ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140626

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ABDINAIM HUSSEIN
Defendant/Applicant

Grace Hession David, for the Crown/Respondent

Uma Kancharla, for the Defendant/Applicant

HEARD: June 13, 2014

SPIES J.

Introduction

[1] Mr. Hussein is one of many accused charged as part of Project Traveller with a number of serious offences including participating in a criminal organization involved in weapons trafficking, trafficking in firearms, and conspiracy to commit the indictable offence of weapons trafficking. His co-accused includes his brother, Daud Hussein, as well as Siyadin Abdi, who is alleged to be a cousin, and Naimo Warsame and Lamar Porter.

[2] On August 16, 2013 a detention order was issued by Justice of the Peace Humeniuk. The Crown sought the detention of Mr. Hussein on the secondary and tertiary grounds. The Justice of the Peace ordered that he be detained on the tertiary ground. With respect to the secondary ground the Justice of the Peace found that it was not as strong a concern given that the court could potentially find a way to strengthen the plan for supervision.

[3] Mr. Hussein now moves for a review of that order and for an order for judicial interim release with sureties.

The Issues

[4] The original bail application was a reverse onus as at the time of his arrest Mr. Hussein was on house arrest in Alberta for charges he was facing for possession for the purpose of trafficking, proceeds obtained by crime over $5,000, failing to comply with a recognizance of bail and failing to appear in relation to his charges. The Justice of the Peace was advised of this and of two other outstanding charges; an assault and mischief under which related to a domestic violence incident, but those charges have since been withdrawn. The Alberta charges are still outstanding. At present Mr. Hussein has no criminal record. He is 27 years old.

[5] The grounds for the application are a material change in circumstances in that Mr. Hussein has two new sureties; one, his mother and the other a cousin of his mother and he is now proposing that the 24-hour supervision plan include GPS electronic monitoring. In the alternative it is alleged that the Justice of the Peace erred in law and fact by detaining Mr. Hussein on the tertiary ground.

[6] The position of the Crown is that although new sureties and electronic monitoring is proposed, there has not been a “material change in circumstances” sufficient to warrant the release of Mr. Hussein. The Crown also argues that the Justice of the Peace did not err in detaining Mr. Hussein on the tertiary ground.

[7] Because evidence was called on this application by both the Defence and the Crown this application is really a hybrid application consisting of a fresh hearing to consider the new evidence as well as a review of the record to determine whether or not the learned Justice of the Peace erred in her appreciation of the facts or made an error in law; see R. v. McCue, [1998] O.J. No. 4384 (Gen. Div.) at para. 5. The new evidence and most of the submissions of counsel were directed to the secondary ground. With respect to the tertiary ground, my role is limited to an appellate function.

The New Evidence

Misconduct of Mr. Hussein while in Jail

[8] The defendant has been incarcerated at the Toronto East Detention Centre since June 13, 2013. Sergeant Mcgarrell brought records and a video with respect to an incident Mr. Hussein was involved in with two other inmates on January 13, 2014. This evidence was not before the Justice of the Peace. Mr. Hussein pleaded guilty to misconduct with respect to this incident. Although Ms. Kancharla objected to the introduction of the resulting misconduct report, occurrence reports, and a video of the incident, she did not outline any reasons for the basis of her objection. It appeared during the course of her questioning of Sergeant Mcgarrell that the basis of her objection was that she was taking the position that the records belonged to Mr. Hussein and that he had a privacy interest in those records. That is clearly not the case. The records in question belong to the Ministry of Correctional Services and do not include any medical records where Mr. Hussein would have a privacy interest.

[9] In any event what I found significant was the video which spoke louder than words as to the nature of the incident and in particular the assault of an inmate by Mr. Hussein. Although there is no sound and it is not possible to determine what may have caused the incident, Mr. Hussein can be seen repeatedly striking, kicking and jumping all over an inmate, including his head, who for the most part is on the floor. One of Mr. Hussein’s co-accused in Project Traveller, Ahmad Farah, joined in the assault. The video is shocking and the inmate who is being attacked simply gets into a fetal position on the floor to try to protect himself. The assault continues nevertheless and can only be described as a severe beating.

[10] When the video was played in court the proposed sureties were asked to watch it so they could comment on it. I will come back to this.

Prosecutor Show Cause Hearing Brief

[11] The Crown prepared a detailed synopsis of the evidence. I presume an earlier draft of the one filed before me was provided to the Justice of the Peace who concluded that the Crown’s case is quite compelling. I would agree and, if anything, the further evidence against Mr. Hussein that has become available because of the ongoing investigation of Project Traveller makes the case even stronger.

[12] In summary, the Crown alleges that Mr. Hussein is a “higher up” in the hierarchy of an alleged criminal organization, namely a street gang known as the Dixon City Bloods, which is involved in the buying and selling of firearms for profit; firearms trafficking and that the source of the firearms were Mr. Hussein and his brother Daud Hussein. It is alleged that the contact person for the Hussein brothers was Lamar Porter in Windsor. The Crown’s evidence includes the interception of private communications and focused on people associated to six apartment buildings in the area associated with this gang.

[13] Rather than summarize all of the Crown allegations, I will refer only to some of the highlights that the Crown alleges connects Mr. Hussein to this criminal organization and implicates him in weapons trafficking.

[14] On April 9, 2013, the Crown alleges that there were a series of texts between Siyadin Abdi, alleged to be Mr. Hussein’s cousin, and Mr. Hussein that show Mr. Hussein as the middle man in a gun deal where Mr. Abdi was frustrated because he was only given one gun when he was supposed to get three. In one of the texts Mr. Hussein told him to hold the one he had and that he would be given three more. On April 10, 2013, a telephone call between Mr. Abdi and Mr. Hussein was intercepted which the Crown alleges relates to a firearm transaction. On this call Mr. Abdi described the one gun as a “bullshit five shooter”. In a call right after alleged to be from Mr. Hussein to Mr. Abdi, Mr. Abdi complained about the fact that he does not want to work for Mr. Hussein and his brother anymore. In response Mr. Hussein told him “you’re a fucking runner” and asked him who would pick up the other two; a reference to the other two guns. This is the call the Crown relies upon in support of her position that Mr. Hussein is higher up in the criminal organization.

[15] There are further communications relied upon by the Crown related to this “five shooter”. On April 9, 2013, intercepted communications indicate that Daud Hussein arranged with Mr. Porter to sell a 5 shot .44 calibre revolver to Mr. Abdi and Mohamed Siad. The Crown alleges based on further interceptions that the firearm trafficking was coordinated by Mr. Hussein and his brother Daud.

[16] The Crown alleges that intercepted telephone conversations and text messages in April 2013 also reveal that Hashim Abdullahi and Daniel Khan were arranging to travel to Windsor to purchase up to ten firearms from Mr. Hussein who was obtaining them from a third party. Mr. Abdi was put in contact with these two men for the purpose of arranging this purchase. Calls and texts on April 18th show that Mr. Abdullahi and Mr. Khan were going to Windsor to obtain the guns. The police also intercepted text messages between Mr. Abdullahi and Mr. Abdi, who police allege was working for Mr. Hussein. On April 19th a call was intercepted between Mr. Abdullahi and Mr. Hussein and the police allege that the messages on that day confirmed that Mr. Abdullahi and Mr. Khan were going to pay Mr. Hussein $100 for every firearm they purchased through him.

[17] The Crown also relies on an intercept of a call between Ayanle Omar and Magan Omar where they discuss Mr. Hussein and mention that he is trying to get rid of a “40 Smith and Weezy.” A few days later Magan Omar calls Mr. Hussein and asks him if he is still “sitting on that” to which Mr. Hussein says he is and Magan Omar asks if it is the 40.

[18] I understand that all of this evidence was available to the Justice of the Peace.

[19] The Justice of the Peace was not aware of the fact that a woman, Naimo Warsame, whom the Crown alleges was being used as a mule to move guns for money, had her home searched on April 25,2013 and three guns were found. One was a Taurus 445 .45 calibre handgun. The Crown alleges that this gun is the “bullshit 5-shooter” that was referred to in the intercepted conversation noted above between Mr. Abdi and Mr. Hussein and that it is the revolver that was sold to Mr. Abdi as referred to above. This is an important piece of evidence that strengthens the Crown’s case against Mr. Hussein.

[20] Ms. Hession David also submitted that the Crown can prove that the phone number 647-298-6651 is associated with Mr. Hussein. A receipt for the cell phone with that number was found in his right pants pocket when he was arrested. Using this number the Crown alleges that Mr. Hussein identified himself as “Deqo”. Proof of the nickname Deqo as referring to Mr. Hussein is important as the Crown alleges he is referred to that way in numerous intercepts. This is also an important fact in support of the Crown’s case.

[21] The Crown relies in particular on a call from the 647 number associated with Mr. Hussein to his aunt at 416-243-9232 when he identified himself as Deqo and asked to speak to his mother. Ms. Mohamed, Mr. Hussain’s mother, admitted that her sister is Helena Mohamed and that her phone number is 416-243-9232. However, Ms. Mohamed professed not to recognize her son’s voice on the intercepts that were played in court or knowing that he had a nickname of “Deqo”, including this call. I agree with Ms. Hession David that this denial raises concerns about Ms. Mohamed’s credibility.

[22] Ms. Hession David also pointed out that in another intercept, someone from the same 647 number was speaking to an unknown individual and schooling that person on how to get a bootleg cell phone. The Crown’s position is that a cell phone is all someone needs to be able to traffick in weapons.

[23] When Mr. Hussein’s residence was searched nothing was found. There were no phones that are alleged to be the numbers associated with Mr. Hussein found in his residence.

The Previous Consent to Release of the Crown

[24] Ms. Kancharla referred to the fact that when the parties attended before Justice Croll on April 11, 2014, the Crown then (not Ms. Hession David) advised Justice Croll that he had no concern with respect to the tertiary ground and that in a month’s time he would consent to Mr. Hussein’s release. Ms. Kancharla submitted this was important because the Crown was agreeable then to the release of Mr. Hussein knowing all of this information.

[25] Although it is true that another Crown advised Justice Croll that there would be a consent to Mr. Hussein’s release, the evidence from that Crown is that he realized he had agreed to do so without instructions and contrary to Crown policy. As a result he withdrew that consent by email to Ms. Kancharla dated April 25, 2014. There is no bad faith alleged here. In my view the Crown is not bound by his earlier statement, nor does Ms. Kancharla suggest this. Furthermore, the fact that that Crown came to that conclusion is in no way binding upon me. It is simply the position of counsel at that time, just as I now have the contrary position from Ms. Hession David.

Analysis

The Tertiary Ground

[26] I will consider the Justice of the Peace’s decision to detain Mr. Hussein on the tertiary ground first because if she did not err in her appreciation of the facts or make an error in law then I should give due consideration to her decision and not substitute my discretion for that of hers. Although I would ordinarily be required to consider new evidence relevant to the tertiary ground, it is clear that the new evidence in this case only improves the Crown’s position in that it shows that the case against Mr. Hussein is stronger than it appeared when the matter was before the Justice of the Peace. Mr. Hussein’s misconduct while incarcerated is not a consideration on the tertiary ground and certainly the new sureties do not impact the tertiary ground.

[27] Ms. Kancharla did not point to any specific alleged error of the Justice of the Peace when she decided that Mr. Hussein should be detained on the tertiary ground. The essence of her argument was that the tertiary ground should be used in the rarest of cases since otherwise most people would be detained on that basis. She suggested that in this case something more than the wiretap evidence would be needed. She did not provide any authority for that position.

[28] I agree with Ms. Kancharla that the courts have made it clear that the tertiary ground should be invoked infrequently. For example in R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (SCC), McLachlin CJC stated at pg. 456 that the factors set out in s. 515(10)(c) of the Criminal Code “delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice.” She went on to say that in order to rely on the tertiary ground the judge “must be satisfied that detention is not only advisable but necessary … to maintain confidence in the administration of justice.” This has also been made clear in various cases from our Court of Appeal; R. v. Laframboise, [2005] O.J. No. 575 at para. 30, where Cronk J.A. stated that the tertiary ground can only be used “sparingly” to deny bail and R. v. Heyden, [2009] O.J. No. 2492 where the court said at para. 21 that, “bail can be denied under the tertiary ground only in limited circumstances.”

[29] However, as Ducharme J. stated in R. v. B.C., 2011 ONSC 5241, at para. 18, this is not the same as saying that the tertiary ground never justifies detention. Furthermore, at para. 9 of B.C. Ducharme J. noted:

Parliament responded to public concerns about gun violence by making by enacting the Tackling Violent Crime Act, Bill C-2 which came into force on May 1, 2008. … With respect to the third factor to be considered under the tertiary ground, the Act amended s. 515(10)(c)(iii) to include “whether a firearm was used”. The Act also amended s. 515(3) with respect to the fourth factor to be considered under the tertiary ground; the potential for a lengthy term of imprisonment which now includes “in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

[30] The Justice of the Peace carefully considered the four specific factors set out in s. 515(10)(c) of the Criminal Code and all of the circumstances of this case.

[31] I will not review the reasons given by the Justice of the Peace summarizing what had impressed her about the Crown’s case. I have noted some of what is important in light of the further evidence about the 5-shooter that the Justice of the Peace was not aware of. She noted several examples from the intercepts that supported her view of the meaning of these intercepts and stated that she found the police analysis of the meaning of these communications to be quite compelling. She stated that the intercepted conversations indicated to her that Mr. Hussein was heavily involved in the trafficking of firearms for the purpose of a criminal organization.

[32] With respect to the Crown’s case the Justice of the Peace correctly acknowledged that since nicknames, slang and code words are used, the Crown’s interpretation of the evidence and the Crown’s theory may be challenged at trial. She also referred to the decision of Quigley J. in R. v. Abdullahi, 2013 ONSC 4873, [2013] O.J. No. 3411, another Project Traveller bail review application, where at para. 21 he made the same point and referred to possible admissibility issues including identification of the speakers and confirming that certain words and expressions spoken in the wiretap evidence in the Somali language have the meaning contended by the Crown. Quigley J. concluded, however, that for the purpose of the bail hearing the wiretap evidence must simply be accepted as it is, for what it evidentially says and for the inferences it reasonably permits to be drawn when it is being considered. On this basis the Justice of the Peace accepted at face value the interpretations provided by Toronto Police. It is not suggested that she erred in doing so.

[33] Ms. Kancharla did submit that the Justice of the Peace erred in that she relied only on the wiretap evidence. That is not a fair characterization of the Prosecution’s Show Cause brief. In respect of each of the charges the Crown has set out both the circumstantial evidence of the wiretaps as well as the direct evidence that supports it. There is now more direct evidence that corroborates the Crown’s case.

[34] There could be no quarrel with the findings of the Justice of the Peace on the first factor: she found the strength of the Crown’s case to be quite compelling. I agree with that conclusion.

[35] As to the second factor; the gravity of the offences, the Justice of the Peace found that the offences were quite serious involving guns and drugs (some of the accused are also facing drug charges and the allegation that guns were being paid for with drugs) and the harm that these offences pose to the community. There is no doubt about this conclusion. The trafficking of firearms puts guns in the hands of criminals and it goes without saying that the use of even a single firearm can have tragic consequences. Ms. Kancharla referred to R. v. Blind (1999), 139 C.C.C. (3d) 87 where at para. 15 the Saskatchewan Court of Appeal stated that there are no categories of offences for which ail is not a possibility. She did not suggest, however, that the Justice of the Peace was not aware of that. The Justice of the Peace clearly considered all of the factors-she did not detain only because this is a case involving the trafficking of firearms.

[36] Although there is no evidence that Mr. Hussein had used a firearm in the commission of any offences, the Justice of the Peace found evidence amongst the interceptions of an intention to purchase multiple firearms and to traffic those firearms from the United States through Windsor and associates there. She noted that one of those associates, Lamar Porter, had been found to be directly involved with the trafficking of firearms over the border. She found that the multiple seizures and arrests made it clear that this was a criminal organization involving the trafficking of drugs and weapons. All of these findings were reasonable on the evidence presented by the Crown.

[37] On the third factor, the Justice of the Peace relied on R. v. Abdullahi, supra where, in considering the tertiary ground, Justice Quigley stated:

Although there is no evidence of a firearm having been used in these circumstances, in the sense of being discharged, the charges are all firearms related with one exception. This case is entirely about the use of illegal firearms, about possessing them, about arranging for their purchase, about selling them, and ultimately and necessarily, about their potential use to injure or kill people. As a result, I find that the seriousness that is added to the third factor by the use of firearms is necessarily relevant and aggravating to the tertiary ground factors in this case as a whole. (at para. 7, italics in original)

[38] In connection with Mr. Abdullahi, the accused before Quigley J. the Justice of the Peace noted that although there was a strong connection to him in a vehicle in which firearms were found, the circumstances of the case and the wiretap information against Mr. Abdullahi appeared to be very similar and related to that of this matter. She did not mention specifically that Mr. Abdullahi was charged with five firearms possession charges. Ms. Kancharla did not challenge this conclusion or suggest that this distinguished Justice Quigley’s case from the case at bar.

[39] As Ducharme J. noted at para. 3 (p. 11) in B.C.:

Parliament responded to public concerns about gun violence by making by enacting the Tackling Violent Crime Act, Bill C-2 which came into force on May 1, 2008. … With respect to the third factor to be considered under the tertiary ground, the Act amended s. 515(10)(c)(iii) to include “whether a firearm was used”. The Act also amended s. 515(3) with respect to the fourth factor to be considered under the tertiary ground; the potential for a lengthy term of imprisonment which now includes “in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

[40] The role of Mr. Abdullahi in this criminal organization is alleged to be different than the role of Mr. Hussein. In my view that does not matter. In any event, the Crown has now been able to fill a gap with respect to the “5-shooter” and connect it to Mr. Hussein. The gun has been found. Furthermore, there is evidence suggesting that Mr. Hussein is higher up in the criminal organization. In my view that evidence squarely brings into play the use of firearms as an aggravating factor even if the three year minimum sentence does not apply to the offences he has been charged with. Mr. Hussein is involved in the trafficking of weapons and that is far more serious than simple possession of a firearm.

[41] As Quigley J. stated in Abdullahi at para. 40:

Handguns serve no purpose other than to injure and kill people. Given that obvious fact, it strikes me as equally obvious that members of the public might well lose confidence in the administration of justice if this court were to release to the public, not just perpetrators who use guns in drug-related or other criminal circumstances, but even more sinister, those whose daily occupational efforts appear dedicated to ensuring a continuing supply of those illegal handguns to those in Toronto who would possess them.

[42] As for the fourth factor, although there are no minimum sentences for the offences that Mr. Hussein is charged with the Justice of the Peace found it likely he will face a period of penitentiary time. Again, that is a conclusion that cannot be quibbled with even though Mr. Hussein is a young first offender.

[43] In concluding that Mr. Hussein should be detained on the tertiary ground the Justice of the Peace stated:

In looking at the four factors, I find that each one of them is not at its highest. If they were at its highest, I am mandated to detain. They are not each one at its highest but taken in concert when I look at the four factors together and the facts overall, I come to the conclusion that a reasonable member of the public, one that is educated and understands Mr. Hussein’s right to reasonable bail, his right to be presumed innocent and one who is perhaps even been preview(sic) to the plan proposed would nonetheless find that detention of the accused is necessary to maintain confidence in the administration of justice and I so find that as well.

[44] Again, no issue with how the factors were balanced or the conclusion reached is taken by Ms. Kancharla nor is it suggested that as required by s. 515(c) of the Criminal Code these four factors were not considered as part of a consideration of “all the circumstances”.

[45] I can find no fault with the reasoning of the Justice of the Peace and her conclusion that Mr. Hussein should be detained on the tertiary ground. Notwithstanding the fact that the tertiary ground ought to be used sparingly, that was a reasonable conclusion in the circumstances of this case. It is of note that Justice Quigley overturned the decision of a Justice of the Peace who did not detain on the tertiary ground and found that Mr. Abdullahi should be detained on that ground until trial.

[46] For these reasons I would not interfere with the decision of the Justice of the Peace to detain Mr. Hussein on the tertiary ground.

[47] I could end my reasons here but given the time spent by counsel on the secondary ground, I will review that evidence and give my conclusion.

The Secondary Ground

[48] The Justice of the Peace heard evidence from a proposed surety, Tashna Budwah, the mother of Mr. Hussein’s son, and her mother, Sherline Hall. Neither of these women are proposed on this bail review presumably because although the Justice of the Peace accepted Ms. Hall as a surety, she noted that she would need her daughter to assist her to provide supervision when she was at work. However, the Justice of the Peace was not impressed with the evidence of the daughter and rejected her as a potential surety. Daud Mohamed, Ms. Mohamed’s brother, was proposed as a surety. With respect to him, the Justice of the Peace noted that although he was living in Fort McMurray at the same residence of the defendant when the search leading to the Alberta charges took place, he seems uncomprehending of anything related to the present charges or what Mr. Hussein was doing for a living, or how he acquired his funds and supported himself. She stated “I do not know if that is naïveté or a desire not to know but I found it at odds with his professed close relationship with the accused.”

[49] The plan proposed by Ms. Kancharla to the Justice of the Peace was that Mr. Hussein reside with either Ms. Hall or Mr. Mohamed and that he be subject to house arrest unless he was in the company of one of his sureties. He would have no access to cell phones or electronic devices. She proposed $40,000 be posted by the sureties.

[50] In considering the plan, the Justice of the Peace noted that she had really heard about two separate plans as the sureties do not appear to have a relationship with each other. She concluded on the secondary ground that she did not reject the sureties Ms. Hall and Mr. Mohamed or the plan proposed and although she was not satisfied it was strong enough, she believed the court could fashion some sort of plan to address the secondary ground particularly if there were others that could assist. She then went on to consider the tertiary ground which she found was a stronger case for detention.

[51] Ms. Hession David took the position that the evidence did not show a material change in circumstances. She submitted in any event the evidence was now available to establish that the Crown had a very good case with very, very serious charges. Furthermore, she pointed out that the Justice of the Peace had concerns about the evidence of Mr. Mohamed. Ms. Hession David also submitted that I cannot release Mr. Hussein to his mother’s house given that a considerable amount of cocaine was found in her home in Alberta.

[52] There has been a change in the proposed sureties in that Ms. Budwah and Ms. Hall have been replaced by Ms. Mohamed and Ms. Aden. Mr. Mohamed is still a proposed surety. The plan is otherwise the same save that now it is proposed that Mr. Hussein be subject to electronic monitoring on terms acceptable to the court. As for the surety commitment offered, it is $32,000 as I cannot count money Ms. Mohamed has not received. This is less than the amount offered to the Justice of the Peace although the sureties are also offering to pay for electronic monitoring upfront for one year.

(a) The Proposed New Sureties

[53] The main new surety that is proposed is Shamsa Mohamed, Mr. Hussein’s mother. She was out of the country when he was arrested. She has no criminal record and no outstanding charges. She was previously a successful surety for her son, Gedi Hussein and testified that there were no problems in that regard.

[54] Ms. Mohamed testified that she can supervise Mr. Hussein at all times as she is currently unemployed. She was formerly employed as a bus driver for two years in Ontario. She is willing to put up $12,000 for his release and to pay upfront for an electronic monitoring bracelet on whatever terms the court decides, until December 2014 if required (I note that length of time is clearly inadequate). Ms. Mohamed said she is content with any level of security that the court may require. Ms. Mohamed believes that the bracelet will cost $500 for the lowest level of security.

[55] Ms. Mohamed has $13,000 in savings and $10,000 which is apparently to come from the Criminal Injuries Compensation Board. I did not receive further details about this payment but understand that once received Ms. Mohamed would be prepared to post it as well. For obvious reasons it cannot be counted now.

[56] Ms. Mohamed is living in an apartment on Albion Road in Etobicoke. Her mother, who is not well, is living there as well. They support themselves with the Old Age Security that Ms. Mohamed’s mother receives and funds from her brother, Daud Mohamed. Ms. Mohamed stated that her brother comes to visit her mother every day. Ms. Mohamed testified that she has pain in her back and so she goes outside and walks every day. Her health is good except for her back and her knees.

[57] Ms. Mohamed testified that she would supervise her son for 24 hours, 7 days a week. She said that he would listen to her and if he did not she would call the police. She has no computer or iPad or cell phone at home; only a landline phone. She could keep that phone in her room and lock the door.

[58] When asked about the video Ms. Mohamed said that she told her son that it was “wrong”. She testified that he told her that someone had hit him and that he was defending himself. She said that he is not a violent person. Assuming that the assault was out of character for Mr. Hussein as alleged by his mother, I would have expected her to be shocked by it. I certainly did not get that sense from her evidence. I also would expect her to realize after watching the video that the suggestion that Mr. Hussein was defending himself is fanciful.

[59] Ms. Mohamed admitted the search warrant executed at a home in Fort McMurray, Alberta was in fact a home under her name. She heard drugs were found but did not know that it was 181 grams of cocaine. She said that she did not know her sons were trafficking. She was not at the house at the time that the search warrant was executed.

[60] In re-examination Ms. Mohamed stated that she has her B licence for driving a school bus and will start work in September and be away every morning through to the afternoon. This is how she plans to pay for the electronic monitoring. This evidence was of real concern to me as Ms. Mohamed seemed oblivious to the fact that to do so is completely at odds with what she was proposing for supervision. It is not proposed nor would it be satisfactory for Mr. Hussein to be supervised by his aging grandmother.

[61] With respect to Mr. Hussein’s uncle, Daud Mohamed, I have the evidence he gave before the Justice of the Peace as supplemented on this hearing. Mr. Mohamed is 51 years old and has no criminal record or outstanding charges. He lives at 10 Martha Eaton Way with Mr. Hussein’s maternal grandmother and an aunt. The aunt has three sons living with them aged 19, 15 and 12. Mr. Mohamed is a truck driver and typically works Monday through Friday from 8 a.m. until 5 p.m. He has been close to Mr. Hussein his whole life, save for two years when he was away.

[62] Mr. Mohamed makes $4,500 to $5,000 a month. He has $10,000 in his chequing account. Mr. Mohamed testified that he can pay for the cost of the electronic bracelet which he understands is $500-$750 a month and that he could pay 12 months upfront. He has a car and testified that he could supervise Mr. Hussein from 5 p.m. to the following morning at 7 a.m.

[63] Mr. Mohamed testified that the defendant would listen to him and if he did not he would call the police. During the time he was living with him, Mr. Hussein was never disrespectful to him and he always listened to him. Mr. Mohamed testified that he was “not that much concerned” about the video of the assault and that Mr. Hussein is not a violent person.

[64] Mr. Mohamed was living with the defendant at the time the search was done in Fort McMurray, Alberta although he was working and, therefore, not present when the search warrant was executed. When he returned home he was told that they found seven ounces of cocaine in the house but they didn’t show it to him. Mr. Mohamed testified that he paid $6,000 to “bail” Mr. Hussein out but he was not the defendant’s surety. He was just asked for money for bail. Mr. Mohamed said he knew the defendant very well but admitted that he did not know his associates or friends.

[65] The other new proposed surety is Habiba Aden. She is a cousin of Mr. Hussein’s mother and a close family friend. She is 55 years old, has no criminal record or outstanding charges. She lives in Etobicoke near the home of Ms. Mohamed. She describes her relationship with Mr. Hussein as like a son; she was his favourite aunt when Mr. Hussein was young.

[66] Ms. Aden currently works as a caregiver. Her annual salary is in the range of $28,000. She has five children; the youngest is 17. She is prepared to put up $10,000 in a savings account for Mr. Hussein’s release. She has not been a surety before.

[67] Ms. Aden is willing to be at Mr. Hussein’s mother’s house when she’s not working to supervise him. She stated that she can choose when she works. She lives five minutes by car from Mr. Hussein’s mother’s home and she works between 20 and 30 hours per week. Ms. Aden testified that she could be available every afternoon.

[68] Like the other proposed sureties, Ms. Aden denied hearing Mr. Hussein’s voice on any of the intercepts and said that she didn’t know what was going on before. She also said that the video of the assault did not concern her. However, she also testified that she was not “happy” with Mr. Hussein and that she was willing to help Mr. Hussein. She ended her evidence in chief with stating that she was hoping that he will “make a big change”.

(b) The Proposed Supervision Plan

[69] The plan Ms. Kancharla proposed is essentially the same that she proposed to the Justice of the Peace save that now it is proposed that Mr. Hussein reside with his mother under a 24-hour supervision plan on house arrest with no access to cell phones or electronic devices. Alternatively he would be supervised by one of the other two proposed sureties. Mr. Hussein would be in his mother’s residence under the continuous company of one of his sureties save for going to court, access to his children or medical appointments.

[70] Mr. Hussein filed an affidavit and the Crown did not seek to cross-examine him. He has two young sons who live with their mother. He has been active in his children’s lives until his arrest. Mr. Hussein says he is willing to participate in the GPS electronic monitoring plan.

[71] Information with respect to the electronic monitoring provided by Recovery Science Corporation (“RSC”) was provided in the material filed by the Applicant. What is proposed in this case is GPS electronic monitoring. Prior to commencement of monitoring a participation agreement must be signed by the person to be monitored. I note Mr. Hussein has not yet done that. The accused is responsible for all