WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast Order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an Order made under subsection (1), read as follows:
517. Order directing matters not to be published for specified period.
(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an Order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an Order made under subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2017-06-01
Court File No.: Toronto 4817 998 16-75004526-01
Between:
Her Majesty the Queen Respondent
— And —
Mohammad Hansa Applicant
Before: Justice William B. Horkins
Section 523 Bail Application
Heard on: May 19, 2017
Released on: Thursday, June 1, 2017
Counsel:
- Ms. C. Suter — counsel for the Crown
- Mr. T. David — counsel for the applicant Mohammad Hansa
HORKINS, W.B., J.:
Application and Charges
[1] At the conclusion of his preliminary hearing before me, the accused, Mohammad Hansa has applied to have his Detention Order vacated. This is an application brought by the accused pursuant to section 523(2)(b) of the Criminal Code.
[2] The accused is charged with Attempted Murder, Aggravated Assault and Kidnapping, arising from a drug deal gone badly and the subsequent savage, group beating of the individual considered at fault.
[3] The events in question took place on March 27, 2016. On April 9th, Mr. Hansa became aware that the police had targeted him in their investigation and he went to the police station, with his family, to surrender himself. On April 14th, 2016, he had a bail hearing and was detained. On July 7th, 2016, his bail review application in the Superior Court was dismissed. On May 19, 2017, I completed the evidence in a two-week preliminary hearing and advised counsel that the accused would be formally committed for trial on all counts. The accused then applied for a review of his existing Detention Order.
Section 523 Bail Review Provisions
[4] The bail review procedure provided for in s. 523(2)(b) provides that at the conclusion of a preliminary hearing the presiding judge has jurisdiction to vacate a previously made bail Order. Section 523(2)(b) does not contemplate a de novo hearing but, rather, a contextual review of the existing Order. The context contemplated by the section is primarily focused on the evidence heard at the preliminary hearing and the extent to which it may have shifted the basis of the existing Order.
[5] On a s. 523(2)(b) bail review the onus is on the applicant to demonstrate, on a balance of probabilities, a substantial change in circumstances in respect of a material basis upon which the original Order was made[1].
[6] A certain degree of deference is owed to the existing judicial Order. That Order should only be vacated at this stage of the process if the applicant can demonstrate a change in circumstances of sufficient magnitude to cause a reconsideration of the foundation upon which the existing Order was made. Consideration of this issue, of a material change in circumstances, should be focused on information arising from the evidence at the preliminary hearing. It is not at all uncommon for there to be a significant shift in the profile of a case at the preliminary hearing stage of the prosecution. The preliminary hearing is usually the first occasion for the hearing of viva voce evidence tested by cross-examination.
The Existing Detention Order
[7] At the initial bail hearing in April of last year, the Crown sought the detention of the accused on both the secondary and tertiary grounds. Justice of the Peace Napier issued a Detention Order with reasons based primarily on the tertiary grounds. The Court was persuaded that due to the gravity of the allegations and the apparent strength of the Crown's case, this accused's release would undermine public confidence in the administration of justice. Justice of the Peace Napier's reasons are contained in the record before me in Exhibit 1, at Tab 6, page 126.
[8] A Superior Court bail review application was heard by Justice Dambrot on July 7, 2016. Justice Dambrot's July 12th reasons for dismissing the application are in the record as Exhibit 2. Justice Dambrot adopted and endorsed Justice of the Peace Napier's reasons and the conclusion that detention was necessary on the tertiary ground. Justice Dambrot's decision was based essentially on the conclusion as stated in paragraph 37:
The circumstances surrounding the offense are horrifying. Detention on the tertiary ground in particular is well justified.
[9] As a preliminary hearing Court, acting under section 523 of the Code, I am not sitting in appeal of the reasons of either Justice Dambrot or Justice of the Peace Napier. My review jurisdiction is actually quite narrow: whether, based on the evidence heard on the preliminary hearing, there is now a change in the circumstances of the case of sufficient magnitude that detention of the accused is no longer considered necessary.
[10] The applicant's counsel submits that the apparent strength of the Crown's case against Mr. Hansa has been substantially diminished by the evidence I have heard. The applicant's counsel has also put forward a very structured and comprehensive plan of release. It is filed as Exhibit 6 on this application. It includes several family members as sureties and involves a significant amount of money, coupled with a modified form of house arrest, bolstered by the use of a remotely monitored ankle bracelet.
Analysis
[11] The determinative issue on this application is whether the applicant has demonstrated, on a balance of probabilities, a material change in circumstances relating to the foundation for detention on the tertiary ground. Specifically, is the apparent strength of the Crown's case diminished to the extent that the foundation for the existing Order no longer supports the need for detention of the accused?
[12] The case against the accused as it was understood at the time that the existing Order was reviewed by Justice Dambrot is summarized in his ruling at paragraphs 4 through 12:
Background
4 Hamzah Shaikh was a drug dealer. John Zikos sold marihuana and cocaine on his behalf. On March 27, 2016, Zikos organized a meeting between Shaikh and an unidentified man in a parking lot near Highway 401 and Kennedy Road in Toronto to facilitate the sale by Shaikh of nine ounces of cocaine to the man. Shaikh arrived in a Jeep with a second man, and Zikos and the purchaser arrived in a second vehicle. Shaikh, Zikos and the purchaser met as planned, while the second man remained in the Jeep. Shaikh handed the cocaine to Zikos, who handed it to the purchaser. The purchaser then handed a package to Zikos that was supposed to contain $15,700 as payment for the cocaine. The purchaser then fled with the cocaine. When Zikos opened the package, it contained empty CD cases, but no money. This transaction was recorded on videotape.
5 Shaikh took Zikos into the Jeep, and the three men chased after the purchaser, but were unable to apprehend him. Shaikh and the second man then abducted Zikos. They drove to a Metro supermarket just across the 401 from the location where the drug transaction took place, where two additional men entered the vehicle. The Crown alleges that one of the two men was the accused.
6 Shaikh and his associates then drove Zikos to the waterfront of Lake Ontario near Cherry Beach where they met up with two more men, one of whom was Shaikh's supplier. All of the men viciously attacked Zikos and began beating him, and demanded that he pay them $14,000 to compensate them for the lost cocaine. They told him that if he didn't come up with the money he was dead.
7 Using his cell phone, Zikos was able to persuade a friend to bring the money. The kidnappers spoke to the friend, and told him that Zikos would be killed if he didn't comply. The friend did in fact drop the money off at an agreed upon location, but when Shaikh arrived to pick it up, he observed another vehicle belonging to an unrelated individual nearby. He believed that this was the police, and abandoned the money.
8 Shaikh returned to the waterfront, enraged, and he and his friends resumed beating Zikos with their fists, a baton or a pipe, and pieces of rock and broken concrete for a period of three hours. One of them tried to rip his ear off repeatedly. To say that the beating was severe is a gross understatement. The men also burned Zikos with cigarettes and attempted to poke his eyes out.
9 Finally, the men took $1,000 in cash from Zikos as well as his cell phone, his wallet and his identification, stripped him down to his underwear and told him that if he survived and didn't pay the money by that evening they would kill his family. They then threw him in the lake and left him for dead.
10 Once the men left, Zikos was able to crawl out of the water onto the beach where he was found, covered in blood, by a passer-by who called the police. When he was found, Zikos had grotesque injuries to his face, head and body as a result of the beating. He had massive swelling about his face and severe lacerations about his body and head, apparent facial and head fractures, an apparent broken nose and a soft spot towards the rear of his skull. He was taken to intensive care for treatment.
11 As I mentioned, the Crown alleges that the accused was one of the men who participated in the beating of Zikos. Specifically, the Crown alleges that after Shaikh kidnapped Zikos, he drove with Zikos and the second man to a Metro supermarket where he picked up the accused and another man. The Crown relies on several pieces of evidence to identify the accused as one of the men entering the vehicle:
- Surveillance video at the Metro store shows two men entering Shaikh's motor vehicle.
- The accused identified himself as one of the two men entering the vehicle in a post-arrest statement at 55 Division on April 10, 2016.
- A Community Response Unit officer viewed the surveillance video on March 27, 2016 and identified this man as the accused, and as an associate of Shaikh, on the basis of a vehicle stop.
- The Community Response Officer had stopped the accused in the company of Shaikh in a motor vehicle registered to the mother of a female associate of the accused on March 20, 2016 and charged the accused with stunt driving.
- Although the accused lived with his parents, he did not return home the night of these alleged offences, and his parents did not know where he was.
12 On the other hand:
- The accused's statement at 55 Division was not recorded, apparently because the accused did not want to have his conversation with the police recorded.
- The victim was unable to identify the accused in a photo line-up.
[13] The tertiary ground for detention is invoked where public confidence in the administration of justice would be undermined by the release of an accused. Detention on the tertiary ground is often necessary where the Crown has a strong case which will expose an accused to a lengthy sentence of incarceration. The governing principles when considering the tertiary ground of detention are set out by the Supreme Court in St-Cloud[2]. The Court must first consider the four circumstances expressly referred to in section 515(10): the apparent strength of the prosecution case; the objective gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is potentially exposed to a lengthy term of imprisonment. This list of considerations is not exhaustive. The Court must consider all of the surrounding circumstances of the case and balance these considerations in determining the ultimate question, which is whether the detention of this accused is necessary to maintain confidence in the administration of justice.
[14] Among the relevant considerations in this balancing of factors are the circumstances of the accused, his age, lack of criminal record and his relative involvement in the offence alleged. All of this must be considered and guided by the assumed public perception of the matter. Would a reasonable person, properly informed, lose confidence in the administration of justice should this accused, in this case, be released from custody pending his trial?
Change in the Apparent Strength of the Crown's Case
[15] The determinative issue on this application is whether there has been a shift of significant magnitude in the strength of the Crown's case identifying Mr. Hansa as one of the group that administered the beating suffered by Mr. Zikos. Has the apparent strength of the Crown's case been diminished to such an extent that the detention of the accused is no longer justified on the tertiary ground?
[16] There is no doubt that the objective gravity of this offense is extreme. This is a savage beating in the context of illegal drug dealing, and a drug deal of considerable proportions gone badly. It is a horrific crime involving organized group violence, ultimately aimed at killing the victim. The role of this accused appears to be cast as one of the lesser associates recruited to enforce the confinement and beating of the victim. There appears to have been two lead participants, more senior in the drug enterprise, who were in charge of the events and inflicted the most severe damage. The actual level of involvement of this accused in the beating is vague. It is clear that he was present and more than a mere spectator. It is also clear that there is no evidence of him being directly involved in the worst of it.
[17] It is the shift in the apparent quality of the evidence, in support of the identification of this accused as one of the perpetrators that is at the heart of this application for review. The evidence as it was appreciated prior to the preliminary hearing is summarized by Justice Dambrot at paragraphs 11 and 12 of his reasons[3]:
11 As I mentioned, the Crown alleges that the accused was one of the men who participated in the beating of Zikos. Specifically, the Crown alleges that after Shaikh kidnapped Zikos, he drove with Zikos and the second man to a Metro supermarket where he picked up the accused and another man. The Crown relies on several pieces of evidence to identify the accused as one of the men entering the vehicle:
- Surveillance video at the Metro store shows two men entering Shaikh's motor vehicle.
- The accused identified himself as one of the two men entering the vehicle in a post-arrest statement at 55 Division on April 10, 2016.
- A Community Response Unit officer viewed the surveillance video on March 27, 2016 and identified this man as the accused, and as an associate of Shaikh, on the basis of a vehicle stop.
- The Community Response Officer had stopped the accused in the company of Shaikh in a motor vehicle registered to the mother of a female associate of the accused on March 20, 2016 and charged the accused with stunt driving.
- Although the accused lived with his parents, he did not return home the night of these alleged offences, and his parents did not know where he was.
12 On the other hand:
- The accused's statement at 55 Division was not recorded, apparently because the accused did not want to have his conversation with the police recorded.
- The victim was unable to identify the accused in a photo line-up.
[18] The route that the Crown's case takes to identify Mr. Hansa has not changed at all. What has changed is the ability of this Court, having heard viva voce evidence, to now better assess the prospects of that evidence coming up to proof, or even being admissible at trial.
The Statement
[19] At paragraph 34 of Justice Dambrot's judgement he concludes that "It cannot be said that the admissibility of the statement is problematic." Having had the benefit of hearing the evidence of the circumstances surrounding that purported statement, it is clear that the Crown will face some very real challenges in establishing that the statement was in fact made and if made, whether it was voluntary.
[20] The evidence at the preliminary hearing was to the effect that the accused pointed himself out as the man in the red hoodie, in a still shot from the Metro store surveillance video. On the video the man in the red hoodie is seen getting into the jeep containing the victim. The evidence establishes that the man in the red hoodie was part of the group beating at the beach.
[21] In my view, the admissibility of that statement now appears to be potentially very problematic.
[22] The accused was intentionally placed in a small interview room that had no recording facilities. Recording facilities were available in another room at the station. The detective, who went to interview the accused, took with him a still shot of the man in the red hoodie. Clearly the intent was to try to elicit an incriminating admission that the accused was in fact the man in the red hoodie, in the picture. The evidence is that the accused told the detective that he would not speak on video but, otherwise, would answer his questions. And so, he was asked if he was the man in the picture and acknowledged that he was. There was some further conversation. None of this was audio or video recorded, and the subsequent police notes of the statement are acknowledged to be no more than a summary.
[23] This "confession" evidence is ripe for challenge on a number of grounds and so its ultimate admissibility is now "problematic".
The Leaney Identification of the Accused
[24] The identification of one of the men in the "Metro video" as Mr. Hansa is based on the ability of an officer, otherwise unconnected to the investigation, to provide opinion evidence that he is able to identify Mr. Hansa. That body of evidence was the subject of a "Leaney voir dire" before me. Although, for practical reasons, the issue was conceded for the purposes of the preliminary hearing, I can say that the Crown may face significant problems in getting that evidence before a jury.
[25] The background contact between the officer and Mr. Hansa was a traffic stop that occurred March 19th, 2016, about a week before the events in question. The officer later noticed one of the major crimes investigative team looking at a photo of Mr. Hansa, and says that he recognized him from the prior stop. The officer then goes on to say that he can identify the man in the red hoodie, in the "Metro video", as Hansa.
[26] I have seen the "Metro" video and I have been looking at Mr. Hansa for many days. The victim, Mr. Zikos, provided the evidence that the video is not of sufficient clarity to attempt a positive identification. I was not asked to, nor would I attempt to make a positive identification from that source.
[27] Having experienced the evidence of the "Leaney" officer's limited prior known contacts, and the quality of the "Metro" video, I conclude that both the threshold admissibility, as well as the ultimate reliability of this evidence should now be viewed as somewhat "problematic".
The Dock Identification
[28] The victim, Mr. Zikos, gave his evidence from behind a screen. The Crown, at one point, asked him to come out from behind the screen and see if he could identify any of his assailants. He pointed out the accused Hansa. Hansa was seated in the glassed-in prisoners' box next to the co-accused Shaikh, Zikos' drug supplier, who beat him over the head with a pipe and who Zikos obviously knows very well. Zikos has been exposed to photographs of Hansa in the course of the investigation and had been looking at him in the box, in court, for some time. This evidence is of no probative value.
[29] These "problematic" identification issues also exist in the context of Zikos' inability to recognize Hansa in a properly controlled photo line-up.
Magnitude of the Change in the Apparent Strength of the Case
[30] At paragraph 35 of Justice Dambrot's ruling he concludes, "I am of the view that the Justice's description of the Crown's case as fairly strong is not far off the mark."
[31] Having presided at the preliminary hearing and having heard a considerable body of evidence on these relevant identification issues, I am able to recalibrate the apparent strength of the Crown's case. I would describe the case against Mr. Hansa as having "a reasonable prospect of conviction" (to borrow the Crown screening standard), but I would qualify that assessment by observing that the route to linking Mr. Hansa to the confinement and beating, and establishing his relative role in these crimes will require the Crown to be successful on some very triable challenges to the admissibility of decisive evidence.
[32] The Crown's case against Mr. Hansa cannot be said to be as apparently robust as it once appeared to be.
[33] I appreciate that the shift in the strength of the Crown's case relates entirely to the potential for this evidence to be ruled inadmissible at trial. Significantly, those issues will turn largely on credibility and reliability assessments. I was not asked to make those credibility and reliability assessments, and I think the Crown is entitled to rely, to some extent, upon the concessions made which relieved me of engaging in a full analysis of those issues. Those concessions were responsibly made by experienced counsel in the context of the limited role of this Court at a preliminary hearing, and the limited benefit of fully litigating those issues at this stage of the process.
[34] Even if I had heard full argument and ruled in favor of the admissibility of both the utterance and the Leaney opinion, I would still be of the view that those aspects of the Crown's case are potentially very problematic for the Crown and, in that sense, the apparent strength of the case is diminished accordingly.
Conclusion
[35] The evidence heard at the preliminary hearing has not changed the nature of the allegations against this accused. However, the evidence which I heard seeking to identify Hansa as one of the perpetrators has been shown to be subject to some very triable admissibility issues, and can no longer be taken at full face value.
[36] The accused is a young man with no criminal record and very strong family support. The plan of release placed before me in a reinforced format is impressive.
[37] Mr. Hansa has been in custody in the local remand center for over a year. He has accumulated to this point a potential pretrial custody sentencing credit in the upper reformatory range. I was asked as part of this review to consider that he might be approaching a "time served" situation. In my opinion, if guilty of the allegations made in this case, it is probable that, at best, he is approaching that position.
[38] In conclusion, I am persuaded that the apparent strength of the Crown's case has shifted significantly and sufficiently to require a reconsideration of the necessity of the existing Detention Order.
[39] I am persuaded that the accused should be released on strict terms and conditions, such as those proposed by Mr. David on his behalf. The Crown has asked for an opportunity to be heard as to the conditions of release, and I will hear from her in that regard before making a formal release Order.
Released: Thursday June 1, 2017
Signed: "Justice W. B. Horkins"
Footnotes
[1] See R. v. Prete, [1981] OJ 2480 and R. v. Boston, [2014] OJ 5008