2. Threat death/bodily harm to Asma'a Rehan | |
| 1 FEB – 28 FEB 14 | 4. Breach Recognizance (boundary condition, Asma'a Rehan) |
| 1 MAR – 30 MAR 14 | 5. Obstruct Justice |
| 30 APR 14 | 3. Breach Recognizance (no contact with Asma'a Rehan) |
| 6. Threat death/bodily harm to Asma'a Rehan | |
| 7. Threat death/bodily harm to Ali Hadi (son) | |
| 8. Threat death/bodily harm to Reyan Hadi (daughter) | |
| 9. Threat death/bodily harm to Rania Mahdi (daughter) | |
| 14 APR – 1 JUN 15 | 10. Breach Recognizance (reside with surety) |
| 28 JAN 15 | 11. Breach Recognizance (boundary condition Asma'a Rehan) |
| 12. Breach Recognizance (boundary condition Asma'a Rehan) | |
| 15 DEC 13 – 1 JUN 15 | 13. Attempt Obstruct Justice |
| 14. Criminal Harassment of Asma'a Rehan |
[9] Mr. Hadi has been in custody on these charges since June 19, 2015. On December 9, 2015, his trial started as a three-day trial, however, it did not finish. It was adjourned to January 4, 5 and 6, 2016 for three more days, but it did not finish. It was adjourned to January 20, 21 and 22, 2016 for three more days, but it did not finish. Then it was adjourned April 4, 5 and 6, 2016 for three more days.
[10] On January 22, 2016, Mr. Hadi told the court that he was going to bring an application for bail. The court adjourned the case to January 28, 2016 for the bail hearing. The bail hearing did not finish on that day so the court adjourned it to January 29, 2016, but it still did not finish. The court adjourned the hearing to February 3, 2016 on which day the bail hearing finished.
The Evidence
[11] Mr. Hadi filed an affidavit in which he stated that he immigrated to Canada in 2003 and he is a citizen of Canada. He is 50 years old. The only family that he has in Canada is the two children that he had with the complainant, Ms. Rehan. In his affidavit he said that he would surrender his "passport". He did not say which passport he meant. He testified that he has an Iraqi passport, but he does not know where it is. In this case it would be difficult to surrender it.
[12] Aside from the charges before the court he does not have any outstanding charges. He stated that he does not have a criminal record. He said that he had "never even had provincial offences such as speeding tickets or motor vehicle violations". However, he admitted in cross-examination that he was convicted of speeding on March 11, 2008 and for driving without a valid permit on July 23, 2010. He said that someone told him that these convictions would be "erased" after three years.
[13] He has worked in various Middle Eastern countries as an engineer. He worked once in Canada at a medical laboratory. Currently, he is on social assistance. He said that he would have work if he were released, but there is no evidence to support this claim.
[14] He complains about the conditions at the jail. He said that he has "spent in excess of 100 days in lockdown conditions". There was no evidence to confirm this claim. He is very depressed due to his time in jail since the court detained him on June 19, 2015. He has not seen a psychiatrist about this, but a doctor in the jail prescribed medication for him to help him sleep. He stopped taking them because he heard that they have long-term complications.
[15] He testified that he rented an apartment while he was subject to a bail condition that he live with his surety. He did this so he would have a place to go during the day when his surety was working. His surety is married and his wife stayed at home during the day when the surety was working. In Mr. Hadi and his surety's religion it is inappropriate for a man to stay in the same house with a man's wife unless the man is there, too.
[16] He said contradictory things about the apartment that he had prior to his incarceration. In his affidavit, he said that the apartment is still available to him. His friends have taken care of paying the rent and doing what was necessary to keep the apartment ready for him when he is released from jail. The rent is $1,000 per month, but it is a subsidized apartment. He does not know how much of the $1,000 he has to pay. He said this in his testimony as well, but he also testified that he did not know what was happening with the apartment now. He only knew what was happening with it up to December 2015. He could not remember the apartment number or the number of his parking space.
[17] Mr. Hadi does not have anyone to act as a surety for him. He requests to be released on his own recognizance. The John Howard Society has agreed to monitor him. If he were released he is willing to abide by any conditions that they request and that the court imposes.
[18] A representative from the John Howard Society, Ms. K. Bricgemohan, testified. With regard to supervision, she said that they see accused persons once a week for a maximum of 45 minutes. More frequent reporting is not possible.
[19] Their plan for Mr. Hadi regarding accommodations is that he would go to a shelter for two weeks and then he would have to find an address that they would verify. After that, they assume that the accused lives where he or she is supposed to live. They do not confirm this other than to send them a letter to their address and ask them to bring it with them on their next visit. But she admitted that they do not really know where the accused is living, or where they are during the day.
[20] If a person fails to report they do not call the police right away. First, they send a letter to them. They do the same on the second and third failures to report. On the fourth failure to report they inform the police.
[21] With regard to programs, she testified that they cannot force accused persons to take programs.
[22] With regard to accused persons tampering with witnesses, they cannot provide any service concerning this.
The Position of the Defence
[23] The defence argues that the weaknesses revealed in the Crown's case as a result of the complainant's testimony and the passage of time since the court detained Mr. Hadi constitute material changes in circumstances. Even if the court were to convict him of all of the charges, he is now in a "time-served" situation. It would be unjust to require him to remain in jail until the end of his trial.
[24] These changes justify the cancellation of Mr. Hadi's detention order. He should be released on his own recognizance with strict conditions and under the supervision of the John Howard Society. This would satisfy any concerns that the court might have regarding the primary, secondary and tertiary grounds.
The Position of the Crown
[25] The Crown argues that although the complainant had some difficulty remembering certain things, overall her evidence is credible. Secondly, Mr. Hadi is not in a "time-served" situation. If Mr. Hadi is convicted of all of the offences, or of most of them, the Crown will ask for a sentence that will approximate his pre-trial detention calculated on a 1.5 per day basis.
Analysis
Did the Defence Show That There Is a Material Change in Circumstances?
The Complainant's Evidence
[26] The complainant Ms. Rehan's evidence is the lynch pin of the Crown's case. Her testimony is not flawless, but neither can it be said to be such that it can be dismissed at this stage of the trial before I hear the rest of the defence case.
[27] In addition, her evidence is not the whole of the Crown's case. There are other witnesses whose evidence is arguably confirmatory of her testimony. Also, there are many exhibits that tend to confirm the Crown's case to varying degrees. The defence argued on this application that she should not be believed because of what it feels are aspects of her evidence that render her completely incredible. However, the defence's position on Ms. Rehan's evidence is open to viable counterarguments by the Crown. These are matters that the court will have to decide after hearing all of the evidence.
[28] I note that the defence originally told the court that it was going to bring a motion for directed verdict. The court scheduled the motion, but the defence decided not to bring it. Therefore, it can be inferred that the defence concedes that there is some evidence with regard to all of the charges that if believed could result in Mr. Hadi's conviction.
[29] Consequently, I find that this ground for the application fails.
The Passage of Time
[30] By the time that Mr. Hadi's trial is complete he will have been in pre-trial custody for approximately 10 months. If for each day of pre-trial detention he receives credit for 1.5 days, as is usual, then he will have served the equivalent of a 15 month sentence.
[31] In R. v. Saini the court said at paragraph 34 that "There is authority for the proposition that time spent in pretrial custody that exceeds the length of any sentence that could be imposed upon a detainee if convicted, constitutes a material change in circumstances:"
[32] In R. v. White the court said:
Public confidence in the administration of justice and in particular in the judicial interim release regime, would be substantially eroded by pre-trail incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.
[33] The Ontario Court of Appeal endorsed this view in R. v. Whyte.
[34] I find that in the case at bar, Mr. Hadi is currently within the range of sentences that he would receive should he be convicted of all or most of the offences with which he is charged. This was not necessarily the case on September 4, 2015 when the Superior Court dismissed his application for a review of his detention order that was made on June 19, 2015.
[35] Therefore, I find that the time that Mr. Hadi has spent in pre-trial custody is a material change in circumstances from the time that the court dismissed his bail review.
[36] However, that does not settle the matter. The court must look to the primary, secondary and tertiary grounds in s. 515(10) of the Criminal Code. This section states:
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) 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; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(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.
The Primary Ground
[37] I do not find that the primary ground is much of an issue because, as pointed out above, Mr. Hadi is within the range of sentences that he would receive for these offences. Therefore, it is unlikely that he would flee the jurisdiction to avoid what might be a modest amount of incarceration should he be convicted.
[38] In addition, Ms. Rehan testified that she has a final order from the family court that gives her custody of their children. She said that the order provides for supervised access (which means at a supervised access centre) and, moreover, access is in her discretion. If she felt that Mr. Hadi might flee with the children she has the right to deny him access.
The Secondary Ground
[39] I find that the secondary ground is a much more difficult obstacle for Mr. Hadi to overcome. On the bail review, after acknowledging that Mr. Hadi was "somewhere down around the bottom of the range of sentence if the case were to be disposed of at this point in time" and that the Crown reluctantly acknowledged that to be the case, Justice Dawson outlined the problem on the secondary ground:
However, what is very concerning here and it isn't in any way undermined by the lack of criminal record, are the hardy, continuous attempts made by Mr. Hadi, apparently, to obstruct the course of justice in these proceedings. There's evidence about three different letters involved her, efforts to get the complainant to tell people she just wants a peace bond resolution direct involvement in having her o to Jordan so that she wouldn't be here to testify.
[40] On the bail review, Mr. Hadi presented two sureties that Justice Dawson found were not acceptable because they did not know "what's going on" and did not "have a real understanding of the situation". In addition, they did not know Mr. Hadi very well and they did not appreciate the seriousness of the charges that he was facing.
[41] Mr. Hadi's plan also included electronic monitoring, but even that did not convince the court to release him. Justice Dawson found that "the track record that is portrayed here, in the evidence, just completely undermines that, based on the number and repeated efforts that the accused has made to contact his wife combined with the concerning fact that he's threatened to kill her and the children and been very persistent in trying to make these charges go away".
[42] The defence argued that if Mr. Hadi were released it would not be likely that he would interfere with the administration of justice by trying to persuade Ms. Rehan from testifying because she has already testified and the length of time that he has spent in custody has taught him the lesson that such behaviour results in pre-trial incarceration.
[43] The defence cited R. v. Baltovich in support of their argument. In that case the court dealt with an application for review of a detention order after the accused preliminary hearing on a first degree murder charge was completed.
One of the issues that the court addressed was the likelihood that the accused would interfere with witnesses or evidence if he were released. The court stated that this concern had "substantially diminished" due to the length of the pre-trial detention. They said that "He will obviously be aware of released that he will be the subject of police attention and he must know from prior experience that any effort to contact witnesses or to deal with potential evidence can operate to his detriment".
[44] The court observed further that the trial was two months away and that there was "no suggestion that any of the Crown witnesses are particularly vulnerable to or susceptible to the influence of the applicant. Certainly, they have not been in the past. The risk of interference with witnesses in the short period remaining prior to trial is substantially diminished".
[45] The court felt that any risk that did exist could be dealt with adequately by way of imposing appropriate terms in a release order. They pointed out that the accused's parents were willing to "post substantial security on his behalf".
I would point out that in Baltovich the accused did not have the history of charges of breaching recognizances of bail that Mr. Hadi has. In fact, Mr. Baltovich had never been charged with that offence.
[46] By way of contrast, I will review Mr. Hadi's history of being charged, released, being charged again and released again. Mr. Hadi was first charged on December 15, 2013. The following is the history of his activities since that date:
December 16, 2013 – his first release the day after the police charged him. He was released with a surety.
December 23, 2013 – his surety rendered him because the surety did not know where Mr. Hadi was.
December 31, 2013 - Mr. Hadi turned himself in and he was released with a new surety.
April 30, 2014 – The police arrested Mr. Hadi for breaching his recognizance by contacting the complainant and other similar charges.
May 8, 2014 - Mr. Hadi was released with the same surety as on December 31, 2013.
July 24, 2014 - Mr. Hadi obtains a bail variation to allow him to travel to Iraq during August 10, 2014 to October 16, 2014.
January 12, 2015, Mr. Hadi obtains a bail variation to allow him to travel outside of Canada during January 19, 2015 to April 13, 2015. There is strong evidence from the Egypt Air official who testified that he changed his ticket and returned to Toronto on June 1, 2015.
June 1, 2015 – The police arrest Mr. Hadi for breaching his recognizance by contacting Ms. Rehan and similar charges.
June 19, 2015 – The court made a detention order against Mr. Hadi.
September 4, 2015 – The Superior Court dismissed his bail review.
[47] Mr. Hadi is charged with five counts of breaching his recognizance on three, possibly four different offence dates. He is charged with one count of attempting to obstruct justice by trying to influence Ms. Rehan from testifying against him.
[48] The police have repeatedly charged Mr. Hadi with breaching court orders by contacting Ms. Rehan. He was put in jail for this before, released and charged again. Maybe the amount of time that he has been in pre-trial detention might be said to be more of a deterrent than the shorter amounts of time that he served in pre-trial detention after his other arrests, but I find that given his track record there is still a substantial likelihood that if he is released he will interfere with the administration of justice by doing something to try to neutralize the evidence against him and/or that he will commit a criminal offence by contacting or being near Ms. Rehan as he has in the past.
[49] During the time that he allegedly committed the offences before the court he was on a surety release. Now, his plan is that the court release him on his own recognizance with minimal supervision. This type of release is unrealistic in the circumstances of this case and it does not adequately address the court's concerns on the secondary ground. Therefore, Mr. Hadi's application is dismissed.
[50] Because I find that Mr. Hadi's detention is justified on the secondary ground there is no need to consider the tertiary ground.
Released: February 5, 2016
Justice J.W. Bovard