ONTARIO COURT OF JUSTICE
CITATION: R. v. Ali, 2022 ONCJ 142
DATE: 2022 03 30
COURT FILE No.: Toronto, College Park 20-75003376
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KASHIF MOHAMMED ALI
Before Justice J. W. Bovard
Heard on February 1, 2022
Oral judgment released on March 29, 2022
Written reasons for Judgment released on March 30, 2022
Mr. A. Cox............................................................................................. counsel for the Crown
Mr. H. Cedro........................................ counsel for the defendant Kashif Mohammed Ali
Bovard J.:
[1] These are the court’s reasons for judgment after the trial of KASHIF MOHAMMED ALI on the charge of failing to comply with an undertaking.
Introduction
[2] On October 8, 2020, Mr. Ali was subject to an undertaking that prohibited him from being within 100 metres of 155 Sherbourne Street in Toronto.
[3] On the day in question, a police officer saw him standing on the corner of Shuter Street and Sherbourne Street, next to a fence that is on the edge of a grassy area attached to 155 Sherbourne Street. The Crown alleges that Mr. Ali was in breach of his undertaking. The defence argues that Mr. Ali did not realize that he was within 100 metres of 155 Sherbourne Street.
Issue
[4] The issue is whether Mr. Ali had the requisite mens rea to commit the offence.
The evidence
Officer Butson
Officer Butson arrested Mr. Ali on August 4, 2020, for numerous charges. He was released on an Undertaking with conditions. One of the conditions was that he not be within 100 metres of 155 Sherbourne Street.
Officer Cohen
[5] On October 8, 2020, Officer Cohen was on patrol in his police cruiser. While he was waiting for the traffic light to change at the corner of Sherbourne Street and Shuter Street, he saw Mr. Ali crossing Shuter Street from the southeast corner of Shuter Street and Sherbourne Street. He was walking towards the northeast corner of Sherbourne Street and Shuter Street with his dog. He called out to him, but he did not respond.
[6] He could not say exactly, but he guessed that Mr. Ali was “probably 50 metres at most” from 155 Sherbourne Street. Officer Cohen was “rather” or “pretty” confident that he was less than 100 metres away. I find this evidence inconclusive of how far away Mr. Ali was from 155 Sherbourne Street.
[7] Mr. Ali was subject to an undertaking with a condition that he “not be within a hundred metres of 155 Sherbourne Street”.
[8] Officer Cohen turned northbound and followed Mr. Ali. He stopped him at the entrance of 191 Sherbourne Street. He confirmed his identity and then arrested him on an outstanding warrant.
[9] That was the case for the Crown.
[10] The defence called Mr. Ali. He grew up in Regent Park and has lived in the Regent Park/Moss Park area all his life. Currently, he lives at 201 Sherbourne Street, Moss Park, as he did on the day in question. He has been there over two years.
[11] On the day in question, he was returning home after walking his dog when the incident occurred. He was waiting on the southeast corner of Shuter Street and Sherbourne Street for the light to turn green so he could cross the street northwards and go to his building. He did not hear Officer Cohen call out to him. There were a lot of persons crossing the street.
[12] When the light changed, he crossed the street and headed towards his apartment. As he was about to turn into the driveway of his building two or three police cruisers pulled up and the police arrested him.
[13] Mr. Ali remembered the condition of his bail that required him to stay 100 metres away from certain addresses, including 155 Sherbourne Street.
[14] Defence counsel asked him if he knew that when he was standing on the corner of Shuter Street and Sherbourne Street he was within 100 metres of one of the addresses that he was supposed to stay away from. Mr. Ali said “I knew yeah, but I wasn’t there. I knew that”.
[15] Defence counsel asked him “You knew that, but what do you mean you weren’t there?” Mr. Ali replied that he “knew I’m not supposed to be at 155 Sherbourne”. He explained further,
So, where I was if you – if it was a hundred metres from where I’m not supposed to be, that I don’t know and that wasn’t my intention to be there. All my intention is I finish walking the dog and I just wanted to take my dog home. (Emphasis added)
Q. So, it was not your intention to be within 100 metres of 155 ....
A. Yes.
Q. Did you ever measure out how far 100 metres was away from 155 Sherbourne?
A. No, that I don’t know. I never did that (Transcript, February 1, 2022, page 15).
[16] He understood that he was not supposed to be at 155 Sherbourne Street, and he never attempted to go there. When he went outside, he was very careful not to breach the boundary conditions of his bail. He did not know how far 155 Sherbourne Street was from the corner of Shuter Street and Sherbourne Street where he was standing with his dog.
[17] He said that there is a fence on the corner of Shuter Street and Sherbourne Street. There is grass there. He said that “it’s in the building”.
[18] He agreed that 155 Sherbourne Street is right at the corner of Shuter Street and Sherbourne Street on the southeast side of the street and that he crossed over to that corner. He agreed that when he did so he knew that he was standing right beside 155 Sherbourne Street. But his intention “wasn’t – my mind even wasn’t about 155, my mind is just crossing and take [inaudible] and go home. I was – I was going home. Mind my – my mind is not even over there 155 Sherbourne Street ….”. He knew that he was “not supposed to be there, go there anyway”, or be within 100 metres of the building. But his focus was on finding the best way home. He did not think that he was doing anything wrong.
[19] The Crown asked him whether he knew that by crossing to the southeast side of the street he knew that he would be right in front of 155 Sherbourne Street. Mr. Ali replied “That – that would be in the front. That’s not the front of 155, 155 is further south to where the Dollarama is ….”
[20] He said that if one keeps going east on Shuter Street, then “you will be at 155, you’ll be right on the corner waiting to cross the street”. He knew that he was “in very close proximity” to 155 Sherbourne Street when he was waiting to cross Shuter Street and go northbound towards his building because as he was standing there, 155 Sherbourne Street was right behind him. He agreed that if he were on the other side of the fence, he would be at 155 Sherbourne Street if he kept going. From what he said earlier, I presume that he meant kept going eastward on Shuter Street.
[21] But then he said that if he were on the other side of the fence, he would not be at 155 Sherbourne Street. He agreed, however, that the “fence tells you that this fence here, this property here belongs to this building”. The Crown asked him whether that meant that if he were on the other side of the fence, standing on the grass, he would be on the property of 155 Sherbourne Street. He said that it would.
[22] The Crown asked this follow up question: “And so, by extension, if you are standing on the sidewalk, right in front of the fence, you were clearly within a hundred metres of the property of 155 Sherbourne Street …. Correct?” Mr. Ali replied “That I don’t know. So, that I wouldn’t say yes or no”. But he agreed that the fence was right up against the sidewalk at the corner of Sherbourne Street and Shuter Street.
[23] The Crown asked him whether that meant that he was not 100 metres away from 155 Sherbourne Street, but just within two metres of the property. Mr. Ali said that he did not know. It was not his intention. He simply intended to go home and “wouldn’t know the differences”. He said that “…. Once you’re at Sherbourne it will be behind me. It will be behind me and I’m going north”. He admitted that he was “intimately familiar with exactly where [he was]”, and that he knew where 155 Sherbourne Street was.
[24] Mr. Ali said that when he was on the corner,
I wasn’t caring to know 155 Sherbourne that, hey, 155 Sherbourne is here and you know you’re not supposed to be there and standing there will be – will be something wrong that I’m doing. That act, at that time, I wasn’t thinking .... (Transcript February 1, 2022, page 57).
[25] He stated that he knew that he was not supposed to be “in 155”, and that “I wasn’t there ….” He just wanted to go home. He did not know that standing on the southeast corner of Shuter Street and Sherbourne Street would be a breach of his bail conditions. He “wasn’t thinking about 155 Sherbourne, me being here is going to breach my bail conditions”. He did not know that he was within 100 metres of 155 Sherbourne Street when he was on the corner. The building is further south of the corner, on Sherbourne Street.
[26] He agreed that he could have taken a different route home, but the route that he took was the most convenient.
[27] Mr. Ali has a criminal record. He was convicted for the following offences:
1988, Theft under -
January 18, 1998, Theft under $1,000 –suspended sentence, probation for 18 months.
March 20, 1991, Dangerous operation of a motor vehicle –three months jail.
May 13, 1991, Possession of a narcotic –suspended sentence, probation for 12 months.
August 19, 1991, Fail to appear –, one day jail.
September 11, 1991, Possession of a narcotic –, 30 days jail, $500 fine.
February 11th, 1982, break and enter – time served and probation for 12 months.
September 3rd 1993, possession of a narcotic for the purpose of trafficking - two months jail and 18 months probation.
February 16, 1993, possession of a weapon, 30 days consecutive.
1993, September 30, fail to comply and trafficking in a narcotic – four months.
1994, July 27, possession of a narcotic - 60 days in jail.
December 1st, 2000, trafficking in a Schedule I substance, one day and four months time served.
January 26th, 2001, forcible entry, and assault - 30 days for each of these and 45 days pre-sentence custody.
October 10th, 2001, possession of a Schedule I substance, time served of 30 days, plus one day.
January 6th, 2003, fail to attend court, one day.
November 18th, 2003, possession of Schedule I for the purpose of trafficking, possession of proceeds of property obtained by crime, 90 day conditional sentence, 103 days pre-sentence custody.
May 3rd, 2005, corruptly taking reward for recovery of goods, suspended sentence and two years of probation, two months pretrial detention.
October 11th, 2005, possession of a Schedule I substance and trespassing, 78 days pre-sentence custody, plus one day.
May 31st, 2006, assault and utter threats - one day for each of those, 65 days pre- sentence custody, probation for 15 months, s. 110 order.
November 28th, 2006, theft under, fail to comply probation, assault, and assault with intent to resist arrest, one day on each and three months pre-sentence custody and probation for two years.
November 13th, 2009, trafficking in a Schedule I substance,60 days of custody, 130 days of pre-sentence custody, weapons prohibition.
[28] That was all the evidence.
The Position of the defence
[29] The position of the defence was summed up in an interchange between defence counsel and the court during the defence’s submissions:
THE COURT: Okay. So, your argument is that he knows he is standing next to the yard of 155 Sherbourne Street, but he doesn’t think that that is 155 Sherbourne Street and moreover, he did not have the intention to be at 155 Sherbourne Street and was not even thinking about it. So, that was his subjective mind state at that time?
MR. CEDRO: That is correct, Your Honour. (Transcript, February 1, 2022, page 77)
The Position of the Crown
[30] The Crown argued that “staying away from the address, includes the address holistically, not merely you know the building itself” (Transcript, February 1, 2022, page 83). Mr. Ali knew where he was and that it was a breach of his bail condition not to be withing 100 metres of 155 Sherbourne Street.
Reasons for disposition
[31] Mr. Ali is charged under section 145 (4) (a), which states that,
Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on summary conviction who,
(a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking;
[32] Concerning the issue of lawful excuse, in R. v. Legere,1995 CarswellOnt 1711, (para. 32), the Ontario Court of Appeal adopted that court’s holding in R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35 (Ont. C.A.), where, in dealing with a charge of possession of counterfeit money without lawful justification or excuse the court held at p. 44:
The issue of lawful justification or excuse arises only after the Crown has proved beyond a reasonable doubt the elements of the offence. So in this case at the conclusion of the evidence if there was a reasonable doubt as to an element of the offence, the accused ought to be acquitted. If, on the other hand, the Crown has satisfied its onus in that regard beyond a reasonable doubt, then the trial Judge must consider if the accused has proved a defence of lawful justification or excuse by a preponderance of evidence:
[33] In Legere, the accused was charged with breaching a condition of his bail that he carry and produce his bail papers upon request of the police. The court concluded that “The evidence in the present case does not support a finding that the appellant knowingly or recklessly failed to carry his bail papers or that he intentionally disposed of them”. Therefore, he was not guilty of the charge.
[34] The court stated in paragraph 32 that negligence is not sufficient to prove this offence beyond a reasonable doubt.
[35] In R. v. Zora 2020 SCC 14, the accused was charged with failing to present himself at the door of his residence within five minutes of a peace officer or bail supervisor attending to confirm his compliance with his house arrest condition.
[36] In paragraph 4, the court held that for an offence under s. 145 (3) “subjective mens rea and no lesser form of fault will suffice”.
[37] Although the case at bar charges an offence under s. 145 (4) (a), both sections use the same wording when they describe the mental element of the offence:
s. 145 (3) Every person who is named in an appearance notice that has been confirmed by a justice under section 508 or who is served with a summons and who fails, without lawful excuse, to appear at the time and place stated in the notice or the summons, as the case may be, for the purposes of the Identification of Criminals Act, or to attend court in accordance with the notice or the summons, as the case may be, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction. (Emphasis added)
s.145 (4) (a) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on summary conviction who,
(a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking; (Emphasis added)
[38] Zora stated further in paragraph 4 that “the Crown must establish that the accused committed the breach knowingly or recklessly. Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea”.
[39] In paragraph 29, the court described the “subjective fault standard”:
A subjective fault standard would focus on what was in the accused’s mind at the time they breached their bail condition. It directs a court to consider whether the accused “actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether [they] ‘could’, ‘ought’ or ‘should’ have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability” (R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at pp. 882-883, quoting D. Stuart, Canadian Criminal Law (2nd ed. 1987), at pp. 123-24). (Emphasis added)
[40] The court held that “Subjective mens rea generally must be proven with respect to all circumstances and consequences that form part of the actus reus of the offence ….” (Para. 109).
[41] The court stated further in paragraph 109 that “subjective mens rea under s. 145(3) can be satisfied where the following elements are proven by the Crown:
The accused had knowledge of the conditions of their bail order, or they were wilfully blind to those conditions; and
The accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or
The accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that their conduct would likely fail to comply with their bail conditions and persisted in this conduct.
[42] Mr. Ali’s testimony provides credible evidence that he knew that he was bound by a condition of his release that prohibited him from being within 100 metres of 155 Sherbourne Street.
[43] But I am persuaded by Mr. Ali’s evidence that he did not “knowingly [fail] to act according to [his] bail conditions” and that he did not “recklessly [fail] to act according to [his] bail conditions”.
[44] The Crown made a sensible argument that in the circumstances, Mr. Ali must have realized that standing next to the yard of 155 Sherbourne Street meant that he was within 100 metres of that address, because the yard of an address is part of the address.
[45] This is indeed an attractive argument. However, it drifts into an objective standard of liability, which Zora held is not the proper standard by which the mens rea for this offence is established. As stated above, the court held that “Whether [they] ‘could’, ‘ought’ or ‘should’ have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability…”.
[46] I do not think that Mr. Ali’s evidence and the circumstances of the case make it absurd or unreasonable to conclude that he did not intend to breach his bail condition and that he did not realize that on an objective basis, he was within 100 metres of 155 Sherbourne Street because he was standing next to the yard of 155 Sherbourne Street.
[47] Mr. Ali is not the most articulate person. And he struck me as an unsophisticated person. This is not a criticism, but it is a fair characterization of the way he testified. I find that he tried hard to be honest with the court. I find that his evidence shows that he was stuck to the idea that his bail condition referred to the building itself.
[48] The condition does not specify what not being within 100 metres of 155 Sherbourne Street means exactly. For example, it does not specify that he is prohibited from being within 100 metres of 155 Sherbourne Street and its grounds. It simply proscribes in a general way being within 100 metres of the address.
[49] I note that Officer Cohen’s evidence seems to imply that he, too, considered the bail condition to prohibit Mr. Ali from being within 100 metres of the building of 155 Sherbourne Street. As indicated above, he said, that he could not say exactly, but he guessed that Mr. Ali was “probably 50 metres at most” from 155 Sherbourne Street. He was “rather” or “pretty” confident that he was less than 100 metres away. Considering that Officer Cohen saw Mr. Ali standing on the corner next to the fence, had he thought that the condition prohibited Mr. Ali from being on the grounds of 155 Sherbourne Street, he would not have testified that he was 50 metres away at most.
[50] The Crown made a good point about Mr. Ali’s shaky credibility resulting from his criminal record. I agree that he has a long record that includes serious offences, amongst which are several offences of dishonesty. I note, however, that the last conviction was about 12 ½ years ago. His record is an important factor in assessing his credibility, but when I consider all the circumstances, it does not cause me to disbelieve him.
[51] After considering all the evidence, the law, and counsels’ submissions, I find that Mr. Ali persuaded me “by a preponderance of evidence” that he thought that his bail condition prohibited him from being within 100 metres of the building of 155 Sherbourne Street, which did not include the grassy area next to which he was standing, and that he did not intend to breach this condition of his bail.
[52] Therefore, I find that he did not have the requisite mens rea to commit the offence and that he established a lawful excuse “by a preponderance of evidence” for being objectively within 100 metres of the property of 155 Sherbourne Street by standing next to the grounds of that address.
[53] Consequently, I find Mr. Ali not guilty, and I dismiss the charge.
Released: March 30, 2022
Justice J. W. Bovard