Court File and Parties

Date: March 27, 2020

Information: 20-55000876

Ontario Court of Justice

Toronto Region

Between:

Her Majesty the Queen

v.

Kaynadid Abshir

Reasons for Judgment: Judicial Interim Release Hearing

Hearing Date: March 23 and 25, 2020

Judgment: March 27, 2020

Before: Mary A. Ross Hendriks, J.P.

Counsel:

Mr. P. Leishman, Assistant Crown Attorney

Mr. B. Goldman, Defence Counsel

Introduction

[1] Mr. Kaynadid Abshir is a 19-year old Canadian citizen, with no dependents. Mr. Abshir comes to court with no criminal record and no outstanding charges. According to his proposed sureties, he graduated from Kipling Collegiate Institute with a high-grade point average, commenced the study of Electrical Engineering at Georgian College in Barrie in January, 2020, then left that program when the coronavirus disrupted his studies, combined with some recently emerging mental health issues. Defence counsel has also indicated that Mr. Abshir has bipolar disorder. According to his proposed sureties, his mother and his sister, since he left Georgian College, he has been working at the airport as a cleaner and a baggage handler. He normally resides with his proposed sureties in his mother's rented townhouse in Toronto.

[2] Crown counsel is seeking his detention on the primary, secondary and tertiary grounds. This is a reverse onus hearing, because of the nature of the charges.

[3] Prior to the outset of this release hearing, conducted by video to Toronto South Detention Centre because of the coronavirus, Mr. Abshir had to be taken to St. Joseph's Hospital, because someone unknown assaulted him at the jail and knocked out his front five teeth. I began this hearing late in the afternoon of March 23rd as a result, once he was returned to Toronto South Detention Centre, clearly holding gauze in his mouth as he spoke. In addition to this serious injury, Mr. Abshir kept asking me if he could read a letter, despite defence counsel urging him not to do so. His mental health issues are readily apparent to me from my own observations.

[4] Defence counsel urged me to complete this release hearing for safety reasons, since I had already commenced it, but I declined. At that point, when I adjourned, it was 5:10 pm in 202 (set date/case management court at 2201 Finch Ave. West) and I had yet to hear from his sureties or any details of the plan. My staff and I had already spent the day dealing with the set date lists, and I could not in good conscience require everyone to stay until 10 or 11 pm to hear from both sureties, one of whom needed an interpreter, and submissions.

[5] There is one sworn information before me at this hearing, which contains 13 counts. They are summarized below.

His Charges

[6] In sworn Information 20-55000876, he faces the following 13 charges, alleged to have taken place in the City of Toronto, on March 13, 2020, at about 3:15 am.

Count #1 – Occupy Motor Vehicle with Firearm, contrary to s.94(1) of the Criminal Code

Count #2 – Occupy Motor Vehicle with Firearm, contrary to s.94(1) of the Criminal Code

Count #3 – Possess Loaded Firearm, contrary to s.95(1) of the Criminal Code

Count #4 – Possess Loaded Firearm contrary to s.95(1) of the Criminal Code

Count #5 – Careless Storage of a Firearm, contrary to s. 86(1) of the Criminal Code

Count #6 – Careless Storage of a Firearm, contrary to s.86(1) of the Criminal Code

Count #7 – Possess Restricted or Prohibited Firearm without Holding a Licence and Registration Certificate, contrary to s.91(1) of the Criminal Code

Count #8 – Possess Restricted or Prohibited Firearm without Holding a Licence and Registration Certificate, contrary to s.91(1) of the Criminal Code

Count #9 – Possess Restricted or Prohibited Firearm knowingly without Holding a Licence and Registration Certificate, contrary to s.92(1) of the Criminal Code

Count #10 – Possess Restricted or Prohibited Firearm knowingly without Holding a Licence and Registration Certificate, contrary to s. 92(1) of the Criminal Code

Count #11 – Attempt Murder, contrary to s.239(1) of the Criminal Code

Count #12 – Discharge Firearm, contrary to s. 244.2(1) (b) of the Criminal Code

Count #13 – Aggravated Assault, contrary to s.268(2) of the Criminal Code

Allegations

[7] On consent, Crown counsel read the synopsis into the record (Exhibit 1).

[8] On Friday, March 13, 2020, at about 3:15 am, Mr. Abshir allegedly drove a rented silver Chrysler 200 car to 40 Falstaff Avenue, Toronto. He had rented this vehicle a few hours earlier, using his own driver's licence. During this release hearing, Crown counsel added new information that the rentor of this vehicle has advised the Toronto Police Service ("TPS") that the man to whom it was rented matched the driver's licence produced. However, this unnamed rentor has declined the TPS's request for a statement. When I asked if there was a contract to review, I was advised that it is a handwritten document, which was not produced at this hearing. Further, this rentor does not have a car rental shop, but meets clients on an ad hoc basis in parking lots, which is purportedly why there is no video surveillance evidence of Mr. Abshir renting this vehicle.

[9] This rented vehicle was occupied by at least three other males. Two of the males were believed to be armed with semi-automatic handguns.

[10] Mr. Abshir allegedly drove this vehicle, and parked it in a residential driveway near the entrance of the complex. This complex has been the subject of multiple gang-related shootings in the last several months.

[11] The shooting victim in this matter is Mr. Kevin Kusi. Mr. Kusi has no criminal history whatsoever.

[12] Mr. Kusi returned to his home located at 40 Falstaff Avenue, Toronto, in a ride-sharing vehicle. Mr. Kusi exited this vehicle, and approached his front lobby.

[13] Mr. Abshir allegedly drove the rented vehicle to the front of this building, and two masked suspects exited the vehicle and chased Mr. Kusi into the lobby. The two masked males each produced a 9 mm semi-automatic handgun and fired multiple shots at Mr. Kusi.

[14] As a result, Mr. Kusi sustained multiple gun-shots to his torso and lower extremities. He was able to crawl away as the two masked males continued to fire shots at him.

[15] A third suspect also exited the vehicle and entered the lobby. His face was also masked and police believe that he was also armed.

[16] The three masked men fled to the rented vehicle. Mr. Abshir was purportedly the getaway driver, who fled from the area at a high rate of speed.

[17] Police attended the scene and found Mr. Kusi in extremely life-threatening condition. He was rushed to Sunnybrook Hospital where he was unconscious after undergoing multiple surgeries.

[18] Police contained and investigated the crime scene, and found 19 spent 9 mm ammunition casings and over 20 projectiles.

[19] The entire shooting was captured on the digital surveillance video system for the complex. Crown counsel played six different surveillance video clips, including the actual shooting (Exhibit 3).

[20] Police conducted an investigation, and identified Mr. Abhsir as the driver of the rented vehicle used for the shooting. On Sunday, March 15, 2020, he was arrested as he left his home, and taken to 31 Division by the Toronto Police Service ("TPS"), and held pending a release hearing.

[21] Officers from TPS located and seized the rental vehicle used in the shooting.

[22] Criminal Code search warrants were obtained for both the vehicle and for Mr. Abshir's home address.

Witness for the Crown

[23] Crown counsel called Detective Constable Connor Rogers, who works in the Guns and Gangs Task Force of TPS to testify at this hearing.

[24] D/C Rogers testified that he was not the officer-in-charge of this case, but he was one of the investigators involved.

[25] He said that the victim, Mr. Kusi, is 27-years old, and he has no record. He resides at 40 Falstaff Ave., Toronto. He returned home after taking a shared ride.

[26] D/C Rogers said that he believes that Mr. Abshir rented the Silver Chrysler 200 using his own driver's licence, and then drove to 40 Falstaff Ave., Toronto, with three other individuals inside of this vehicle. He believes that two of them had semi-automatic handguns, and that Mr. Abshir drove them to the site and parked the vehicle at the complex's driveway.

[27] D/C Rogers believes that two of the three persons then fired multiple shots at the victim, hitting him in the torso and lower extremities. He said that the TPS found 19 spent 9 mm casings and over 20 projectiles.

[28] He has personally watched the complex's surveillance footage (Exhibit 3), which shows Mr. Kusi trying to crawl away after having been shot. At that point, a third suspect enters the lobby. All three masked suspects leave in the Silver Chrysler 200, which he believes Mr. Abshir drove.

[29] Mr. Kusi was found in life-threatening condition, unconscious, and requiring multiple surgeries. He remains in critical condition as of last Thursday, March 19, 2020.

[30] The TPS executed a search warrant at Mr. Abshir's home. Inside of the home, they found a new suitcase, with its store tags still on it, which was empty, as well as 2 large suitcases in the main floor bedroom, packed with women's clothing and medication. Upstairs, they found another bag packed with unspecified items. No firearms were located.

[31] D/C Rogers prepared the document attached to the Synopsis (part of Exhibit 1), entitled, "OCE-GGTF Centralized Shooting Response Team, Video Chronology" which he created on March 14, 2020. It contains a series of six photographs of the suspect vehicle reversing into the driveway and parking facing westbound Falstaff Ave. near the entrance to #40. The second photograph depicts the victim's Uber entering this same driveway.

[32] There are three more photographs in this same report depicting the victim entering the front lobby of 40 Falstaff Ave., and two suspects exiting the passenger side of the suspected vehicle, running towards the front entrance of the building. Unfortunately, these photographs are very blurry.

[33] The next 10 colour photographs in this report are of the actual shooting inside the complex, which form part of D/C Rogers's report. When he testified, he said that you can see the suspects shooting Mr. Kusi, and then running away. These photographs are very clear, and the suspects are wearing face masks. These photographs were taken from the shooting video itself (Exhibit 3).

[34] D/C Rogers said that there is no allegation that Mr. Abshir is one of the shooters. There is also no allegation that he was the third masked suspect. The allegation is that Mr. Abshir is the getaway driver.

[35] The remaining five photographs which form part of D/C Rogers's report are of the three suspects running to the vehicle, and fleeing eastbound on Falstaff Ave.

[36] The last photograph contained within his report is of an Ontario licence plate, which is missing the first digit to the far left, and reads, "LEY 040", affixed to the back of a four-door sedan. This picture was generated by the housing complex's licence plate reader system.

[37] D/C Rogers has also watched footage from […] Court, which is the housing complex where Mr. Abshir resides [the "S." video]. He testified that the driveway for this complex is a dead-end court, with a round-about inside of it. He said that he observed a silver Chrysler 200 entering this driveway, at 5:10 am on March 13th. This vehicle made a U-turn, and then travelled northbound and entered the complex via a different driveway, and then exited back onto S. Road, making a left turn out of the other driveway, and then another left turn to the end of the round-about on the right side of the entrance to the parking lot. D/C Rogers said that the east side of this particular lot is close to Mr. Abshir's residence.

[38] This same silver Chrysler 200 is then seen on this video parked in the driveway, and D/C Rogers observed a man he believes to be Mr. Abshir leaving the front driver side of this vehicle. He then saw Mr. Abshir have a brief chat with someone walking through this parking lot. Mr. Abshir is observed parking in that person's space in the lot, since the lot was full at the time.

[39] D/C Rogers testified that the quality of the video surveillance was good, and that it encompassed a number of different camera angles.

[40] D/C Rogers was present at the time of Mr. Abshir's arrest, and it is his belief that he is the same person as depicted in this parking lot video. He also testified about Mr. Abshir's physical characteristics, and said that the parking lot video included a view of his face. He testified that Mr. Abshir is about 6 feet tall, thin, short hair cut, curly black hair, and that he has a goatee beard.

[41] D/C Rogers has also reviewed three still photographs, taken by a colleague from a videotape of the "V+ " Gas Station, located on Kipling Ave., Toronto (Exhibit 2). He has not watched this videotape personally.

[42] D/C Rogers believes that these three photographs show Mr. Abshir leaving the back of a white sedan, and walking across a parking lot, adjacent to the rental car parking lot. These were taken at about 10 pm on March 12, 2020, which was five hours prior to the shooting.

[43] D/C Rogers implied that the white vehicle driven to the parking lot used for the car rental service is Mr. Abshir's mother's white Toyota Corolla, registered to her. He said there is footage of him leaving a white vehicle before going to the silver vehicle in the rental lot, but "I can't comment further."

[44] D/C Rogers also described a further surveillance video he has seen, taken on Orpington Crescent, near Finch Ave. West and Martin Grove Rd., at about 4:30 pm on March 13, 2020, which was about 13 hours after the shooting.

[45] In this Orpington video, D/C Rogers saw a silver Chrysler vehicle, bearing the plate "CLEY 040", being driven by a male he identified as Mr. Abshir. In this video, the car stopped at 4 Orpington Crescent, in a parking lot, and a male exited the passenger side, and entered the complex. D/C Rogers believes that this male is Mr. Abshir.

[46] He said that the Orpington video was of good quality, and of comparable quality to the S. video, since they are Toronto Community Housing complexes. He is confident that this male is Mr. Abshir.

[47] D/C Rogers described in some detail the clothing worn by the male he believes is Mr. Abshir and why it is distinctive.

[48] D/C Rogers testified that on two videos, e.g. S. and Orpington, the male he believes is Mr. Abshir is wearing a "Moose Knuckle" jacket, with a distinctive gold emblem on the left arm, black pants and black shoes (Exhibit 4).

[49] At the time of his arrest, Mr. Abshir was wearing black shoes and a Moose Knuckle jacket.

[50] When asked, in terms of the video that depicts the suspected car on Falstaff Ave. at the time of the shooting, D/C Rogers testified that there is no video evidence that shows the driver of this vehicle, nor did the driver exit this vehicle, nor did any video evidence depict the clothing of this driver. The only thing that this video does capture very clearly is the Ontario licence plate, "[missing digit]LEY 040".

[51] The vehicle that was rented in the name of Mr. Abshir bears the plate, "CLEY 040".

[52] Crown counsel asked D/C Rogers if the TPS had used any source information, as well, and he replied, "yes".

[53] In the video from Falstaff of the getaway car, it is seen backing up and turning around. While backing up, it hit a light pole on the edge of the driveway. When the silver rental car was returned, the police officer who observed it, not D/C Rogers, said there was damage to the rear back corner of the vehicle.

[54] During cross-examination, he testified that this vehicle was seized by police at the Kipling Avenue parking lot used by the rental service, and it was then that the police saw the damage to the rear.

[55] D/C Rogers cannot be sure who rented the vehicle based on the video footage, although he believes it was Mr. Abshir leaving the white car at the time that the silver car was rented. He admitted that he has not viewed this video personally, however.

[56] D/C Rogers has seen a photograph of the driver's licence used to rent this silver vehicle, and believes that it looks legitimate.

[57] When D/C Rogers was shown photograph 2 of Exhibit 2, he described the Moose Knuckle jacket, but admitted that it was hard to see the face of the person wearing this coat. I saw this photograph, and I described it on the record as being "very blurry." During final submissions, I made a ruling on the record that photograph 2 of Exhibit 2 is so difficult to discern, that I could only find that a human being exited the back of a 4-door white vehicle, and that I was unable to determine this person's race or gender. I did, however, make a ruling that this person is small-boned and slim.

[58] D/C Rogers said that at the time of Mr. Abshir's arrest, on March 15, 2020, at about 5:10 am, he was found in a car belonging to his brother, with other people, and that he had his passport on his person. This vehicle was not the silver Chrysler 200. There were no suitcases found in this car at the time.

Witnesses for the Defence

[59] Defence counsel called two proposed sureties, his sister and his mother, and I made an exclusion order.

Ms. Koos Bashir Abshir

[60] Ms. Koos Abshir testified that she is the sister of the accused. She is 25-years old, a Canadian citizen, and she has no criminal record, but does have an outstanding impaired driving charge.

[61] She resides at the family home at […] Court, Toronto, with her mother, her two brothers, and her infant son. For the past four years, she has worked as a Supervisor/Coordinator for […] where she oversees 100 youth per year. She is currently on parental leave, and thus has no income. She is able to pledge $500.

[62] Ms. Abshir testified that she has lived at their home address for 10 years, but that she resided in Thunder Bay in 2015-2016, during the school year while studying nursing at Lakehead University. She returned to Toronto to the family home during the summer. She has six months left to complete in this program.

[63] She explained that her mother is on the lease for the townhouse at […] Court, and that her mother receives ODSP.

[64] She is very close to the accused, since she is 7 years older than he is, and said, "I have raised him with my mom."

[65] She said that her mother has always been there for all of them, and that taking care of them was her first priority. Her father is in the picture, but he comes and goes. He left for Turkey the day after her brother's arrest, to go take care of his own brother, who was recovering from surgery. This trip had been planned for a long time. She described her father as older, about 61 years of age, and that he has heart problems.

[66] Another brother, Kafi, was murdered in 2018 after exiting a bus, by a 17-year old stranger, who apparently suffered from ADHD, and who admitted to the killing right away, and who pled guilty. The whole family provided victim impact statements and attended his sentencing hearing in July, 2019.

[67] She testified that her brother's murder impacted Mr. Abshir very profoundly, along with other family members. Ms. Abshir testified that his mental health issues came to the fore when he went to Dubai and to the Hajj. He has been diagnosed as suffering from anxiety, depression, lack of appetite, and lack of sleep. He was hospitalized in the fall of 2019.

[68] Ms. Abshir testified that he completed high school with an 86% average, and began Georgian College, but left after about six weeks, because of the coronavirus. He has since been working at the airport as a baggage handler and as a cleaner.

[69] She testified that he has a psychiatrist and a family doctor. He has received regular care at the Humber River Hospital on Keele St., where he goes at least once per month. He has another psychiatrist he sees in Mississauga, and she or her mother will drive him to these appointments, and wait in the waiting room for him. She testified that he takes prescription drugs for his mental health issues orally, and that she monitors him to ensure that he takes his medication. He takes three kinds, one for bipolar disorder, one for anxiety, and one for depression. He is compliant in this regard, and she watches him swallow his pills. Since he has been medicated, she testified that he is much happier, sleeps better, is more alert, and has stopped "over-talking".

[70] She also commented on his condition, as he appeared by video from Toronto South Detention Centre. In her opinion, she thought his mental state had worsened. She wants to take him back to his doctor and his psychiatrist, and also to a dentist, to deal with his missing teeth, and assist him in regaining his health.

[71] Ms. Abshir testified clearly that she understands the duties and obligations of a surety, and that she would report a breach to police.

[72] She is prepared to work closely with her mother, so that he is monitored 24/7 at home. She will run any errands needed, or her mother can, and one of them will watch her baby. Moreover, because of the Coronavirus, she does not want any strangers in the home in any event, because of her baby.

[73] Ms. Abshir testified that they would not permit him any access to a cell phone.

[74] She was asked, in chief, why police found a number of packed suitcases in their home when they executed a search warrant. She responded that when she moved back in with her family last fall, after she and her (then) partner broke up, she had stored her clothes upstairs in suitcases. She had yet to unpack, partly because the clothes did not fit right away due to the pregnancy, and she was using the suitcases for storage. The empty suitcase the police found was purchased for her dad's trip to Turkey.

[75] When asked during cross-examination if she had ever been a surety for her late brother Kafi, she said that she had been his surety once, and then said that she did not recall him being in trouble with the law, blaming her lack of recollection on being a new mother and hormones. Crown counsel found her evasive. She said that he has only been dead for a year and a half, and that she only wants to think about the good things, since he was a good person. She then added, "I cannot recall, I don't want to answer something that I don't remember."

[76] When asked why she believes that she is like a parent to the accused, she replied that she has tutored him, taken him to the park, fed him, talked to him, counselled him, and supported him. She said that he loves sports, so she went to basketball and soccer tournaments with him.

[77] She testified that she does not know his friends, and described some of his acquaintance that she has known. Now that he is 19 years old, she does not know his friends. She said that he is always with his family.

[78] Ms. Abshir explained that she has her own life, he has his own life, and added, "I don't know who his friends are." She only sees him with other family members, and noted that, "He never brings people to the house."

[79] When asked what he does when he goes out of the house, she admitted that she does not know. She denies that her brother goes out in the middle of the night. Ms. Abshir began to look quite distressed, and explained that she does try to monitor his whereabouts, because a cousin was murdered in 2015. She said that when she is interacting with her younger brothers, she stresses that "safety is key."

[80] She has not cautioned him about who he is friends with, because she felt that he was "a smart kid, a good kid, not dumb", and that she did not need to worry about him.

[81] This situation is the first time he has been in trouble, and she testified that she is in shock.

[82] During Redirect, when asked if anyone else signed bail for her late brother, Kafi, she said that her mother had, for a less serious charge. She does not believe that anyone else signed bail for him.

Ms. Sirad Abdi Shire

[83] Ms. Sirad Shire is Mr. Abshir's mother. She testified with the assistance of a Somali interpreter. She is 56-years old, a Canadian citizen, with no criminal record and no outstanding charges. She is a homemaker, who resides with her family at […] Court.

[84] Ms. Shire receives $1800 per month from ODSP, and has no other source of income. Because of the murder of her son, Kafi, she received $10,000 as victim compensation. She has this sum in the bank, and she is prepared to pledge all of it to secure her son's release.

[85] Mr. Abshir has always lived with her. For the last 10 years, they have resided at […] Court, and prior to that, they resided on Dixon Rd.

[86] She testified that her son graduated from Kipling Collegiate Institute, and then enrolled at Georgian College in Barrie. He commuted back and forth every day, while he studied electrical engineering. He began this program in January, 2020. Once the coronavirus hit, he stopped attending the college, and began working at the airport as a cleaner.

[87] She described her son's mental health issues, and the need to have regular appointments with his psychiatrists and take prescription medication. She testified that she and her daughter will both take turns driving him to and from these appointments in her car. She said that they can offer full-time supervision.

[88] She appreciates the seriousness of these charges, and testified that she will revoke her surety by notifying the police and contact the court if he breaches any conditions. She clearly said, "we will do our best to do whatever is ordered here".

[89] During cross-examination, she testified that her son started at Georgian College, and the plan was that he would attend that program for 2 years, and then either start working, or continue studying at university.

[90] When she was asked if she had had a conversation with him about what not to do, after the murder of her other son, she replied that, "No, nothing. He was just going to school. He's the one who liked to go to school, [to] study."

[91] When asked how many times she signed bail for her deceased son, she responded, "one time only."

[92] She has never seen Mr. Abshir's friends. She explained that he enjoys playing basketball.

[93] During cross-examination, she was asked about her own vehicle. She testified that it is a white Toyota Corolla. From time to time, she lends it to her children, including Mr. Abshir. When asked if he takes her car without her knowledge, she said, "no." She was also asked if Mr. Abshir has a car or borrows one. She replied that, "I don't know that."

[94] When asked if Mr. Abshir ever goes out without her knowledge of what he was doing, she responded, "no."

[95] She recalled March 15, 2020, the day of Mr. Abshir's arrest, since she received a call. When she returned home, the TPS was in the process of executing a search warrant. She believes that he was arrested in a car with "his brothers" and that the car he was in belonged to her other son. She was told that they were giving a girl a ride when they were arrested. She does not know their friend's name.

[96] She testified that her husband went to Turkey a few days after Mr. Abshir's arrest. She cannot recall if he left on March 17 or 18, 2020, in order to care for his brother in Turkey. She explained that her husband comes to supervise the children but does not normally live with her. She said that their relationship is "not bad", and that they co-parent together.

[97] She denied that Mr. Abshir had any travel plans when he was arrested, despite having his passport on his person. She said that she had given him his passport recently, so that they could both open a new, joint bank account at Scotiabank, since she was in the process of having him apply for ODSP. Although he already had a bank account at a different bank, as did she, she wanted them to have a joint account, because of his illness.

[98] When asked if she has discussed Mr. Abshir's willingness to abide by conditions with him, she responded that she hasn't seen him yet, and that she will when he comes out.

[99] Ms. Shire testified that Mr. Abshir, "got sick because of my other son." She has assisted him in receiving care prior to his arrest, and the plan is that she and her daughter will take him to and from medical appointments if he is released, on a house arrest plan.

Final Submissions

Defence Counsel's Submissions

[100] Defence counsel addressed all three grounds of detention, in order.

Primary Ground Concerns

[101] In terms of the primary ground concern raised, and whether or not Mr. Abshir is a flight risk, he directed me to the testimony I heard about the packed suitcases in the home. When police executed the search warrant, they found a couple of suitcases containing women's clothes. Mr. Abshir cannot wear them, nor was he in possession of any luggage at the time of his arrest. His sister explained that she had recently moved back to her mother's home, and that because of pregnancy weight, she could not fit into all of her clothes, so she left them in suitcases upstairs for storage purposes. His sister bought the empty suitcase for their father to use for his trip to Turkey to assist his ill brother. His mother explained that he had his passport with him, because they had recently opened a joint bank account, because she is hoping that he receives ODSP.

[102] Defence counsel submitted that at the time of his arrest, the TPS seized his passport. He submitted that Mr. Abshir can meet his onus on the primary ground if I include some conditions in his release to address any such concerns.

Secondary Ground Concerns

[103] Defence counsel submitted that there is not a substantial likelihood of Mr. Abshir committing any offences that would endanger the public while on this plan of release, because it is an extraordinarily strong plan. He is proposing full house arrest, but seeks exceptions so that one or both of his sureties can accompany him to medical appointments, court dates, or counsel's office.

[104] Both his mother and his sister are at home all the time. Now that we face the coronavirus, everyone needs to stay inside in any event. They are both experienced sureties, who acted for his late brother in the past without any breaches. They both testified clearly that they would notify the police if he breaches any conditions. Mr. Abshir is accustomed to living with them, and being under their supervision in the normal course of his life, particularly since he became ill prior to his arrest, so this would not alter their relationships that dramatically.

[105] Defence counsel submitted that both sureties were candid in their testimony, including questions regarding the murder of Kafi, which would have been extremely painful for them to recount.

[106] Defence counsel stressed the presumption of innocence at the bail stage, and highlighted that his client has no criminal record nor any outstanding charges. There is no indication of any motive. It appears that the Crown's theory of the case is based on party liability, since Mr. Abshir was not charged as an accessory, but there are evidentiary weaknesses to the Crown's case with respect to Mr. Abshir as the driver of the getaway car, which are summarized below under the tertiary ground, but apply to both the secondary and tertiary grounds.

Tertiary Ground Concerns

[107] Defence counsel acknowledged that this concern is the Crown counsel's most significant issue.

[108] He agrees that the facts of this case are extremely serious, firearms were used, and that if his client were to be convicted, he would be facing a long prison sentence.

[109] However, he highlighted the presumption of innocence, which is the lens through which I need to assess the evidence. Moreover, there are weaknesses in the strength of the Crown's case. The Crown has a theory that Mr. Abshir rented the Chrysler vehicle seen in the shooting videos, but none of the videos show the face of the driver. It is not appropriate at the bail stage to make this inference based on this evidence.

[110] He described the car rental business as "fly by night", since it has no premises, and handwritten rental agreements. The owner of this business meets customers in a parking lot to hand over the rental vehicle.

[111] His theory is that the three masked males who used the car wanted someone else, whose driver's licence is attached to the rental vehicle, to "be the cover" for them. This inference is just as reasonable as the inference that Mr. Abshir was the driver at the time of the attempted murder.

[112] He pointed out the debate about photographs #2 and #3 of Exhibit 2, which shows a person leaving the back of a white vehicle, and that D/C Rogers used that photograph to identify Mr. Abshir, whereas I had already ruled on photograph #2 that I could not tell who it is, nor whether they are male or female, or their race.

[113] At this juncture, we have no evidence about who drove the rental car during the shooting, or the identity of the shooters themselves.

[114] Defence counsel argued strenuously that the evidence that ties his client to this crime is very thin, and that based on what we have seen at this release hearing, may fall apart at trial.

[115] Defence counsel believes that a reasonable member of the public, who understands the right to a fair bail hearing, would lose confidence in the justice system if someone with no record and no outstanding charges were to be detained when the issue of identity is so much at issue.

[116] Defence counsel referred to R. v. Dang, [2015] O.J. No. 1552, particularly paragraphs 43 and 44, for the proposition that I should consider the strength of the plan when considering the tertiary ground.

[117] He also referred to Justice Copeland's recent judgment in R. v. J.S., 2020 ONSC 1710, and the concern about the conditions of the jails and of society generally, in light of the coronavirus, which Justice Copeland considered as a new factor under the tertiary ground. He provided me with an article from the New York Times, "Younger Adults Make Up Big Portion of Coronavirus Hospitalization in U.S.", by Pam Belluck, dated March 18, 2020, citing a recent report from the Centers for Disease Control and Prevention. This recent CDC report indicates that, "20 percent of the hospitalized patients and 12 percent of the intensive care patients were between the ages of 20 and 44, basically spanning the millennial generation". He argued that younger persons are at high risk of transmission. Social distancing, during a pandemic, is not possible when in custody, which will increase the risk of infection, and this virus is highly contagious.

[118] He also asked me to consider his client's grievous injury, and the loss of five teeth, while in custody at Toronto South Detention Centre. He argued that there is already tremendous stress on the system, and that the virus adds to that stress. Moreover, Mr. Abshir's sister believes that his mental state appears to have declined further while in custody.

[119] In totality, he thinks a detention order in these circumstances would shock the conscience of the community.

Crown Counsel's Submissions

[120] Crown counsel reiterated his concerns on the primary, secondary and tertiary grounds, particularly with respect to the tertiary grounds.

[121] Crown counsel provided me with a copy of a new decision from Justice Edwards in R. v. Nelson, ONSC 1728, in which a bail review application dealing with the coronavirus issue on the tertiary ground was dismissed. After reviewing various reports, at paragraph 35, Justice Edwards found that younger persons are much less likely to experience the virus in its most severe form.

[122] Crown counsel indicated that last year, the total number of shooting occurrences in Toronto was 492, and that so far in 2020, there have been 94 occurrences, which means that the incidence of occurrences has increased 42 percent. See: TPS, "Analytics & Innovation" chart, dated March 22, 2020.

[123] In R. v. J.M. (2019, unreported and publication ban in place), an accused was found with a firearm in his waistband, but had no record, no outstanding charges, was only 18 years old, and had two good sureties. While he met his onus on the secondary ground, nevertheless he was detained on the tertiary ground. Crown counsel relies on that decision in this case to amplify his tertiary ground concerns.

[124] He urged me to compare the photograph of the Chrysler vehicle (Exhibit 1) with the findings of the licence plate reader at 40 Falstaff Ave, where the shooting occurred (Exhibit 1, at p.12).

[125] The shooting itself occurred at 3:24 am, and according to D/C Rogers, Mr. Abshir arrived back at his residence at […] Court around 5:10 am, in a silver Chrysler. D/C Rogers testified that the quality of this video was much better.

[126] When Mr. Abshir was pulled over in a vehicle, about 13 hours after the shooting, for a traffic stop, he gave the TPS his driver's licence, but Crown counsel alleges that the other passenger left the car as the stop was taking place. He alleges that this other passenger was arrested 12 hours later in possession of a firearm. When he was pulled over, he was still driving a silver Chrysler vehicle.

[127] Various pieces of evidence put Mr. Abshir in the Chrysler before and after the shooting, and the person from whom the Chrysler was rented said that the customer matched the driver's licence produced and photocopied. D/C Rogers reviewed that photocopy of the driver's licence, and believes it to be a true driver's licence and not a replica, and it bears Mr. Abshir's name and photograph.

[128] Mr. Abshir was arrested wearing a Moose Knuckle jacket, which is a brand with a distinctive logo on the sleeve. D/C Rogers believed that he was wearing the same jacket in two surveillance videos from S. and Orpington.

[129] Crown counsel submits that the logo from this jacket is visible in photographs 2 and 3 of Exhibit 2, which I again do not accept as accurate. These photographs are extremely blurry and I cannot rely on them to ascertain the identity of the person in them, although they do clearly depict two vehicles, one white and the other silver.

[130] Crown counsel maintains that he has a strong case against Mr. Abshir, and that all four enumerated factors on the tertiary ground have been established.

[131] While this case has yet to be screened by the Crown's office, Crown counsel relies on the shooting videos to make the submission that whoever was the driver of the getaway car, if he/she didn't know what was about to happen prior to the shooting, he/she certainly knew after the fact. The driver would have known that the firearms were discharged, because of the close proximity of the car to the front door of the victim's building. He submits that this strains credulity that the driver of the vehicle parked on the street, waiting as someone came into the parking lot, and then its passengers immediately ran after the victim into his lobby, so quickly that the front doors had not even closed, could only be an accessory after the fact.

[132] Crown counsel argued that it is astonishing that Mr. Kusi is not dead, and he remains in the hospital in critical condition. Hospital patients also need to fear the coronavirus, for the same reasons that detained persons do, and they are at a higher risk of dire outcomes from it.

[133] He asked rhetorically if it is theoretically possible that Mr. Abshir rented the vehicle, gave it to someone else to commit the crime, and then had it back in his possession about an hour and a half after the shooting? He urged me to draw inferences from what evidence I do accept. While it may not be very sophisticated to rent a car in your own name to commit a crime, commit the crime, and then drive back to your own residence, that would only be true if you thought the vehicle would be identified. It is entirely possible that the renter of the vehicle did not know that the victim's residence at 40 Falstaff Ave. had a licence plate reader.

[134] Thus, he argued that all four factors are met, including a double-digit penitentiary sentence upon conviction.

[135] In terms of the plan itself, Crown counsel argued that I cannot trust the proposed sureties' watchful eyes, since all of this occurred on their watch. Mr. Abshir seems to go places at night and they have no idea of what is happening in their home.

[136] He also expressed concerns with Mr. Abshir's sister's sincerity, and whether her lack of recall about her late brother was accurate, since she later recalled her mother bailing him out, after telling the Crown she could not recall these details anymore.

[137] In terms of what weight, if any, to give to the fact that Mr. Abshir was attacked in jail and lost his five front teeth, Crown counsel pointed out that we have no evidence about what time this attack occurred, to refute the point made by defence counsel that if the system were running normally and he had been brought to court early in the morning, this attack could not have taken place. There is no evidence that any violence in the detention centre is related to the stress of the coronavirus. In his view, jails are not pleasant places to be, and these issues are unrelated.

[138] If a young man like Mr. Abshir were to be infected with the coronavirus, he would fall into the low risk category, and thus I should not conclude that he is high risk for the worst possible outcomes. He referred to Nelson, for this proposition.

[139] Crown counsel opined that this shooting is one of the worst ones he has seen. The victim was chased into his home, and the assailants were firing at him while the front door was still open. They left many shell casings behind, and the only reason he isn't dead is that they are not good shots.

[140] A reasonable member of the public would lose confidence in the bail system if he were to be released, because the driver of the getaway car would have known what was going to transpire.

Reply

[141] Defence counsel reiterated his view that prompt transportation to bail court would have prevented the assault, unless the institution is grossly negligent, and left Mr. Abshir bleeding for hours before they sent him to the hospital. The coronavirus has disrupted the normal functioning of the justice system, resulting his Mr. Abshir suffering a serious injury. His health and well-being deserve protection from injury and illness, since he is presumed innocent and has a strong plan of supervision.

[142] He urged me to take a good, hard look at the Crown's evidence, through the lens of the presumption of innocence, and when I weigh it, I will conclude that the Crown cannot identify the driver of the getaway car as being Mr. Abshir.

Analysis

The Right to Bail

[143] 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).

[144] Moreover, in R. v. Pearson, [1982] 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". 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.

[145] The Supreme Court of Canada in R. v. Antic, 2017 SCC 27, restated the importance of s.11(e) of the Charter, and of the "ladder principle" set out under (then) s. 515(3) of the Criminal Code (now contained in s.515(2.01)).

[146] The Supreme Court of Canada in Antic and in R. v. Myers, 2019 SCC 18, and the C-75 amendments to the release regime, especially s. 493.1 of the Criminal Code, all promote release and call for judicial restraint when applying the bail ladder.

[147] Section 515(10) of the Criminal Code remains the same, however. It establishes that pre-trial detention is only justified when one or more of the following three conditions 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.

[148] Crown counsel is relying on the primary, secondary and tertiary grounds to seek Mr. Abshir's detention, and thus the onus is on him to show cause, on a balance of probabilities, why he should be released. Defence counsel argues that with two sureties, a plan of house arrest, with no criminal record nor any outstanding charges, he has met his onus on the secondary ground.

[149] Both counsel agree that the circumstances of this matter are circumstantial, but they disagree as to the strength of the Crown's case, particularly with respect to the issue of identity of the getaway driver.

The Primary Ground

[150] Mr. Abshir and his proposed sureties are all Canadian citizens, with strong ties to this country. I accept his sister's explanation about the luggage found in their home, which was corroborated by D/C Rogers's evidence that the suitcases contained women's clothing, and her explanation that the empty new suitcase was meant for her father, who left shortly after Mr. Abshir's arrest, to care for his ill brother in Turkey.

[151] Mr. Abshir's passport has already been confiscated by the police. Conditions can be included in a strict release order, including a significant quantum, that would satisfy the concern raised on the primary ground, and so Mr. Abshir has met his onus.

The Secondary Ground

Lack of Criminal Antecedents

[152] To Mr. Abshir's credit, he has no criminal record nor any outstanding charges.

Strength of the Crown's Case

[153] The strength of the Crown's case must be considered on both the secondary and tertiary grounds.

[154] The evidence in this case is circumstantial, and the key issue at trial will be the identity of the driver of the getaway car at the time of the shooting. D/C Rogers testified that after reviewing a number of videos, he believes that the driver is Mr. Abshir. However, there is no photograph from the surveillance videos from the shooting that shows Mr. Abshir at the wheel of the suspected vehicle, for example.

[155] The suspected getaway vehicle was rented in Mr. Abshir's name, using his purported driver's licence. There is no video footage or photograph of that transaction, however. Crown counsel indicated that the rentor of the vehicle has told police that the driver's licence produced corresponded to the person who rented the vehicle, but he refused to give them a statement. Given that this unknown rentor refused to give police a statement, and operates his business in a very unconventional way (e.g, no shop, no formal contracts, no documented fleet, and perhaps little if any way of being traced), I am not prepared to accept this hearsay as credible without something more. There can be problems with eye witness identification at the best of times. In this case, this unconventional account of how the car was rented could be part of an alternative narrative, meant to deflect blame onto Mr. Abshir, or it could be true, but given how many loose ends that it presents, I am only prepared to say it will be an issue for the trial.

[156] I have carefully considered the limited number of photographs provided to me at this release hearing, and I am not satisfied that they are Mr. Abshir, including Exhibit 2, which shows a person standing between a white car and a silver car believed to be the rented vehicle. None of the videos shown to me from the actual shooting show the driver of the getaway car. I have not seen any photographs or videos that link Mr. Abshir to this car subsequent to the shootings, although I have heard D/C Rogers's evidence. At this juncture the identity of the getaway driver has not been established.

[157] According to D/C Rogers, the clothing worn in the Orpington and the S. videos both depict a male in a Moose Knuckle jacket whom he believed to be Mr. Abshir, but I was not shown those videos. D/C Rogers testified that is the brand of coat which Mr. Abshir had on when he was arrested.

[158] However, there are no eyewitnesses, no DNA evidence linking him to this crime, no cell phone or phone tower evidence, no firearm or other weapons found as the result of the search warrants conducted, nor are there any known linkages to any groups. He does not have a criminal record or any outstanding charges. At no point during this release hearing has anyone attributed a motive to him.

[159] I am relying on Baird, J.'s helpful analysis in R. v. Chandi, 2019 BCSC 384 at paragraph 30, regarding how to assess circumstantial evidence at trial, set out below:

I remind myself that in a circumstantial case an inference of guilt must be the only reasonable one to be drawn from the evidence. Alternative innocent references do not have to be supported in evidence. I quote the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, at paragraphs 35 to 38, with citations omitted, as follows:

[35] At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts". However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence". A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of the human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty.

[160] Based on all of the evidence, I find that the Crown has a circumstantial case against Mr. Abshir. While the Crown has many small pieces of evidence that may point to him, this evidence is very far from conclusive and needs to be tested at a trial.

The Plan of Release

[161] In terms of the suitability of the proposed plan of release, there are a number of factors to consider.

[162] First and foremost, I find both proposed sureties to be reliable and credible. They are prepared to provide full-time supervision, pledge a large quantum, and contact the authorities if he breaches any conditions of his release.

The Nature of the Relationship between the Accused and His Proposed Sureties

[163] The nature of the relationship between an accused and his proposed sureties is relevant to the issue of suitability, generally. In R. v. Mott, [2013] O.J. No. 1631, at paragraph 36, Gauthier, J. held:

In addition to the surety's character, the nature of the relationship between the surety and the accused is directly related to the suitability of the surety. At page 198 of The Law of Bail in Canada, the author says this:

On a view of the surety relationship that contemplates any degree of supervision of the accused, it is crucial to know whether the relationship is one which will realistically permit the infusion of these obligations and their potential enforcement. Thus, it is important to inquire beyond the mere formalities of the surety's relationship with the accused and determine its nature. Factors such as how long the surety has known the accused, whether they are related, how frequently they see each other and how close they live to one another should give some indication of how well a surety can be expected to supervise an accused and take action if the accused fails to live up to the conditions of his or her release.

[164] Both sureties have a close and loving relationship with Mr. Abshir. They have each been assisting him with his mental health treatment for several months, and his sister monitors him when he needs to take his three types of medication. His older sister is akin to another parent figure in his life. He is accustomed to living with them in the family home, and I anticipate that he will accept direction from them.

The Relevant Jurisprudence

[165] The public safety component under the secondary ground established by (then) Chief Justice Lamer in R. v. Morales, [1992] 3 SCR 711, which was itself a reverse onus bail hearing, is narrow in scope, and remains good law. At paragraph 39, (then) Chief Justice Lamer held:

I am satisfied that the scope of the public safety component of s.515(10(b) is sufficiently narrow to satisfy the first requirement under s.11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public." Moreover, detention is justified only when it is "necessary" for the public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s.11(e).

[166] Since Morales was decided, there has been some tension within the jurisprudence on how to interpret "substantial likelihood", e.g. between "might well happen" versus the "probability" standard. I am applying the enhanced balance of probabilities standard, and in doing so, I am relying on the analysis of Spies, J., in R. v. Ward, [2019] O.J. No. 6306, at paragraphs 24 and 25, who cited Trotter on Bail, and R. v. Manasseri, 2017 ONCA 226, reproduced verbatim:

24 Justice Trotter, in his publication Trotter on Bail, 3rd ed., Thomson Reuters, wrote that Clark J.'s approach was "thoughtful" and added the following considerations:

The definition given to "substantial likelihood" must be faithful to the spirit of the constitutional considerations discussed above. A standard that is too low will fail to satisfy the 'just cause' requirement that bail be denied only in a narrow set of circumstances. A standard that is too exacting will undermine the Supreme Court's handling of the predictive efficacy issue. The proper, and accepted, approach is an enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity. This standard applies to both the public protection and interferences with the administration of justice arms of s.515(10)(b). [Emphasis added]

25 The decision that in my view clears up any doubt on this issue is a decision from the Ontario Court of Appeal, R. v. Manasseri, 2017 ONCA 226, where Watt, J.A. speaking for the Court stated:

[87] Second, in connection with the specified circumstances encompassed by the cause 'including any substantial likelihood that the accused will, if released from custody, commit…', the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely. [Emphasis added]

[167] I find that if he were released on the plan as proposed, there is not a substantial likelihood that he will commit further violent offences. For these reasons, Mr. Abshir has met his onus on the secondary ground.

The Tertiary Ground

[168] Detention is only justified on the tertiary ground if it is necessary to maintain confidence in the administration of justice. Moreover, in R. v. St. Cloud, 2015 SCC 27, [2015] 2 SCR 328, at paragraph 54, the Supreme Court of Canada found that the tertiary ground was not limited to exceptional circumstances, but that the Crown must prove that the detention of the accused was justified to maintain the public's confidence in the administration of justice.

[169] Thus, the question is whether a reasonable member of the public, who understood the constitutional right not to be denied a reasonable bail, would find it necessary to deny him release, or would the proposed plan satisfy the public's confidence in the administration of justice?

[170] In terms of the four enumerated factors listed under the tertiary ground, I will deal with each of them below, in order.

[171] The Crown's case against Mr. Abshir is based entirely on circumstantial evidence, and whether the Crown can prove the identity of the getaway driver at the time of the shooting. Without something further at this stage, the issue of identity needs to be tested at trial, for all the reasons I have outlined above. Assuming without deciding that at trial, the Crown could prove he rented the Chrysler in question, it is still very plausible that Mr. Abshir was duped into lending the car to the actual assailants. Mr. Abshir not only enjoys the presumption of innocence, but I found him to be very childlike in the manner in which he kept asking me if he could read me a letter. Since the shooters had the presence of mind to wear masks, perhaps they also had the presence of mind to set up someone with serious mental health challenges to take the blame.

[172] In terms of the gravity of the offences, he is facing extremely serious charges, including being a party to an attempted murder. Multiple shots were fired at close range, at a victim who was trying to crawl away from the masked shooters, who continued firing. The allegation is that Mr. Abshir is the getaway driver.

[173] Mr. Kusi remains in critical condition, after having had multiple surgeries, and a very close call at the scene itself.

[174] Given the clear surveillance videos of the shooting itself, the Crown has an overwhelming argument to make that the shooters and their getaway driver all had the mens rea for the offence of attempt murder. The getaway driver moved the vehicle close to the door before the shooting started, and had turned the vehicle around so that they could make a quick escape.

[175] The circumstances of this matter are profoundly disturbing. It appears that the shooters deliberately sat in the parking lot waiting for the victim, moved the getaway car close to the front door, and then ran after the victim into the lobby of his home. This indicates premeditation. They shot him multiple times at close range, before they fled in the getaway car. This is not an incidence of recklessness, but of deliberation and planning.

[176] If he is convicted of attempt murder, the Criminal Code sets out that the minimum sentence is 4 years, and the maximum sentence is life. As Faieta, J. held in R. v. Holder, 2018 ONSC 5370 at paragraph 26, citing R. v. Tan, 2008 ONCA 574, at paragraphs 35 to 39, the low end of the range is 8 or 9 years, the middle is 15 years, and the high end of the range is life.

[177] Moreover, if he is found guilty, his role as the getaway driver will not assist him in sentencing. It is not a mitigating factor to be an accomplice to attempted murder, see: R. v. Piroli, 2018 QCCQ 7107, citing the Manitoba Court of Appeal in R. v. McIvor, 2018 MBCA 29 at paragraph 29, where it opined on a hypothetical getaway driver to a robbery, who remains a party to the offence, as per section 21 of the Criminal Code.

[178] The tertiary ground also instructs us to consider all circumstances, and is not limited to the four enumerated factors. One important aspect is the strength of the plan of release. I am satisfied with the plan of release as proposed. His passport has already been confiscated. His sureties are pledging a large quantum to bind their consciences. I am also mindful of the fact that he has no record, and there is no reason for me to believe that he will not listen to his proposed sureties or comply with a court order.

[179] When considering all the circumstances, I accept that the coronavirus is another, new factor to consider on the tertiary ground. I agree that this additional factor is the "greatly elevated risk" posed to detainees from the coronavirus, as compared to being at home on house arrest, under the tertiary ground, see: R. v. J.S., at paragraph 18.

[180] Mr. Abshir's underlying mental health issues which require regular treatment are also a factor for me to consider, as well as his need for dental surgery, following his attack at the Toronto South Detention Centre.

[181] Balancing all of these factors, and considering the strength of the plan proposed, I find that detention is not necessary to maintain confidence in the administration of justice.

[182] Mr. Abshir has met his onus on the tertiary ground.

Order

[183] For the reasons set out above, Mr. Abshir has met his onus on the primary, secondary and tertiary grounds, and he is ordered released on the conditions set out below (summarized in point form – standard wording to apply) under Appendix "A".

Dated at Toronto this 27th day of March, 2020.

Mary A. Ross Hendriks, J.P.

Appendix "A"

Conditions of Release:

• Two named sureties: Ms. Koos Abshir, in the amount of $500, no deposit, and Ms. Sirad Shire, in the amount of $10,000 no deposit;

• Reside with your sureties at […], Toronto, and follow the rules of the home;

• House Arrest: Do not leave your residence unless you are in the direct and continuous company of one or both of your sureties, and only for the purposes of travelling to and from all medical appointments; court appearances; or meetings with counsel. Where these meetings are confidential, your surety is required to wait in the waiting room immediately outside of your doctor or lawyer's internal office;

• You are not permitted to possess any weapons as defined by the Criminal Code;

• You are not permitted to possess any firearms;

• You are not permitted to seek any type of registration certificate that would permit you to acquire a weapon;

• You are not permitted to leave the Province of Ontario;

• You are not permitted to possess any travel documents or passports, nor are you permitted to apply for any new or replacement travel documents or passports;

• You are not permitted to possess a cell phone, unless in the direct and continuous company of one of your sureties;

• You are not permitted to be within 500 metres of 40 Falstaff Ave., Toronto;

• Present yourself at the front door of your residence within 5 minutes of a police compliance check; and

• You are not permitted to have any contact or communication with Kevin Kusi, or members of his immediate family, nor be within 500 metres of any place that he lives, works, goes to school, or is known by you to be.