COURT FILE NO.: CR-12-30000330-00BR
DATE: 2012/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZISHAN MALIK
Accused
James Dunda, for the Crown
Monte MacGregor, for the Accused
HEARD: December 14 and 18, 2012
RULING ON BAIL APPLICATION
A.J. O’MARRA J.:
[1] Zishan Malik is charged with first-degree murder in the stabbing death of Nirosan Thillianathan. It is alleged that Zishan Malik with co-accused Hussain Saeed became involved in an altercation with Nirosan Thillianathan at the side of the McGowan Road ramp to Highway 401 westbound. Thillianathan was stabbed seven times in the chest and abdomen at approximately 1:52 a.m. July 22, 2012.
[2] Mr. Malik has brought an application for judicial interim release pursuant to s.522 of the Criminal Code. He bears the onus to show cause why his detention is not justified on any of the three grounds set out in s.515 (10) of the Criminal Code.
Circumstances of the Alleged Offence
[3] Detective Tam Bui of the Homicide Bureau, Toronto Police Service testified as to the investigation of the homicide to date. Much of the information about the events leading to the altercation was provided by Ms. Brittany Mastromatteo, the girlfriend of Zishan Malik, in a revised statement about the events given to police almost two months after the homicide on September 9, 2012.
[4] The events leading to the death of Nirosan Thillianathan started at approximately 11:00 p.m. July 21, 2012 at a Shell Gas Station at the southwest corner of McGowan and Pitfield Roads in the City of Toronto. Malik had planned to drive his girlfriend, Brittany Mastromatteo, to her home in Niagara region in his mother’s motor vehicle, a Honda CRV. On seeing that Highway 401 was busy at that time, Mr. Malik drove to the nearby Shell Gas Station to wait.
[5] There they encountered four males, several of whom Zishan had known from high school. Three of the males present at that time were Jeremy Sampson, Brian Sellathurai, and Sathiyan Thillianathan. They confronted Malik and began to verbally abuse him because he had given a statement to police in 2007 when they were in high school about an assault that he witnessed. Several of them as a result either had been charged and/or expelled from high school. In the ensuing confrontation one of them, Jeremy Sampson punched Malik in the face. One of the others threw a glass with a red/orange drink onto his shirt. They called him a snitch and someone was heard to say, “Snitches get stitches”.
[6] Malik and Ms. Mastromatteo drove away. They went to the Scarborough Bluffs where friends of Malik were having a barbeque and bond fire.
[7] In her second statement, Ms. Mastromatteo said Malik was upset and embarrassed because of the assault. He asked her for a knife she kept in her purse that she used to peel oranges and sharpen pencils. She described it as a jackknife with a pink plastic handle and a flip-out blade that was very sharp at the point. She was leery about giving it to him, but she relented when he said he only wanted it case one of those guys confronted or jumped him again going to work.
[8] He spoke to several of his friends about getting revenge but they told him to just let it go, to forget about it. Ms. Mastromatteo believed Malik had calmed down by the time they left the barbeque, about an hour later.
[9] She told the police that by the time they left Malik had either texted or phoned his cousin Hussain Saeed. They drove to 11 Lee Centre Drive where they picked up Saeed. Saeed, at the time, was on bail for a number of serious charges, impersonation of a police officer and robbery. He was on bail with terms of house arrest, subject to exceptions but only in the presence of a surety.
[10] Malik and Saeed, along with Ms. Mastromatteo drove to 360 Pitfield Road, which is on the northwest corner of McGowan and Pitfield opposite the Shell Gas Station where the earlier altercation had occurred. Malik lived at 360 Pitfield Road in an apartment with his mother and two younger siblings.
[11] Hussain Saeed exited the vehicle and walked across to 1703 McGowan Road the townhouse complex opposite 360 Pitfield. Sathiyan and Nirosan Thillianathan lived at 1703 McGowan.
[12] Malik told Ms. Mastromatteo to stay with the car, roll up the windows, and lock the doors. It was backed into a parking spot. He left the car and then walked in the same direction as Saeed and joined him as they approached 1703 McGowan Road. Ms Mastromatteo lost sight of them as they went over a small rise in the terrain.
[13] Brian Sellathurai, who gave a statement later to police, said he was standing out front the complex with brothers Sathiyan and Nirosan Thillianathan as the two males approached them Sellathurai said that he and Sathiyan had been present during the earlier dispute with Malik at the gas station; however, the deceased Nirosan Thillianathan had not been there. It appeared to Sellathurai that a confrontation was about to occur. As the two approached the three of them, one of them appeared to be hiding something under his shirt, like a weapon but it could not be seen. One of them called out and asked where Jeremy was. Jeremy was person who had punched Malik earlier at the gas station. Jeremy was not with them because he had left after the first incident to go to a casino. Just as Malik and Saeed approached the three of them, a vehicle entered the parking area carrying three friends of the Thillianathans.
[14] Ms. Mastromatteo, still sitting in the Honda, shortly after she lost sight of Malik and Saeed walking toward 1703 McGowan Road, saw them running back toward the car with several males behind in pursuit. Malik screamed to her to unlock the car doors and to call 911. She slid over to the front passenger’s seat trying to get her cell phone out of her purse. Malik entered the driver’s seat and Saeed the rear passenger seat. As Malik tried to drive away one of the pursuers threw a liquor bottle at the car, others grabbed at Malik and kicked and hit the car. As Malik attempted to leave the parking lot, he hit a curb, which caused damage to a tire. Malik drove the vehicle out of the parking lot at high speed southbound on McGowan Road toward the ramp to the 401. The vehicle became inoperable because of the damaged tire at the side of McGowan Road near the on-ramp to the 401.
[15] Nirosan Thillianathan who had been with those that chased after Malik and Saeed to the parking lot, continued to give chase on foot down McGowan Road to where the vehicle had been stopped by Malik. Nirosan had run out of his sandals but continued his pursuit barefoot almost 600 meters.
[16] Nirosan was followed by Pirashanna Girubaharan at a distance. In his statement, he told the police he could see the two males out of the car become involved in a fight with Nirosan. The male with a white t-shirt, later identified as Malik held Nirosan from the rear with his left arm around his neck and the other male, wearing a black shirt, later identified as Saeed, appeared to be jabbing or punching Nirosan in the stomach and chest. As Pirashanna approached them, he saw Nirosan at the side of the road involved in an altercation with the male in the black shirt. He had recognized Malik from the high school incident. He lost sight of Nirosan as he faced Malik. He was then attacked and assaulted from behind.
[17] The others from 1703 McGowan Road drove up in their vehicle. Pirashanna was told to get in. When he did, he was asked where Nirosan was. He told them he did not know as they sped off in the other vehicle.
[18] Earlier, just as Malik stopped the vehicle on the side of the road near the ramp and he and Saeed exited the vehicle, Ms. Mastromatteo connected with 911. The call was recorded as being received at 1:52:35 a.m. She told the dispatcher that her boyfriend was out of the motor vehicle and tried to relate where they were located.
[19] A truck driver, Nathan Haller drove his transport rig down McGowan to exit on the ramp to the 401. He saw a disabled vehicle on the side of the road and another motor vehicle being driven away. He stopped to see if everything was alright. He rolled down the passenger window of his truck cab. He saw a male wearing a black hat and black shirt down in the deep ditch off the ramp standing over a male lying prone on the ground. He called down “Is that guy okay?” The man in black replied to the effect “He tried to fight me or us”. Haller saw him come up to the Honda and in conversation with the female in its passenger seat. He called 911, but he was disconnected. Then he continued on his journey westbound on the 401. The next day he saw a news report about the homicide and called the police to report his observations.
[20] Ms. Mastromatteo, in her second statement, said that Saeed had come back to the car and asked where his hammer was. Malik told Saeed to take off because he knew he was on bail.
[21] Malik told Ms. Mastromatteo prior to the arrival of the police he had stabbed someone. When he told her she became worried he had used the knife she had given him. She asked him where it was. He told her that he had thrown it away at the overpass. Later, the police searched the area, but they were unable to locate any weapon.
[22] Before police arrived, Malik took off his white t-shirt, which was ripped and bloodstained, put it in the trunk, and put on another shirt. He told Ms. Mastromatteo to not tell the police about his cousin, Saeed being there. If the police asked whether anyone else was with them she was to tell them they were with a friend named “Jimmy”. In addition, he told her not to talk about “Jeremy” from the gas station.
[23] Officers arrived at the disabled car at 1:58:53 a.m. where they found Malik and his girlfriend. Malik and Ms. Mastromatteo told the officers he had been the victim of an assault, but gave vague details. One of the officers told Malik to call his mother, the owner of the vehicle to come to the scene. Ms. Malik left 360 Pitfield Road and walked across the road to where the disabled vehicle and son were located.
[24] At 2:27:57 a.m. one of the officers looking down the bank into the deep ditch saw a body in the grass near a hydro box. The body was that Nirosan Thillianathan.
[25] Later, post mortem examination revealed Nirosan had been stabbed seven times in the chest and abdomen. Four of the wounds were sufficiently deep enough to damage vital organs, anyone of which could have led to his death. There was an eighth cut through the shirt worn by the deceased, but there was no corresponding wound.
[26] Both Malik and Ms. Mastromatteo were taken to the police station for further investigation. Ms. Matromatteo provided a statement in which she related having met a person named Jimmy, omitted any reference to Saeed being present, and Jeremy at the gas station incident or giving Malik a knife that night.
[27] Malik, in a cautioned statement, related a similar story to that as provided by Ms. Mastromatteo. However, he eventually admitted to having stabbed one of the persons he said attacked him that night. He claimed one of his assailants had a knife, dropped it and he was able somehow to pick it up. He stabbed the person in the stomach but did not know what happened to the knife.
[28] He was charged with second-degree murder. When he was detained on July 23 an order made under s.516 directed he was to have no contact with Brittany Matromatteo.
[29] Police received information from Nirosan’s friends who had been involved that night that there were two assailants involved with Nirosan at the side of the road. Hussain Saeed was identified as the second assailant by Pirashanna Girubaharan. Saeed was arrested on February 27, 2010 and charged with second-degree murder.
[30] On July 24 the police received information from Abby Abarajaithan, a close friend of the deceased that on the night of the homicide, while he slept his cell phone received a call from the deceased’s phone that went to voice mail. It appeared to be what was referred to euphemistically as a “pocket call”, a call made when a speed dial button is pushed accidentally. The police analyzed the seven-second call made at 1:48 a.m. There were three distinct voices that said the following: 1) where your boy at, 2) I thought you were a fighter, 3) Where are my boys? and 4) You boys bring beef to me all the time. The police opinion is that the voice of the accused can be identified asking about your boy and bringing a beef. However, the time record of the pocket call does not appear to coincide with the time of roadside altercation leading to Nirosan’s death, as gauged by the time of the 911 call. It accords in time more with the earlier encounter at 1703 McGowan Road.
[31] Later, Ms. Mastromatteo on advice of a lawyer made detailed notes of the events that occurred that evening and provided the police a KGB statement. The notes and statement included the details as described above:
• the earlier altercation with the 4 males at the gas station as a result of the 2007 high school incident in which Malik was a witness,
• Malik being upset about being assaulted and embarrassed,
• Malik asking for and receiving her knife,
• Malik contacting his cousin Hussain Saeed,
• The two of them walking over to 1703 McGowan Road,
• The two of them running back to the car being pursued by several males and Malik screaming at her to call 911,
• One of the males throwing a bottle at the car, attempts to grab Malik, and the kicks and blows to the car as they attempted to drive away.
• The flight in the damaged vehicle to where it stopped at the side of McGowan Road and Saeed and Malik leaving the car and becoming involved in an altercation to the rear of the car.
[32] Detective Bui testified that the police learned in late November that Malik had written several letters to Ms. Mastromatteo, notwithstanding the order on his detention directing him not to have any contact with his girlfriend. He had sent two groups of letters to a friend, Kursty Allison, which she was to pass on to Ms. Mastromatteo. Malik was charged as result prior to the bail hearing with two counts of disobeying a court order.
[33] On Wednesday, August 8, 2012, the police charged Malik and Saeed with first-degree murder.
Background of the Accused
[34] Zishan Malik is 20 years of age, born July 20, 1992. He was born and raised in Scarborough, Ontario. He is a Canadian citizen. He has no criminal record. The only outstanding matter, which occurred before the death of Nirosan Thillainathan, was a fail to remain at the scene of an accident under the Highway Traffic Act that occurred in March 2012.
[35] Prior to being charged and detained for murder, he lived at 360 Pitfield Road, apt. 208 in Scarborough for 19 years with his mother and two siblings. He had been in a relationship with Brittany Mastromatteo for about one year having met when he attended Niagara College, where he was pursuing a two-year diploma program as a motive power technician. With the intention of returning to school in September 2012, he had worked part-time at the Canadian Tire Store at McGowan Road and Sheppard Avenue in Scarborough.
Proposed Plan of Release
[36] The proposed plan of release involves his mother Niala Malik, and his uncle and aunt, Muhammad Iqbal and Rashda Malik. Each has provided an Affidavit outlining their background, their preparedness to act as sureties in combined amount exceeding $100,000 and that they understand the nature and responsibilities of being a surety. In addition, Niala Malik, his mother, testified on the hearing as to her relationship with her son, her readiness to have him live with her, supervise and to exercise control over him until his matter is completed should he be released. None has a criminal record or any outstanding charges. All are prepared to notify the police immediately if there is any failure of the accused to comply with any terms of release the court deems necessary to impose.
[37] Ms. Niala Malik moved immediately after her son was charged with her two children from the area where the incident occurred to 200 White Oaks Court, apartment 1106 in the Town of Whitby. She did so in order to ensure that if her son is released he will have a place to reside with her away from Scarborough. She is currently a full time homemaker, supported by social assistance and mother’s allowance as well as by some financial assistance from siblings. She has $5,000 in savings from the distribution of her father’s estate amongst his children. She is prepared to act as a surety in the amount of $5,000.
[38] Malik’s uncle, Muhammad Iqbal and aunt, Rashda Malik jointly own their own home with approximately $200,000 in equity. They are prepared to act as sureties in the amount of $100,000 or whatever amount the Court sees fit to impose. Mr. Iqbal is a driving instructor at Peter’s Driving Academy located in Whitby within 10 minutes of the new residence of Malik’s mother. Employment would be available to his nephew at Peter’s Driving Academy. His wife, Rashda is employed as a Customer Service representative with McDonald’s
[39] Both Iqbal and his wife are prepared to assist in the supervision of their nephew, Malik under any terms of release.
[40] The proposed plan of release is that Malik would reside with his mother at 200 White Oaks Court, apartment 1106, Whitby. He would be subject to terms of house arrest, not permitted to leave unless in the company of one of his proposed sureties or when travelling directly to and from employment, medical or legal appointments at any Court appearances until his charge has been dealt with by the Court.
[41] I am satisfied that the proposed sureties are all of good character and they would be responsible sureties in ensuring compliance with any bail conditions, which may be imposed. Further, I am satisfied that they understand their obligation to notify the authorities if Malik failed or refused to comply with any conditions imposed, failure of which would expose them to significant financial loss.
The Law
[42] Under s. 515(10) noted above, there are three grounds for the lawful detention of an accused pending trial:
The primary ground where detention is necessary to ensure the accused’s attendance in court to be dealt with according to law.
The secondary ground is where detention is necessary for the protection or safety of the public, including considerations as to the substantial likelihood that the accused if released will commit a criminal offence or interfere with the administration of justice.
The third or tertiary ground is where detention is necessary to maintain confidence in the administration of justice, having regard to all o0f the circumstances, including
• the apparent strength of the prosecution’s case
• the gravity of the nature of the offence
• the circumstances surrounding its commission
• the potential for a lengthy period of incarceration
Discussion
[43] I begin the discussion from the premise that every accused person has the constitutional entitlement to the presumption of innocence and the right not to be denied reasonable bail without just cause.
The primary grounds
[44] The applicant maintains that that he has shown cause why he should be released. The Crown concedes, and I am satisfied on the evidence that detention, in these circumstances, is not required on the primary ground where detention would be necessary to ensure his attendance in Court. Malik does not present as a flight risk. Malik has lived all of his life in the Toronto area except when he attended school in Niagara. He is a Canadian citizen and all of his family members live in the Greater Toronto area.
[45] Although his mother, many aunts and uncles emigrated from Pakistan, they did so many years ago in the 1980s and 1990s. They are either Landed Immigrants or they are Canadian citizens. They have positions of responsibility, they operate businesses and own property. They have substantial roots in the community.
The Secondary Grounds
[46] Crown contends that Malik has not met his onus with respect to the secondary and tertiary grounds.
[47] Dealing first with the secondary grounds, the Crown is not concerned that there is a substantial likelihood of Malik committing further criminal offences endangering the protection or safety of the public even though he is charged with murder. Malik has no criminal record. There is no direct evidence to suggest a likelihood of him committing further criminal offences if released.
[48] However, his after the fact conduct indicates there is a substantial likelihood the accused will, if released from custody, interfere with the administration of justice.
[49] Malik’s actions after the offence attempted to interfere with the police investigation of Nirosan’s death. Before the police arrived at the scene that night, Malik encouraged Ms. Mastromatteo to lie and to omit certain events. She omitted any reference to Jeremy, Saeed’s presence at the sequent altercation and she refer to a fictitious individual named Jimmy. He interfered with the investigation by disposing of the knife, which has not been found. He told a story about stopping to meet a person named Jimmy to buy marijuana from that night. He hid the presence and involvement of his cousin Saeed.
[50] The Crown does not contend that Malik and Mastromatteo withheld information about the location of Nirosan’s body from the police; given its location at the bottom of a steep incline and that it took the police more than 30 minutes after arrival on the scene to notice it.
[51] However, the court should take into account that after Malik was arrested and detained, even though he was ordered not to communicate with Ms. Mastromatteo he did so by sending her letters through a third party.
[52] The Crown contends that such after-the-fact conduct is a serious impediment to his release. He should be denied bail as R. v. Martin, [2007] O.J. No. 5065 where the court was concerned there was a substantial likelihood of the applicant interfering with the administration of justice because of overt acts of attempted intimidation of a co-accused to assume responsibility and exonerate the accused in a stabbing death. Similarly, the applicant was denied bail in R. v. Qaiser, [2003] O.J. No. 3668 where there was evidence of the applicant attempting to persuade a witness to give a false alibi.
[53] Counsel for Malik noted that although he did not speak of his cousin’s involvement, he admitted in his statement to having stabbed the deceased. With respect to his communications with Ms. Mastromatteo, he was not charged with obstruct justice, but rather disobeying Court orders. The content of the letters amounted to professions of his love for Ms. Mastromatteo and his great remorse for the effect of his predicament on his “poor mother”, to whom he should have listened. There is nothing in the letters to suggest an attempt to “interference with the administration of justice”. Unlike the circumstances of the cases relied on by the Crown this is not such a case.
[54] There must be a substantial likelihood that if released, the accused will interfere with the administration of justice. Even though there was an apparent attempt to interfere with the police investigation in persuading his girlfriend, to lie and to omit certain information, none of the subsequent communications with her, contrary to the s.516 order, suggests any attempt to interfere with the administration of justice. In this instance, what is of importance is that Malik not have any contact or communication directly or indirectly with any of the witnesses if released, in particular, Ms. Mastromatteo with whom he has a relationship.
[55] Given his attempt to interfere with the administration of justice on the night of the offence, and his continued professions of love for Ms Mastromatteo, there is evidence to suggest the possibility of his continuing to try to contact Ms Mastromatteo. The concern of that possibility must be balanced in consideration of the plan of supervision proposed.
[56] Ms. Niala Malik testified that she knew Ms. Mastromatteo because of the number of her visits to her home with her son. She assured the Court she is able to exercise control over her son and that if there is any attempt at communication with Mastromatteo, she would inform the police immediately. I found Ms Malik to be a credible witness determined to ensure her son remained compliant with each term imposed if her son is released.
[57] I am satisfied that the concern under the secondary ground would be removed as a result of the continued vigilance of his compliance with any conditions imposed as assured not only by his mother, but also by his aunt and uncle.
The Tertiary Ground
[58] I now turn to consider the tertiary ground where detention is justified if it is necessary to maintain confidence in the administration of justice having regard to all of the circumstances, including: 1) the apparent strength of the Crown’s case, 2) the gravity of the offence, 3) the circumstances surrounding its commission, and, 4) the potential for a lengthy term of imprisonment.
[59] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (SCC) and R. v. Laframboise, [2005] O.J. No. 5735 (OCA) it was held that the tertiary ground should be used only sparingly. Detention must be reserved for those very rare cases in which the four factors have been considered and met. The ultimate test, as stated by McLachlin C.J. in R. v. Hall, supra, is whether a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. A reasonable person is one who is informed about the actual circumstances of the case, the philosophy of the judicial interim release provisions, and Charter values.
[60] Juriansz J.A. in R. v. Mordue, 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654 at para. 31, noted in a review under s. 680 of the Criminal Code that in considering the four factors:
No one factor is determinative. The four factors should be analyzed together, not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain confidence in the administration of justice.
Section 515(10) (c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public’s confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected.
[61] In considering the second and fourth factors in this matter, murder whether first or second-degree, is the gravest and most serious offences whereon conviction the mandatory sentence is life imprisonment, subject to differing periods of parole eligibility. Those two factors in this case must be assessed as having maximum force.
[62] In considering the circumstances of the offence, while all murder is abhorrent this is neither the most gruesome of murders nor one of stark horror.
[63] In this instance, the circumstances surrounding the commission of the offence must also be considered in the assessment of the strength of the prosecution’s case. I agree with the observation made by Nordheimer J. in R. v. Ibrahim, [2005] O.J. No. 4442 at para. 12 that it is risky to evaluate the strength of the Crown’s case at this very preliminary stage of the proceedings because any number of eventualities may occur between the time of an accused person’s arrest and the ultimate trial, which may cause an apparently strong case to weaken or an apparently weak case to strengthen. In this case, Ms. Mastromatteo’s subsequent statement that Malik asked for her knife, declared an intention to seek revenge and admitted to her having stabbed the victim could be considered such an eventuality that strengthened the Crown’s case.
[64] However, in considering the strength of the Crown’s case with respect to first-degree murder, I take note that there are several aspects of the evidence, which diminishes the force of any planning and deliberation and which may affect the degree of the accused’s culpability in the homicide.
[65] If the planning and deliberation is founded on the evidence that Malik wanted and obtained a knife to seek revenge because of the earlier confrontation and enlisted the aid of his cousin to that end, when they attended 1703 McGowan Road, the townhouse complex and first encountered three males and then three more, any plan appears to have come to an abrupt end. They beat a hasty retreat to the car left with Malik’s girlfriend in the parking lot. As five males pursued them, Malik screamed at his girlfriend to call 911. He was screaming at her to call the police.
[66] On reaching the safety of the car, as they fled the parking lot, still pursued by the group of males, a bottle was thrown at the car and attempts were made to get at Malik. The car was damaged as they tried to drive away. The car stopped on the ramp way only because it was damaged and inoperable. Malik and his cousin, Saeed, encountered Nirosan only because he ran, barefoot more than half a kilometer in pursuit of them. Another member of the group, Pirashanna Girubaharan who had also chased after Malik and Saeed to the parking lot earlier precipitating their flight, followed behind Nirosan, but could not keep up with him.
[67] If Malik’s plan was to seek revenge on the person who hit him, Jeremy Sampson, or even any of the others present, Jeremy Sampson was not amongst those Malik and Saeed encountered at 1703 McGowan Road and the deceased, Nirosan Thillianathan, had not been amongst the four in the earlier encounter at the Shell Gas station.
[68] The Crown’s case of first-degree murder against Mr. Malik, at this stage cannot be characterized as strong and certainly not overwhelming.
[69] There is evidence that directly involves the accused in the homicide. However, there is conflicting evidence that may call into question the accused’s level of culpability. Even though the accused made an admission he stabbed someone to his girlfriend and later to the police, at a time he was attempting to hide the involvement of his cousin, Saeed, the witness Pirashanna Girubaharan described seeing an altercation where it could be reasonably inferred Saeed, in the black shirt was stabbed Nirosan, while Malik held him from behind. In addition, the circumstances of their retreat and being chased leading up to the fatal encounter must be taken into account in considering the strength of the Crown’s case and the accused’s culpability.
[70] I bear in mind that the tertiary ground has a narrow application. As noted in R. v. Hall supra it should be applied only to those exceptional or rare cases where failure to detain an accused would undermine public confidence in the administration of justice. In the circumstances of this case while two of the four factors may be considered to have maximum force, the other two factors, the circumstances surrounding the commission of the offence and the strength of the prosecution’s case cannot be said to have the same force or weight.
[71] In considering the combined effect of the four factors, I am satisfied that the release of the applicant on bail, subject to strict terms, would not undermine confidence in the administration of justice of reasonable and fair minded members of the public, informed of the actual circumstances of the case, the proposed plan of supervision, the philosophy of the legislative provisions and Charter values.
[72] In the result, I conclude that the accused has satisfied the onus placed on him to show cause that his detention is not justified under any other grounds set out in s.515 (10) of the Criminal Code. Therefore, I grant judicial interim release to Zishan Malik on the following terms:
Recognizance of bail with Muhammad Iqbal and Rashda Malik as named sureties in the joint amount of $150,000, and Niala Malik as named surety in the amount of $5,000, all with conditions but without deposit of money or other valuable security.
In addition to the statutory term of keep the peace and be of good behavior,
The applicant will reside at 200 White Oaks Court, apartment 1106 in the Town of Whitby, Ontario with his mother, Niala Malik and to be amenable to the routine and discipline of her home until the completion of his charge.
The applicant will remain within the residence at all times unless accompanied by one of his named sureties, including travelling directly to and from a place of employment, medical or legal appointments and any required Court appearance.
The applicant will present himself on request of the police during random checks by police at his residence.
The applicant shall have a copy of his release papers with him at all times when outside his place of residence and produce them to any police officer on request.
The applicant will seek and maintain employment under the guidance and supervision of his sureties.
The applicant will report to Det. Tam Bui or a designated officer on a monthly basis.
The applicant will remain within the Province of Ontario.
The applicant shall forfeit any passport or travel documents to Det. Tam Bui or a designated officer and he shall not apply for any further passports or travel documents until the completion of his outstanding criminal matter.
The applicant will have no contact directly or indirectly with Brittany Mastromatteo, Brian Sellathurai, Pirashanna Girubaharan, Sathiyan Thillianathan, or Jeremy Sampson.
The applicant shall have no contact directly or indirectly with Hussain Saeed except in the presence of counsel for the purpose of trial preparation or attendances at Court, as required.
The applicant shall not be within the boundaries of the City of Toronto, save and except the purposes of attending Court and as may be required for legal consultation or medical emergencies.
The applicant will attend Court as and when required.
The applicant will not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance or any such items intended for the use as a weapon as defined by the Criminal Code and not have or apply for any authorization, licenses or registration of such items.
The applicant shall abstain absolutely from the possession and/or use non-medically prescribed drugs, narcotics or alcohol.
A.J. O’Marra J.
Released: December 21, 2012
COURT FILE NO.: CR-12-30000330-00BR
DATE: 2012/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ZISHAN MALIK
Accused
RULING ON BAIL APPLICATION
A. J. O’Marra J.
Released: December 21, 2012