ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: 12-1015-02; 12-5269

B E T W E E N:

HER MAJESTY THE QUEEN

J. Bocking, for the Crown

Respondent

• and -

ADNAN FAZELI

Lorne Goldstein, for the Applicant

Applicant

HEARD: April 30, 2012

Aitken J. (endorsement)

[ 1 ] On April 30, 2012, the Applicant, Adnan Fazeli, applied for a review of his continued custody pursuant to a detention order made on March 14, 2012 by Justice of the Peace Brecher. At the conclusion of the hearing, I dismissed Mr. Fazeli’s application and indicated that a written endorsement would follow.

[ 2 ] The Applicant, who is now 27 years of age, has been charged with various offences which allegedly occurred on February 26, 2012: three counts of possession for the purpose of trafficking, three counts of possession of proceeds of crime, one count of unsafe storage of a firearm, one count of unlicensed possession of a prohibited weapon, one count of possession of a prohibited weapon, and one count of possession of a firearm obtained by crime. He has also been charged with one count of assault with a weapon (namely a knife) and one count of assault causing bodily harm relating to an incident which allegedly occurred on February 18, 2012. The Applicant was arrested on February 26, 2012, and has been in custody since that time.

[ 3 ] The Applicant’s arrest in regard to the drug and weapons offences came part way through Project Ace, an investigation into the activities of a gang called the Bloods involved in the trafficking of crack cocaine and other drugs in the Vanier/Overbrook areas of Ottawa. The Applicant, who goes by the name “Ace”, was the primary target of the investigation, as he was believed to be the leader of the gang. Other suspected members of the gang included Saed Sheikhdoon, Mathieu Vaillant, Christian Thibault, Ashley Windebank, Cheryl Metcalfe, Mohamed Mohamed, and Abraham Bihi – the last two being co-accused with the Applicant.

[ 4 ] The Project Ace investigation involved months of surveillance of the various individuals, vehicles, and addresses in Gatineau and in Ottawa used by the Applicant, and others, as residences or alleged stash houses. Numerous suspected drug transactions were observed, several involving the Applicant and the co-accused. During the surveillance, the Applicant was observed using two vehicles – a Black Nissan Maxima registered in the name of his younger brother, Agheil, and one registered to a company. The Applicant, and the others under surveillance, regularly used counter-surveillance techniques while driving. The Applicant’s driver’s licence was suspended from February 8, 2012 forward, but the Applicant was observed driving during this period.

[ 5 ] On February 15, 2012, a covert entry was made at one of the Applicant’s residences in Gatineau, suspected to be a stash house. Inside were located 50 rounds of 32-caliber ammunition and 12 loose 9mm ammunition rounds, 140 grams of crack cocaine (value $28,000), 28.2 grams of crystal meth (value $5,000), packaging material, and crack cocaine supplies. On February 16, 2012, a second covert entry was made, at which time the following were located: the same ammunition, 45 grams of crack cocaine (value $9,000), 28.2 grams of crystal meth, 100 Oxycodone pills (value $4,000), and $45,000 in cash. On February 18, 2012, a third covert entry was made, at which time the same ammunition, 30 grams of crack cocaine (value $6,000), 100 Oxycodone pills, and $10,000 in cash were located. On February 21, 2012, a fourth covert entry was made, at which time the same ammunition, 38.15 grams of crack cocaine, equipment to process crack cocaine, 642 Oxycodone pills, six Fentanyl patches, and $6,000 in cash were located. The Applicant’s hospital card and driver’s licence were found on the premises. On February 23, 2012, a fifth covert entry was made, at which time the same ammunition, 64.97 grams of crack cocaine, the same equipment to process crack cocaine, 322 Oxycodone pills, and $1,000 in cash were located.

[ 6 ] On February 26, 2012, police were alerted to a drive-by shooting incident in Ottawa. Outside one of the addresses identified during Project Ace as a likely stash house, the police located a vehicle and occupants matching the descriptions provided by witnesses to the shooting incident. Abraham Bihi was the driver of the vehicle and was arrested on scene. The shooter, believed to be Saed Sheikhdoon, has not been located. A loaded 32-caliber firearm was recovered from the vehicle. As a result of the shooting incident, and the danger created for the public, the police were forced to take down Project Ace earlier than anticipated.

[ 7 ] Search warrants were executed at eight locations. One was 475 Catherine Street, unit one, Ottawa. The lease for that apartment contained the names of the Applicant, his younger brother, Agheil, and his older sister, Vafa. A safe was found in the living room of that apartment. The safe contained $17,780 in cash; Canadian passports for Agheil, Vafa, and Hamzeh (a younger brother); citizenship cards for Agheil and Vafa; the Applicant’s social insurance number card; photographs of the Applicant with other individuals, including Mohamed Mohamed; and some jewellery, including an ace pendant and a five-point crown pendant (a sign of the Blood gang). A 9mm firearm that had been reported stolen in 2005 was found hidden in the rafters in the basement of this building.

[ 8 ] When interviewed by the police, Vafa stated that she was unaware of the presence of any of the items found in the house and was shocked that they were there. She stated that, due to her religious beliefs, and the respect women show men in her culture, she had not made any inquiries of her brothers as to why the safe was in her living room and what was in it. She acknowledged that the Applicant was residing at 475 Catherine Street.

[ 9 ] When interviewed by the police, Agheil stated that it was only he and his sister, Vafa, who lived at the house – he resided in the basement and his sister resided upstairs. He stated that he did not have much contact with the Applicant. The Applicant was in and out of the house often, but did not often stay at the house. He said that the safe was the Applicant’s. He was clear that the gun was not his or his sister’s. He had no knowledge of the cash and other items in the safe, aside from his own passport.

[ 10 ] When the search warrant was executed at 58 Cousineau in Gatineau, the same items that had been observed during the earlier covert operations were seized. Of some note, three of the 9mm rounds were missing. The drugs seized included 599 Oxycodone pills, four Fentanyl patches, 23.8 grams of a white crystallized substance, 14 grams of crack cocaine, and crystal meth. In terms of cash, $4,210 was recovered.

[ 11 ] As a result of the covert operations at 58 Cousineau and the searches that were done on February 27, 2012, the Applicant, Mohamed Mohamed, and Abraham Bihi were arrested and charged with various drug and weapons offences. The Applicant was also charged with various drug offences in Quebec. At some point, it is anticipated that the drug charges in Ontario will be withdrawn and the Quebec drug charges will proceed. Mathieu Vaillant, Christian Thibault, and Phillip Eisele were arrested and later released unconditionally. Ashley Windebank, Cheryl Metcalfe, and Saed Sheikhdoon were wanted, but could not be located at the time.

[ 12 ] Meanwhile, on February 18, 2012, a man identified as the Applicant through video surveillance and eye-witness identification allegedly stabbed, without warning, George Raymond, whom the Applicant apparently accused of having ratted on him. Mr. Raymond, his girlfriend, and a couple of her friends were celebrating Mr. Raymond’s birthday at a hotel. It is alleged that the Applicant and another man came to the unit in the early hours of the morning. Mr. Raymond was seated with his back to the kitchen when, for some reason, the Applicant allegedly took a kitchen knife and slashed Mr. Raymond’s right cheek from his ear to the corner of his mouth to such an extent that one could see into his mouth. Mr. Raymond’s girlfriend got the men to leave before the police arrived. Upon his arrest for the drug and weapons charges, the Applicant was also charged with assault with a weapon and assault causing bodily harm.

[ 13 ] At the bail hearing on March 14, 2012, the Justice of the Peace heard from Detective Lee Sabourin, the File Coordinator for Project Ace. The Source Integrated Synopsis, a diagram of the interrelationship of the individuals mentioned above, drug reports, firearm and ammunition examination reports, investigative action reports, lists of items seized during the search at 58 Cousineau, and photographs were all entered as exhibits. Of particular significance to the issues at the bail hearing was evidence that apartment one at 58 Cousineau had been rented by Adel Fazeli, the Applicant’s younger brother and proposed surety. On December 29, 2011, Adel had paid the property manager $4,170 in cash (predominantly $20 bills) for a six-month lease. Adel had explained that he would be the tenant and that on occasion his brother might spend the night and his father might visit. According to the property manager, as of January 26, 2012, he had not seen Adel at the residence. He had only seen the brother who drives the black Nissan – identified through other evidence as being the Applicant. After the premises were occupied, the windows were covered with garbage bags.

[ 14 ] At the March 14 th hearing, it was noted that the Applicant had had 124 previous contacts with the Ottawa Police Service. These included his being the subject of 12 criminal charges, including two counts of possession of a Schedule I substance, one count of possession of a Schedule II substance, two counts of possession for the purpose of trafficking of a Schedule I substance, one count of assault with a weapon, one count of assault of a police officer, and five counts of breach of an undertaking or recognizance. He had convictions for two counts of possession of a Scheduled substance, four counts of breach of recognizance or undertaking, and two counts of obstruction of a peace officer.

[ 15 ] At the bail hearing, Adel Fazeli, age 24, was put forward as a surety for his older brother. He lived with his girlfriend in an apartment, and he proposed that the Applicant live with them and be subject to house arrest. Adel was a full-time student at Algonquin studying aviation. He had classes in the afternoon/evening four days a week. He was agreeable to posting a bond of $10,000. He undertook to ensure that the Applicant would not be involved with drugs in any respect and would not associate with certain named individuals. However, when pressed by the Crown, Adel acknowledged that he did not know where his brother worked, where he went to school, who his brother’s friends were, why his brother travelled to Sudbury, and why there was a gun in the house on Catherine Street occupied by his sister and younger brother. Adel acknowledged that he had transferred ownership of the black Nissan Maxima to his younger brother, Agheil, and that his older brother, the Applicant, drove it. He stated that he did not know why his brother was driving it, but since the Applicant was an older brother, neither he nor Agheil would question the Applicant’s right to use the vehicle. Adel acknowledged that he had lied to the property manager when he leased the premises at 58 Cousineau. Adel’s evidence as to where the money came from to pay the six-month lease in cash in advance, and why the Applicant had not paid for his own accommodation, made no sense. As well, Adel advised that he did not consider his brother’s conviction for failure to provide a breath sample – which occurred on February 7, 2012 – to have been a criminal offence.

[ 16 ] The Crown sought the Applicant’s detention on the secondary and tertiary grounds. The Justice of the Peace detained the Applicant on the secondary grounds and saw no need to consider the tertiary grounds. The Justice of the Peace based her decision on the following considerations:

(a) The Applicant had a criminal record and an extensive driving record, showing a significant disrespect for the law.

(b) The Justice of the Peace had no doubt that the Applicant was heavily involved in the drug trade as a member of a group.

(c) There was evidence that the group may be a gang.

(d) There was no evidence regarding prospective employment for the Applicant.

(e) Adel lied to the property manager in regard to 58 Cousineau – showing where his allegiance lay. It was to the Applicant, not to the truth. A surety must have integrity; Adel did not.

(f) Adel professed not to have any knowledge of the Applicant’s employment (if any), attendance at school (if any), friends, reasons for travel, use of the safe at 475 Catherine, reason for having Adel lease 58 Cousineau, and reason for Adel paying for the lease.

(g) The charges against the Applicant were very serious.

(h) The risk to the community if the Applicant were to reoffend was very serious.

(i) Any surety for the Applicant must have the capacity to supervise, control, and monitor the Applicant – and that takes knowledge of the Applicant’s life – knowledge Adel professed not to have.

(j) Adel was the Applicant’s younger brother. He indicated the need to respect elders, and not to question them.

(k) The evidence against the Applicant, and his co-accused, was strong.

(l) The level of supervision required if the Applicant were to be released was high.

(m) Adel could not provide that level of supervision and would not make a suitable surety.

[ 17 ] This is a Defence application, and the onus is on the Defence to prove that the detention of the Applicant is no longer necessary for the protection or safety of the public. There is no allegation of any error of jurisdiction on the part of the Justice of the Peace. The only allegation is that there has been a material change in circumstances due to (1) the availability of a second surety, namely, the Applicant’s older sister, Abir; (2) additional cash deposits or bonds being available; and (3) additional evidence being tendered about the role that Adel could play as a secondary surety. In my view, these additional factors do not create a material change in circumstances and, even if they did, I have not been persuaded that the secondary grounds no longer exist to justify continued detention.

[ 18 ] First, in regard to Abir being a surety, Abir suffers from the same inadequacies as Adel.

[ 19 ] In 2006, the Applicant’s mother and his five siblings left Canada and returned to Kuwait City. The Applicant and his father stayed in Canada. Abir, the eldest sibling and now 30, is currently enrolled as a student at the American University in Kuwait, though she did not finish the fall semester and did not sign up for the winter semester. It had been her intention to reattend classes in the summer; however, Adel advised her that the Applicant needed an additional surety and she volunteered to come to Canada to help. The only time she has been in Canada since 2006 was in the summer of 2009 when she came for a visit. At the present time, Abir does not have an apartment, a car, a job, a bank account, or a health card. In short, she has no connection to this country, aside from her citizenship and the fact that family members live in Ottawa. She claimed that her mother will support her financially while she is here and acting as the Applicant’s surety. She is prepared to put her life on hold in all respects for as long as it takes this case to get to trial. When it came to the Applicant, Abir had no information concerning his employment, his schooling, his friends, his activities, or any other aspects of his life. All she could offer was a bald statement that the Applicant would do what she said, to which was subsequently added the bald statement of the Applicant that he would do as Abir required. Much more than this is required to provide any sense of security that the Applicant will not continue his involvement in the drug trade and associated weapons offences if released.

[ 20 ] One concern I have arises from the statement attributed to Vafa (now 28) that she would not question the Applicant or her other brothers about the reason for the safe in her living room due to the respect that is owed to males according to her religious beliefs. At the same time, Adel expressed a reluctance to probe into the Applicant’s affairs due to the respect that must be shown to elders. No evidence was tendered to reassure me that, in this cultural or religious environment, a surety who is either female or younger than the Applicant would have the level of control required to properly supervise the Applicant. Adding an additional unsuitable surety does not amount to a material change in circumstances.

[ 21 ] As Hill J. stated in R. v. Ferguson , [2002] O.T.C. 348 (S.C.J.) at para. 17 : “Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.”

[ 22 ] Second, the evidence is that, in addition to the $10,000 bond proposed by Adel, the Applicant’s mother in Kuwait, who is the principal at a private school, can provide an additional $20,000 for deposit into court. The money being put at risk is not that of either of the sureties. It is not at all clear from the evidence where the money actually originates. Although the Applicant’s mother may be the conduit for the money, inadequate evidence has been tendered to persuade me that the money that would be deposited is her money. According to both Adel and Abir, they are totally dependent on their mother to finance their college and university expenses, as well as the rest of their living expenses. There was evidence that the Applicant, and his remaining siblings, are also supported by their mother. This financing would appear to include the purchase of vehicles as well as payment of rent at a number of locations. It certainly raises questions in my mind as to what the source of all of these funds is – questions left unanswered by the evidence. It is not simply the quantity of the money being pledged that is relevant. It is also the hardship on the sureties if the money is forfeited. Whether it is a $10,000 bond or the bond and an additional $20,000 cash is not materially different if the money at risk is not that of the sureties.

[ 23 ] Third, the additional information concerning Adel’s suitability as a surety is that, in July/August 2010, Adel acted as a surety for the Applicant when the Applicant was released on what amounted to house arrest conditions, and the Applicant was not charged with any breaches during this period. This is offered as proof that Adel can effectively supervise the Applicant’s activities. First, the period of supervision was only two months. In our situation we are looking at a period of supervision that could last years. Second, as a result of Adel arranging for a letter of employment to be submitted at this hearing from a totally unsuitable individual, Adel’s credibility and his suitability as a surety has been significantly tarnished.

[ 24 ] The employment letter purports to be from Matthew Cecire, a sole proprietor and owner of “No Limit”, a renovations and flooring company. According to Adel, a friend of the Applicant, by the name of Chris, telephoned Adel to say that he had arranged for the Applicant to have employment upon his release. Adel then spoke directly to Mr. Cecire about the need for a letter, and one was sent via e-mail. The letter was unsigned. During the hearing, Detective Paul MacKillop was able to pull Mr. Cecire’s criminal record. He has 23 criminal convictions. The offences include assault causing bodily harm, drug offences, forcible confinement, assault with a weapon, various driving offences, and various offences relating to failure to comply with an undertaking or recognizance and obstructing a peace officer. Numerous photographs were produced showing Mr. Cecire brandishing a handgun. It would be hard to find a more unsuitable employer for the Applicant; nevertheless, this was the employer put forward by Adel without any investigation being undertaken on his part as to who Chris was, why he was coming forward with an employer for the Applicant, why the prospective employer would be prepared to offer the Applicant work, and how that prospective employer would fit into the release plans.

[ 25 ] Adel’s credibility was further challenged when he stated that he had not had the opportunity to sit down with his brother and discuss the outstanding charges, but Abir said that, as soon as she arrived in Toronto, she and Adel went to the Lindsay Detention Centre and had precisely that conversation with the Applicant.

[ 26 ] Finally, to the extent that the Applicant was trying to say that his release plans had been improved since the hearing before the Justice of the Peace because he was planning to work and/or go back to school – these are simply empty statements that do not materially alter the circumstances before the court. There is no prospective employer. The Applicant, now 27, has not attended school since he was in grade 9, and has showed no previous interest in doing so.

[ 27 ] For these reasons, I concluded that there had been no material change in circumstances opening the door for a reconsideration of the Applicant’s detention. However, even if I had accepted that the three factors referred to above amounted to a material change in circumstances, I would have concluded that the detention of the Applicant remains necessary today due to the substantial likelihood that, if released from custody, the Applicant would continue in his life of crime or would interfere with the administration of justice thereby putting the safety of the public at risk.

Aitken J.

Released : May 2, 2012

COURT FILE NOS.: 12-1015-02; 12-5269

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – ADNAN FAZELI Applicant ENDORSEMENT Aitken J.

Released : May 2, 2012