ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: DR(F) 09/14
DATE: 2015 03 20
B E T W E E N:
HER MAJESTY THE QUEEN
A. C. Bond, for the Respondent
- and -
NOAH KAHSAY
G. J. Grill and E. Bingham, for the Applicant
HEARD: March 16, 2015
REASONS FOR JUDGMENT
HILL J.
INTRODUCTION
[1] Mr. Kahsay was arrested on September 26, 2013 when he fled from a hotel room to a balcony and then onto a roof in an effort to escape from the police. He was captured almost immediately.
[2] The applicant has been before the Ontario Court of Justice (OCJ) for the past one and a half years. He faces 42 charges falling into roughly three groupings - C.D.S.A. charges (count #s 1 to 8), firearms-related charges (count #s 12 to 41) and proceeds of crime/fraud charges (count #s 44 to 47). Serial preliminary inquiries are scheduled for these charges, on a “with or without counsel” basis for the applicant, starting in less than four months: the firearms preliminary inquiry (July 7-9, 20-23, 30 and August 4, 5), the drugs preliminary inquiry (15 court days between October 7 and November 12), and the proceeds of crime preliminary inquiry (November 18 to December 10, 2015).
[3] Of the 24 persons charged at the conclusion of the police investigation, only the applicant has not been admitted to bail. Arrest warrants remain outstanding for two non-residents of Canada. The Crown consented to bail for all accused except the applicant and Andrew Harrison. Harrison, who faces 20 fewer charges than the applicant, was released by a justice of the peace on November 7, 2013 following a contested bail hearing. Harrison, who has no prior criminal record, was released on a recognizance on conditions, in the amount of $110,000 with his sister and step-mother as sureties.
[4] On October 18, 2013, the applicant consented to a detention order. On January 31, 2014, he commenced a s. 520 Criminal Code bail review before Ricchetti J. In that proceeding, where the application was withdrawn part way through submissions, prospective sureties gave evidence – Roxanne Forde, Frank Eyitene and Lu Tsan.
[5] It is agreed that in the present s. 520 bail review application, where the issue of judicial interim release was fully contested with the Crown opposing bail, that the applicant has the onus of demonstrating, on a balance of probabilities, that his continued detention is not justified. In this hearing, Mr. Kahsay has submitted as prospective sureties Ms. Forde, Mr. Eyitene, and Mr. Yemane Weldemenkerios who testified with the assistance of a Tigrigna language court interpreter. In addition, the applicant proposed as a condition of his release that he be the subject of electronic GPS monitoring.
THE ALLEGED CRIMES
The CDSA Charges
[6] An aspect of the “Project Rover” police investigation which commenced in February 2012 focused upon cocaine trafficking by the applicant and several other known and unknown individuals. The police utilized a number of investigative measures including physical surveillance including photographing, judicially-authorized interception of private communications, tracking and DNR warrants and production orders, and search warrants.
[7] Based on the evidence collected, the prosecution submitted that the applicant was positioned toward the upper echelon of the drug distribution network arranging wholesale cocaine transactions in Ontario and Manitoba using female couriers, discussing 5 and 6 kg.-transactions and thousands of dollars in payments. The applicant was well-connected within the cocaine trafficking industry and well compensated.
[8] Intercepted communications also reveal the applicant telling others to be careful concerning the contents of their phonecalls and texts. Code words were often employed in communications. Concern for the police and surveillance was routine. The applicant, when driving a vehicle, was observed to engage in counter-surveillance measures. He drove vehicles registered in the names of other persons. The applicant’s drivers licence did not, during the relevant dates, ever include his real address. In one trip to Winnipeg, the applicant bought a plane ticket and travelled under the alias of Marcus Hayden.
[9] In the time period of July to September 2013, the investigation linked the Applicant to direct involvement in three cocaine trafficking transactions respectively involving 996 g., 1.117 kg. and 888 g. of the illicit narcotic.
The Firearms-Related Charges
[10] During July 2013, police investigation, including the interception of private communications, revealed that the applicant was substantially involved in trafficking firearms.
[11] Again, the applicant utilized codes in many conversations to refer to handguns (“slim girls”) and to rifles (“fat girls”/”big batty girls”). A female courier or go-between was involved. At one point, the applicant instructed a co-accused not to talk on the phone. The applicant engaged in negotiations with others for the pricing of several thousands of dollars for the firearms.
[12] Before the sale transaction was consummated, the police seized the relevant firearms and magazines which tested as restricted or prohibited weapons:
(1) .45 calibre Kimber restricted handgun with magazines
(2) .44 magnum Colt Anaconda prohibited revolver
(3) Beretta 9mm restricted handgun with prohibited magazines
(4) .25 calibre Raven Arms prohibited handgun with magazines
(5) .223 calibre Colt Sporter restricted assault rifle
(6) .33 calibre Ram L SKS-D assault rifle with three prohibited magazines.
Money Laundering, etc. Charges
[13] The charges of possession of proceeds of crime, money laundering and fraud are founded primarily on the police investigation of the applicant’s use of the proceeds of cocaine trafficking to purchase interests in real property directly or indirectly.
[14] The Canada Revenue Agency records disclose this information as to the applicant’s reported income:
Tax Year
Total Income (line 150)
Taxable Income (line 260)
2006
$2,000
$2,000
2007
$11,171
$10,968
2008
$14,410
$13,875
2009
$34,011
$32,501
2010
$35,017
$28,759
2011
$74,581
$72,364
[15] Between January 7th, 2007 and the time of his arrest, the applicant purchased either on his own or through the use of nominees, five residential locations throughout the Greater Toronto Area, including Milton, Vaughan, Mississauga and Toronto. Downpayments were generally around $100,000. Financing was obtained either through several financial institutions including TD Canada Trust or through private funding. The financing was almost always put into place with the assistance of a mortgage broker (co-accused JOSHI) using fraudulent documents and fraudulent mortgage applications. These applications were processed by various financial institutions as being legitimate.
[16] The applicant held multiple bank accounts at TD, CIBC and RBC used to make vehicle lease and mortgage payments for the relevant properties. The applicant’s mother, Almaz Reda, also charged with money laundering and fraud, was instrumental in assisting the applicant with making payments. She too had numerous bank accounts, and deposited and dealt in cash.
[17] The total MPAC assessment for the five properties as of September 2013 was $3,964,000. The government has restrained the properties with property management orders.
[18] By the time of his arrest, the applicant was also involved in three “new build” developments in his name or the names of nominees, Reda and Belayneh. It is alleged that the downpayments for each of these properties are derivative of drug trafficking. With respect to one of the developments, the applicant placed funds in the amount of $197,907.93.
[19] Between April 2010 and November 2011, the applicant used cash to purchase $71,933.69 worth of furniture from Ethan Allen for one of his properties.
[20] The applicant signed a one-year lease in October 2012 to rent unit #3805 at the Ritz Carlton on Wellington Street in Toronto, paying the owners, generally in cash, $5,700 a month for rent and hydro. This unit is located immediately above unit #3705 which the applicant purchased on power of sale for $1,050,000.
[21] The applicant incorporated two companies – Urban Marketing in 2007 and Urban Contracting in 2012. No tax returns have been filed for Urban Contracting. Police investigation, with support in the record filed here, concluded that Urban Marketing was a straw company without a functioning office and not conducting any legitimate business. Forensic reporting upon seized financial records shows different addresses for Urban Marketing including 67 Seachart Place in Brampton and 403-1030 Upper James Rd. in Hamilton. Various financing applications record the applicant as a director of the company with an annual income of $173,000/yr., Almaz Reda as employed by the company earning $90,000/yr., and Shermineh Jahangard as a director earning $129,742/yr.
[22] The applicant is associated to 2011 and 2013 Land Rover vehicles leased through Budds’ Imported Cars in Oakville. The vehicles were leased by S. Jahangard through Urban Marketing. In addition to Jahangard’s lease application for the 2013 vehicle including a fraudulent CRA Notice of Assessment falsely claiming that she was an employee of Urban Marketing earning $129,742 a year, this co-application with Urban Marketing claimed that the company had annual sales of $1,000,000. The 2013 Land Rover, a vehicle valued at $166,921.13 was co-leased by Jahangard and the company with monthly lease payments of $3140.96.
[23] According to Canada Border Services Agency records, in the years 2011 and 2012, the applicant entered Canada through the Pearson International Airport on five occasions.
[24] The police uncovered evidence suggesting that $380,000 cash was stolen from one of the applicant’s properties. On arrest, the applicant was in possession of a certified cheque for $69,751.19.
[25] Forensic accounting of seized financial records establishes that the applicant and his mother each had multiple bank accounts during the relevant time period. The accounts had substantial cash deposits as a characteristic of the transaction activities. During the relevant time period, the applicant made cash deposits exceeding $350,000 into the bank accounts under his control.
The Applicant’s Background
[26] Mr. Kahsay was born on November 29, 1983 in Eretria. He is a Canadian citizen. He graduated from high school in 2001. While at school, he worked at McDonald’s “and later doing general labour and telemarketing”. According to the applicant’s affidavit, “I continued working after I graduated.”
[27] The applicant’s affidavit filed in this hearing states that the Public Prosecution Service of Canada has seized all of his assets and that Legal Aid Ontario has denied him funding.
[28] The applicant’s criminal record is as follows:
Youth Court
December 7, 1999
• Fail to comply with undertaking
June 30, 2000
• Traffic in Schedule 1 substance • Fail to comply with recognizance
November 20, 2000
• Fail to comply with undertaking
February 7, 2001
• Traffic in Schedule 1 controlled substance • Possession of Schedule 1 substance
July 23, 2001
• Possession of Schedule 1 substance for the purpose of trafficking • Obstruct peace officer • Fail to comply with disposition
November 6, 2001
• Unlawfully at large
Adult Court
December 12, 2003
• Possession of prohibited or restricted firearm with ammunition (2 charges) • Possession of Schedule 1 substance • Transfer firearm, prohibited or restricted weapon without authority • Conspiracy to commit robbery
- 2 years plus a day concurrent & s. 109 weapons prohibition order for life
[29] Each of the Youth Court dispositions, apart from the 1999 entry, resulted in short custodial sentences. Prior to the applicant’s arrest, the 2003 weapons prohibition order was still in effect.
[30] The applicant further deposed that after release on parole in 2005, he was employed at Arrow Furniture as an office administrator while also enrolled at York University taking classes toward a degree in Youth Social Work. The employment at the furniture company lasted only a few months as he was fired when the employer learned of his criminal record.
[31] According to the applicant’s affidavit, Urban Marketing filed tax returns for each year starting in 2008. The company is said to have handled “print and media promotions for organizations”. The applicant stated as well that in the last couple of years he has been involved in the operation of Adams International Shipping and Transport, a company owned and operated by his uncle, Ackledo Reda, who lives in Dubai. The affidavit describes the company as importing wheat and soy beans and as operating in Dubai, Saudi Arabia and Africa shipping large machinery to locations in that region of the world. The applicant deposed that he has a 13% ownership stake in the company.
[32] The applicant further states that “[b]efore my arrest, I was living in Unit 3705 at the Ritz Carlton on Wellington Street” in Toronto.
[33] The applicant’s affidavit describes his proposed sureties:
If I am released, I am prepared to live with [and] work with Yemane Weldemenkerios, who is a relative. I have been offered a job working with Yemane, who is a self-employed carpenter. He has also agreed to be a surety.
Frank Eyitene is a close family friend. I have known Frank for approximately five years after meeting him through my mother and other family friends. Frank works as a realtor, and over the years we have grown closer as he has given me helpful real estate advice.
Roxanne Forde is a close friend and the mother of my friend and former girlfriend Chantal. Chantal and I broke up three years ago, but I have known Roxanne since I was 15 and have stayed close with her and her husband.
THE PROPOSED SURETIES
Introduction
[34] In the withdrawn bail review proceeding in January 2014, the applicant’s proposed sureties were Roxanne Forde, Frank Eyitene, and Lu Tsan each of whom were cross-examined on their affidavits filed in that proceeding.
[35] Cross-examination of Mr. Tsan, who was prepared to pledge $50,000, also representing that he was prepared to offer the applicant employment, revealed that the applicant’s mother had asked him to be a surety. Tsan knew little about the applicant and had only met him on two or three occasions through the applicant’s cousin, Mario, for a few minutes each time at an optical store. Under questioning, it was revealed that Mario had guaranteed that he would indemnify Tsan from any loss should the applicant breach any bail conditions.
[36] Counsel for the applicant informed the court prior to submissions in that case that he was no longer relying on Mr. Tsan as a potential surety.
[37] The release plan in January 2014 was for Mr. Kahsay to reside with Roxanne Forde.
Roxanne Forde
[38] In her affidavit in this hearing, Ms. Forde deposed that:
(1) she is 56 years old, a Canadian citizen and has no criminal record
(2) she has sufficient assets as described in the affidavit to pledge $50,000 to secure the applicant’s release
(3) in 2012, she invested $40,000 in a pre-construction condominium project with the applicant which may now “be lost”
(4) she was laid off from her employment as a “cruise specialist/consultant” at Aimia TD Travel in October 2014 and is spending 5 hours a day searching for new employment
(5) she works part-time with other family members in her own business, RSC Furniture Galleria
(6) as to her relationship with the applicant:
I have known Noah for about 16 years. He used to date my daughter, Chantal, but they broke up three years ago. He and Chantal have remained good friends, an[d] he has continued to visit my husband and I. Knowing Noah for so many years, I am of course aware of his past troubles with the law, although I have never acted as a surety for him. Over the past six to seven years, Noah appeared to have left his prior life behind and began to invest in real estate and was working with his uncle’s shipping and receiving business in Dubai. I was very impressed with his turnaround, and began investing in his business.
(7) as to the release plan:
I have met with the other proposed sureties, Yemane Weldemenkerios and Frank Eyitene, and I agree with the plan of release being proposed, where Noah will reside and work with Yemane and always be in the presence of a surety, except for emergencies.
[39] In her testimony before Justice Ricchetti, Ms. Forde provided this information:
(1) since the relationship between her daughter and the applicant ended 3 years earlier, she has seen the applicant on average once every one or two months
(2) in the time period 2007 to 2014, she believes that the applicant had his own business, was involved in real estate and worked with his uncle in Dubai
(3) she did not know where the applicant’s business, Urban Marketing, was located and when asked the type of business, the witness stated import and export but she was not certain
(4) she was aware that the applicant had been to Dubai a number of times
(5) asked what kind of vehicle the applicant had been driving in the past 3 years, the reply was, “Most of the time he had a rental…[l]ike an SUV” and though she did not know the type, it was not a Range Rover or Land Rover
(6) she had no suspicion that the applicant had any involvement with drugs or guns
(7) the witness did not know the names of the applicant’s friends or that he owned a condo at the Ritz Carlton in Toronto.
[40] In the present hearing, Ms. Forde testified that she met the applicant through her daughter. She knew of the applicant’s company, Urban Marketing. She was of the view that the applicant was “making good money” although she had not discussed his income with him. She was uncertain of the nature of the applicant’s business with his uncle in Dubai – it was import/export and it might include turning trash into oil. Ms. Forde believed that the applicant’s family was doing well in Dubai.
[41] Ms. Forde testified that in September 2010 she signed a vehicle lease for a 2010 Range Rover with Budds’ Imported Cars. Her daughter selected the vehicle. The applicant was there at the time. Chantal did not have good credit. Ms. Forde made a $10,000 downpayment from her CIBC line of credit. Ms. Forde only drove the vehicle a couple of times. The monthly cost of the lease was $1,622.14 paid out of her BMO bank account. The vehicle was driven by her daughter and the applicant who provided her money to make the lease payments. When Chantal was out of work, in August 2012, Ms. Forde terminated the vehicle lease and it was assigned to another party (Jahangard) who she did not meet.
[42] The witness was aware that the applicant had properties other than the South Beach condo development in which she invested through him drawing $40,000 against her CIBC line of credit. The March 2, 2015, Forensic Accounting Report prepared for the Peel Regional Police Provincial Asset Forfeiture Unit (the Report) filed in this hearing reports that the applicant’s TD Canada Trust bank account # 1482-6250281 had a source credit of $40,000 from Roxanne Forde. The Report also discloses that the applicant’s TD Canada Trust bank account # 1482-6228693 received a source credit from Roxanne Forde of $43,140. Ms. Forde was not cross-examined in this hearing on this second payment not disclosed in her affidavit.
Yemane Weldemenkerios
[43] In his February 16, 2015 affidavit, Mr. Weldemenkerios provided this information:
(1) he is a 26-year old landed immigrant, without a criminal record, who came to Canada 4 years ago
(2) he was born in Eritrea and then moved to Uganda before coming to Canada
(3) he has been residing alone in Kitchener and is a self-employed carpenter installing kitchen cabinets with his work hours varying according to the project on which he is working
(4) as to his relationship with the applicant:
Noah and I are family. We are related through our grandmothers. I have not had much personal contact with Noah since I came to Canada. However, I have spoken regularly with Noah’s mother, and that is how I became aware of Noah’s current legal situation. I would like to assist Noah by acting as his surety.
(5) he is “hoping to live in Mississauga” with the applicant if Roxanne Forde finds an apartment near her Mississauga home
(6) “I would like [the applicant] to live with me in the apartment at 89 Greylawn Crescent”
(7) he would like to teach the applicant “about carpentry” and to have him work and assist him in his business
(8) because his business is relatively new, he expects to earn somewhat less than $35,000 this year
(9) he is not wealthy, with most of his savings invested in his business, but can pledge the value of his truck ($17,000) and its upgrades ($2,000).
[44] In the current hearing, Ms. Weldemenkerios was cross-examined upon his affidavit and provided these facts:
(1) he is a self-employed carpenter who speaks basic English
(2) he currently resides with a cousin in Kitchener and works generally in Mississauga
(3) for his work, which is Monday to Friday, he ordinarily leaves Kitchener at about 5:00 a.m. to arrive at a Mississauga job site by 7:00 a.m. where he works until about 4:00 p.m., when he then goes to a gym at Lawrence and Victoria Park, getting home “a lot of times” at about 8:00 p.m.
(4) he is considering a residential move to Mississauga and has arranged appointments to see some available apartments where he might live with the applicant
(5) while his grandmother and the applicant’s grandmother are in some way related, those women are not sisters – he is a “distant relative” of the applicant
(6) asked about the reference in his affidavit regarding an intention to live with the applicant at “89 Greylawn Crescent”, the affiant gave this evidence in cross-examination:
Q. In your affidavit, you mention 89 Greylawn Cres. What is that?
A. It is a location in Scarborough. It is a basement. I discontinued living there because I had some allergy reaction.
Q. In your affidavit, you said you would like [the applicant] to live with you at that apartment?
A. Yes, if we agree.
Q. I’m sorry?
A. If there is an agreement, yes.
(7) in re-examination, the affiant claimed that he had not lived at the Greylawn location but that it was a basement under renovation which he had considered moving to
(8) as to the depth of contact he has with the applicant:
Q. You said you have not had much personal contact with [the applicant] since you came to Canada. Is that correct?
A. Since I came to Canada, I saw him once with his mother and after that I have been busy with my life…
Q. In fact, you’ve only seen him once. Isn’t that correct since you’ve come to Canada?
A. That’s right.
(9) the affiant was unaware until 6 or 7 months ago that the applicant was in jail – he learned from the applicant’s mother who asked him to be a surety for her son’s release
(10) he was unaware until this hearing that the applicant’s mother was also charged with money laundering
(11) he is prepared to offer to have the applicant work with him – he would try to teach him some carpentry skills and “if he doesn’t like the job, he can quit at any time”
(12) although the affiant was of the view that he could best supervise the applicant on release if GPS monitoring was available, he realistically acknowledged the following:
Q. You don’t really know Mr. Kahsay at all and what type of a person he is, correct?
A. That is correct.
Frank Eyitene
[45] According to Mr. Eyitene’s affidavit:
(1) he is a 61-year old Canadian citizen with no criminal record
(2) he is employed 25 to 30 hours a week as a realtor with Royal LePage Signature Realty in North York earning about $70,000 a year
(3) as to his relationship with the applicant:
I have known Noah for about 5 years. I met him through his mother and other mutual friends. At that time, Noah was getting involved in the real estate business. Over the years he sought my advice periodically about the market or individual properties he was considering investing in. Noah has always been extremely respectful to me and I came to like him very much.
(4) as to supervision of the applicant were he ordered released:
If I am allowed to be a surety, I intend to be quite active in my supervision of Noah by checking up on him frequently. If Yemane ever needed to travel, Noah would be welcome to stay with me. I would offer to have Noah stay with me full time, but my work sometimes requires me to be out late, and since Noah will be working with Yemane, it makes sense to stay with him as well.
(5) the described assets of the affiant permit him to pledge up to $250,000.
[46] When questioned in the January 2014 bail review hearing, Mr. Eyitene provided this information:
(1) he came to know the applicant through the applicant’s mother and others – he speaks to the applicant’s mother at least twice a month
(2) he had met the applicant at a party or social occasions – they spoke “about real estate or whatever” and he gave the applicant advice
(3) as to the frequency of their contact:
Q. How often would you see Mr. Kahsay in the five-year period … How often, once a month, once every two months, once every six months?
A. No, no, not once a month or twice a month we are not that, not that—
Q. Well, once every two months? Just approximate. I do not exactly expect specific dates, but once every two months, once every three months, once every six months?
A. No, I do not think. Maybe -- I will not say maybe once a year or two years, or something like that.
Q. Once a year?
A. Or once or twice, something like that.
Q. Okay, well, let us ask – I am going to ask you this, over a five year period how many times have you actually been in the presence of Mr. Kahsay and spoken with him, how many times?
A. Probably before this.
Q. Over the five year period that you say you have known him –
A. Yes, h’hm.
Q. – how many times have you been present with Mr. Kahsay and spoken to him?
A. Maybe five times.
Q. So once a year?
A. Yes, something like that, yeah.
Q. How many times were you actually physically present and speaking to him in those five times over the five years?
A. Five times, I would say maybe three or four times.
(4) the witness was surprised to learn of the drug and gun allegations against the applicant
(5) he knew none of the applicant’s associates
(6) he was unaware that the applicant had travelled to Dubai a number of times
(7) as to the depth of his familiarity with the applicant:
Q. You really do not know this guy do you?
A. No, but I will not say I do not know him, but I will on the other hand, whenever I speak to him he is very respectful. You know, like given that respect and I do not know in depth, yes, but from the way he talks to me and the way he presents himself to me I feel like, oh he is like a son to me, but looking for advice.
(8) as to the witness’ knowledge of how the applicant made various condo purchases:
Q. So you really have no idea how he earned any money to make these purchases?
A. You know what, no, I do not.
Q. Okay.
A. Absolutely not.
Q. So you did not know whether it was legitimate from working hard or illegitimate from working hard selling drugs and guns?
A. I have no clue at all.
(9) in terms of his commitment to being a surety:
Q. And you are prepared to pledge up to $250,000 in respect of Mr. Kahsay on the basis of meeting him once a year, five times and not knowing all these other things about him; his connection to Dubai, the Winnipeg connection, and the use of false identification? You are prepared to still do that?
A. Yes and no, you know, you know like, yes.
THE ELECTRONIC MONITORING PROPOSAL
[47] Stephen Tan, a principal of Recovery Science Corporation (RSC), provided an affidavit and testified on behalf of the applicant. The business provides electronic monitoring services “for individuals involved in the justice system and subject to conditions imposed by courts regarding their whereabouts and conduct.”
[48] In simple terms, a bracelet affixed to a subject’s ankle is GPS-monitored by RSC allowing the monitoring station to track that person’s location and movements. Exclusion zones and time schedule limitations can be designed for the circumstances of a particular case, which, if contravened, set off an ‘alert’ which may result in the police being contacted by RSC immediately with particulars of the subject’s last known location, the time of that location and the nature of the identified non-compliant event.
[49] RSC charges a client $500 for court testimony whether or not judicial release is ultimately granted. There is a bracelet installation fee of $250 and monthly monitoring fee of $540 plus HST.
[50] On Saturday, March 14, 2015, two days before this hearing, Mr. Eyitene signed an agreement with RSC to be primarily responsible for all payments relating to the applicant’s enrollment in the program should he be ordered released on bail. As well as Mr. Eyitene, the applicant and Ms. Forde and Mr. Weldemenkerios signed a document accepting payment responsibility on a joint and several basis.
[51] In addition, the prospective sureties in this case signed a Surety Cooperation Agreement with RSC including details of the “voice identification procedure” relating to surety call-ins when the bracelet-wearer is leaving a set and defined location with his surety.
[52] On March 16, the date of this hearing, the applicant signed an RSC Participant Agreement to be subject to the operational terms and conditions of the company for GPS-monitoring at his own expense.
[53] Once the electronic monitoring device is installed and satellite-tracking is established, RSC views its reporting relationship to be with the police and the Crown not the accused or his/her counsel. Where requested by police, direct access can be given for the police to have real-time access to the monitoring software. This permits the police to independently conduct electronic monitoring surveillance of the subject. A reporting protocol and an ongoing compliance reporting arrangement is established in accordance with the instructions of the officer in charge. RSC proactively calls any unexpected or suspicious activity to the attention of the police.
[54] Mr. Tan described RSC’s service as a risk management tool. It is highly effective but not foolproof. It is a tool with limitations and some risk of failure.
[55] The ankle bracelet system allows the RSC system to actively record the subject’s location once per minute and the cellular data system to communicate recorded data location to the central monitoring system every ten minutes. The delivery of an alert to the central monitoring system and in turn to RSC may be subject to delay or failure if the bracelet is in an area with poor or no cellular data signals or if there is a delay or failure in the systems carrying the data from the bracelet to the central monitoring system. For example, GPS reception can be interrupted when a bracelet is in an underground subway system or inside a large building, underground, “or in a dense urban canyon environment”.
[56] According to RSC, “[a]ssuming the involved communication systems are all working normally, which will be true the vast majority of the time, but cannot be guaranteed, alerts are received by RSC staff within 1 to 10 minutes from the time of the event giving rise to the alert”. Once an alert is received, RSC takes immediate steps to determine whether it “can be resolved as a technical alert (i.e. confirming that no violation is occurring)” before contacting the police. “While the call to the police will in most cases occur in less time, we urge decision-makers to conservatively assume that a call to the police would occur within between 10 and 30 minutes of RSC receiving the alert”. Tampering with an installed bracelet, for example cutting the rubber ankle band, will disrupt the internal fibre optic current resulting in a communicated alert to RSC.
THE PROPOSED RELEASE PLAN
[57] The proposed release plan in the January 2014 bail review hearing was for the applicant to reside with Ms. Forde. As filed here in advance of the hearing in accordance with Rule 20, the plan was for the applicant to live with Mr. Weldemenkerios. During oral argument, the recommended release plan was switched once again to the applicant residing with Ms. Forde with supervision to be augmented by electronic monitoring with RSC.
[58] The proposed terms of release submitted to the court are:
Reside at 1274 Alexandra Avenue in Mississauga with your surety, Roxanne Forde.
Obey all rules of the household.
Remain in your residence at all times, except in the direct company of a surety, and only between the hours of 5 a.m. and 8 p.m.
The accused shall, at his own expense, be subject to GPS monitoring by Recovery Science Corporation (RSC), which shall include:
a. Entering into RSC’s Participant Agreement and complying with its terms;
b. Wearing a GPS ankle bracelet at all times;
c. Permitting RSC to install supplementary equipment as necessary and to inspect, replace and maintain equipment as it deems necessary;
d. Complying with RSC leave notification and battery charging requirements;
e. Cooperating fully with RSC staff.
- When outside your residence, you shall remain within the following boundaries:
a. Highway 6 to the west
b. Highway 35 to the east
c. Lake Ontario to the south
d. Highway 9 to the west of Highway 400, Highway 31 to the east of Highway 400, Highway 8 to the east of Highway 31 and Highway 7A to Highway 35
The accused shall not be within a 1 kilometre radius of Pearson International Airport, Billy Bishop Airport or any other airport within the abovementioned boundary.
You are not to use any telecommunication device, unless in the direct company of a surety.
POSITIONS OF THE PARTIES
The Applicant
[59] On behalf of the applicant, Mr. Grill submitted that the onus has been met of demonstrating why continued detention is unnecessary, having regard to all grounds in s. 515(10) of the Code.
[60] With respect to the primary ground of ensuring the applicant’s attendance for trial, counsel noted the significant pledge of the sureties exceeding $300,000 as placing a great deal at stake for them and the applicant. The applicant was born in Eritrea and has been in Canada since he was one year of age. He is a Canadian citizen. He has no status in Dubai. There is no evidence that the applicant has access to individuals capable of providing a forged passport. As a relatively young person, even if convicted and subject to a lengthy sentence of imprisonment, he will be released to reside in Canada which is now his home.
[61] It was submitted that there is no real risk of flight in this case with the proposed plan of strict conditions to be monitored by three good and sufficient sureties assisted by the reliable risk management option of electronic monitoring. This reduces flight to a remote possibility.
[62] As to any secondary ground concerns of a substantial likelihood of the commission of further criminal offences if released, this would be speculative on the record here. There has been no misconduct from the jail since the September 2013 arrest. The prior record is dated. While the investigative evidence discloses the commission of sophisticated crimes including false documents and identities, use of couriers and an active hand in the alleged criminal operations, this does not necessarily translate to ongoing risk of involvement in further criminality. There is an offer of employment for the applicant.
[63] It was further argued that in any event, with the proposed plan of release, the applicant will not simply be left to his own devices. With the significant pledge by committed sureties and the 24/7 supervision of electronic monitoring, and a condition prohibiting the use of telecommunication devices, there is no realistic prospect of further crimes being committed unless a surety was “in cahoots” with the applicant. Because the sureties here are not family or necessarily close friends, there is no competing influence for commitment to their surety responsibilities. In these circumstances, there is “nil” chance of criminal involvement.
[64] With respect to the tertiary ground as to whether continued detention is necessary to maintain public confidence in the administration of justice having regard to all the circumstances including the enumerated factors in s. 515(10)(c) of the Code, it was submitted that, on balance, the applicant has shown that this consideration is not an impediment to release on bail. While conceding for the purposes of this application that the prosecution has a strong case respecting the applicant’s involvement in multiple very serious crimes which, if convicted, might attract a lengthy prison sentence in the 8 to 10-year range, it was submitted that there was nothing extraordinary about the circumstances of the alleged criminality and there was not the “something more” required to trigger the tertiary ground.
[65] Counsel described the tertiary ground as a narrow consideration to be used sparingly by the courts. The issue must be seen from the viewpoint of a reasonable, dispassionate and informed member of the community knowledgeable about the relevant facts and the purposes of the bail system which would here include the nature of the proposed close supervision of the applicant if released.
[66] Mr. Grill further emphasized the continued operation of the presumption of innocence, the fact that the applicant is the only accused person in this case who is not on bail, the lengthy time in custody to the preliminary inquiries, and the valid interest of the applicant being released in order to earn income to assist in his defence.
The Crown
[67] On behalf of the Crown, Mr. Bond submitted that the applicant has failed to discharge his onus on each of the primary, secondary and tertiary grounds all of which are relevant to the issue of the applicant’s continued detention.
[68] With respect to the primary ground, Crown counsel noted the applicant’s use of an alias and apparent access to false identification. Fraudulent documents were utilized in many of the alleged financial crimes. The applicant has a business connection to Dubai and family there. The prospect of a sentence of 10 years or more if convicted is itself an incentive to flee.
[69] It was submitted that the release plan, described as weak and shifting, is a poor guarantor of attendance for trial. Counsel noted that the sureties, who really have little knowledge of the applicant, are simply not realistically in a position to exercise influence or moral persuasion over him. The proposed sureties have had little contact with the applicant and do not know his associates. The bracelet monitoring proposal does not cure the deficiencies in the qualities of the sureties as reasonably adequate supervisors. In any event, it was submitted, with the limitations of the GPS monitoring, it cannot be easily said that the applicant would be unable to cut off the bracelet and leave the jurisdiction undetected using false identification.
[70] As to the secondary ground, it was submitted that the evidence gathered in the police investigation strikes a picture of the applicant as a complex person who, over a lengthy period of time, adopted an ongoing lifestyle of engaging in wide-spread criminal activity. Large amounts of cash were diverted. There was no real evidence of legitimate employment or income. The prior criminal record reflects similar criminal activity. It was said that this is the lifestyle the applicant knows and is likely to try to continue in some measure if released. Given the breadth of the applicant’s illegal operations, there is a world of unidentified associates out there. The applicant has expertise in sophisticated, deceptive and clandestine activities which, given the weakness of the proposed release plan, would undoubtedly continue compromising public protection and safety.
[71] Mr. Bond submitted that with a very strong prosecution case involving many serious and sophisticated crimes, likely to attract a penitentiary sentence of 10 years or more, the tertiary ground is properly a concern for the court. Public confidence in the administration of justice would be negatively impacted by pre-trial release of an individual who has been so obviously involved in a breadth of serious criminal activity and who has been convincingly caught and likely to be convicted.
ANALYSIS
[72] In the OCJ, the applicant consented to a detention order. The reason is not apparent on the record here. As a result, this court does not have the benefit of a reasoned judicial determination of the judicial interim release question to review. It strains the notion of “review” when this court merely has an order of detention. There can be no error of law or principle to review and, given the lack of a record at the point when detention was consented to, the measure of changed circumstances is not possible.
[73] With no question having been raised of this court’s jurisdiction to conduct a review in these circumstances, it was agreed that the applicant nevertheless had the burden of production and persuasion in this application.
[74] Despite the onus being upon the applicant to satisfy the court that his continued detention is no longer justified, it is important for the court reviewing bail status to have regard to certain factors including:
(1) the applicant is presumptively innocent
(2) the evidentiary record involves allegations as yet untested within the adversarial system
(3) pre-trial custody is in effect a kind of punishment exacted without a trial-finding of guilt.
[75] Counting against the likelihood of the applicant being a flight risk are such factors as his Canadian citizenship and 30 years of living in Canada, the lack of any record of failing to appear for court proceedings, his ability to work and intention to be employed, the commitment to plead not guilty and to defend the charges at trial, the exposure of his sureties to risk of loss, and the presence of his mother in this jurisdiction. Countervailing factors include the following:
(1) the applicant, although a Canadian citizen and resident here most of his life, makes no reference in his affidavit to having family ties in this country – in the applicant’s January 2014 affidavit, and on the basis of extrinsic evidence in the record, there is reference to his mother (a co-accused in the conspiracy to launder proceeds of crime and fraud allegations), and to his cousin Mario who sought to indemnify a prospective surety in the prior bail review
(2) although not findings of guilt for non-attendance at court, there is a history of non-compliance with court orders in terms of 5 Youth Court dispositions involving breach of court orders, and in the context of the current charges, an allegation of breach of a weapons prohibition order
(3) in terms of employment history, acquired skills and the like, the record cogently suggests a lengthy history of unlawful activity including the use of Urban Marketing as a vehicle to further money laundering objectives
(4) on the evidence, the applicant has used an alias, travelled within Canada under a false identity with supporting papers, engaged in financial crimes in which false documents were uttered, engaged in counter-surveillance and other measures to evade the police – all demonstrating a significant level of dishonesty and commitment to deception to avoid criminal detection
(5) the applicant has stated that he has no assets which have not been seized – given the demonstrated breadth of criminal activity, and his utilization of cash, it would be naïve to think that additional unrecorded cash assets do not exist to support a flight initiative
(6) the applicant has travelled to Dubai in the United Arab Emirates on numerous occasions (a country with which Canada has no extradition treaty), has an uncle there and a 13% stake in a business operated from there, and at the time of his arrest was in the process of renewing his residency card there
(7) if convicted after a trial of even some of the charged offences, and having regard to the fact that 27 of the counts carry mandatory minimum terms of imprisonment, the applicant is facing a lengthy period of incarceration.
[76] On balance, subject to review of the proposed release plan discussed below, the applicant has not, on balance, established that he is not a flight risk and therefore a person unlikely to appear for trial.
[77] Turning to the secondary ground, factors favouring the applicant’s position include his stated commitment to be employed and to sell his share in his uncle’s company to help fund his defence, the length of time since the applicant was last before the courts, and his recognition of the risk of loss to his sureties. In the balance, these factors must be considered:
(1) the record here exposes the profile of an individual living a relatively lavish existence over a significant period of time with no real commitment to lawful employment or lifestyle
(2) between the ages of 16 and 20, the applicant has 15 findings of guilt/convictions including 5 C.D.S.A. offences and 3 firearm-related offences – very much the substance of many of the current allegations
(3) in addressing whether the prior criminal record is stale or dated and of minimal relevance, these factors are to be considered:
(a) the cluster of 2003 convictions in adult court had to be serious matters to result in a 20-year-old, following pleas of guilt, being sentenced to a penitentiary term of imprisonment
(b) the applicant was paroled in 2005 after which there is little evidence of stable employment and indeed the financially-related charges extend back into 2006, 7 years back from the date of arrest – a time period also including the 2007 incorporation of Urban Marketing with its history already described
(4) on the evidence, the threat of a s. 117.01(1) charge did not deter the applicant from further involvement with firearms
(5) the applicant has demonstrated expertise in deception and stealth in the commission of criminal activity, an attribute capable of manipulating even well-intentioned sureties.
[78] On balance, the record here does raise a substantial likelihood of the commission of further crimes should the applicant be released.
[79] The tertiary ground is a serious consideration on the facts given the following factors:
(1) even without the defection as yet of co-accused persons to plead guilty and testify as prosecution witnesses, as reasonably acknowledged by the defence, the police and Crown have assembled a strong case – this is particularly so in light of the intercepted communications and physical surveillance
(2) the offences charged are serious, in terms of their number, time span, gravity, and the maximum permissible penalties for serial trafficking of cocaine, and the trafficking of firearms capable of inflicting lethal violence
(3) the circumstances of the offences are alleged to include a recidivist in respect of C.D.S.A. Schedule I substances and firearms trafficking, with commercial-scale cocaine trafficking in more than one province, the employ of others as couriers or nominees in illegal activities, and the reaping of enormous financial compensation from these criminal activities – criminality with very significant costs to the community to investigate and prosecute
(4) in the absence of acquittal on a significant number of charges at trial, or pleas of guilt with testimony provided on behalf of the prosecution, the applicant very likely faces a term of incarceration, even accounting for the totality principle, of at least 12 years – a number of the charges faced carry mandatory minimum sentences of imprisonment.
[80] Mr. Grill is correct that a consideration of all the circumstances in evaluating the relevance of the tertiary ground can include review of the delay to trial, the judicial interim release status of like-positioned co-accused with roughly similar antecedents, and the funding of full answer and defence. These factors do not play significantly on the facts here. The causes of any delay in the OCJ, such as it may be, are not evident in the record here nor the applicant’s contribution to any such delay. His sequence of back-to-back preliminary inquiries commences in just 109 days with the availability of further review of bail status at the conclusion of a preliminary inquiry pursuant to s. 523(2)(b) of the Code. The co-accused Harrison had no prior criminal record, fewer charges, and was released under the supervision of close family members. The applicant’s proposed release to work at low wages as a carpenter’s helper, with no related skills, is not a weighty consideration.
[81] In any event, on balance, I am satisfied that the applicant has met the onus of demonstrating that public confidence in the administration of justice, and in particular in the bail system of pre-trial release, would not be shaken if admission to bail were otherwise appropriate in the circumstances of this case.
[82] The question next to be addressed is whether the proposed release plan is of such a nature as to reduce, to a tolerable level, the risk of flight as determined by this court and what is a substantial likelihood of the applicant committing further crimes if released from custody.
[83] Turning initially to the applicant himself. In my view, the applicant’s affidavit exaggerated the relative closeness he has to his three potential sureties describing Ms. Forde as “a close friend” with whom he has “stayed close”, Mr. Eyitene as “a close family friend” with whom he has “grown closer”, and limiting the description of Mr. Weldemenkerios as “a relative”. On the evidence accepted by the court, I am unable to accept the characterization of Ms. Forde as a close friend as opposed to the mother of his girlfriend of four years ago and an investor in one of the applicant’s condominium investments. I find as a fact that there is no close relationship between the applicant and Frank Eyitene. I note that the paragraph in the applicant’s current affidavit referring to Mr. Eyitene is virtually identical to that in his January 2014 bail review except that the prior reference to “we have grown close” is now articulated as “we have grown closer”. While little is known of Mr. Eyitene’s relationship to the applicant’s mother in terms of friendship, the evidence certainly does not support the applicant and this proposed surety being “close”. Finally, Mr. Weldemenkerios is at best a “distant” relative – one sufficiently distant that the familial relationship remains unclear.
[84] As an experienced criminal lawyer, Mr. Grill ensured that the prospective sureties were properly briefed as to their obligations as sureties, the nature of the charges and the related allegations, and the applicant’s prior criminal record. At various times, the proposed sureties have sworn that they are not being paid to act as sureties.
[85] Roxanne Forde, though eager to act as a surety, struggled in many respects in her evidence to suggest she was familiar enough with the applicant to discharge a surety obligation. On the evidence, since the breakup between Ms. Forde’s daughter and the applicant, she may have seen the applicant as few as six times a year. Ms. Forde invested $40,000 in the applicant’s business which may be lost. There is evidence that she made another payment to the applicant of about $43,000. Although she was instrumental in obtaining a lease in her name for a Range Rover to which she knew the applicant had access in 2010 to 2012, she testified before Ricchetti J. that the applicant was not driving a Range Rover or Land Rover in the three years prior to January 2014.
[86] Ms. Forde did not know the names of the applicant’s friends. Her view, that the applicant had left his past life behind in the last six or seven years, is at odds with the evidence gathered in the police investigation. She knew little about the nature of the applicant’s business here or in Dubai. On her evidence, she had no idea that the applicant owned a residence at the Ritz Carlton in Toronto.
[87] Although Ms. Forde is at present not employed beyond part-time work in her own business, she is actively looking for outside employment which, when attained, will take her out of the house on a full-time basis.
[88] Mr. Eyitene’s evidence that he views the applicant like a son and that he is prepared to pledge $250,000 against his own assets to help secure his release is, to say the least, tending toward the bizarre. He has only ever spoken to the applicant on a handful of occasions and has only met him on three or four occasions in person. Mr. Eyitene, a resident of Toronto, knows none of the applicant’s associates, has no idea how the applicant funded various condo purchases, and had no idea that the applicant had travelled to Dubai numerous times.
[89] With respect to Mr. Weldemenkerios, he appeared to be somewhat of a straw man put up to ensure that the applicant could be seen to have an offer of employment. His affidavit suggested that he would live with the applicant at 89 Greylawn Crescent. This is a Scarborough address, closer than Kitchener, but not directly proximate to his work in Mississauga. In cross-examination, the affiant stated that he had lived at that address at one point. In re-examination, he maintained that he had never resided at the Greylawn address. In his affidavit, Mr. Weldemenkerios stated that he lived alone, while in his evidence before this court he stated that he was residing with a cousin in Kitchener.
[90] Mr. Weldemenkerios’ affidavit states that he and the applicant “are family” and that while he has not “had much personal contact” with the applicant, he has “spoken regularly” with the applicant’s mother. There are difficulties with these representations. The affiant’s and the applicant’s grandmothers are said to be related in some way the affiant could not describe – under cross-examination, the position became that the applicant was a remote or “distant” relative. Again, under cross-examination, the “not much contact” issue was reduced to the affiant having met the applicant only once in the four years that he has been in Canada. Insofar as regularly speaking to the applicant’s mother since coming to Canada, that assertion is also problematic given that the applicant has been in custody for one and a half years and yet, on the affiant’s evidence, he only learned of this fact six or seven months ago.
[91] In assessing Mr. Weldemenkerios’ credibility, I have made every allowance for the fact of the limitations of his fluency with English and for the fact that he testified through an interpreter.
[92] A reality of the bail system, and the need for sureties to supervise an accused’s release on a recognizance with conditions, is that some accused persons may find themselves hard-pressed to assemble good and sufficient sureties with the appropriate background, time, commitment, knowledge of the accused, lack of conflict, proximity to where it is proposed he will reside, or meaningful connection to direct and influence his conduct. The courts must adopt a reasonable and flexible approach in such cases. However, there are limits to the flexibility of the court in approving persons as sureties who present an unreasonable risk to successful enforcement of a bail order.
[93] While there is something to be said for Mr. Grill’s submission that the closer the relationship between an accused and his surety, the greater the risk, consciously or unconsciously, that the surety will bend or forgive in circumstances of non-compliance, there generally needs to be a real connection between a surety and an accused released on bail to provide the confidence necessary that the release order can be, and will be, adequately supervised.
[94] Although the proposed sureties in this case are prepared to pledge in excess of $300,000, and have stated under oath a preparedness to discharge surety obligations responsibly, there is no indicator that they have even spoken to the applicant in the past year and a half while he has been in custody, and in the two to three years preceding the applicant’s arrest they have had virtually no contact with him. Even factoring in the powerful supervisory risk management option of electronic monitoring, which is not without its own limitations capable of being defeated by an accused intent on doing so, the proposed sureties are entirely unsuitable to reduce the very real concerns respecting the primary and secondary grounds.
[95] In summary:
(1) the applicant has not shown on a balance of probabilities, that he is not a flight risk
(2) the applicant has also not demonstrated, on balance, that there is not a substantial likelihood that he would commit further criminal offences if released on bail
(3) the applicant’s proposed release plan does not reduce these risks to a level where it can be said that continued detention is no longer justified on the primary and secondary grounds.
CONCLUSION
[96] Mr. Grill said everything that could be said on behalf of the applicant given the record here.
[97] In the result, the application is dismissed.
Hill, J.
Released: March 20, 2015
COURT FILE NO.: DR(F) 09/14
DATE: 2015 03 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
NOAH KAHSAY
REASONS FOR JUDGMENT
Hill, J.
Released: March 20, 2015