CITATION: R. v. Samir Abdel-Gadir, 2015 ONSC 1522

COURT FILE NO.: CR-13-0677-00

DATE: 20150306

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Samir Abdel-Gadir

Defendant

D. Maylor, for the Crown

G. Orr, for the Defendant

Heard: February 23rd, 2015

ANDRE J.

Reasons on Bail Review

Introduction

[1] The accused, Mr. Samir Abdel-Gadir, (hereinafter called Mr. Abdel-Gadir), applied for a bail review pursuant to S.520 of The Criminal Code of Canada (the “Criminal Code”). He seeks to review the order of Justice Daley, who, on September 27, 2014, vacated the order of Justice of the Peace Budaci who, on September 3, 2013, had ordered the release of Mr. Abdel-Gadir.

[2] In this hearing, defence counsel submits that Daley J erred in concluding that Justice of the Peace Budaci, “conflated the considerations under the secondary and tertiary grounds” and that he overemphasized the strength of the crown’s case and that there has been a material change in circumstances of Mr. Abdel-Gadir.

[3] The Crown submits that Daley J. correctly applied the law in detaining Mr. Abdel-Gadir; that he properly analyzed the strength of the crown’s case and that if anything, evidence obtained by the crown following Daley J’s decision has strengthened the Crown’s case against Mr. Abdel-Gadir.

[4] This review therefore raises the following issues:

1. Did Daley J. err in law in vacating the order of Justice of the Peace Budaci to release Mr. Abdel-Gadir?

2. Did Daley J. err in law by overemphasizing the strength of the crown’s case thereby detaining Mr. Abdel-Gadir?

3. Has there been a material change of circumstances which justifies Mr. Abdel-Gadir’s release from custody?

BACKGROUND FACTS

4. On June 9th, 2011, members of the Peel Regional Police Service working with members of the Hamilton Police Service commenced an investigation into Samir Abdel-Gadir, as a result of confidential information pertaining to drug trafficking.

5. On that date at approximately 5:08 a.m. members of the Peel Police Tactical Unit executed a CDSA search warrant on Mr. Abdel-Gadir’s residence of #2702-4090 Living Arts Drive, Mississauga. Police seized a gun holster, money counting machine, Mr. Abdel-Gadir’s personal documents and 2 cell phones.

6. Throughout the course of the day the police obtained warrants to search storage lockers at the condominium building at 4040 Living Arts Drive, in Mississauga. These reports were obtained by two Hamilton Police Officers, Constable Robert Hansen and Craig Ruthowsky.

7. At 5:40 a.m. Peel Police executed a CDSA search warrant based on information received from Cst. Ruthowsky on locker bay #1 P2 North tower- storage locker #680 believed by investigators to be under the control of Mr. Abdel-Gadir. The locker was secured with a brass coloured Stanley padlock. Police seized the following items from the locker:

a. A 40 caliber Smith and Wesson Springfield Armory P9 semi-automatic firearm

b. 407.45 grams of marihuana

c. Various plastic bags

8. At 5:45 a.m. Peel Police executed a CDSA search warrant on locker bay #1 P2 North tower- storage locker #688. This locker is registered to Mr. Abdel-Gadir’s residence of #2702-4090 Living Arts Drive, Mississauga. This locker was secured with a brass coloured Stanley padlock similar to that on other lockers that were the focus of the search warrants. Police seized documents in the name of Mr. Abdel-Gadir and retail packaging for Stanley padlocks.

9. At approximately 7:05 a.m., members of the Hamilton Police executed a CDSA search warrant on Mr. Abdel-Gadir’s other residence of #6-1768 Main Street W, Hamilton. Present during the search were Constables Hansen and Ruthowsky. A police officer arrested Mr. Abdel-Gadir within the residence. Police seized an Acer laptop computer and a leather bag containing Mr. Abdel-Gadir’s identification along with several keys on a key ring consisting of:

a. 3 black headed Stanley padlock keys (used for the padlocks on storage lockers 680, 688, and 118 where identification, guns and drugs were seized).

b. 3 Schlage keys, (used to open locker bay doors 1 and 10 containing the lockers 680, 688 and 118 where identification, guns and drugs were located)

c. A plastic remote key fob for another of Mr. Abdel-Gadir’s residences at 208 Enfield Place, Mississauga

d. A Blackberry cellphone model 9700 – 647-284-5394

e. And an Apple iPhone – 905-966-1946

10. The seizure of the Schlage keys and Stanley keys led police to other storage lockers with the identical Stanley padlocks. After further investigation police obtained additional search warrants for lockers 118 and 622.

11. At 11:35 a.m. police executed a search warrant on locker 622. It had a Stanley padlock identical to the others. They seized the following:

a. A 9mm Leinad Machine Pistol (automatic firearm), unloaded, with a high capacity magazine, bearing serial number #940013839.

b. A full box of Remington 9mm ammunition and two loose rounds of 9mm ammunition

c. A 38 caliber revolver handgun, six shot capacity, loaded, bearing serial number #V215478. (This firearm was later analyzed by the Center of Forensic Sciences and was determined to possess DNA of male Marcus ALEXUS who is alleged to have participated in a Peel Homicide which occurred on April 16th, 2011. ALEXUS is currently charged with second degree murder in relation to the homicide.)

d. 75.4 grams of crack cocaine

e. 6.4 grams of powdered cocaine

f. Digital scales and bags

12. At 12:38 p.m., police executed a search warrant on locker 118. They unlocked the Stanley padlock with the key taken from Mr. Abdel-Gadir’s residence and seized the following items:

a. A 9mm Beretta Handgun, loaded with 2 rounds with a high capacity magazine, bearing a tampered serial number that was unreadable, model #92FS. (This firearm was later analyzed by the Center of Forensic Science and determined to be the murder weapon used in the Peel Homicide, mentioned above, which occurred on April 16th, 2011).

b. A 40 caliber Smith and Wesson semi-automatic firearm loaded with 9 rounds with a high capacity magazine, bearing a tampered serial number #BDR3032.

c. A 38 Special Smith and Wesson handgun, unloaded, bearing serial #TEV6903, model 52-2 semiautomatic (which had been reported stolen with Toronto Police Service on June 2nd, 2011 during a residential break and enter).

d. A 24 caliber Brevet handgun, loaded, with 7 rounds, with a high capacity magazine, bearing tampered serial number #24739A.

e. A 9mm Zoraki M906 Pak barrel drilled, black starter pistol bearing serial #00445.

f. Various ammunition (live and spent casings).

g. 11.021 kilograms of dextrose.

13. The Peel Police interviewed Mr. Abdel-Gadir following his arrest. Mr. Abdel-Gadir falsely implicated Andy Owusu as the owner of the seized firearms and indicated that Owusu was traveling back and forth from the west coast to the Greater Toronto Area on a frequent basis. Mr. Abdel-Gadir stated that 2 or 3 days prior to his arrest, Owusu showed him 2 or 3 firearms and indicated that his (Abdel-Gadir’s) DNA might be on some of the firearms.

14. The Peel Police subsequently arrested Andy Owusu and charged him on September 22, 2011. On October 7, 2011 police confirmed Mr. Owusu’s alibi that he was out of the province in June, 2011. On October 11, 2011, the crown withdrew all charges against Mr. Owusu.

15. On November 18, 2011, police investigators learned that Mr.Abdel-Gadir took possession of the key fob (found with the Stanley key) for his residence at PH209-208 Enfield Place Mississauga, on June 2, 2011. This further connected him to the Stanley keys found on the same key ring as the fob.

16. On January 18th, 2012, Police received information from the Center of Forensic Sciences that the 9mm Beretta handgun, model #92FS (from locker 118) was the firearm used in the shooting death of victim Kearn NEDD on April 16th, 2011, at 200 Advance Boulevard, Brampton.

17. On June 11, 2012, an analysis of the Blackberry phone found in Mr. Abdel-Gadir’s possession contained photographs of the 38 Special Smith and Wesson handgun found in Locker 118. Also this Blackberry’s phone number was used in the rental contract for the locker 622.

18. On June 11, 2012, an analysis of the iPhone found in Mr. Abdel-Gadir’s possession revealed that the email address on the phone was used for the rental agreement for locker 622. Also, a Google search on the iPhone showed that Mr. Abdel-Gadir researched the value of the .38 Special model 52-2 Smith and Wesson semi-automatic handgun, seized June 9th, from locker #118. In addition, the police recovered a photograph of Mr. Abdel-Gadir holding the 38 Special which was recovered from the iPhone.

19. On August, 2011, an analysis of Mr. Abdel-Gadir’s Acer laptop computer revealed a video of him in a wilderness location shooting an AK47 assault rifle.

20. On the 19th of August 2012, officers at the Maplehurst Detention Centre seized a note from Mr. Abel-Gadir’s cell which was addressed to him in which there was reference to shooting an associate named John Marrone, who is a crown witness. In a separate trial Mr. Marrone has testified that Mr. Abdel-Gadir held guns for others.

ADDITIONAL FACTS

[5] The Hamilton Police Services laid police service charges and criminal charges against Cst. Hansen for allegedly planting a firearm in the residence of a male called Darren Mork.

[6] During a Preliminary Hearing on Mr. Abdel-Gadir’s charges on August 12, 2013, Cst. Hansen admitted under oath that he had arranged for a third party to plant a firearm in Mr. Mork’s residence. He testified that he had had no intention of charging Mr. Mork with any gun related offences and that he had merely sought to remove the gun from the street.

[7] Cst. Hansen conceded that he had falsely sworn an Information to Obtain which indicated the following:

Source C has heard that Mork has a handgun hidden in his residence that was previously used in a shooting in Hamilton. And further, that on May 25th, Source C observed the Glock handgun in the cushions of a three person sofa located in the basement of Mork’s residence. And that they looked at it and examined it.

[8] The officer conceded under examination, that he did not disclose to the Justice who signed the ITO that the person described as Source C agreed to plant the firearm in Mr. Mork’s house.

[9] Cst. Hansen has been committed to stand trial on the charges of perjury and obstruct justice. Cst. Ruthowsky also faces a number of charges under the Police Services Act.

[10] On December 19, 2014, the Peel Police obtained a warrant to obtain a DNA sample from Mr. Abdel-Gadir. On January 23, 2014, the CFS confirmed that the male DNA profile on 3 of the seized firearms matched Mr. Abdel-Gadir’s DNA. The DNA match was on the following firearms:

a. 40 caliber Smith & Wesson Springfield Armory P9 semi-automatic firearm from locker # 680

b. 40 caliber Smith and Wesson semi-automatic firearm loaded with 9 rounds with a high capacity magazine, bearing a tampered serial number #BDR3032 from locker # 118

c. 9mm Zoraki M906 Park barrel drilled, black starter pistol bearing serial #00445 from locker # 118

[11] Mr. Abdel-Gadir had keys for the lockers in which the guns with his DNA were found.

DECISION OF JUSTICE OF THE PEACE BUDACI

[12] Mr. Abdel-Gadir presented a number of sureties which Justice of the Peace Budaci concluded were capable of supervising Mr. Abdel-Gadir. Additionally, the Police synopsis of their case against Cst. Hansen was filed at the Bail Hearing conducted by Justice of the Peace Budaci. Furthermore, the synopsis of the 26 Police Service Act charges against Cst. Ruthowsky were similarly filed in the bail hearing. Additionally, the issue of Detective Hansen planting a firearm in Darren Mork’s residence was also raised during the bail hearing as was the allegation that the detective outright lied on his affidavit by falsely claiming that he had reviewed information from a source that there was a firearm in Mr. Mork’s residence.

[13] In addressing the tertiary ground, Justice of the Peace Budaci noted the following at page 18:

The tertiary grounds are required to maintain the confidence in the administration of justice. And in considering those grounds a number of factors have to be put into play, the appearing strength of the prosecution’s case, which I’ve spoken to at some length. And simply because the tertiary grounds I believe are in affect, and are important here based on the Crown’s presentation. The gravity of the offence we can underline the fact that both drugs and weapons is a serious. The fact that the accused is liable on conviction for a potential lengthy period of imprisonment. Eight to ten years is not a small period of time, and in the fact that it involves a firearm, which by its minimum term is three years. These – in circumstances around the commission whether the firearm was actually used, which in this particular case it was not. These four factors must be analysed together, they’re combined to affect the context of the circumstances, allow the Court to determine if detention is required on the tertiary grounds. And a detention order on the tertiary grounds cannot rest solely on the Crown’s, solely on the Crown’s strong case against the accused. That would undermine of course the presumption of innocence. The strength of the Crown’s case again is only one factor. And when one looks at the particular matter as I indicated the strength of the Crown’s case appeared to generate some Charter challenges. And in that particular matter, the Court is guided by R. v. Dong, [2008]. The strength of the Crown’s case should be treated as a neutral factor.

The evidence of the circumstance would generate a Charter challenge. The Court notes that in making and reviewing the tertiary grounds, the focus should be a reasonable member of the community. Confidence of the administration of justice is assessed with respect to a reasonable member of the community, that’s R. v. Hall, [2002]. A reasonable member of the community is properly informed about the philosophically and legislative provisions, Charter vows, and actual circumstances of the case. And these are some of the positions, the importance of the presumption of innocence, the significance of liberty, and the subject of constitutional guarantee to the right of reasonable bail. The fact that granting a bail must be assessed on a case by case basis, and the accused must be released if none of the grounds set out in Section 515, which is the judicial interim release (1), Criminal Code is satisfied.

The actual nature of the allegations against the accused that may or may not be proven at trial, the fact that pre-detention can last for several months in this particular case. The defence wasn’t prepared to deal with the bail hearing for almost two years, more. The fact that the poor maybe more likely detained, the fact that pre-trial – can complicate the ability to prepare the defence, the fact that incarceration imposes a punishment only after conviction in sentencing. All of those factors need to be applied. I also note though the detention of an accused under Section 515 (10) (c) , was justified at that’s the tertiary grounds, in only the rarest of cases. The nature of the offence charged by itself, but not justified in denial of bail, nor could a detention ordered on the tertiary grounds solely rest on the strength of the Crown’s case. In this particular jurisdiction, Justice Durno R. v. Quasar, [2002], stated that the tertiary grounds is to be used sparingly, the cases which called – would be few and far between given the thousand of bail applications heard annually.

[14] His Worship continued at page 21 that:

As I indicated each case must be stated on its own merits and the tertiary grounds is not restricted to any specific class of offence. The four factors which are articulated must be considered on the tertiary grounds must be analysed together rather than separately. The combined effect in maintaining the confidence and the administration of justice must be considered. I also wanted to note that of course the strongest factor leading to the conclusion there’s a substantial likelihood again touching on the secondary grounds would re-offend there’s a significant criminal history. The Court notes that Mr. Gadir again has no record, has no outstanding charges. These charges are extremely significant, I think that’s given. I think the plan really is very stark that Mr. Roy has presented to this court. It’s a plan that either involves incarceration, or 24/7 supervision. Based on all of the factors before this court in reviewing the evidence, the strength of the Crown’s case, Mr. Gadir’s strength and his roots in the community. The fact that the presumption of innocence, which is the hallmark of the Canadian Charter of Rights and Freedom, Section 7, 9 and 11.

DALEY J.’S DECISION

[15] In vacating the decision of Justice of the Peace Budaci to release Mr. Adbel-Gadir, Daley J noted at paragraph 30 of his decision that:

I have concluded that the following errors in principle or law are present in the justice’s reason for decision:

While identifying the principal grounds upon which detention was sought under the secondary and tertiary grounds of s. 515(10), the justice provided no discrete analysis of the consideration under subsections (a) and (b)

The justice, having failed to examine the considerations under these subsections, then proceeded to overemphasize the proposed plan for release and the quality of the sureties.

After having identified the four factors for consideration on the tertiary grounds under s. 515(10) (c), the justice failed to provide any analysis of the considerations under that section in the context of the evidence before him (emphasis added).

[16] Daley J further noted at paragraph 31 that:

In focusing on the quality of the plan for release and the sureties offered, the justice conflated the considerations under the secondary and tertiary grounds and as such, committed an error in law and in principle.

[17] With regard to the question of the Justice of the Peace’s justification for releasing Mr. Abdel-Gadir, Daley J. concluded as follows:

On the tertiary ground, the justice made the following most confusing statement at page 21 of his reasons:

As I indicated each case much be stated on its own merits and the tertiary grounds is not restricted to any specific class of offence. The four factors which are articulated must be considered on the tertiary grounds must be analyzed together rather than separately. The combined effect in maintaining the confidence and the administration of justice must be considered. I also wanted to note that of course the strongest factor leading to the conclusion there’s a substantial likelihood again touching on the secondary grounds would re-offend there’s a significant criminal history. The Court notes that Mr. Gadir again has no record, has no outstanding charges. These charges are extremely significant, I think that’s given. I think the plan really is very stark that Mr. Roy has presented to this Court. It’s a plan that either involves incarceration, or 24/7 supervision. Based on all of the factors before the Court in reviewing the evidence, the strength of the Crown’s case, Mr. Gadir’s strength and his roots in the community. The fact that the presumption of innocence, which is the hallmark of the Canadian Charter of Rights and Freedom, Section 7, 9, and 11 (emphasis added).

DEFENCE SUBMISSIONS

[18] Mr. Abdel-Gadir’s counsel submits that:

1. Daley J. erred in principle in concluding that Justice of the Peace Budaci conflated the reasons for detention on the secondary and tertiary grounds.

2. Daley J. overemphasized the strength of the Crown’s case while failing to give due consideration to the police conduct in this matter.

3. Daley J. failed to consider the “complete lack of plausibility” of the crown’s case as it relates to an allegation that the applicant was storing firearms; ammunition, drugs and controlled substances in lockers unrelated to him and owned by third persons who were not complicit in the unlawful use of the storage lockers.

4. Daley J. erred in the assessment of the crown’s case by failing to give due consideration to the implausibility of the theory of the crown’s case and the fact that Cst. Hansen and Cst. Ruthowsky were facing criminal charges directly related to the misconduct connected to their interactions with confidential informants.

5. Daley J. erred in his conclusion that Justice of the Peace Budaci provided no discrete analysis in relation to the primary, secondary and tertiary grounds.

6. The evidence of Abdalla Alamin to the effect that the police attempted to have him plant a gun in Mr. Samir Abdel-Gadir’s residence constitutes a material change in circumstances that justifies his release.

7. The additional disclosure regarding the charges facing Cst. Hansen and Cst. Ruthowsky constitutes a material change in circumstances that justify Mr. Abdel-Gadir’s release.

8. The continued detention of Mr. Adbel-Gadir is extremely prejudicial to his ability to make full answer and defence in that he is unable to secure evidence from a witness concerning police misconduct in this matter.

ANALYSIS

[19] Prior to analyzing the issues raised in this bail review, it is incumbent upon me to make reference to a number of principles that apply to all persons who are held in pre-trial detention.

[20] First, pursuant to s 11(d) of the Canadian Charter of Rights and Freedoms, Mr. Adbel-Gadir is presumed to be innocent irrespective of the seriousness of the charges he faces.

[21] Second, s. 11(e) of the Charter guarantees Mr. Abdel-Gadir the right not to be denied bail without just cause.

[22] Third, a detention order is not an irreversible edict which confines an accused in an institution for an indefinite period until his or her matter is dealt with in court. As noted by Doherty J in R v. Saracino (1989), 1989 7197 (ON SC), 47 C.C.C (3d) 185 at 187, bail review provisions “ favour flexibility and re-evaluation of an accused’s bail status over finality of any particular order made affecting that status” See also R. v. Ferguson, [2002] O.J No. 1969, at pages 13 and 14.

[23] ISSUE NO. 1. Did Daley J. err in law in concluding that the learned Justice of the Peace provided no discrete analysis of the considerations under section 515 (10), (a) and (b)?

[24] Section 515 (10) of the Criminal Code provides that:

.. the purpose of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

a) Where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

b) Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will be released from custody, commit a criminal offence, or interfere with the administration of justice.

PRIMARY GROUNDS

[25] A review of the learned Justice of the Peace’s decision reveals that there is no analysis of s.515(10)(a) as it relates to Mr. Abdel-Gadir. The learned Justice of the Peace failed to inquire into Mr. Abdel-Gadir’s personal circumstances to determine whether or not he posed a flight risk. Some of the questions the justice could have asked include the following:

1. Did Mr. Abdel-Gadir have a criminal record?

2. Did Mr. Abdel-Gadir have roots in the community?

3. What was Mr. Abdel-Gadir’s citizenship status?

4. What is the extent of the jeopardy faced by Mr. Abdel-Gadir if he was connected to the offences he faced?

5. Was the proposed plan of supervision different such that it could allay any concerns which the learned justice of the peace had on primary grounds?

[26] While the learned justice of the peace did not specifically address these questions, I am satisfied that at the very minimum, he turned his mind to them.

[27] For example, it is noted that Mr. Abdel-Gadir had no criminal record. Second, the learned justice of the peace concluded that the plan of supervision appeared to have been adequate. He also noted that the plan “would include that all four of the proposed sureties would be Mr. Abdel-Gadir’s jailors, that he would be in their company, 24/7, 24 hours a day, 7 days a week.” Furthermore, that the sureties were prepared to pledge $700,000 to secure Mr. Abdel-Gadir’s release and to ensure that he reported to the police on a daily or weekly basis.

SECONDARY GROUNDS

[28] On the other hand, it does not appear that the learned justice of the peace fully analyzed the considerations that are relevant to a s.515(10)(b) analysis.

[29] Regarding the secondary grounds, the justice of the peace indicated at pages 10-11 that:

To address the secondary grounds, again

Mr. Roy noted that the seriousness of the charges, the length of time that he’s already been in custody. Of course the fact that the presumption of innocence, the fact that they could affectively supervise him, and that he would be supervised on an ongoing basis. The – again the amount of the surety, the quantum, the brother, the family network, etcetera, the mother.

[30] Of the four proposed sureties the justice found Mr. Abdel-Gadir’s mother to be incapable of supervising her son, but found that the remaining three sureties were suitable sureties.

[31] In my view, Daley J committed no error in law in concluding that the learned justice of the peace provided little or no analysis of the considerations under s.515(10)(b) of the Code.

[32] As his Honour correctly noted, the factors to be taken into account in assessing the risk if Mr. Abdel-Gadir was released included:

(1) the nature of the offences;

(2) the relevant circumstances of the offences, which may put in issue events prior to and subsequent to the offence;

(3) the likelihood of a conviction;

(4) the degree of participation of the accused;

(5) the relationship between the accused and the victim;

(6) the profile of the accused, i.e. his occupation, his lifestyle, his criminal record, his family situation, his mental state;

(7) his conduct prior to the commission of the alleged offence; and

(8) the danger which the interim release of the accused represents to the community specifically affected by the matter: R. v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C (3d) 474 (Que. C.A).

[33] The learned justice of the peace concluded that the offences were extremely serious. He therefore turned his mind to this factor.

[34] Did the justice of the peace consider the relevant circumstances of the offences which may have put in issue events prior to and subsequent to the offence?

[35] In my view, there were five allegations related to the offences that were germane to an assessment on the secondary grounds. First, one of the guns seized from a locker to which a key was found in Mr. Adbel-Gadir’s residence was allegedly used in a homicide on April 16, 2012. Second, a note was found in Mr. Abdel- Gadir’s cell with a reference to shooting a male who is a crown witness in the homicide trial. Third, the allegations suggested that Mr. Abdel was in the business of purchasing and renting guns to unsavoury individuals. Fourth, information recovered from Mr. Abdel-Gadir’s phone revealed that he had sought to ascertain the cost of one of the firearms. Finally, the crown advised the court that John Marrone, a crown witness in the ongoing murder trial in which a gun found in a locker under Mr. Abdel-Gadir’s control was the murder weapon, testified that Mr. Abdel-Gadir provided guns for hire.

[36] While the learned justice of the peace made reference to this evidence, he failed to analyze its significance to the s.515(10(b) analysis. This omission, in my view, constitutes a grave error. These allegations are not only relevant to the circumstances of the alleged offence but also to the danger which the interim release of the accused represents to the community.

[37] Regarding the likelihood of a conviction, the learned justice of the peace concluded at page 9, that the evidence of the misconduct of planting of evidence by Detective Cst. Hansen and Cst. Ruthowsky would raise “significant trial and Charter issues.”

[38] Undoubtedly, the planting of evidence which Cst. Hansen has admitted to will pose serious credibility problems for the crown. In my view however, these problems may not necessarily be fatal to the crown’s case, given the location where the guns and drugs were found, the officers who found the weapons and contraband, the note found in Mr. Abdel-Gadir’s cell, the image discovered on his phone, the DNA evidence in this case and the testimony from witnesses that Mr. Adbel-Gadir was in the business of renting firearms.

THE TERTIARY GROUND

[39] The defence also submits that Daley J erred in law when he concluded that the learned justice of the peace “conflated the considerations under the secondary and tertiary grounds and consequently committed an error of law.”

[40] Defence counsel is correct that the passage which Daley J relied upon for that conclusion, is not the only place where the justice of the peace discussed the tertiary grounds. Indeed, at page 18 of his judgment, his worship noted that in considering the tertiary ground, “a number of factors have to be put into play.” His Worship identified these factors as “ the appearing (sic) strength of the prosecution’s case, the gravity of the offence, the fact that the accused is liable on conviction to a lengthy period of imprisonment and the circumstances surrounding the commission of the offence. His Worship correctly noted that the strength of the crown’s case is merely one factor and that the detention of an accused under s.515(10)(c) is justified “in only the rarest of cases.”

[41] His Worship also noted at page 19 of his decision that in assessing whether detention is justified under the tertiary grounds; that “confidence of the administration of justice is assessed with respect to a reasonable member of the community.” His Worship noted further that:

The actual nature of the allegations against the accused that may or may not be proven at trial, the fact that pre-detention can last for several months in this particular case. The defence wasn’t prepared to deal with the bail hearing for almost two years, more. The fact that the poor maybe more likely detained, the fact that pre-trial – can complicate the ability to prepare the defence, the fact that the incarceration imposes a punishment only after conviction in sentencing. All of those factors need to be applied. I also note though the detention of an accused under Section 515 (10) (c), was justified under the tertiary grounds, in only the rarest of cases. The nature of the offence charged by itself, but not justified in denial of bail, nor could a detention order on the tertiary grounds solely rest on the strength of the Crown’s case. In this particular jurisdiction, Justice Durno R. V. Quasar, [2002], stated that the tertiary grounds is to be used sparingly, the cases which called – would be few and far between given the thousands of bail applications heard annually.

[42] Defence counsel is correct that Daley J. may have erred in his conclusion that the justice of the peace erred by conflating the considerations on the secondary and tertiary grounds.

[43] That said, Daley J. committed no error in his conclusion that a detention of Mr. Abdel-Gadir was justified based on the secondary and tertiary grounds.

[44] His Honour properly recognized that the charges were very serious and that because one of the handguns had been used in a homicide, there were serious safety concerns.

[45] Furthermore, the note found in Mr. Abdel-Gadir’s cell which referred to a possible homicide of a crown witness “significantly increased the concern for public safety.”

[46] Additionally, the image found in Mr. Abdel-Gadir’s laptop indicates that he had a connection with firearms.

[47] The constellation of all these factors justified the detention of Mr. Abdel-Gadir on the secondary and tertiary grounds.

[48] The defence submits that Daley J. overemphasized the strength of the crown’s case and failed to consider the implausibility of the crown’s theory that the weapons were found in lockers rented by third parties rather than by Mr. Abdel- Gadir.

[49] In my view however, there is nothing implausible about the crown’s theory. The fact of the matter is that an officer found keys in Mr. Abdel-Gadir’s Hamilton residence which opened the padlocks in question. A copy of the rental contracts for one of these lockers was found in Mr. Abdel-Gadir’s cellphone. There is a cellphone image of Mr. Adbel-Gadir firing a weapon.

[50] Two witnesses in a related murder trial have apparently testified that Mr. Abdel-Gadir stores and or rents guns to persons.

[51] There is no doubt that the evidence that Cst. Hansen and Cst. Ruthowsky were implicated in a scheme to plant a gun in the residence of a third party may have a serious impact on the crown’s case. However, there is no credible evidence that these officers planted any guns in Mr. Abdel-Gadir’s residence. Significantly, no guns or drugs were found in Mr. Abdel- Gadir’s Mississauga or Hamilton residences. One gun was found in one of two lockers he rented. The other guns or drugs were found in other lockers discovered by the Peel Police, rather than by the two Hamilton detectives. If this case involved a capricious and diabolical plan or conspiracy to plant evidence on Mr. Abdel-Gadir then these two seasoned detectives did a very poor job of doing so.

[52] There is nothing implausible or illogical about the fact that the Peel Police allegedly found the guns and drugs in lockers rented in the names of third parties. On the contrary, it makes perfect sense that they were there. If the keys of the locks had not been found; Mr. Abdel-Gadir’s residence, it would have been nigh impossible to connect them to him. Furthermore, the renters of the lockers would not have been able to gain access to the lockers unless they cut the padlocks open. Additionally, it makes perfect sense that no firearms or drugs were found in Mr. Abdel-Gadir’s residence given that in those circumstances, they would have been easily connected to him.

[53] Has there been a material change of Mr. Abdel-Gadir’s circumstances that would justify his release?

[54] Mr. Orr submits that there has been. He relies on the affidavit and testimony of Abdalla Alamin to the effect that Cst. Ruthowsky attempted to have him plant a firearm on Mr. Abdel-Gadir. Mr. Alamin also testified that Cst. Ruthowsky had had some problems with him. Furthermore, that Mr. Abdel-Gadir told him that Mr. Marrone had planted the guns on him and that an associate of Mr. Marrone had confessed to Mr. Abdel-Gadir about what Mr. Marrone had done. Mr. Alamin also testified that Mr. Abdel-Gadir believed that he could locate this witness if he was released.

[55] In my view, Mr. Alamin’s testimony is not credible and trustworthy evidence that constitutes a material change in circumstances which justifies Mr. Abdel-Gadir’s release. His testimony about what Mr. Abdel-Gadir told him is hearsay evidence which serves the interest of Mr. Abdel-Gadir. Second, Mr. Alamin admitted, while being cross-examined, that Cst. Ruthowsky never asked him to plant evidence in Mr. Abdel-Gadir’s residence. Third, Mr. Alamin’s testimony that he travelled to London, Ontario, where he “bamboozled” an associate to give him a gun which he turned over to Cst. Ruthkowsky stretches the bounds of credulity. Fourth, Mr. Alamin admitted to having been in possession of a quantity of crack cocaine when members of the Hamilton Police Service searched his residence.

[56] Additionally, Mr. Abdel-Gadir provided a statement to the police following his arrest that contradicts his claim that officers Hansen and Ruthowsky conscripted Mr. Marrone to plant guns in his residence. Mr. Abdel-Gadir told the police that the guns found in the lockers belonged to an associate, Mr. Owusu. Mr. Abdel-Gadir admitted to touching two or three of the guns but maintained that Mr. Owusu had placed them in the lockers a few days earlier. The police subsequently contacted Mr. Owusu and confirmed that Mr. Owusu had been in another province at the time when he was alleged to have placed the guns in the locker.

[57] In my view, the evidence regarding the misconduct of officers Hansen and Ruthowsky does not constitute a material change of circumstances that justifies Mr. Abdel-Gadir’s release. The evidence regarding police wrongdoing was elicited at the bail hearing. During a preliminary hearing prior to the bail review, Cst. Hansen was cross-examined about allegations and admitted his involvement in a “planting” scheme involving Daniel Mork. The transcripts of the proceedings were part of the evidentiary record before Daley J.

[58] If there has been a material change of circumstances since Daley J.’s decision, on account of new evidence, this change bolsters the crown’s case against Mr. Abdel-Gadir rather than undermines it. As of January 2015, the Crown has in its possession DNA evidence from three of the firearms recovered from the lockers which are linked to Mr. Adbel-Gadir.

[59] I should also note that the proposed plan of supervision, which is essentially the same as that which was proposed at the bail hearing, and bail review before Daley J., does not constitute a material change of circumstances in this case. As noted in R v. Ferguson, 2002, O.J. No. 1969, ONSC, at para 17:

Only where it can be said that the commitment to and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention, can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

DISPOSITION

[60] Based on the above, the application is dismissed.

Andre J.

Released: March 6th, 2015

R. v. Samir Abdel-Gadir, 2015 ONSC 1522

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Samir Abdel-Gadir

REASONS FOR JUDGMENT

Andre J.

Released: March 6th, 2015