SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 471/13
at Kingston

DATE: 2013Nov22

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

SHOAIB SHEIKH

B A I L R E V I E W

R E A S O N S F O R D E C I S I O N

BEFORE THE HONOURABLE MADAM JUSTICE H. MACLEOD-BELIVEAU

On November 20, 2013, at KINGSTON, Ontario

APPEARANCES:

N. THOMPSON agent for G. LAARHUIS Counsel for the Crown

K. MANITIUS Counsel for the Accused

SUPERIOR COURT OF JUSTICE

Reasons for Decision Page 1

Transcript Ordered ........................ November 20, 2013

Transcript Completed ...................... November 22, 2013

Ordering Party Notified ................... November 22, 2013

WEDNESDAY, NOVEMBER 20, 2013

MACLEOD-BELIVEAU, J. (Orally):

The Applicant applies for a review of his Detention Order made on July 19, 2013 by Justice of the Peace C. Coulas sitting in Kingston pursuant to section 520 of the Criminal Code of Canada. The Applicant was ordered detained on the primary and secondary grounds as set out in section 515(10) (a) and (b) of the Criminal Code of Canada.

The onus is on the accused to show cause why the Order should be vacated pursuant to section 520(7)(e)of the Criminal Code of Canada.

Transcripts

The Applicant brought his original Application dated the 19th of September, 2013 without his counsel having the benefit of the 287 page transcript of the hearing before the Justice of the Peace. The hearing took place for two full days on June 26, 2013 and July 19, 2013. Counsel at this bail review hearing was not counsel at the bail hearing before the Justice of the Peace.

The transcripts were ordered July 29, 2013. There was a significant, unwarranted delay in the delivery of the transcripts by the court reporter. A previous hearing date of October 22, 2013 had to be abandoned due to unavailability of the transcripts. The transcripts were eventually delivered to the court office on Friday, November 8, 2013. They were couriered to counsel who received them Monday, November 11, 2013 for this hearing which proceeded on Friday, November 15, 2013.

For this reason, I allowed the Applicant's counsel leave to state orally what the grounds were for this Application, beyond the only written grounds stated in the Application. Crown counsel declined to request an adjournment based on the new grounds stated.

Grounds Relied Upon

The original written ground relied upon by the Applicant, without the benefit of a transcript, was that the Justice of the Peace erred in law by denying bail to the Applicant considering his release granted by Vallee, J. of the Superior Court of Justice sitting in Newmarket on similar, related, and a greater number of charges. This is now the third ground relied upon at this hearing. No change of circumstances is relied upon by the Applicant.

The grounds relied upon for this Application are:

(1) That the Justice of the Peace erred in law in finding that the accused had no ties to the community;

(2) That the Justice of the Peace misapprehended the facts on the financial issues given in evidence by the Applicant's wife, Farishta Qayoumi, and

(3) That the Justice of the Peace erred in law by not considering the persuasive decision of Vallee, J. at the bail review hearing in Newmarket on June 3, 2013 wherein the Applicant was released upon conditions with sureties.

Background

This case is a serious criminal case involving a sophisticated, well organized, systematic, methodical and brazen scheme of break and enters into people's private homes and stealing their most prized possessions. Often, knives were placed throughout the homes to intimidate the homeowners. The homeowners were specifically targeted from the South Asian and Islamic community and caused reasonable alarm and fear in that community. The perpetrators of these crimes were skilled at avoiding police detection for some time.

The Applicant is charged with 14 counts of break and enter into homes in Kingston and Ottawa. He is charged with 46 charges of break and enter into homes in Newmarket, Georgina, Markham, Vaughan, Barry, Hamilton, Kitchener, and Peterborough, Ontario.

The Applicant was detained at his initial bail hearing on the 46 Newmarket charges. He was detained on his first bail review in Newmarket. He was released by Vallee, J. on his second bail review which was a half-day hearing in Newmarket. The Applicant was detained on the 14 Kingston charges after a two-day hearing and this is the first review of the order of detention.

The time period for the offences at issue is from March, 2011 to February, 2012.

Just prior to his arrest, at a break and enter in Peterborough, the Applicant was under physical surveillance by the police. He was physically followed and tracked from his residence in Scarborough to the vicinity of the break and enter in Peterborough. A cell phone of one of his co-accused, in the 2012 Nissan Maxima vehicle driven by the Applicant, was also being live tracked through pings from cell phone towers by the Kingston police. The Applicant was then followed back to Scarborough where he was stopped and arrested in his vehicle with the two other co-accused. The Applicant had the stolen items from the Peterborough break and enter in a bag underneath his driver’s seat in the vehicle.

The nature of these 60 break and enters had a definite pattern. In most cases, the target homes were called from one of their cell phones just prior to the break and enter. SIM cards were purchased in that community to make it more difficult to detect. Entry into the homes was during the daytime. The front doors were forced open. The rear patio doors were opened to provide an escape route. Knives taken from the kitchens of the homes were often placed at various places throughout the houses, and in particular in the master bedrooms. The master bedrooms were targeted and ransacked. Gold, jewelry, pure gold bullion, and cash were taken. Passports and other immigration documents were also taken. In many cases other valuable electronic items were left behind. One or two offences would be committed in the same city and then they would return home. There was precision, skill and pre-planning in the execution of these offences.

Cell phone usage data, text messages, physical tracking, and cell phone tracking data places the Applicant and his two co-accused together, in the city and area of the break and enters, and at the time of the break and enters, for most or all of the 60 offences.

Cell phone data confirms the Applicant communicated with his co-accused in discussing, planning, and assigning the work of preparing target lists of homes to break and enter.

Cell phone photographs confirm pictures of lists of potential target homes, with their addresses and telephone numbers. There were pictures as well of piles of cash, gold and jewelry and of them relishing in the spoils of the loot that was stolen.

The Applicant was picked out of a photo lineup by an eyewitness, and most of the vehicle license plate number on one occasion was reported by another witness.

The South Asian and Islamic community in Kingston, including the 14 break and enter victims were alarmed, distraught, traumatized, fearful and afraid. The investigating officer had two community meetings where up to 100 members of this community attended for information, explanations, and reassurance as to the state of this investigation and their safety. They felt they were being targeted because of their ethnicity.

The Applicant, age 24, is a citizen of Pakistan and the citizen of Canada. He has an extensive youth and adult criminal record in Canada from 2006 to 2010 with his last conviction being January 27, 2010. His criminal record includes a total of 30 convictions as follows: two counts of break and enter, one count of possession of stolen property, eight counts of fraud or attempted fraud, eight counts of unlawful use of credit cards and credit card data, four counts of theft and obstruct police, and seven counts of fail to comply with a recognizance. For these offences, he has been sentenced to probation, and a number of short periods of incarceration, with the longest sentence being 30 days in custody. At his young age, he can still be described as an experienced criminal.

Principles of Review

The nature of the bail review procedure contemplated by section 520 of the Criminal Code of Canada is set out in R. vs. McCue, [1998] O.J. No. 4384, para. 5. In that decision Salhany, J held that:

[5] This section indicates to me that the review procedure contemplated by section 520 (and by 521 where the Application is by the prosecutor) is really a hybrid one in the nature of a fresh hearing as well as a review of the record before the justice: Powers supra; R. v. Lebel (1989), 1989 9937 (QC CS), 70 C.R. (3d) 83 (Que. S.C.). Since there is an obligation on the accused to “show cause”, the reviewing judge must give due consideration to the discretion of the justice and not substitute his discretion for that of the justice unless it appears that he exceeded his jurisdiction, made an error in law or erred in his appreciation of the facts or the proper inferences to be drawn from the proven facts. However, because the reviewing judge is entitled to hear “such additional evidence or exhibits as may be tendered” by the accused or the prosecutor, it would appear that the decision of the justice should be examined in the light of any new evidence, and in this sense becomes a hearing de novo.

The nature of what factors should be considered by the reviewing judge is set out in R. vs. McLean [2011] O.J. No. 6493, paras. 5 and 6. J.R. Henderson, J. held that:

5. Before I analyze the Application itself, it is important to define the nature of a bail review. In my view, a bail review, whether it is pursuant to Section 520 or Section 521, is not an appeal and it is not a trial de novo. Rather it is a review. As the reviewing judge, I should consider a wide variety of factors, including the evidence presented at the original bail hearing; any changes in the circumstances since the bail hearing; the reasoning of the Justice of the Peace, including any findings of fact or credibility; any errors of fact or law made by the Justice of the Peace; and, the legislation and the principles that apply to judicial release prior to trial. In that respect, I agree with the comments made by Justice Salhaney in the case of R. v. McCue [1998] O.J. No. 4384, at paragraph 5. I also agree with the comments made by Gary T. Trotter [now Trotter, J.], in his book “The Law of Bail in Canada”, Second Edition, at page 312.

6. I accept that in certain cases where a Justice of the Peace has made a significant error, or errors, a bail review may in fact become a trial de novo, but this is not one of those cases.

I agree with the analysis and reasoning in these cases.

Analysis

On this Application, I have carefully considered the evidence presented at the original bail hearing; the exhibits filed at the original bail hearing; the reasoning of the Justice of the Peace, including her findings of fact and credibility; any errors of fact or law made by the Justice of the Peace; the evidence presented at the bail review hearing before Vallee, J. of the Superior Court of Justice sitting in Newmarket on June 3, 2013; the reasoning of Vallee, J., including her findings of fact and credibility; the Affidavit evidence of Assmah Qayoumi, the Applicant’s sister-in-law, the Affidavit evidence of Faruzan Qayoumi, the Applicant's mother-in-law, and the legislation and the principles that apply to judicial release prior to the trial.

At the hearing before me, new evidence was called by the Applicant. I have examined the decision of the Justice of the Peace in the light of this new evidence, namely the new viva voce evidence before me of Farishta Qayoumi, the wife of the Applicant, and the new viva voce evidence of the Applicant accused given for the first time.

Detention on the Primary Grounds

The Justice of the Peace detained the Applicant on the primary grounds. The primary grounds as set out in section 515(10)(a) of the Criminal Code of Canada requires that detention is necessary to ensure the accused attendance in court in order to be dealt with according to law.

The position of the Applicant is that he has never failed to attend court; there is no reason to believe that he would fail to attend court; he is not a substantial flight risk; even though the Crown case is strong he is innocent until proven guilty; he has ties to the community of the province of Ontario, if not Canada; his sureties will ensure that he comes to court; that his Pakistani passport can be surrendered; his Canadian passport can be surrendered; he has no money to flee the jurisdiction; and that he has no convictions for failing to appear in court.

The position of the Crown is that the Applicant has no ties to this community defined as being within 200 kilometres of Kingston; the Applicant does have access to money to flee the jurisdiction; the sureties are not credible; the sureties are not suitable; the sureties are not capable of monitoring him; the sureties are no match for the Applicant; the Applicant is now putting forth a plan with one less surety, as Mr. Rahmatullah Kadery, the only surety that is not a family member, is no longer prepared to be a surety; the Crown has a very strong and compelling case against the Applicant who is facing a lengthy period of incarceration if convicted; that the Applicant is skilled at credit card theft and fraud and can access funds illegally; and that the Applicant has reason to flee the jurisdiction in spite of having his immediate family in Scarborough.

The Justice of the Peace found that the evidence is overwhelming against the Applicant as supported by the evidence of the police, the photo identification in a lineup, and that stolen property was found on him immediately after a break and enter. She found that there are no roots whatsoever in Kingston. She found that the Applicant had a despicable criminal record including noncompliance with at least seven convictions for failure to comply with a recognizance.

The Justice of the Peace found that the evidence of the sureties was inconsistent and was not credible. She found that their evidence was inconsistent as to cash, between cars, between bank accounts, and between addresses. She asked what was really going on and what were they really trying to hide? She found that the Applicant was no match for these sureties. She found that “there just does not appear to be any credibility or reliability in most of their evidence”.

I can find no error in these findings of the Justice of the Peace. The Applicant has no ties to the community, even considered on a local, provincial or national basis. The Applicant has an extensive criminal record. The evidence, both in the transcripts and viva voce, is that the Applicant has no job. His wife works to pay the bills. She cannot afford daycare. His son is cared for by his wife's mother while his wife is working. There has been marital discord between the Applicant and his wife about his conduct and whereabouts in the past. His family situation is tenuous at best.

I do not accept as worthy of belief that the Applicant does not have access to money. The evidence supports the Crown submission that even though some of the family members are supported on social assistance, this family deals in cash and does not put their money in the bank. I am satisfied that he has access to money.

The Applicant is a flight risk considering his long criminal record and the lengthy term of incarceration that he is facing if convicted of these offences. These offences are serious and grave and will likely attract a lengthy double digit penitentiary term if a finding of guilt is made. The evidence supports the finding of the Justice of the Peace that the evidence against the Applicant is overwhelming.

I do not accept the Applicant's evidence before me that he turned his life around after he got engaged. The evidence supports a finding that the Applicant can do whatever he wants and is no match for these proposed sureties. The evidence supports a finding that he is ungovernable by his wife, the proposed sureties or by the courts. With a record of seven breaches of recognizance, it is clear that a Court Order is not a deterrent to his behavior. There is ample, overwhelming evidence in the evidentiary record that the sureties are unsuitable and that they have no control over the Applicant.

The Justice of the Peace did not misapprehended the facts on the financial issues given in evidence by the Applicant's wife, Farishta Qayoumi. In questions put to her by her own counsel at the bail hearing, she was asked how much money did she have in the whole world? She answered $10,000.00 when she had, in fact, over $33,000.00 to make a down payment on the purchase of a new condo.

It is clear now, on the evidence before me that she was untruthful and attempted to deceive the Court. She now says she was confused and that she only wanted to risk $10,000.00 to bail out her husband as she needed the rest of the money to buy her condo. I find her evidence not to be credible or worthy of belief. In her evidence in-chief before me, an attempt was made to reconstruct her financial evidence with an “aide memoire”, or chart, which is lettered Exhibit A, as it was referred to in the evidence. Even then, the financial evidence still did not add up. I find that she was not truthful with the Court. When she could not explain or answer some basic straight forward questions in cross examination, she became emotional and claimed that she was confused. The questions put to her were clear and straight forward. There was nothing confusing about them.

The sureties gave different evidence as to where the Applicant's wife was living; where the $34,000.00 cash money came from to buy the Nissan and the BMW motor vehicles; what was the source of the $55,000.00 of cash money stored at the Applicant's mother-in-law's house; when was the money given to the Applicant's wife; and how they could afford a condo while the Applicant was in jail and the Applicant's wife had limited income. It was reasonable for the Justice of the Peace to find that these sureties were not credible or reliable on the monetary issues. There was no error of fact or law made.

In her evidence before me, the Applicant's wife testified that her total income for 2012 and 2013 was $11,596.00. Now working, her current income is less than her expenses for her condo which has been vacant since March when she purchased it. I do not accept her evidence as being credible or reliable.

Detention on the Secondary Grounds

The Justice of the Peace also detained the Applicant on the secondary grounds. The secondary grounds as set out in section 515(10)(b) of the Criminal Code of Canada requires that detention is necessary for the protection or safety of the public, including any victim of or witness to the offense, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offense or interfere with the administration of justice.

The position of the Applicant is that he will not re-offend; he is not a danger to the community; the sureties will monitor him 24 hours a day; he did not breach his bail before when his wife and sister-in-law were sureties on a 24 hour a day basis; he is trustworthy; and that he should be released on the 24 hour house arrest that is proposed, requiring him to be with one of his sureties when outside his residence at all times.

The position of the Crown is that the Applicant is not trustworthy; he has an extensive criminal record that includes seven breaches of recognizance; the Applicant has no explanation for stealing in the past; that these crimes were sophisticated, well organized and brazen; the Applicant was caught in the act with stolen money and jewelry on him; the Applicant was caught in the act with the cell phones that the police were tracking; that the offences are driven by greed; that stealing is the Applicant's livelihood; these offences occurred while he was living with his family and proposed sureties who did not see anything of this nature going on; the Applicant commits his crimes while his wife is at work; these offences occurred while under the watchful eyes of these proposed sureties; the sureties are not suitable and are not capable of monitoring him; these are serious crimes that involve knives being placed throughout the homes; that there is no reason that the Applicant would stop committing further offences, and that the Applicant will endanger the community.

The Justice of the Peace found that the “blazon and systematic operation” of the carrying out of these offences “would make even the most sophisticated organization look amateurish,” given the sheer number of allegations of crimes, the specifically targeted people and families, and the number of jurisdictions in the province. She found the sheer number of these alleged crimes to be an aggravating factor.

The Justice of the Peace found that the Applicant's history, criminal record, and the number of outstanding charges would “give the Court serious concern for the safety not only of the community at large, but specifically for the community that the Applicant would call his own”. She found that the “evidence pointed to a very slick operation by a very slick individual and group who preyed on their own people”.

The Justice of the Peace specifically rejected the release plan proposed which was the same one proposed in Newmarket for the 45 charges there, as being “simply insufficient”. The release plan proposed in Newmarket included house arrest with the sureties of the Applicant's wife, sister-in-law and mother-in-law and that he could only leave the house if in the company of one of his sureties, in addition to no deposit bail being posted by the Applicant and his sureties of a significant nature totaling $90,000.00. The prospects of realizing on these sums if there was a breach, would appear to be remote considering the evidence before me.

I can find no error in these findings of the Justice of the Peace. The evidentiary record before the Justice of the Peace fully supports her findings. I have no reason to interfere with the discretion that she exercised in deciding the matter. There is no basis for optimism that the Applicant will not re-offend and in doing so endanger the community. I find no error of fact or law was made by the Justice of the Peace.

Justice of the Peace C. Coulas is not bound by the decision or reasoning of Vallee, J. in relation to the 45 Newmarket charges. She did not have the transcript of the Newmarket hearing before her. Even if she did, the Kingston charges were never before the Newmarket Court. Section 515 of the Criminal Code of Canada makes it mandatory that any Order made can only refer to the offences for which the accused was taken before the justice. Vallee, J.’s decision is not binding in relation to the Kingston offences.

Justice of the Peace C. Coulas was entitled, based on the extensive evidentiary record put before her, to exercise her independent, objective judgment and discretion in deciding this case the evidentiary record in Kingston was significantly more expensive than in Newmarket. In Newmarket, for example, there was no evidence at all about the purchase of the condo by the Applicant's wife while he was in custody.

In Kingston, the evidence of the sureties was found not to be credible or reliable after thorough questioning. Their evidence was tested and it failed. The sureties were found not to be credible, reliable or suitable. The evidence in Kingston with more detailed as to the nature of the crimes and how it connected the Applicant in place and time to the offences charged.

I find that the Justice of the Peace did not err in law by not considering, and/or following the decision of Vallee, J. at the bail review hearing hearing in Newmarket on June 3, 2013 where the Applicant was released upon conditions with sureties on similar charges. The evidentiary record at those two distinct hearings was dramatically different. I make no finding on the tertiary grounds in this matter before me as it is unnecessary to dispose of the Application before me.

I note in the evidentiary record before me, that the Applicant’s trial date is set to begin in the Ontario Court of Justice in Kingston on March 17, 2014 which I find is not unreasonable.

Upon review of the Detention Order of Justice of the Peace C. Coulas, I find there is no reason to vary or change it. She had credible and reliable evidence before her and exercised her discretion in a proper manner. The new evidence before me provides no basis, I find, to cause me to interfere with the Detention Order made by the justice. I have examined the decision of Justice of the Peace C. Coulas in light of the new evidence called before me. This new evidence, I find, is not credible or reliable. This new evidence supports the findings made and inferences drawn by the justice in her decision that the Applicant’s continued detention is warranted. There is no reason for me to substitute my discretion for that of Justice of the Peace C. Coulas. She did not make an error of fact or law. She did not err in the appreciation of the facts or the proper inferences to be drawn from the proven facts before her. For all of the above reasons, the Applicant has failed to show cause why the Order of Justice of the Peace C. Coulas should be vacated.

The Application is therefore dismissed. The accused shall remain in custody as previously ordered by Justice of the Peace C. Coulas on July 19, 2013.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, we Peggy Shelley , certify that

(Please print name of authorized person(s))

this document is a true and accurate transcript of the recording

R. v. S. Sheikh _ in the SUPERIOR COURT OF JUSTICE_

(Case name) (Name of Court)

held at 5 COURT ST. KINGSTON taken from Recording No.

(Court address)

_ 0911_COUC_20131120_152339__10_MACLEOH which has been certified in Form 1.

November 22, 2013 __ _______________________________

(Date) (Signature of authorized person(s))

Certificate of Transcript (rev 03/04)