Ontario Court of Justice

Toronto Region

DATE: March 3, 2016

BETWEEN:

HER MAJESTY THE QUEEN

v.

ROBERT ZAYA

REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING

PUBLICATION BAN

The court in this case has ordered a Publication Ban under section 517(1) of the Criminal Code. Consequently, the evidence taken, the information given or the representations made and the reasons given at this bail hearing shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a Preliminary Inquiry or if the accused is tried or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 has ended.

Before: Her Worship Mary A. Ross Hendriks

Hearing Date: February 26, 2016

Judgment: March 3, 2016

Counsel:

• Mr. A. Del Rizzo, Crown counsel
• Mr. A. Newman, Defence counsel

INTRODUCTION

[1] Mr. Robert Zaya is a 27-year old Canadian citizen. He resides with his mother and sister in their home in Woodbridge, Ontario. Mr. Zaya has held various jobs in recent years. He is single, but involved in a serious relationship with his girlfriend. He has no dependents.

[2] Mr. Zaya is charged with the following Criminal Code offences: kidnapping, contrary to s. 279(1)(c); forcible confinement, contrary to s. 279(2); assault cause bodily harm, contrary to s. 267(b); assault with a weapon, contrary s. 267(a); extortion, contrary to s. 346(1); conspiracy to commit an indictable offence, contrary to s. 279(1)(c); carry concealed weapon, contrary to s. 90(1); possession of property obtained by crime, under, contrary to s. 354(1); and possession of a Schedule I substance, contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA").

[3] Crown counsel is seeking his detention on the secondary and tertiary grounds. This is a Crown onus bail hearing, and so it is incumbent on the Crown to show cause why he should be detained.

HIS CRIMINAL RECORD

[4] His criminal record was admitted for the purpose of this bail hearing (Exhibit 2). On April 23, 2014, in Barrie, Mr. Zaya was convicted of theft under $5000, and mischief under $5000, contrary to sections 334(b) and 430(4) of the Criminal Code, respectively. He was given a sentence of 23 days in custody, noting 7 days of pre-sentence custody, and 12 months of probation, concurrently.

SUMMARY OF THE ALLEGATIONS

[5] On consent, Crown counsel read in the allegations, and then called the Officer-in-Charge of this case, Sergeant Stephen Laramy, to testify.

[6] In January 2015, Mr. Abhivarman Paranirupsingam (the "complainant") was kidnapped from the Markville Mall in Markham, Ontario. Shortly thereafter, his father reported him missing, because of messages he had received from relatives in the United Kingdom.

[7] The complainant had been calling his extended family members in the United Kingdom, explaining that he was being held against his will for a ransom. Using an app called "Secret Circle", his kidnappers sent sound clips with the complainant's voice to his friend, apparently using the complainant's own phone. These messages were sound clips with voices attached to text messages. The ransom demands began at $2 million, and after a while, were reduced to $500,000.

[8] On Sunday, January 11, 2015, his friend reported these matters to the police, who took over the use of his friend's phone on January 15, 2015.

[9] Discussions ensued about trading a bag of money for the complainant.

[10] On January 12, 2015, at about 9:20 pm, near the intersection of Kennedy and Eglinton Avenue East in Toronto, the kidnappers were to meet this friend to make this exchange. The kidnappers sent a text that said open the trunk of the car. One of the kidnappers, Mr. Powell, exited the mini-van and looked in the trunk. The other kidnappers then said they were leaving, keep the money, and took off, leaving Mr. Powell behind. A car chase with the police ensued, but they escaped.

[11] Mr. Powell was held and charged by the police.

[12] Crown counsel asserts that the complainant was being held at 109 Spenvalley Dr., Toronto, and that he was forcibly moved on January 13, 2015 by Mr. Zaya and Mr. Patrick Sweeney in a taxi, to 47 Lamberton Blvd., Toronto. Mr. Zaya and Mr. Sweeney were caught at this location by the police, while each of them held the complainant by one of his arms.

[13] During this one week kidnapping, the complainant was continuously blindfolded, had his hands bound, and was repeatedly tortured by his captors. Exhibit 1 to this bail hearing is a collection of 8 pages of colour photographs, taken of the complainant's body, after he was rescued by police. In these photographs, the complainant is suffering from extensive burns across the width of his stomach, his chest, down his arms from the shoulder to the elbow, and his face, which I find appear to be extensive, second degree burns. Once rescued, he was taken to the hospital by the police for medical treatment. The complainant told the police that he was blindfolded while he was being tortured, but that he thought the kidnappers were using a hot knife to burn him, based on its shape.

[14] Prior to the abduction, the complainant told police that he had been spending time with his father. When he left his father's home in Markham, he went to the Markville Mall to buy a cell phone and some clothes. A mini-van was parked beside him, and when he exited the mall, he was pulled into this mini-van. He told police that he was blindfolded, punched, and held in a bathroom. As the days went by, he was tortured, and that his captors moved him many times.

Evidence of Sergeant Stephen Laramy

[15] Crown counsel called the Officer-in-Charge ("OIC"), Sergeant Laramy, to testify. Sergeant Laramy testified that he was involved in the entire investigation, and that he prepared a written summary of his evidence, which was admitted as Exhibit 3, as well as providing viva voce testimony.

[16] Sergeant Laramy testified that on January 10, 2015, the complainant was reported missing by his father. Shortly before he reported his son missing, he had heard from relatives in the United Kingdom that his son was being held against his will and that his captors wanted money for his release.

[17] One of the complainant's friends, Mr. Ahmed Safi, had received text messages from the captors, wanting money for his release, using an app called "Secret Circle", that conveyed these messages from the complainant's phone to Mr. Safi's phone.

[18] On January 11, 2015, Sergeant Laramy took over Mr. Safi's phone, and texted them back using "Secret Circle". While the person with whom Sergeant Laramy was corresponding by text purported to be the victim, Sergeant Laramy could tell that at one point, someone else had taken over the conversation. After the complainant was rescued, he gave the police a statement indicating that he never sent any of these texts.

[19] Finally, Sergeant Laramy persuaded the captors to have a meeting to obtain the money they sought. However, the captors refused to bring the complainant, and said that they only wanted to see the money. They agreed to meet for a drop, on January 12, 2015, at Kennedy and Eglinton Avenue East, Toronto. An undercover police officer posed as Mr. Safi. The captors sent a text message saying keep the money, we're leaving, and fled, but they left Mr. Powell behind, who was arrested.

[20] They drove away in a mini-van, which ran into one or two police cars, but they made good their escape. At this point, the police were very concerned about the safety of the complainant, because they had lost contact with his captors.

[21] Mr. Powell had his phone with him at the time of his arrest. The police obtained an emergency wiretap on this phone, and one of the numbers they picked up belonged to Mr. Zaya.

[22] Over the next few hours, the police were able to pick up various discussions from this emergency wiretap, and they allege that one of those discussions involved Mr. Zaya, who was told that he had to move the complainant, because the heat was on, or words to this effect.

[23] The police set up an undercover operation at 47 Lamberton Blvd., Toronto, shortly after 3 am on Tuesday, January 13, 2015. A taxi cab pulled up close to this address. At 4:46 am, Mr. Zaya exited this house, along with Mr. Sweeney, and the complainant was with them. The complainant's wrists were bound. He was wearing a winter coat, with a hood over his face that covered his blindfold. At the time of Mr. Zaya's arrest, he had the complainant in one hand, and in his other hand, he was holding a plastic bag that contained zip ties, duct tape, and a steel lock. Mr. Sweeney had the complainant's other arm.

[24] The police have photographs of Mr. Zaya walking up to the house at 109 Spenvalley Drive, in which he met with the other accused who were keeping the complainant hostage there. The police believe he spent about 45 minutes at 109 Spenvalley Drive, before exiting with the complainant and Mr. Sweeney to attend at 47 Lamberton Blvd., Toronto.

[25] Prior to arriving at 109 Spenvalley Drive, Mr. Zaya was found on the emergency wiretap asking for directions to this address. Mr. Zaya's vehicle, a white Cadillac, was located about two blocks from 109 Spenvalley Drive, because it had received a parking ticket, and the police were notified, because they had put an alert on his licence plate. Inside of Mr. Zaya's vehicle were sweaters purchased from an H&M Clothing store, which match the description of the articles of clothing that the complainant had purchased at the Markville Mall right before his abduction. The tags were still on the clothing.

[26] The police believe that the kidnappers originally held the complainant in a house in Scarborough, then moved him to a different address in Richmond Hill, where he was held and tortured for about four days. They believe that the kidnappers wanted to move him to the 109 Spenvalley Drive address because Mr. Sweeney had been caught the night before.

[27] Sergeant Laramy testified that the police found a Canadian Tire receipt, dated January 9, 2015, which is around the block from the Richmond Hill address suspected of being one of the hiding places used to conceal the complainant. Video tape from this Canadian Tire store showed Mr. Zaya in this store, wearing glasses. There was nothing of note from the receipt itself, the only thing of note was that it tied Mr. Zaya to the area of the suspected Richmond Hill address. This house was rented out between January 8 and 15, 2015, to someone whom the owner described as appearing to be Afghani or Arabic male, who "looked like a rich guy, no glasses."

[28] The police have obtained what they believe is a piece of burned skin from inside of a washroom at the Richmond Hill address (photograph in Exhibit 3). The complainant believes that he was held and tortured in a bathroom. However, during cross-examination, it was clear that this item has not been forensically proven to be skin, even though the case is about 13 months old. The police also believe that a curling iron they found in Mr. Zaya's Cadillac was the implement of torture, based on the description the complainant gave them of his guess that it was a hot knife, and the shape of the burn marks on his body, but again, there is no biological evidence on the curling iron to support this theory.

[29] On the night of the arrest, Sergeant Laramy testified that the complainant said that night was the first time he had been held captive in a car, and that the other times, he was moved around in a van. The complainant also told police that the men he was with at the time of his rescue had nothing to do with it, since he had never heard their voices prior. He also told police that it was one man who performed all the burning of his body. At the time of his rescue, the complainant had his hands bound, and was blindfolded. He had been held in this condition throughout his one-week capture.

[30] Sergeant Laramy said that the police have reviewed video footage of the complainant's apartment in Toronto from the evening of the kidnapping, including the underground parking area, which requires a key fob. The complainant's fob was logged in, and his car was seen going into the underground, but police assert that the video shows two individuals leaving his car, and returning shortly with two suitcases, which they put into the complainant's car and drove away.

[31] Also on the evening of the kidnapping, the complainant told police that his kidnappers forced him to give up the combination to his safe, which resulted in the theft of $12,000 in American currency.

[32] Coincidently, on February 11, 2015, officers from 31 Division investigated an unrelated matter, and executed a search warrant at 3400 Weston Rd., Toronto, #2509, and arrested Corey Hall. Within this apartment, officers found Mr. Zaya's stolen property. Mr. Hall advised police that in mid-January, 2015, someone known to him as "Plug" gave him a large hard-shelled suitcase to hold onto for a while. The suitcase contained a number of items, including a picture of the complainant, a cell phone and external hard drives, as well as a business cheque book that has been confirmed to belong to the complainant.

[33] When shown a photo line-up, Mr. Hall identified Mr. Zaya as being, "Plug." During cross-examination, Sergeant Laramy admitted that he knew that Mr. Hall has a criminal record, but could not say to what extent, and therefore could not speak to his reliability as a witness.

[34] Police found that the sound clips used in the text messages had been recorded and saved on Mr. Powell's phone. One of the messages on his phone mentioned the original house used in Scarborough.

[35] Sergeant Laramy testified that while Mr. Zaya is linked to Mr. Powell's phone, he can't say whether or not he is linked to the original abduction.

[36] Mr. Powell had already been arrested when police heard Mr. Zaya asking for directions to 109 Spenvalley Drive, Toronto. Other officers were listening to this live wiretap, but not Sergeant Laramy, when they heard Mr. Zaya speak of moving someone because of heat with the police. Sergeant Laramy cannot say this is exactly what he said, because he was not in the wire room when the other officers heard it. At this point, there are no transcripts of these wiretaps. It was clear enough, however, that the police listening to this live wiretap organized an undercover operation at the 109 Spenvalley Drive address, in order to find the complainant.

THE PROPOSED PLAN OF RELEASE

Ms. Lina Zaya

[37] Ms. Lina Zaya is the mother of Mr. Zaya. She is 47 years old, a Canadian citizen, and she has no outstanding charges and no criminal record.

[38] Ms. Zaya lives at 102 Lio Ave., Woodbridge, Ontario, with her 21-year old daughter, and Mr. Zaya, up until the time of his arrest. She is employed as a mortgage agent, and she works mainly from her home in the normal course. She testified very explicitly that she could work from home all the time in order to accommodate a strict house arrest bail, if granted.

[39] Ms. Zaya testified that she was her son's surety on his earlier charges for theft, and that he complied with his bail conditions fully. She is fully aware of his conviction and the fact that he served some time in jail as a result.

[40] Ms. Zaya said that the plan of release is to have her brother and possibly his girlfriend assist her, since they all live near each other. They will work as a team, so that he is never left alone. She described the plan has having "eyes on him, 24/7."

[41] Ms. Zaya has $20,000 in the bank, and she is prepared to pledge all of it to secure his release.

[42] She testified that she assisted her brother in obtaining the mortgage on his home recently, and that the value of the home is $750,000, and the mortgage is $350,000, so she testified that he has about $400,000 in equity in his house.

[43] She also testified clearly that if he breached, she would pull bail, and said clearly, there would be "no second chances."

[44] While he has been in custody, she has gone to see him at least once or twice per week. She has discussed these conditions with him, and he has told her that he would comply with this bail. She also testified that she has not asked him about the allegations, since his prior lawyer advised her not to do so.

[45] His mother does not know any of Mr. Zaya's co-accused in this matter. When asked by Crown counsel if she agreed that this offence was planned, and that it took some concerted effort, she agreed. She stated that none of the co-accused phoned their residence.

[46] Prior to his arrest, Mr. Zaya has held positions as a roofer, putting together interlocking bricks, installing in-ground pools, and that he had been employed at Best Buy. The year prior to his arrest, she said that he assisted her with administrative tasks required to complete mortgages, such as filing. If he were released, he could assist her again.

[47] When asked if her son had any issues, she replied that he did not have any problems that she is aware of, whether that be mental health, drugs or alcohol, and that he did not have any issues with the law as a teenager.

Mr. Nader Kakish

[48] Mr. Nader Kakish is the uncle of Mr. Zaya, and the brother of Ms. Zaya. He is 39 years old, and a Canadian citizen. He has no outstanding charges nor does he have any criminal record.

[49] Mr. Kakish lives at 536 Napa Valley Ave., Woodbridge, and he testified that he lives there with his wife and children. He believes that he has about $400,000 of equity in his home, and he is prepared to pledge all of it if necessary, and offered to pledge $200,000 without any hesitation.

[50] He testified that he lives very close to his sister, and can walk to her residence in five minutes.

[51] Mr. Kakish testified that Mr. Zaya is his nephew. He knows Mr. Zaya's girlfriend, and he wants to assist his sister in watching him, and taking him to any appointments. He described the plan of release as one of "seamless supervision". He will not provide Mr. Zaya with any chances if he commits a breach of bail.

[52] He also testified that he works for RBC as an Accident Benefit Manager, and that he has done so for about six years. He normally works from 7:30 am to 3:30 pm. He works from home frequently, and he can "go flex" to help his sister supervise Mr. Zaya.

[53] Mr. Kakish does not know any of the co-accused.

[54] Prior to this bail hearing, Mr. Kakish did not know that Mr. Zaya had gone to jail for theft. He was advised of Mr. Zaya's record recently, prior to appearing in court in this matter to act as a surety.

Ms. Lisa Shamoon

[55] Ms. Lisa Shamoon testified. She is Mr. Zaya's girlfriend of three years. She is 29 years old, a Canadian citizen, and she has no record and no outstanding charges. She is employed at a business that performs eyebrow tattooing, and prior to that, she worked as a make-up artist and hair stylist.

[56] Ms. Shamoon resides alone at 157 Embassy Drive, Vaughan, Ontario.

[57] She testified that she has known Mr. Zaya for 10 years, because they went to high school together. She said that her residence is 10 minutes away from his mother's residence.

[58] She testified that the plan would be that his mother and uncle would watch him most of the time, but that she would also be able to assist. She would work with them as a team to supervise him 24 hours per day.

[59] Ms. Shamoon testified that Mr. Zaya always wears his glasses, and that he can't see without them.

[60] Ms. Shamoon is aware of his prior convictions for theft and mischief, and knows that he spent time in jail as a result. When asked if she had told him to stay out of trouble after that, she replied, "all the time."

[61] She does not know any of his co-accused. When asked if these allegations are a big shock, she replied, "yes".

[62] She would like a future with Mr. Zaya, but she stressed that she would call the police if he breached and not give him any chances either to breach his bail and that such behaviour would cause her to end their relationship.

FINAL SUBMISSIONS

[63] Defence counsel conceded that his client was arrested, while holding onto the complainant, in the circumstances outlined by the Crown and by Sergeant Laramy. In particular, he conceded that his client was told to attend the Spenvalley Drive address, and take the complainant to the next address, at the time of his arrest.

[64] Nevertheless, defence counsel argued that while there is a party aspect to this case, and that the Crown has a strong case on some points, there is also some evidence that his client was not involved at the outset of the kidnapping and torture. He submits that his client's role is limited to the end of the matter, e.g. the movement of the complainant. To this end, he points out that his client needed directions to the address, and that the complainant had told police that the people who were arrested at the end were not the same voices that he had heard throughout his ordeal.

[65] Defence counsel argues that there is a substantial difference between someone involved at the very end of this matter, versus someone involved throughout the matter. He fully anticipates that this distinction could mean the difference between a two year sentence, and a fifteen year sentence, if convicted.

[66] Based on this distinction, he argued that the plan of release proposed provides complete 24/7 supervision of Mr. Zaya, and so the Crown has not met its onus on the secondary ground, since there could not be any substantial likelihood of offence if released. The sureties on this plan of release will keep Mr. Zaya under their watch continuously, they all live near each other, and they have pledged a substantial amount of money to secure their promise. In particular, he referred to R. v. Budge, [2012] O.J. No. 2538 (Ont. S.C.J.) at paragraphs 59 to 61, and 64, from his brief of authorities, in this regard.

[67] Moreover, he argued that if his client's involvement was only at the end of the matter, which was buttressed by the complainant's own statement about the voices he had heard, then the Crown has not met its onus on the tertiary ground, since a reasonable member of the public would not lose confidence in the administration of justice, if someone with a lesser role, given substantial supervision, were granted bail. All of the worst allegations, kidnapping, torture and extortion, would not apply to his client, other than because of party liability. In this regard, he referred to R. v. Dang, 2015 ONSC 4254, [2015] O.J. No. 3552 (Ont. S.C.J.) at para. 51 to 53, and 58, regarding the strength of the Crown's case, which he asserts is strong at the end but weak at the beginning, and R. v. A.B., [2006] O.J. No. 394, with respect to who is an informed member of the public.

[68] He also pointed out that there were some serious gaps in the Crown's case. The purported piece of skin that would support the theory the complainant had been tortured in Richmond Hill hasn't been tested. There is no DNA evidence to tie his client to any of these addresses. The credibility and reliability of Mr. Hill, who picked Mr. Zaya out of a photo line-up hasn't been established. Moreover, if Mr. Hill didn't receive the suitcase until mid-January, 2015, from "Plug", could that have occurred after Mr. Zaya was arrested? He skillfully pointed out that it is not up to this court to determine guilt or innocence, and that Mr. Zaya could be given a very high level of supervision if released.

[69] Defence counsel asked me to consider the fact that his client has spent 13.5 months in the Toronto South Detention Centre, which has had many lock-downs and other difficult conditions recently. I advised him on the record that I was aware of the conditions at this facility.

[70] A preliminary inquiry is scheduled in this matter for May, 2016. If Mr. Zaya remains in detention, he will have been at the Toronto South Detention Centre for 16 months by the time he attends his preliminary inquiry.

[71] Crown counsel argued that in terms of the tertiary ground in particular, but also on the secondary ground, that Mr. Zaya's case is one of extraordinary gravity and seriousness. The complainant in this matter was kidnapped, tortured, held for ransom, blindfolded, tied up, and moved repeatedly. His ordeal lasted seven days. The photographs tendered as Exhibit 1 reflect the torture that he suffered.

[72] Crown counsel argued that this complainant became a vulnerable person at law, because of this ordeal, even though this categorization of a victim is normally attributed to children, or perhaps to the elderly or a person with a developmental disability. Normally children are viewed this way by the courts, because they are vulnerable and cannot defend themselves. Given what the complainant experienced, once he was tortured, blindfolded, and bound, Crown counsel argued that the complainant should fall into that category, too. He submitted that the complainant was powerless, in pain, blindfolded and would have been in terror. In this respect, Crown counsel referred to paragraph 88 of R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, in his submissions, and indicated that pre-trial detention is warranted.

[73] Moreover, Crown counsel pointed out that there is good and reliable evidence that Mr. Zaya participated in this ordeal. He was called to move the complainant, and he complied, at around 4 am on a winter night. In fact, Mr. Zaya called Mr. Sweeney to assist him in this endeavour. Mr. Zaya was carrying a bag in his other hand that were his tools for the purpose of keeping the complainant hostage. Someone took the complainant's things from his apartment on the night of the kidnapping, and they ended up with Mr. Hill, who picked Mr. Zaya out of a photo line-up to identify him as "Plug", the man who gave him this suitcase. The contents of this suitcase clearly belong to the complainant.

[74] While no firearm was used, someone used a hot instrument to torture the complainant by burning him repeatedly. Crown counsel refers to paragraph 58 of St. Cloud in this regard.

[75] Crown counsel believes that Mr. Zaya's sentence will be significant, "a multi-year penitentiary" sentence is his prediction, because he believes that Mr. Zaya was "fully involved in this enterprise," which he later characterized as "torment".

[76] In terms of the secondary ground, Crown counsel argues that this was not a crime of passion, but a group of people who planned and executed a serious, ongoing crime, and that he will be found culpable for all of their acts. Crown counsel argues that Mr. Zaya faces liability on all charges, since he participated with the group. In other words, he argues that in a matter such as this, there are "no bit players."

[77] While Crown counsel submits that the sureties are well-meaning, he asserts that there are strong secondary ground concerns in this case, because of its unusual facts. In particular, none of the proposed sureties know of any of the co-accused.

[78] In terms of the tertiary ground, this matter was one of prolonged and organized criminality and violence. Crown counsel argued that because it was so prolonged, it may have been worse for the complainant than one of even extreme violence.

[79] In response to defence counsel's argument on the tertiary ground that Mr. Zaya's role was much less than the others, and really only lasted 45 to 60 minutes, in terms of the evidence available to date, the Crown pointed out that the suitcase full of the complainant's things, which Mr. Hall attributed to Mr. Zaya giving to him, plus the white Cadillac driven by Mr. Zaya parked around the corner from Spenvalley Drive, which had the complainant's H&M purchases from Markville Mall in the trunk, make him a party to everything that happened to the complainant.

[80] In reply, defence counsel disagreed with the vulnerable person argument made, and submitted that it was not the intended meaning of St. Cloud.

ANALYSIS

The Right to Bail

[81] The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982 (U.K.) 1982, c.11, which came into force on April 17, 1982 (the "Charter"), provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, as per section 11(d); and not to be denied reasonable bail without just cause, as per section 11(e).

[82] In R. v. Pearson, [1992] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections 11(d) and 11(e) of the Charter are "parallel rights". Similarly, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483, at paragraph 41, as follows:

All accused, including those charged with serious crimes are constitutionally entitled under s.11(e) of the Charter of Rights and Freedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule and detention is the exception. A claim for detention of an accused under s.515(10)(c) must be approached in this context.

[83] Section 515(10) of the Criminal Code establishes that pre-trial detention is only justified when one or more of the following three grounds has been established:

(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.

[84] The Criminal Code explicitly permits hearsay to be considered at a bail hearing, as per section 518.(1)(e), which states that, "the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case."

Secondary Ground

[85] According to Mr. Justice Trotter in his book, The Law of Bail in Canada, 3rd ed., JP ed., Carswell 2010, at pp. 3-13 to 3-26, there are several key considerations under the secondary ground:

• the criminal record of the accused
• the accused is already on bail or probation
• the nature of the offence and the strength of the evidence
• the stability of the accused person
• interference with the administration of justice

[86] I will deal with these considerations in order.

[87] The accused has a minor criminal record, and did not breach his prior bail, which are factors in his favour.

[88] Mr. Zaya is not currently on bail or probation, which is also a factor in his favour.

[89] The offences before me are serious, very violent, planned and prolonged in nature. These offences require the persons involved to have planned and executed an abduction from a parking lot of a shopping mall, created messages and then sent them through an app to extort a large sum of money from the complainant's extended family, tortured the complainant repeatedly by burning him with some sort of hot device, blindfolded and bound him, and moved him around from location to location to avoid police detection for a week.

[90] The original kidnapping, the ransom demands, and the moving of the complainant from place to place, required both premeditation and ongoing crisis management skills, once Mr. Powell was arrested. The complainant did not recognize any of their voices, and there is nothing to suggest that they knew him.

[91] The evidence against Mr. Zaya is particularly strong, since he was caught by police holding the complainant, along with Mr. Sweeney. Mr. Zaya was holding in his other hand a bag of items that would aid in this endeavour, including ties, duct tape and a lock. The complainant's H&M purchases from the Markville Mall were found in Mr. Zaya's car, which was parked near the Spenvalley Drive home. The emergency wiretap clearly revealed that Mr. Zaya was sent to pick up the complainant, in order to avoid police detection, and that he sought driving instructions, and communicated with Mr. Sweeney in advance to ask him to assist in the moving of the complainant.

[92] Defence counsel concedes that his client was caught by the police holding the complainant with Mr. Sweeney, but argues that while the Crown has a strong case towards the end of the fact scenario, there is nothing to tie his client to the worst crimes, e.g. the original kidnapping, extortion and torture.

[93] If Mr. Zaya was only involved in this criminal activity for about one hour, or less, why were the complainant's H&M purchases were found in his trunk of Mr. Zaya's car, parked and ticketed around the corner from the Spenvalley Drive home? Mr. Zaya remained in that home for 45 minutes as documented by surveillance, prior to exiting with the complainant and Mr. Sweeney and entering a taxi. Since Mr. Zaya did not carry those items out when he left the Spenvalley address and entered the taxi, it is fair to say that someone had put them in the trunk of his car. The issue for trial will be whether or not that person was Mr. Zaya, since that would lengthen the time of his involvement.

[94] But for the allegations herein, Mr. Zaya, at least on the face of it, appears to be a reasonably stable person. He lives with his mother and sister, and only has a minor record. He has a long-term relationship, and no apparent mental health or addiction issues.

[95] The circumstances that give rise to this bail hearing are a series of cold and calculating crimes that included premeditation and torture. Mr. Zaya is clearly a party, caught by police holding onto the blindfolded and bound complainant, but what is under debate is whether or not he had a leading role in the commission of these offences.

[96] Section 21 of the Criminal Code describes what it means to be a party to an offence, as follows:

(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it;

or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[97] While the Crown has not shown that Mr. Zaya was in a superior decision-making position within the hierarchy of the co-accused at the outset of the commission of these offences, I find that Mr. Zaya assumed a mid-level role when he arranged assistance from Mr. Sweeney prior to them both working in concert to move the complainant in a taxi, to avoid police detection. Mr. Zaya did not simply walk into the house, or even provide food or transportation to his co-accused, but was an active participant. Mr. Zaya abetted the forcible confinement by attempting to move the complainant. But for the emergency wiretap that led police to them, this crime would have continued unabated. Mr. Zaya's role, in concert with another accused, to move the complainant to avoid police detection, is not a minor role in my view, even if defence counsel is correct that his involvement occurred during the later stages of the matter.

[98] While all three sureties are well-meaning, law-abiding and kind, I have real concerns. First, he lived with his mother while these matters occurred, and she did not have any inkling of what was going on in his life. She does not know any of the co-accused. The car that the police linked to him and flagged the plate was actually her Cadillac.

[99] The plan of release would make his mother his primary surety on a house arrest bail. Now that she has had a chance to hear these allegations, she said that she would have her eyes on him all the time. Yet, when asked about whether or not he had any issues, she glossed over the question and said that he did not. When she was asked about his career, she rhymed off a series of different positions he has held, without really answering what he was doing as a career at the time of his arrest. While I find her to be quite charming and kind, nevertheless, I have concerns that she never sinks her teeth into the details concerning his life.

[100] His uncle is also a very pleasant and kind person. However, he did not know about Mr. Zaya's record until he was being asked to serve as a surety, even though he lives only a few minutes away, sees them regularly, and he wants to be involved. Mr. Zaya was able to conceal it from him.

[101] His girlfriend, the youngest of the three proposed sureties, who works full-time, seems to have more of an inkling about Mr. Zaya and his life. She knew of his record and knew that he went to jail because of it. When asked during cross-examination if she has asked him to stay out of trouble since he served time in jail, she replied, "all the time." Again, however, she did not know any of his co-accused, and was surprised and upset by the allegations.

[102] Somehow, Mr. Zaya has managed to have a double-life, even though he lives with his mother, and lives very nearby his uncle and girlfriend. All of his proposed sureties were shocked by these allegations. None of them knew any of the co-accused. When each of them testified, none of them ever told me what Mr. Zaya did immediately prior to his arrest, even though he is 27 years old.

[103] Based on the weight of the evidence, and my lack of confidence in the sureties' ability to control him, I find that there is a substantial likelihood that Mr. Zaya would commit a further criminal offence or interfere with the administration of justice if he were released. The Crown has met its onus on the secondary ground.

Tertiary Ground

[104] In terms of the tertiary ground, I will analyze each of the four factors below, in order.

[105] First, the Crown has an extraordinarily strong case. While it is not up to me at this stage to determine guilt or innocence, defence counsel conceded that his client was arrested while holding onto the complainant, as described in Sergeant Laramy's testimony.

[106] On an objective basis, this is an extremely serious offence. Even if Mr. Zaya's role is mid-level, he still faces a significant penitentiary sentence, because he is a party to all of the crimes committed, for the reasons previously outlined.

[107] The circumstances of these events are profoundly disturbing. The complainant, an apparent stranger to Mr. Zaya, was held captive for a week, blindfolded, repeatedly tortured with a hot instrument to inflict a series of burns, as his family and friends were sent text messages of his cries, as part of an extortion plot. There is no evidence before me that a firearm was used, however.

[108] If convicted of kidnapping, forcible confinement, assault cause bodily harm, assault with a weapon, extortion, conspiracy to commit an indictable offence, carry concealed weapon, possession of property obtained by crime, and possession of a Schedule I substance, he faces a sentence between 10 years and life. If, however, my impression at this bail hearing is correct that he was a mid-level participant, then I expect him to receive a sentence of about 7 or 8 years. See: R. v. Brar, 2014 BCCA 175, at paragraphs 47 to 48. While a more minor participant to a kidnapping might only receive a 3 or 4 year sentence, the courts have found that the movement of a kidnapping victim to an unknown location causes psychological damage that is reflected in sentencing. See: Brar, at paragraph 50. I find this approach to be the better way to analyze this case, and I decline to find that the complainant was a vulnerable person within the traditional legal meaning of that term, although he was very clearly victimized.

[109] Of course, the sentence for each offender is determined in accordance with the general principles stated in s. 718 and s. 718.3 of the Criminal Code, and it would be up to a higher court to determine what a fit range of sentence should be, based on all the evidence that would be gleaned at a full trial. Nevertheless, I have offered my views herein, since the Supreme Court of Canada's judgment in St. Cloud directs me to do so, when assessing the tertiary ground.

[110] Having regard to these four factors and all the circumstances of this matter, I find that detention is necessary to maintain the confidence of a reasonable member of the public in the administration of justice.

[111] The Crown has met its onus on the tertiary ground.

Dated at Toronto, this 3rd day of March, 2016.

Mary A. Ross Hendriks, J.P.