ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0563-00
DATE: 20131007
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Samir Abdel-Gadir
Respondent
R. A. Cornelius, for the Crown
J. K. Roy, for the Respondent
HEARD: September 27, 2013
REASONS FOR JUDGMENT
Daley J.
Introduction
[1] The respondent stands charged with several firearm offences namely nine counts under s. 91 (1), 18 counts under s. 92 (1), nine counts under s. 86 (1), four counts under s. 95 (1), three counts under s. 108 (1) (a), and two counts under s. 100 (1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”).
[2] The respondent also stands charged with three counts under s. 4 of the Controlled Drugs and Substances Act, S.C. 1996, c.19, (the “Act”).
[3] The respondent was charged with these offences on June 9, 2011 and was detained in custody, without bail being sought by him until he applied for the same at a bail hearing held on June 29 and August 29, 2013. The reasons of the justice of the peace were given on September 3, 2013, in which the respondent was granted a release on terms.
[4] The Crown on this application, pursuant to s. 521 of the Criminal Code, seeks an order vacating the release order of the justice on the basis that he failed to properly consider the evidence pertaining to the respondent’s significant involvement in a criminal enterprise; that in addressing the secondary and tertiary grounds he overemphasized the value of the plan of supervision; he failed to appreciate the evidence relevant to the strength of the Crown’s case; and he erred in his consideration of the tertiary ground by failing to properly analyze the four statutory considerations found in s. 515 of the Criminal Code.
[5] The respondent opposes the application and supports the determination as made by the justice.
The Alleged Offences
[6] The record on this application was composed of the transcripts of the bail hearing, the reasons of justice, the exhibits filed, as well as a DVD of material taken from the respondent’s laptop which was presented at the bail hearing, but not entered as an exhibit at that time. This DVD was considered as part of the record for consideration on this application, on consent.
[7] On June 9, 2011, Hamilton Police Services and Peel Police Services each had obtained search warrants based on information provided by confidential informants. The warrants were executed at a home occupied by the respondent in Hamilton and at a condominium located in Mississauga, where he resided with his mother.
[8] In conducting the search of the Mississauga condominium, the police located a gun holster, a money counting machine and cell phones in the condominium apartment.
[9] Pursuant to warrants obtained, the police also conducted a search of several storage lockers within the condominium building. Four of the lockers were secured by similar Stanley key locks.
[10] Locker #680 was inspected and found to contain a 40 calibre handgun, a quantity of marijuana and packaging material. This locker was registered to a person other than the respondent, who advised the police that the material located in the locker did not belong to him.
[11] Locker #688, which was registered to the respondent and which was secured by a Stanley key lock, contained nothing other than papers with the respondent’s name on them.
[12] Locker #622, which was secured by a Stanley key lock, and registered in the name of a woman with the surname Foo, and was subletted to an individual named Sidhu. The locker was searched, and within this locker was found a box containing crack cocaine, a digital scale, a 9 mm handgun, 38 mm handgun, and 9 mm ammunition. Mr. Sidhu was interviewed and stated that he was familiar with the respondent as they had gone to school together, but he denied having rented the locker to the respondent.
[13] Locker #118 in the condominium was also searched pursuant to a warrant in which six firearms were found, including a 9 mm Beretta, loaded with ammunition, a 40 calibre handgun loaded with ammunition, a 357 Smith and Wesson loaded with ammunition, a 38 calibre handgun, without ammunition, a 24 calibre Beretta, and a 9 mm starter pistol which had been modified into a handgun.
[14] The search conducted by officers in the Hamilton Police Services of the home where the respondent resided resulted in the locating of a leather bag which contained the respondent’s driver’s licence, some bank records in his name, two cell phones, a laptop computer and sets of keys.
[15] Pursuant to a warrant, the respondent’s cell phones found during this search were examined and on one of the phones was found a photograph of a hand holding a gun located during the search of locker #622 at the condominium. There was also a copy of a locker lease relating to locker #622 in respect of Mr. Sidhu.
[16] The photograph appearing on the respondent’s cell phone depicting a hand holding a handgun was forensically examined and it was determined that the fingerprints of the hand shown in the photograph, holding this gun, matched the respondent’s fingerprints.
[17] The keys located in the leather bag found in the respondent’s Hamilton residence matched three of the locks on the lockers in the respondent’s condominium, namely locker #680 where the 40 calibre handgun, marijuana and packaging material was located; locker #688, which was empty of any significant material; and locker #118 where six guns and ammunition were found.
[18] The 9 mm Beretta handgun which was located during the search of locker #118 was examined, and it was determined, based on ballistics examination, that this handgun had been used in a homicide committed on April 16, 2011. On forensic examination, it was also determined that this gun had the DNA of one Marcus Alexis, who presently stands charged in that homicide.
[19] In respect of the handguns found during these searches, it was determined that three of those were stolen in the course of break and enters within seven days prior to the issuance of the search warrants, and one of the guns had had the serial number defaced.
[20] The respondent’s laptop computer was also examined pursuant to a warrant. The contents found on the laptop included material which had been placed on the DVD, which was presented during the bail hearing.
[21] This DVD was examined by me during the course of submissions on this application. The DVD depicted a young male, who I reasonably believe to be one and the same as the respondent. He is shown standing outdoors in a daylight setting, in an area which appears to be somewhat remote, in the company of others, who appear only as shadows, where he is firing a large assault rifle into the air. The weapon depicted in this video has not been located by police forces.
[22] During the bail hearing the Crown also led evidence regarding earlier evidence offered by a Crown witness named John Marrone, who had testified in other proceedings, under oath, that the respondent would hold firearms for several friends and associates and that he also lent out firearms for various criminal activities including robberies. Marrone also testified that the firearms were possessed by the respondent and kept in the basement of the condominium in Mississauga, which was the subject of the search.
[23] Following his arrest the applicant was detained and held at Maplehurst Correctional Complex, in Milton (“Maplehurst”). While the respondent was in custody at Maplehurst, a note was seized from him which had been delivered to him. This note makes reference to shooting a person referred to as “Duff,” which name relates to the Crown witness John Marrone.
[24] During the bail hearing there was evidence that officers with the Hamilton Police Services, who were involved in investigating the activities of the respondent, had been charged with certain offences relating to alleged misconduct connected with their interaction with confidential informants.
The Reasons for Release
[25] The bail hearing was a reverse onus proceeding given the nature of the outstanding charges. Recognizing the Crown’s position that both the secondary and tertiary grounds for detention were being advanced and that the charges involved serious offences, which if there were convictions would result in the respondent serving a lengthy period of incarceration of between 8 to 10 years, the justice determined that the plan of supervision put forward on behalf of the respondent, involving the respondent’s brother as his primary supervising surety, adequately addressed the considerations and concerns in both s. 515 (10) (b) and (c) of the Criminal Code and as such, the respondent was released.
Analysis
[26] The onus on this bail review is on the Crown to show cause why the justice’s order should be vacated, even though the respondent bears onus in the first instance.
[27] Both counsel agreed that on this review hearing the applicant must first establish that the justice made errors of law or in principle and if so, there may be a review de novo of the evidentiary record and the respondent’s entitlement to bail.
[28] As was the case at first instance, the Crown seeks to have the justice’s order vacated, if error of law or principle is determined, on the basis of the secondary and tertiary grounds under s. 515 (10) of the Criminal Code.
[29] In his reasons for decision at page 9, the justice states as follows:
The issue, and again I am repeating myself, the issue principally before this Court is fairly simple. Is the plan that’s being presented by the defence in this matter, Mr. Roy, is the plan strong enough to deal with primary, secondary and tertiary concerns? I note that in order for the transfer of the accused, from the accused to the institution that re-privatizes an effective bail release requires three essential factors: one appropriate and well understood conditions, two effective and influential sureties, and three most critical of all, the willingness of the accused to abide by the conditions. If one plan is missing, the entire plan collapses. This Court at this stage is one of trier of risk, is there a substantial likelihood of Mr. Gadir being released in committing any further offences?
It’s not this Court’s role to provide as a trial judge to determine the credibility of the evidence before the Court, rather it’s the Court’s responsibility to determine the credibility of the proposed plan and the proposed sureties.
[30] I have concluded that the following errors in principle or law are present in the justice’s reasons for decision:
(1) while identifying the principal grounds upon which detention was sought under the secondary and tertiary grounds of s. 515 (10), the justice provided no discrete analysis of the considerations under subsections (a) and (b);
(2) the justice, having failed to examine the considerations under these subsections, then proceeded to overemphasize the proposed plan for release and the quality of the sureties; and
(3) after having identified the four factors for consideration on the tertiary ground under s. 515 (10) (c), the justice failed to provide any analysis of the considerations under that section in the context of the evidence before him.
[31] In focusing on the quality of the plan for release and the sureties offered, the justice conflated the considerations under the secondary and tertiary grounds and as such, committed an error in law and in principle.
[32] As to the tertiary ground, the justice made the following most confusing statement at page 21 of his reasons:
As I indicated each case must be stated on its own merits and the tertiary grounds is not restricted to any specific class of offence. The four factors which are articulated must be considered on the tertiary grounds must be analyzed together rather than separately. The combined effect in maintaining the confidence and the administration of justice must be considered. I also wanted to note that of course the strongest factor leading to the conclusion there’s a substantial likelihood again touching on the secondary grounds would re-offend there’s a significant criminal history. The Court notes that Mr. Gadir again has no record, has no outstanding charges. These charges are extremely significant, I think that’s given. I think the plan really is very stark that Mr. Roy has presented to this Court. It’s a plan that either involves incarceration, or 24/7 supervision. Based on all of the factors before the court in reviewing the evidence, the strength of the Crown’s case, Mr. Gadir’s strength and his roots in the community. The fact that the presumption of innocence, which is the hallmark of the Canadian Charter of Rights and Freedoms, Section 7, 9 and 11.
[33] While referring to the factors that are to be considered on the tertiary grounds, the justice provides no intelligible analysis of those considerations within the context of the evidence before him.
[34] Having determined the errors in principle and of law made by the justice as outlined, it must be determined whether the Crown has shown cause as to why no other form of release described in s. 515 of the Criminal Code is sufficient to answer the secondary and tertiary ground concerns.
[35] As to secondary ground concerns, several factors may be taken into account in considering the assessment of risk including:
(1) the nature of the offences;
(2) the relevant circumstances of the offences, which may put in issue events prior to and subsequent to the offence;
(3) the likelihood of a conviction;
(4) the degree of participation of the accused;
(5) the relationship between the accused and the victim;
(6) the profile of the accused, i.e. his occupation, his lifestyle, his criminal record, his family situation, his mental state;
(7) his conduct prior to the commission of the alleged offence; and
(8) the danger which the interim release of the accused represents to the community specifically affected by the matter: R. v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C. (3d) 474 ( Que. C.A.).
[36] While the respondent has no criminal record and no outstanding charges other than the present charges, the words of Wein J. in R. v. Smikle, 2010 ONSC 5311, at para. 12 are most apt to this case:
No issue was raised on the primary ground: it is not suggested that Mr. Smikle would not appear for trial if he were released. However, on the secondary ground, notwithstanding the level of supervision offered, I am not satisfied that there would not still exist a significant likelihood of the commission of further offences. In Brown, Hill J. noted with respect to the secondary ground, at para. 9:
The applicant is obviously clothes by the presumption of innocence. He had a reverse onus show cause hearing initially and bears the onus today of establishing why his release is justified. I am not satisfied that even with a strict release of the type proposed by the application of virtual house arrest and a committed multiple number of sureties, that the public could be adequately protected from an individual who, while presumed innocent on the current offences, does have a profile emerging of someone who is involved in the narcotics industry.
[37] As noted by Wein J. as well in Smikle at para 13:
Even close supervision cannot at all times prevent cell phone, Internet or other communications. For that reason alone, in this type of situation, of drug trafficking at this level, pre-trial incarceration will often be required the involvement of weapons is a significantly aggravating feature, regardless of the fact that they were not located on the street or in a public place. It is a factor suggestive of continuing danger if Mr. Smikle were to be released.
[38] As was readily noted by the justice, the charges outstanding are extremely serious and involve multiple firearms, ammunition, and narcotics, and there is evidence connecting the respondent to them.
[39] Particularly given the evidence that one of the handguns found had been used in a homicide, and was then located in a locker in the condominium where he resides, there are extremely serious concerns for public safety simply on the face of this record.
[40] Additionally, the fact that the respondent was found in possession of a note sent to him while in custody which contained references to a possible homicide, significantly increases the concern for public safety as it tends to demonstrate that even while in custody, the respondent appears to be still connected with violent individuals who would clearly pose a risk to public safety.
[41] Further, it is clear that the respondent has a connection with firearms as well as their use, as was demonstrated by him in his use of the assault weapon depicted in the video taken from his laptop computer.
[42] The Crown’s case against the respondent is strong, even in spite of possible search warrant issues related to searches carried out at the respondent’s residence in Hamilton.
[43] The offences are extremely serious and involve, several handguns, one of which was used in a homicide, ammunition, and quantities of drugs. Further, the fact that these firearms, some of which were loaded and ready, were found hidden in several locations in the condominium lockers, significantly increases concerns for public safety and create a substantial likelihood, on the whole of the evidence, that the respondent would commit a criminal offence if released pending trial.
[44] The plan of supervision put forward on behalf of the respondent and accepted by the justice, in my view does not in any way adequately address the very serious concerns as to public safety and the likelihood of the respondent offending if released. As such, I conclude that the Crown has shown cause as to why the respondent should be detained through to trial on the secondary ground.
[45] With respect to the tertiary ground in s. 515 (10) (c), the justice appears to have conducted a rolled up assessment of the considerations in subsection (b) and (c) of s. 515 (10), with the primary focus being on the proposed plan of supervision and not on the discrete features of each of the secondary and tertiary grounds.
[46] As already noted, the Crown has presented a strong case against the respondent involving very serious offences including offences relating to firearms, one of which has been used in a homicide. Convictions for these offences will result in a significant period of incarceration.
[47] As was observed in R. v. Mordue (2006) 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (Ont.C.A.) at paras. 23 – 24:
Public fear and concern about safety, while relevant, are not the exclusive considerations in assessing the public’s confidence in the administration of justice. The effect of the accused’s release on confidence in the administration of justice must be considered more broadly.
Limiting the analysis of confidence in the administration of justice to the public’s safety concerns results in the tertiary ground amounting to little more than a recapitulation of the secondary ground. However, the tertiary ground provides a separate and independent basis to refuse bail to an accused, as McLachlin C.J.C. made clear in Hall. At para. 30, she said,
“Bail denial to maintain confidence in the administration of justice is not a mere catchall for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories.”
This is further apparent in the language of s. 515 (10) (c) that provides that the detention of an accused is justified “on one or more” of the primary, secondary and tertiary grounds.
[48] The circumstances of the offences involving firearms, some of which were loaded and ready for use, the possession of illicit drugs and the respondent’s continued connection with others who have demonstrated an intention to be involved in criminal activity, when considered in the context of the four factors in the tertiary ground, lead me to the conclusion that a reasonable and fully informed member of society would have their confidence in the administration of justice and bail system shaken if the respondent was not detained in custody pending trial: R. v. James, 2010 ONSC 3160.
[49] For the reasons outlined above, the justice’s order is vacated and it is ordered that the respondent be detained in custody pending the trial of these charges.
Daley J.
Released: October 7, 2013
COURT FILE NO.: CR-13-0563-00
DATE: 20131007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
HER MAJESTY THE QUEEN
Applicant
– and –
Samir Abdel-Gadir
Respondent
REASONS FOR JUDGMENT
Daley J.
Released: October 7, 2013