ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-BR50000160

DATE: 20150714

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MOHAMED NUR HASSAN
Applicant

Daniel DeSantis, for the Crown

Rishma Gupta, for the Applicant

HEARD: July 13, 2015

Reasons for Judgment Re: Detention Order Review

M. G. Quigley, J.

Introduction

[1] This is a second Superior Court application for judicial interim release for Mohamed Hassan. He is 19 years old. In summary of the background to this application, I refer to the circumstances as described in the decision of Goldstein J. of April 7, 2015, denying the accused’s application for review and the granting of bail at that time.

[2] Mr. Hassan is charged with a very serious offence. He is charged with robbery with a firearm. The allegations, briefly, are that Mr. Hassan, along with two other youths, attended at 236 Albion Rd. in the City of Toronto and accosted the victim as he left the elevator. They chased the victim down a hallway while armed with a black handgun and attempted to rob him there. The victim was assaulted in the stairwell. An on-duty security guard happened to be walking by that stairwell, at which point one of the accused pointed the firearm at the security guard, who then fled.

[3] Threats were made to kill the victim. He was struck in the head and he was choked. He fought back. His keys were taken from him and he was eventually able to flee. Importantly, Mr. Hassan is identified through video surveillance, albeit not of the actual alleged assault, as one of the alleged perpetrators of this offence. I understand as well that there was an investigation where search warrants were executed during which clothing worn by the parties was seized as evidence.

[4] Goldstein J. noted that it did not appear that Mr. Hassan was alleged to be the individual who was carrying a firearm and pointing it at the victim, and that it is not known on the facts as he knew them at that time, or indeed as I know them today, whether the firearm turned out to be a real firearm or was an imitation firearm but of course, in neither case would that be relevant.

[5] Neither would it matter whether it was Mr. Hassan who was the person who used that firearm because even if he did not actually hold or use it, he would nevertheless be a party to the offence involving a firearm if it is proven, once he became aware of it, if he wasn't already aware of it, if he continued to take part in the robbery. So the fact that he may not have actually physically had the firearm during the robbery is of no significance relative to this application for a second bail review based on an alleged material change of circumstances.

[6] Of great importance, at the time that that offence was allegedly committed, Mr. Hassan was already on bail. He was on bail for a mischief offence allegation for taking his sister's automobile without consent. He does not have a driver’s license but apparently did take responsibility for taking the vehicle. He was released at that time on a consent release. So, when he was arrested on this armed robbery only two months after his release on the prior charge, the Crown sought to have his bail on the earlier charge revoked and was successful.

[7] He then came before Justice Goldstein in April in Superior Court for review of the revocation of bail that took place earlier. As noted, Justice Goldstein denied that application. He essentially concluded that the three sureties put forward as part of the proposed plan of release at that time could not provide an adequate level of comfort to the court relative to their ability to effectively keep Mr. Hassan under conditions of house arrest and to eliminate what Goldstein J. obviously perceived at that time, namely, that there was still a substantial risk of the accused re-offending if he were granted judicial interim release, and consequently, that it was necessary to detain him on the secondary ground.

[8] Now, once again he comes before me 90 days later on the basis of an alleged change of material circumstances, which it is said now justifies the granting of bail.

[9] As is evident from the proceedings, Mr. Hassan has a criminal record albeit one partially attributable to his youth. In 2012 he was convicted of robbery. He would have been 16 then. At that time he received a sentence of time served of 45 days long with 12 months of probation. He was also convicted of fail to comply with a recognizance for which he also received time served and probation that was concurrent. Then, in 2012 he was convicted of assault. He received a sentence of time served of 90 days and probation for 12 months.

[10] Defence counsel brings this application for review on the basis of alleged material change. At paragraph 4 of the application, it is stated that there has been a material change in circumstances of the applicant who has been in custody since February 18 and yet all of the other four co-accused have been released on bail, two as youths and two as adults. Further, it is noted that the preliminary inquiry is scheduled for six days starting on November 16, 2015 and running until November 23, 2015.

[11] Certainly, I would say first that the release of the other co-accused on bail is not a material change that has taken place here. They were all on bail at the time that the first application for review of the detention order was made before Justice Goldstein in April.

[12] The material change that is alleged is that the applicant has put together a plan with new sureties which defence counsel contends must alleviate any and all concerns that the court might have with respect to release of this accused into the community.

[13] The Crown, however, is opposed to this application and contends that the accused needs to continue to be detained in custody pending his trial on two grounds. First, the Crown contends that the proposed new plan of supervision put forward by the new sureties continues to be inadequate to actually ensure that the accused stays out of trouble pending trial.

[14] Further, the Crown submitted that those deficiencies do not address the public’s risk that the accused will commit another offence while on bail. In particular, the concern is that he would again breach terms of his bail having done so before, and that just as he has failed to abide by the direction of the parental figures in his life before now, so too there is no reason to think he will do so now, and that the escalating seriousness of his criminality calls for his continuing detention. The Crown argues that the there is no material change in circumstances and that this bail review application should be dismissed.

The Governing Legal Principles

[15] Section 515(10) of the Criminal Code spells out the only statutory grounds for the pre-trial detention of an accused. It states:

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

(a) 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, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including: (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[16] Defense counsel emphasized in her submissions that the Supreme Court of Canada has instructed in R. v. Morales that bail is not to be denied for individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Rather, it is to be denied only for those who pose a "substantial likelihood" of committing an offence, and only where that substantial likelihood endangers the protection of the safety of the public: see R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R.711 at para. 39.

[17] Further, as Gans J. described it in R. v. Walton, [2005] O.J. No. 48 at para. 11 (S.C.J.), the issue is not one of absolute certainty but rather whether or not there exists a reasonably manageable risk that if the accused is released into the community under the proposed plan, that the likelihood of re-offending is not substantial.

[18] Even in the most recent decision of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, 2015 S.C.C. 27 at para 56, the Supreme Court observed that a judge on a bail review must keep in mind that at this stage of the criminal proceedings the accused is still presumed innocent, regardless of the gravity of the offence, the strength of the prosecution's case, or the possibility of a lengthy term of imprisonment.

The Release Plan

[19] In the original plan of release, three members of Mr. Hassan's family were put forward as sureties, including his mother and an uncle. However, Justice Goldstein was not satisfied on that first review in April of this year that the sureties would be able to properly supervise Mr. Hassan, particularly given what Justice Goldstein observed appeared to be and what the sureties appeared to acknowledge, was an escalating pattern of violent behavior.

[20] Justice Goldstein reviewed the attributes of those other individuals put forward as surety as well, but concluded that the level of certainty required that the accused would not re-offend, that is that the comfort that there was no substantial likelihood of his re-offending was simply not present. It was not present because the sureties did not demonstrate that they had the degree of control over the accused that needed to be present for that comfort to exist.

[21] Now, on this new plan of sureties, two different individuals from the family are put forward. They are the applicant's uncle, Mr. Ahmed Abdi and his great aunt, Mrs. Fardowsa Warfa. Together the two sureties are prepared to sign bail for approximately $10,000. The plan proposes that Mr. Hassan would live with his uncle, Mr. Ahmed Abdi, along with his other 4 children. It is also proposed that he would work for his great-aunt, Mrs. Warfa, between the hours of 10:00 a.m. and 9:00 p.m. Monday to Sunday at the decorating and grocery business that she owns with her husband. The uncle, Mr. Abdi would drive him to the shop in the morning and Mrs. Warfa would drop him off back at Mr. Abdi’s residence after work. Ironically, I note that the address where it is proposed Mr. Hassan would live is the apartment building at 268 Albion Road, which is right next door to 236 Albion Road where the assault and armed robbery is alleged to have occurred.

[22] Defence counsel claims this plan allows for 24-hour supervision of the applicant. Further, both sureties testified that they are prepared to call the police if the applicant is not in the company of one of them at any time, and they are both prepared to contact each other throughout the course of the day in order to monitor the applicant's conduct. Effectively the two of them plan to serve together as his “jailers” under a strict house arrest bail regime. The attraction claimed to this arrangement is that it will permit the applicant to be gainfully employed in order to save money and in order to permit him to attend the Yorkville Adult School in the fall, where he claims he wishes to attend in order to continue to pursue his education.

Analysis and Conclusions

[23] The accused presently faces very serious criminal charges of armed robbery. An aggravating factor relative to that charge and the circumstances of the accused before the court is that he committed that offence while on bail from the earlier charge relating to absconding with his sister’s vehicle. However, it is a materially aggravated charge because of the presence of a firearm. While the incident is evidently not caught on building surveillance footage, the entry of the five accused just before the time of the robbery and their rushed exit from the building is fully visible on interior surveillance footage. Ms. Gupta helpfully pointed out that there are some gaps in the identification of the accused as one of the central assailants in the robbery, and that there may be some identification issues from the key witnesses, even though the video surveillance plainly shows the accused present in the group who are alleged to have perpetrated the robbery. So while one can never be certain that events will unfold perfectly from an evidentiary perspective, the Crown’s case is admittedly strong.

[24] In these circumstances, where the accused bears the onus of having to “show cause” justifying his release, the accused must satisfy the court that his detention is not justified. In relation to the secondary ground, more particularly, the accused must establish that his detention is not necessary for the protection or safety of the public, and that there is no substantial likelihood that, if released from custody, the accused will commit a criminal offence or interfere with the administration of justice. The release plan devised by the accused must persuasively address these issues.

[25] First, however, the accused must satisfy me that there has been a material change in circumstances since April of this year when his first application for judicial interim release in this court was dismissed. In order to re-open the decision of Goldstein J and have the matter determined anew, there must have been a material change in circumstances. As Justice Hill observes in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.J.) at para. 13, ordinarily, an error in principle or law or jurisdiction, or a material change in circumstances, is necessary to find interventionist scrutiny. He continues in part at paragraph 14:

On the other hand, while the party disappointed by the result in a show cause hearing cannot simply invoke review to acquire a fresh exercise of discretion or redetermination of factual findings, the "material change of circumstances" paradigm is not to be so narrowly applied to foreclose any periodic review of the detention status.

[26] In that case, as in this case, the notice of application pleads that the applicant’s circumstances have changed. In this case, two new sureties are offered in lieu of the three sureties previously offered before Justice Goldstein. The two new sureties, Mr. Abdi and Mrs. Warfa kept repeating, in response to questions asked, that if Mr. Hassan did not abide by the rules that they established and by the order that the court might see fit to grant if he were to be released, they would immediately call the police. They spoke in stern language and said that they would deal sternly with the accused, but I see no material change in the plan put forward at this time compared to that which was in front of Justice Goldstein.

[27] Both plans amount essentially to house arrest. The proposed members of the family who would serve as strict supervising sureties are different, and it may be that the proposed employment of the accused at his great aunt's business will provide more for him to do during working hours, but there is no material difference in my view between this plan and what was previously proposed. As in the Ferguson case, both of these individuals were available when the matter arose earlier, and could have served as sureties or been proposed as sureties at the time that the matter came before Justice Goldstein. I would conclude this point relative to an absence of material change by referring to paragraph 17 of Ferguson, were Justice Hill states in part as follows:

As to the first point, the advancement of fresh prospective sureties on a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply re-shuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment 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.

[28] In my view, not only do I find there to be no material change, but as well the accused has not shown cause why his detention is not justified on the secondary ground. I have a continued fear that there is an opportunity for him to re-offend that presents a substantial risk given his prior conduct, and given his prior disrespect and failure to abide by the terms of earlier court orders, and indeed to listen to the advice that members of his family have given to him. Thus, he has still not shown cause why his detention order should now be vacated. In my opinion, his detention remains justified on the secondary ground.

[29] There is no release plan that is perfect. It is not about the perfection of the release plan, because no doubt some might argue that the perfect release plan is one that effectively amounts to incarceration, and that is not what judicial interim release is intended to be. But whether to grant release will never be about the perfection of the release plan, but rather about the courts’ ability to have confidence that the accused can be trusted to abide by the plan at all times, whether within eyesight of his sureties or not, and whether supervised or not.

[30] In this case, I do not doubt the sincerity of the plan and the best wishes of the sureties, Mrs. Warfa and Mr. Abdi. However, it is plain to me that this plan is not materially different from the last, but simply involves two different sureties, two members of the family who are insistent under cross-examination that they will have the strength of character and control to ensure that Mr. Hassan abides by the terms upon which his release is now proposed, but who also acknowledged that after each of the past three offences were committed, they spoke with the accused, cautioned him and advised him and urged him to direct his life back in a law abiding direction, and each time he has assured them that he would do so. Each time as well, he has not, but has instead re-offended. Plainly, on their evidence, Mr. Hassan has not responded to the efforts that his family has made to try to turn him around. They talk to him, urge him to change his path, he promises he will, and then he re-offends.

[31] Thus, I do not have the confidence that he will abide by their direction on this occasion any more than he has in the past. Neither am I satisfied that either of them knows Mr. Hassan well enough to actually be in a position where they know what they are getting into. I fear that they are putting themselves at risk in this plan. The breach of prior bail conditions by re-offending in such a serious manner, despite the presumption of innocence, suggests that Mr. Hassan is more likely to be ungovernable and that I cannot be assured to the extent I require that the plan will succeed.

[32] In addition, while it is perhaps unnecessary to draw any final conclusions in this regard, I must say that I am also of the opinion that the detention of the accused is justified as well on the tertiary ground outlined in s. 515(10)(c) of the Criminal Code, in that his detention is necessary to “maintain confidence in the administration of justice.” In this regard, I note that: (1) the Crown’s case against the accused appears to be quite strong, at least in terms of the involvement of the accused, even if his precise role may not yet be known with precision; (2) the increasing direction of violence that seems to be attendant on his increasing criminality and the seeming presence of a firearm, even if it is not known whether it is real; (3) the circumstances surrounding the commission of the alleged offence, include the accused’s presence in a group that violently assaulted a person in the apartment building and threatened him with a firearm; and (4) that if convicted, the accused is liable to be sentenced to a significant term of imprisonment.

[33] I would note, finally, relative to the strength of the Crown’s case, that defence counsel makes reference to Justice Trotter’s decision in R. v. Dang, 2015 ONSC 4254, and his reference to the Supreme Court’s decision in St-Cloud, above, where Wagner J. observes that no matter how serious the allegations, and notwithstanding the potential penalty that an accused may face, detention based on a weak or doubtful case may tend to undermine confidence in the administration of justice, rather than maintaining it. I agree entirely with that sentiment, but it does not apply here, because in my view the Crown’s case here is neither weak nor doubtful.

Conclusion

[34] For these reasons, the application is dismissed. The detention order will remain in place. Of course, as time passes, and as more is learned about the case, if it becomes apparent that the strength of the Crown’s case changes, such a change in the circumstances may permit a further bail review application pursuant to s. 520(8) of the Code. But, for the time being, the detention order will remain in place.

M. G. Quigley, J.

Released: July 14, 2015