ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20140919
B E T W E E N :
HER MAJESTY THE QUEEN
Applicant
– and –
MUSTAFA MUHAMMED, FAROGH SADAT and TALEB SALEH
Respondents
Paul Zambonini
for the Applicant
Benjamin Goldman
for the Respondent Mustafa Muhammed
John Struthers
for the Respondent Farogh Sadat
David Butt
for the Respondent Taleb Saleh
HEARD: August 7, 2014
THEN:
[1] Pursuant to section 521 of the Criminal Code, the Crown applies for a review of the order of release made by the justice of the peace on June 27, 2014, and seeks an order from this court vacating that order and substituting a detention order.
[2] The essential submission of the Crown is that the justice of the peace erred in law and principle by failing to give appropriate consideration to both the secondary and tertiary grounds. The essential submission of counsel for the accused is that while this may be a borderline case the justice of the peace did not err in law or in principle in her consideration of both the secondary and tertiary grounds and, accordingly, this court should not substitute its discretion for that of the justice of the peace by ordering the detention of the accused.
[3] In my view, while I agree this to be a borderline case, the justice of the peace did not err in law in considering either the secondary or tertiary ground and accordingly, for the reasons that follow the application to substitute an order of detention for each of the accused is dismissed. However, I am persuaded that the Crown has shown cause that the conditions of release are inadequate in some respects and accordingly, those conditions will be modified.
the factual background
[4] On June 21, 2014, cleaning staff at the Crown Plaza Hotel in Toronto observed a handgun on a table inside room 1103. A male inside the room took the handgun, put it inside his waistband and asked them to leave. The cleaning staff informed their manager who called the police.
[5] When police arrived no suspects were inside the room. A bullet proof vest, a quantity of marijuana and heroin was observed in plain view as well as photo identification of Farogh Sadat. The police ascertained that the room had been rented by Taleb Saleh.
[6] The police located a locked safe in the closet and asked the hotel staff to open the safe without obtaining a warrant apparently concerned for public safety as the gun had not been located in the room. The police found a fully loaded Glock 2240 calibre handgun as well as a Smith and Wesson Bodyguard 389 gun with a lazer sight in the safe. The serial numbers on the handguns had been drilled out. The police also found a silencer for the Glock and additional ammunition for both handguns. The police also found a journal that tracked the movement of a person in Toronto by means of a GPS tracker affixed to a vehicle. The police also found seven cell phones and $432 in Canadian currency. Although the safe was opened without warrant all of the items in the safe were seized pursuant to a warrant.
[7] When Mr. Muhammed arrived at the door of the hotel room carrying three beverages he was arrested when he opened the door with a key. Having ascertained the licence number of Mr. Saleh’s car, the police arrested Mr. Saleh when he drove into the garage. Mr. Sadat approached Mr. Saleh’s vehicle and ran into the stairwell when he saw the police and was subsequently arrested after police searched the hotel. Mr. Sadat’s wife confirmed that Mr. Sadat had stayed at the hotel with friends for several days.
[8] Subsequent investigation has revealed that both Mr. Saleh and Mr. Sadat appear on video tapes of the hotel premises. There remain some issues as to the identification of Mr. Sadat as the person who was seen by staff to put a handgun into his waistband. The police have ascertained the identity of the person being tracked and as yet no conspiracy charges have been laid. It is common ground that this case will come to trial in approximately two years.
[9] Mr. Saleh is 24 years old and has a criminal record consisting of a conviction for conspiracy to commit thefts of trailer loads of merchandise while armed. He is subject to an order prohibiting from possessing firearms. While on bail for the above charges he breached the house arrest component of his bail.
[10] Mr. Sadat is 31 years old and was convicted of dangerous driving involving drag racing for which he claims a pardon that has not been documented.
[11] Mr. Muhammed is 30 years old. In September 2010 he was charged with possession of marijuana and while on bail breached a condition of his recognizance by possessing three cell phones. Another condition of his bail is that he not possess a firearm.
[12] With respect to the handguns all three accused were charged with 12 counts in connection with the possession of the two handguns. In addition all three were charged with the possession of the prohibited device i.e. the silencer or muzzle suppressor. Mr. Muhammed was also charged with two counts of violating an order prohibiting him from possessing a firearm, one count of violating a term of his recognizance by the possession of more than one telecommunication device and a further count of violating his recognizance by the possession of drugs. Mr. Saleh was further charged with three counts relating to the violation of a prohibition order with respect to the possession of firearms and an unlawful device. Finally, all three were charged with two counts of possessing marijuana and heroin as well as two counts of trafficking in marijuana and heroin and one count of possession of proceeds of crime.
[13] On the issue of judicial interim release the justice of the peace held that there was no issue with respect to the primary ground. With respect to the secondary ground the justice of the peace held that the strength of the Crown’s case is at present fraught with uncertainty and that the plan of release proposed by each accused is sufficiently strong to satisfy the reverse onus on each of them with respect to the concerns expressed in the secondary ground as to the commission of further offences. She further held that it was not necessary to detain the accused in order to maintain confidence in the administration of justice having regard to the factors outlined in s.515(10)(c) of the Criminal Code. Accordingly, each of the accused was released on a recognizance of between $60 to $70,000 without deposit and with two named sureties and with relatively strict, although not identical, conditions including a form of house arrest.
position of the parties
[14] The Crown submits that the justice of the peace generally allowed herself to be unduly influenced by the tragic consequences that await both the accused and their families if the accused are convicted in applying both the secondary and tertiary grounds. Specifically with respect to the secondary ground the Crown submits that given the prior breaches of bail conditions imposed on both Muhammed and Saleh and in particular the breaches of prohibition orders relating to firearms both accused should have been detained on the secondary ground given the circumstances of the present charges as it is evident that both accused do not respect the orders of the court and have not been deterred from the commission of further offences while on bail.
[15] With respect to the tertiary ground the Crown submits that the justice of the peace has significantly minimized the apparent strength of the Crown’s case and has accordingly, misapplied one of the factors she was bound to consider on the tertiary ground.
[16] The position of the defence on the secondary ground is that while the breaches of bail conditions and of order prohibiting the possession of firearms are obviously of concern on the secondary ground with respect to Saleh and Muhammed, the present plan as reflected in the recognizance and conditions imposed by the justice of the peace were sufficiently strict to meet the concerns articulated in the secondary ground. Moreover, none of the concerns specific to Saleh and Muhammed apply to Sadat.
[17] With respect to the tertiary ground the defence submits that while the offences with which the accused are charged pertaining to the possession of firearms and drugs are undoubtedly serious, the apparent strength of the Crown’s case is somewhat uncertain. There are serious issues of admissibility pertaining to the finding of the handguns as the safe was opened without a warrant and while it may be that the firearms would ultimately have been inevitably discovered, that conclusion is at this stage uncertain. Also there are real issues as to the identification of Mr. Sadat as the person who put the gun in his waistband as well as with the paucity of evidence linking Mr. Muhammed to the possession of the items found in Room 1103.
[18] The defence submits that while the justice of the peace displayed some empathy toward the accused and their families on the record she nevertheless made it clear that this would not deter her from performing her sworn duty. Finally it is submitted that to the extent that this may be viewed as a borderline case this court ought not to substitute its discretion for that of the justice of the peace in the absence of an error in law, or error in the appreciation of facts or inferences from proven facts.
analysis
Standard of Review
[19] With respect to the standard of review on a bail review I agree with counsel for the defence that Salhany J. correctly outlined the standard of review in R. v. McCue, [1998] O.J. No. 4384 as follows:
4 In my view, the language of section 520(7) clearly outlines the jurisdiction of a judge of the superior court in reviewing the decision of a justice of the peace. …
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, 1972 1411 (ON SC), [1972] O.J. No. 902, supra; 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.
[See also R. v. Kunst, 2011 ONSC 1874, [2011] O.J. No. 1725 (S.C.J.) at para 18. R. v. Carrier (1979), 1979 2907 (MB CA), 51 C.C.C. (2d) 307 (Man. C.A.) at paras. 19-20.]
the secondary ground
[20] Section 515(10)b outlines the justification for what is commonly referred to as the secondary ground of detention:
Justification for detention custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) …
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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 offence or interfere with the administration of justice; and
[21] The justice of the peace found that each of the accused, by virtue of the plan of release submitted, had met the reverse onus upon them to justify their release. The justice of the peace was of the view that the imposition of in his words “stringent but not draconian conditions” including virtual house arrest would constitute a sufficient safeguard against the commission of further criminal offences.
[22] The plan of release for each of the accused includes a substantial recognizance in the $60,000 to $70,000 range with sureties, all of whom are family members who have a vested interest not only in the recognizance provided, but also, in preventing the further involvement of their relatives in criminal activity. These sureties are also prepared to provide virtual house arrest and supervision. I am prepared to acknowledge that each of the accused presented a strong plan of release to which the justice of the peace was bound to give serious consideration given the strong presumption in favour of release in the authorities to which she was referred.
[23] However, the consideration by the justice of the peace of the secondary ground is not without its difficulties. Clearly the accused are charged with very serious offences involving the possession of two guns and trafficking in heroin and marijuana. Their possession of a bullet proof vest, a lazer sight mechanism, a silencer and the tracking of an individual are all, to say the least, ominous. The possession of all of these items fairly gives rise to anticipated violence. In these circumstances the justice of the peace was bound to seriously consider whether there was a continuing threat of further crimes. However, as pointed out by the justice of the peace, there is no present evidence of conspiracy but more importantly the strength of the Crown’s case is uncertain. First, the safe where the guns were stored was accessed without warrant. Secondly, the identification of the accused Sadat as the person in Room 1003 with the gun in his waistband remains problematic. Thirdly, the connection of Muhammed with the room is somewhat marginal at present. In those circumstances, I cannot say that the justice of the peace erred in imposing house arrest with stringent conditions.
[24] Also, of concern with respect to his treatment of the secondary ground is the failure of the justice of the peace to specifically deal with the fact that Saleh was subject to three prohibition orders respecting the possession of guns and that Muhammed had breached his prior bail conditions by possession of cell phones in circumstances where guns and cell phones were found in Room 1103. These facts betray a negative attitude toward the observance of conditions of bail on the part of both Saleh and Muhammed and raise a concern with respect to the commission of further crimes while on bail. While it would have been preferable for the justice of the peace to have specifically considered these facts on the secondary ground I am nevertheless satisfied that she was aware of these facts but was of the view that the prevention of further criminal conduct would be accomplished through the plan of release and the imposition of stringent conditions in view of the uncertain strength of the Crown’s case.
[25] While I am prepared to defer to the conclusion of the justice of the peace that the accused have met their onus justifying their release with respect to the secondary ground, I am nevertheless of the view that the Crown has shown cause that conditions imposed on the accused require modification. It is necessary to make these modifications as there are significant inconsistencies and frailties in the conditions. The justice of the peace has acknowledged that there are frailties in the conditions imposed. This may be due in part to the inability of the Crown to fully participate in the crafting of the conditions.
[26] With respect to the accused Muhammed I would modify conditions 1, 3 as follows:
Reside with sureties at 6320 Newcombe Dr., Mississauga and be amenable to the rules and routine of the household.
Remain in your residence 24 hours a day 7 days a week except for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling), for purposes of travelling directly to or from and while at work, unless you are in the presence of your surety.
Add the following condition: Retain your bail papers upon your person if outside your residence.
[27] With respect to the accused Saleh I would modify the recognizance of bail to:
Add a condition to indicate a specific residence and to be amenable to the rules and routine of the household;
Add a condition to notify the officer in charge (or designate) Steven Williams #8523 of 23 Division of your address with 24 hours of any change of address;
Modify present condition (1) to read: Remain in your residence 24 hours a day 7 days a week.
The exception as written in present condition (1) will be retained.
Add the following two conditions:
Upon the attendance of the police at your residence present yourself at the door forthwith;
Maintain your bail papers on your persons if outside your residence.
[28] With respect to the accused Sadat present condition 4 will be modified as follows: Remain in your residence 24 hours a day 7 days a week. To the exception should be added: for purposes of travelling directly from and while at work. A further condition will be added as follows: maintain your bail papers upon your person if outside your residence.
the tertiary ground
[29] Section 515(10)(c) outlines what is commonly referred to as the tertiary ground for detention as follows:
510(10) For the purpose of this section, the detention of the accused in custody is justified only on one or more of the following grounds:
(a) …
(b) …
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, 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] In determining whether the justice of the peace properly considered the tertiary ground I am guided by the direction of the Court of Appeal in R. v. E.W.M., 2006 31720 (ON CA), [2006] O.J. No. 3654 where at paras. 30-32 the court stated the following:
30 The importance of the legislative direction that the court consider these four factors cannot be overstated. Their existence was integral to the Supreme Court’s finding in Hall that s. 515(10)(c) is constitutional where McLachlin C.J.C. explained that the provision did not authorize a “standardless sweep” because these four key criteria delineated a basis for the exercise of judicial discretion. She stressed the objective basis of decisions under s. 515(10)(c) stating at para. 36:
The inquiry is narrowed to the reasonable community perception of the necessity of denying bail to maintain confidence in the administration of justice, judicially determined through the objective lens of “all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment” [underlining added].
31 No one factor is determinative. The four factors should be analysed together, not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice.
32 Section 515(10)(c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public’s confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected.
[31] In my view, the justice of the peace properly considered and applied the pertinent factors. With respect to the strength of the Crowns the justice of the peace found that the strength of the Crown’s case was fraught with uncertainty. With respect to the most serious charges involving the weapons, the justice of the peace found that the admissibility of possession of the guns was at this stage uncertain as access to the safe in the hotel room was obtained without warrant and while the doctrine of inevitable discoverability could prevail at trial over the presumption of inadmissibility that result was far from certain. Moreover, the connection of both of Muhammed and Sadat with the items in the hotel room is also far from determined. While there is of course some evidence connecting them to the hotel room the identification of Sadat by hotel staff remains a live issue as does the rather tenuous connection of Muhammed. In my view, the strength of the Crown’s case cannot be assessed as having “maximum force”. I agree with the conclusion of the justice of the peace that given the triable issues at this stage the accused could not be detained on the basis of the strength of the Crown’s case alone.
[32] The justice of the peace properly found that all of the offences and in particular the offences involving the possession of guns and possession for the trafficking in marijuana and heroin were serious offences.
[33] In my view, with respect to the gravity of the offence that factor could properly be assessed as approaching maximum force given that the bullet proof vest, the silencer and lazer sight tend strongly to suggest that participation of the accused in a potential violent enterprise can reasonably be inferred especially in view of the seizure of the quantity of heroin and marijuana.
[34] With respect to the circumstances of the offence including whether a firearm was used the justice of the peace observed that firearms were found but not used. While as I have noted the finding of the bullet proof vest, the silencer and the lazer sight may be reasonably suggestive of potential violence there is no evidence of any conspiracy or other criminal purpose beyond the possession of the guns and drugs. In the circumstances it cannot be said that the circumstances of the offence can be assessed at maximum force.
[35] Finally, the justice of the peace acknowledged that some of the offences could attract lengthy terms of imprisonment and minimum sentences in the case of the firearms offences. While these offences do not attract the maximum penitentiary sentences that are available under the Criminal Code, the offences are nevertheless serious enough that this factor should be assessed near maximum force in the circumstances of this case.
[36] In my view, the cumulative effect of all four factors do not yield a clear conclusion as to whether it is necessary to deny bail in order to maintain public confidence in the administration of justice. In the circumstances of this borderline case I am not prepared to override the discretion of the justice of the peace as the outcome reached by her is available in all of the circumstances. She has not erred in law, nor erred in her appreciation of the facts or in failing to draw the proper inferences from the proven facts.
[37] I would accordingly dismiss the Crown’s application seeking an order to vacate the order below and to thereby impose an order of detention. However, the Crown has shown cause why the conditions of the release are inadequate and accordingly, I would allow the application, vacate the order previously made by the justice and order that the accused be released on the same basis as outlined in the previous order of the justice of the peace as modified in the reasons of this court.
THEN J.
RELEASED: September 19, 2014
DATE: 20140919
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Applicant
– and –
MUSTAFA MUHAMMED, FAROGH SADAT and TALEB SALEH
Respondents
REASONS FOR JUDGMENT
THEN J.
RELEASED: September 19, 2014