R. v. McLeod

CITATION: 2013 ONSC 3227

COURT FILE NO.: 4134/13

DATE: 2013-06-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Mathew McLeod

BEFORE: Mr Justice Ramsay

COUNSEL: Messrs Craig Fraser and Brett Moodie for the Crown Mr Michael Webster for the accused

HEARD: 2013-05-31 at Hamilton

ENDORSEMENT

[1] The accused applies under s.522 of the Criminal Code for judicial interim release on charges of second degree murder and arson. A publication ban has been ordered, and remains in effect until

a. The accused is discharged;

b. The trial is ended; or

c. The Attorney General and the accused consent to a trial without a jury.

[2] It is a very sad case. On August 4, 2012, Samir Anbari was stocking the shelves in his new variety store on Main Street East at about four o’clock in the morning when a pickup truck and a van, each carrying two 1000-litre plastic containers of gasoline, pulled up to the entrance to the store. Men in the vehicles opened the spigots on the gasoline containers and ignited the gasoline. The store and the vehicles quickly exploded in flames. Before dying in the fire Mr Anbari had time to telephone his wife and tell her, “The store is on fire. I love you.” The Fire Department recovered his body from the wreckage of the store later that day.

[3] Police investigation led to a person named Samir Karnaz. He will be jointly charged with the accused. Karnaz told the police that he had been hired to burn the store by Awaz Taha, a business competitor of Mr Anbari. Taha has since died. Karnaz told the police that he hired Elly Zriek to do the job, and that Zriek enlisted the accused and a young person. The accused is said to have driven the co-conspirators home after the fire, using his father’s Chev Impala.

[4] The Crown’s case against the accused is circumstantial. It consists of video surveillance, cellphone records and records of cell phone towers. In my view it is a serious case that shows a coordinated attack on the store, in which the accused played an important part. The accused faces a real prospect of being convicted of manslaughter and arson and a penitentiary sentence of 10 years or more.

[5] The accused is 25 years old. His only criminal record consists of a conviction for failing to appear in court, for which he was fined in March 2012. The substantive charge was possession of marijuana, for which he got an absolute discharge.

[6] The accused was not on release at the time of the alleged offence.

[7] The accused comes from a family of honest, hard-working people. However, he has not in recent years followed their advice or example. His parents and his sister do not like his friends, one of whom is the co-accused Zriek. They did not want him to smoke marijuana, but he did anyway. In recent years the accused seems to have been content to hang around with his unambitious friends. He has accomplished little in the way of education or employment, although he did finish grade 12 after some years and he has worked part-time for his father. It is proposed that the accused live with his older sister, under supervision by her or while working for his father, 24 hours a day. It is clear that they have reservations about his conduct. To the extent that they profess confidence in him, I think it to be a product of wishful thinking, for which I do not criticize them. It is a natural enough instinct. At any rate, this man’s family has not had a great deal of influence over him lately.

[8] It is proposed that the mother and father of the accused will sign for $50,000 and $15,000 respectively. The accused will work for his father. He will live with his sister. The sister and the accused person’s fiancée will sign for lesser amounts. The father and the mother work and have family obligations. The sister is raising a toddler by herself, while also working. The fiancée is a twenty two year old woman who lives with her father and also works. She used to smoke marijuana with the accused, knowing that his parents did not approve. She is prepared not to do so any more. She does not like his co-accused Zriek or the young person and she does not want him to hang around with them.

[9] None of these people, alone or together, are realistically going to be able to provide the level of supervision that they themselves recognize is necessary.

[10] The only time in his life the accused was obliged to appear in court, he failed to do so, and that was only last year. I am not satisfied that the accused has shown cause for his release on the primary ground.

[11] Given his associations and the strong case of a very serious, co-ordinated, profit-motivated crime, taken together with what I consider a feeble plan for release, he has not satisfied me on the secondary ground, either.

[12] Much time in argument was taken with the tertiary ground, so I will mention it briefly, although it is not strictly necessary.

[13] The principles for applying the tertiary ground are set out in R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309, R. v. Mordue (previously published as R. v. EWM), 2006 ONCA 31720, [2006] O.J. No. 3654, R. v. S., 2007 ONCA 560 (Winkler C.J.) and, of course, s.515(10)(c) of the Criminal Code. Winkler CJ said in S.:

The role of the judge hearing an application for judicial interim release on a murder charge must, of course, recognize the constitutional presumption of innocence, consider the fact that it is a reverse onus situation and evaluate the combined effect of the four factors enumerated in s. 515(10)(c) in coming to a decision on the tertiary ground.

[14] The four factors listed in paragraph 515(10) (c) are all at the high end in the present case.

a. The Crown’s case, at least as far as manslaughter is concerned, is strong.

b. The offence is unusually serious for manslaughter or arson because it involves the horrific death of an innocent in an arson that was undertaken for profit.

c. The circumstances surrounding the commission of the offence do not involve a firearm, but they do involve a deadly weapon – an extremely high amount of accelerant that amounts to a fire-bomb of industrial or almost military dimensions.

d. The accused is liable on conviction for a potentially lengthy period of imprisonment.

[15] Taking those factors together, and in conjunction with the other circumstances, including the accused person’s bad associations, conviction for breaching interim release by not appearing in court and a weak plan for release, I would have concluded that he had not met the onus on the tertiary ground.

[16] The application is dismissed.

J.A. Ramsay J.

Date: 2013-06-03