SUPERIOR COURT OF JUSTICE - ONTARIO

Date: 20120312

RE: HER MAJESTY THE QUEEN v. MUSTAFA OMARY

BEFORE: TROTTER J.

COUNSEL:
Henry Poon, for the Crown
Rishi Singh Bhasin, for the Applicant

HEARD: March 9, 2012

ENDORSEMENT

[ 1 ] This is an application under s. 520 of the Criminal Code to review a detention order made by His Worship Justice of the Peace G. McMahon on February 8, 2012.

[ 2 ] On February 4, 2012, at about 3 a.m., Mr. Mustafa Omary was charged with a number of offences arising from a serious collision on the Gardiner Expressway in Toronto. It is alleged that Mr. Omary drove a Mercedes C 35 (a vehicle that belonged to a friend) at a high rate of speed and in an erratic manner, causing a collision with two other vehicles. Fortunately, no one was hurt. There were three occupants in the C 35, including Mr. Omary. The Crown alleges that Mr. Omary was the driver of the vehicle. However, the investigation is incomplete and the identity of the driver may well be an issue at trial. The evidence suggests that Mr. Omary was intoxicated when he was apprehended at the side of the road. He provided breath samples that produced readings of 200 and 210 mgs of alcohol in 100 ml of blood.

[ 3 ] There is an important context to these events. On January 27, 2012, just eight days before the collision on the Gardiner Expressway, Mr. Omary entered a plea of guilty before the Honourable Justice Russell Otter of the Ontario Court of Justice to a charge of driving “over 80.” The conduct underlying that offence involved Mr. Omary driving the same car (the C 35) in excess of 50 km/h above the speed limit. He produced readings of 140 and 150 mgs of alcohol in 100 ml of blood. When he was sentenced, Mr. Omary was made subject to a mandatory one-year driving prohibition under s. 259 of the Criminal Code .

[ 4 ] Mr. Omary is 27 years old. He was born in Afghanistan and came to Canada in 2000. Since 2010, he has suffered depression due to the loss of his girlfriend, who was killed in a car accident. Mr. Omary has full-time employment.

[ 5 ] The learned Justice of the Peace detained Mr. Omary on the secondary ground. He found that the surety who had been offered, Mr. Omary’s uncle, would not be able to properly supervise him and prevent him from driving if he were released.

[ 6 ] On this application for review, Mr. Omary offers two different sureties – his mother, Sahmeah Omary, and his sister-in-law, Krystal Reil. Both are prepared to pledge $5,000. I accept that this is a significant amount in the circumstances. It is proposed that Mr. Omary move back in with his parents and be subject to a house arrest condition (with an exception relating to his employment).

[ 7 ] Hanging over this case is the question of whether Mr. Omary has a drinking problem that needs to be addressed. His mother was somewhat tentative in acknowledging that he has a problem. This may be due to the fact that Mr. Omary has not consumed alcohol around his mother. Ms. Reil was a little more realistic in approaching this aspect of the situation. She acknowledges that he seems to drink excessively at times. Both sureties suggested the problem stems from Mr. Omary’s reaction to the death of his girlfriend. To this end, Mr. Omary’s family doctor has made a referral for counselling for alcohol and other issues. Mr. Omary is prepared to follow through with this plan.

[ 8 ] The learned Justice of the Peace was correct to be concerned about the protection of the public. Having just been convicted and prohibited from driving for a year as a result of driving while at twice the legal limit, within days, Mr. Omary is alleged to be back behind the wheel of the same vehicle, this time with blood-alcohol levels approaching three times the legal limit. Also, on this occasion, there was a serious collision with two other vehicles. Of course, the concern is that, if Mr. Omary is released, he will drive while intoxicated and cause serious injury or loss of life.

[ 9 ] Has the Crown established that, notwithstanding the proposed surety plan, there is a substantial likelihood that Mr. Omary will commit offences while on release? I think it has. While just allegations at this stage, recent events tend to suggest that a recent court order had no effect on Mr. Omary’s reckless behaviour. I am not persuaded that any order that I make, accompanied by sureties, will mitigate this risk to any substantial extent. Understandably, Mr. Omary still seems to be in turmoil over the loss of his girlfriend. In his affidavit, he asks for a “second chance” and proposes he seek counselling. But this most recent event ought not to have been the “wake-up” call that signalled that an issue had to be addressed. The previous impaired driving incident should have served as that call. There was plenty of time to address any underlying problems leading up to the proceedings before Otter J. As far as I understand it, nothing was done. I am now being asked to subordinate the public’s safety to Mr. Omary’s desire to sort these issues out through counselling. I am concerned that the release plan that is proposed will not provide the level of supervision that is required in the circumstances. In some ways, it lacks detail. There is no concrete plan about how Mr. Omary will get to and from work. And while Mr. Omary’s mother testified that she and her husband would do their best to prevent Mr. Omary from using the family vehicle, it must be remembered that the driving underlying Mr. Omary’s conviction for driving “over 80” involved the use of a friend’s car, as do the present allegations.

[ 10 ] I appreciate that, at some point in time, the continued detention of Mr. Omary may result in him serving as much time in custody as he would if he were to be convicted and sentenced on the current charges. It might be tempting to release on this basis. But to do so, at least at this point, unduly skews the purposes of s. 515(10) ( b ) of the Criminal Code . To release for that reason would ignore the substantial risk of further dangerous behaviour and would unreasonably shift this risk onto the public. The solution to this situation is not to be found in a risky bail decision, but in an expedited trial date.

[ 11 ] For these reasons, the application is dismissed.

TROTTER J.

Date: March 12, 2012