Court File No. CR-12-70000168

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

HUSSEIN JAMA NUR

BAIL REVIEW

BEFORE THE HONOURABLE JUSTICE I. NORDHEIMER

on June 8, 2012, at TORONTO, Ontario.

APPEARANCES:

A. Tenhouse Counsel for the Crown

D. Dirkstein Counsel for Hussein Jama Nur

R E A S O N S F O R J U D G M E N T

NORDHEIMER, J. (Orally):

This is an application by Hussein Nur for an order granting him judicial interim release on a charge of second degree murder. Given the offence, Mr. Nur bears the onus of establishing his detention is not justified on any of the three grounds set out in s.515(10) of the Criminal Code.

It is alleged that, while a prisoner of the Toronto Don Jail, Mr. Nur, along with five other inmates, assaulted the deceased as retribution for some perceived misconduct by the deceased. The medical evidence demonstrates that the injuries sustained by the deceased were relatively minor in nature, but the deceased lost consciousness and, ultimately, aspirated on the contents of his stomach. The case against Mr. Nur and his co-accused turns largely on statements given by four other inmates implicating them in the attack of the deceased.

Mr. Nur originally sought his release in May of 2011. That application was dismissed by Justice Dunnet on June 7th, 2011. Her Honour concluded that the proposed sureties did not have the ability to adequately supervise Mr. Nur. The proposed sureties at that time were Mr. Nur's father, mother, brother and sister.

Certain events have transpired since that hearing. One is that the preliminary inquiry has been held, at the conclusion of which Mr. Nur was committed for trial on the charge of second degree murder. It is true, as the defence points out, that the preliminary inquiry judge made certain comments regarding the proper inferences that may be drawn from the evidence.

Her Honour concluded that the most reasonable inference was that the persons who attacked the deceased did not intend to cause death or bodily harm that was going to cause death. However, since the prosecution is entitled to the benefit of the most favourable inferences available on the evidence for the purposes of determining committal, since it could be inferred from the evidence that the attackers may have intended to cause bodily harm that they knew was likely to cause death or reckless, whether or not death ensued, Mr. Nur had to be committed on a second degree murder charge, as opposed to a charge of manslaughter.

The other event that has occurred is that Mr. Nur has pleaded guilty to firearms offences for which he has now been sentenced. Specifically, Mr. Nur pleaded guilty to possession of a fully loaded prohibited firearm, namely, a .22 calibre semi-automatic handgun with a high capacity magazine. Mr. Nur had this handgun outside of a community centre where he was observed by the police. Mr. Nur ran from the police, but was caught. Over the course of his flight, Mr. Nur threw the handgun away, but it was recovered. Mr. Nur was sentenced to time served after being given credit of 40 months for 20 months that he had spent in presentence custody.

In terms of this review, the sureties now proposed are once again Mr. Nur's father, his mother and his brother. Instead of Mr. Nur's sister, however, it is now proposed that a cousin of Mr. Nur be the fourth surety.

Mr. Nur's father is 77 years old and is retired. His mother is 55 years old and is also retired. His brother is 28 years old and was a student at Humber College. He is currently taking a break from his education, but may return to it in May of next year. He is not currently employed, and I take it does not intend to seek employment. Mr. Nur's cousin is also 28 years old and is the executive director of the Somali Youth Association in Toronto.

Mr. Nur's father, mother and brother live in the family home where it is proposed that Mr. Nur would live if he is released. The family has recently moved to Aurora from Toronto, and this is put forward as a positive change in terms of any release plan. Mr. Nur's cousin lives in Vaughan. Each of the sureties are prepared to post significant sums of money for Mr. Nur's release, at least significant for them.

The defence submits the following reasons why a release should now be granted for Mr. Nur. One, the preliminary inquiry judge's comments about the strength of the Crown's case suggest that manslaughter is the more likely result than murder if a conviction ultimately results. Two, the family has moved out of Toronto to Aurora and thus removes Mr. Nur from an area where he would have been exposed to unfavourable influence. Three, there is a new surety who has acted as a surety before and has demonstrated his ability to carry out that task. Four, the other sureties are now more informed of the allegations against Mr. Nur than they appeared to be at the first hearing; and five, Mr. Nur's trial is not scheduled to proceed until next April, specifically, April 2, 2013.

In terms of those changes, I do not consider the comments of the preliminary inquiry judge to change the landscape in any significant way. It may be that manslaughter may be the more likely result after a trial, but that does not change the fact that a conviction for second degree murder is still a distinct possibility. It also does not change the fact that if he is sentenced for manslaughter, the circumstances of the offence and Mr. Nur's record would likely attract a significant term of imprisonment.

In terms of the trial date, while Mr. Nur may have been in custody for over three and a half years, not all of that custody is attributable to the murder charge, as I have mentioned. The custody attributable to the current charge is now in the range of 18 months, and by the time of trial, something less than three years. Even allowing for a credit for that time on a two-for-one basis, it would not likely exceed any sentence that might be imposed if a conviction is rendered.

On that latter point, while I do not accept the Crown's characterization of their case against Mr. Nur as being strong, especially given the nature of the witnesses who form the core of the evidence against Mr. Nur, it is clear that there is a case to be met. This is not a case, therefore, where the state of the prosecution's case is so tenuous that that fact alone would suggest that a release should be granted.

While the move to Aurora is a positive one, it does not address what I consider to be the central issue, and that is whether the sureties are capable of supervising Mr. Nur. Similarly, the addition of a new surety does not materially change that issue since the new surety would not be the person who would normally be directly supervising Mr. Nur if he is released. The same comment applies to the sureties now being more aware of the allegations against Mr. Nur. That said, I'm not sure what importance that issue had in the first hearing. The sureties all knew that Mr. Nur was charged with murder and I would have thought that that would be sufficient information in making them aware of the seriousness of the issues at hand.

Justice Dunnet had concerns about the sureties' ability to supervise Mr. Nur if he is released. I share those concerns. I do not doubt the sincerity of the sureties. In particular, I accept that Mr. Nur's brother would watch him closely, but it is, of course, a fact that it is easier to commit to such a role in advance of it becoming a reality. At the same time, the toll of trying to maintain such a role for many, many months can be a heavy one.

I'm equally impressed by Mr. Abdullahi and the important work that he does with Somali youth. I do not question his sincerity or his willingness to undertake the role of surety either.

The issue is not just the ability of the sureties to supervise, but the willingness of Mr. Nur to be supervised. Mr. Nur has demonstrated from his past behaviour that he is not inclined to follow the road that his family and cousin want him to. Despite their direction to Mr. Nur to avoid criminal acts, Mr. Nur engaged in just such conduct in quite a significant and serious way.

The defence argues that the family has not as yet been given an opportunity to show they can supervise Mr. Nur. Bail, however, is not a trial and error exercise. The ramifications of a failure to supervise Mr. Nur, given his prior behaviour, could be extreme and alarming. The secondary ground is designed to protect the public from being exposed to just such risk.

I have grave doubts regarding Mr. Nur's willingness to abide by the wishes of his sureties. As a consequence, Mr. Nur has failed to establish his continued detention is not justified on the secondary ground. In light of that conclusion, I need not address the tertiary ground. The application is dismissed.

MR. DIRKSTEIN: Thank you, Your Honour.

THE COURT: Thank you, counsel.

MS. TENHOUSE: Thank you, Your Honour. If I could be excused, then?

THE COURT: Yes.

MS. TENHOUSE: Thank you.

C O U R T A D J O U R N E D

C E R T I F I C A T E

I hereby certify the foregoing transcript to be a true and accurate, verbatim transcription of my steno notes produced with the aid of computer-aided transcription to the best of my skill and ability.

O. Cumberbatch, CSR

OFFICIAL COURT REPORTER

Copies of this transcript bearing photostatic signatures are not certified and have not been paid for. The party distributing the transcript has not contacted the court reporter and does not wish to pay the court reporter for the copy of the transcript. This is in violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.