ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-2318
DATE: 2014/06/06
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Ramadan Osman
Applicant
James Cavanagh, for the Crown
Alan Brass, for the Applicant
HEARD: June 5, 2014
DECISION ON BAIL REVIEW
PHILLIPS J. (orally):
[1] On February 6, 2014, Ramadan Osman was detained in custody on the secondary ground after a multi-day show cause hearing before Justice of the Peace K. Miller. Presently, Mr. Osman applies to this court for a review of that detention order pursuant to section 522 of the Criminal Code. He asserts that there has been a material change in circumstances such that his detention is no longer required.
[2] The facts underlying the offenses before the court are most troubling. On the morning of November 17, 2013, joggers came upon Mr. Afdal Said lying naked in the bushes in Andrew Haydon Park. It is no exaggeration to say that Mr. Said had been beaten to within an inch of his life. He was unconscious. His body was covered in multiple stab wounds, various lacerations and contusions and he had suffered such significant head trauma that his face was swollen beyond recognition. He is said to suffer the effects of that head injury to this day.
[3] The Crown alleges that the beating of Afdal Said was done by a group retaliating for him having participated in the forcible confinement and vicious beating of Ramadan Osman’s brother, Abdullahi, just one night prior. While Abdullahi Osman was never co-operative with the police, he told his brother-in-law that he had been held in an apartment and extensively assaulted in an unsuccessful effort to extort some $50,000 from his brother Ramadan over the night of November 15, 2013. The Crown alleges that Afdal Said was jumped at a house party the evening of November 16, 2013 by confederates of the Osmans to extract revenge for the previous night’s events. A vicious beating ensued in the backyard involving both knives and a handgun. Soon thereafter, Ramadan Osman showed up to the house and the beating continued inside. At all times, the three hour long assault on Mr. Said was a group effort in the sense that it was never one-on-one. Communication amongst the group doing the beating could be heard by others in the house. As well, some from within that group approached witnesses elsewhere in the house to intimidate/encourage them to remain forever silent about what they were hearing and seeing. Ultimately, as has been already mentioned, a grotesquely injured and unconscious Mr. Said was dumped at the local park.
[4] The Crown’s evidence has Ramadan Osman present for essentially the second act – from the time things were taken inside and onward. There is no direct evidence of Mr. Osman actually performing any assault, or in fact saying or doing anything in particular. That said, there is evidence that the violence was a group effort and that Mr. Osman was part of the group. As well, it is argued that Mr. Osman had a strong motive to wish harm upon Mr. Said given what Mr. Said had apparently done to his brother the night before. The bottom line is that it would appear that Mr. Osman’s risk of being found criminally culpable for Mr. Said’s injuries comes primarily via section 21 of the Criminal Code.
[5] Of course, while mere presence during criminal events is not enough to ground a conviction, liability as a party can attach to anyone performing acts meant in furtherance of a jointly intended result. Having said that, however, it is my view that Mr. Osman’s actual alleged conduct is what is primarily relevant in assessing the substantial likelihood of further criminal offences or interference with the administration of justice as contemplated by s. 515(10)(b) of the Criminal Code. That is not to say that one cannot demonstrate dangerousness or likelihood to interfere with the administration of justice as a mere party. It is just that here, there is such a significant dearth of evidence regarding what he actually did that I am hesitant to draw too much from what little there is. It should go without saying that any court assessing any case in the context of bail must keep the presumption of innocence firmly in mind. In the final analysis, I find that Mr. Osman’s short and non-violent criminal record, coupled with his involvement at best only as a peripheral party in the violence against Mr. Said, does not give rise to such concerns about dangerousness or antisocial behavior as to necessarily lead to secondary ground detention.
[6] In any event, even if there was at the time of the bail hearing a substantial likelihood of further criminal offenses or interference with the administration of justice, it is to be presently determined whether such a risk can be adequately mitigated by a material change in the circumstances. In my view, the plan proposed at this point is meaningfully different from the one on the table in February. The accused can now live in the same household as two sureties. The likely success of full-time supervision and house arrest is significantly enhanced.
[7] I conclude that there has been a material change in circumstances such that any secondary ground concerns are now mitigated enough for release.
[8] The Crown proposes also that detention should ensue under the tertiary grounds. In support of that contention the Crown argues, in addition to the other criteria set out in section 515(10)(c), that the case against Ramadan Osman is a strong one. I cannot agree. While the Crown is entitled in the bail context to rely on any evidence that is credible and trustworthy, an assessment by a Court of the strength of a Crown’s case must to some degree involve a reasonable forecast of how the case will actually unfold at trial. I find it of importance that the victim of the original assault is uncooperative with the authorities and the second victim has no memory of anything. As it stands, therefore, the evidence of motive exists only in the form of hearsay (as relayed through the accused’s brother-in-law). While there are, of course, ways for that hearsay evidence to possibly make its way before the trier of fact, it is presumptively inadmissible. Thus, the motive evidence that is so important to the Crown’s ability to draw adverse inferences from Mr. Osman’s proximity to where Mr. Said was being beaten rests on a weak foundation. In my view, that, coupled with the absence of direct evidence about Mr. Osman’s actual conduct while within the house itself, will give the Crown difficulty in establishing that he was more than merely present. They are not insurmountable hurdles, but it cannot be said that the case is a strong one in light of them.
[9] I do not agree that detention is warranted on the tertiary ground.
[10] Accordingly, I will accede to the plan proposed by defence counsel and release Ramadan Osman on a recognizance with sureties, his mother Amina Ismail-Yussuf and his sister Hodan Osman. He and his sureties will each post $2,500 bonds. He will keep the peace and be of good behavior. He will live with his sureties at 2566 Regina Street and not be outside of his place of residence unless accompanied by a surety. In any case, he is not to be outside of his place of residence between the hours of 10:00 p.m. and 6:00 a.m. and he is to present himself to the front doorway of his residence if requested to do so by the Ottawa Police. He will not have any communication or association directly or indirectly with any of the co-accused in this matter or any of the witnesses anticipated to give evidence. He will not possess any weapons as defined in the Criminal Code. He will not possess or consume any non-medically prescribed drugs as defined in the schedules to the Controlled Drugs and Substances Act.
The Honourable Mr. Justice Kevin Phillips
Released: June 6, 2014
COURT FILE NO.: CR-13-2318
DATE: 2014/06/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
RAMADAN OSMAN
Applicant
DECISION ON BAIL REVIEW
The Honourable Mr. Justice Kevin Phillips
Released: June 6, 2014