R. v. Ibrahimi, 2015 ONSC 598

COURT FILE NO.: CR-15-00000019-00BR

DATE: 20150202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ABDOLRAHMAN IBRAHIMI
Applicant

Peter Campbell, for the Respondent

Tony Paas, for the Applicant

HEARD: January 22, 2015

SPIES J.

Introduction

[1] Mr. Ibrahimi brings this application for a review of the detention order made by Justice of the Peace Anstey on December 17, 2014 seeking an order that he be released on a recognizance with one or more sureties and conditions. The grounds for the application are two-fold; one, that the Justice of the Peace erred in principle in her reasons for detaining the Applicant and secondly, that there has been a material change in circumstances. On January 28, 2015, I denied the application with written reasons to follow. These are my reasons.

The Charges

[2] On December 9, 2014, Mr. Ibrahimi was charged with possession of opium, a Schedule I drug, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”); importing opium, contrary to s. 6(1) of the CDSA; unlawfully conspiring to commit the indictable offence of importing opium, contrary to s. 6(1) of the CDSA and s. 465(1) (c) of the Criminal Code of Canada and finally that he conspired to commit the indictable offence of possession of opium for the purpose of trafficking, contrary to s. 5(2) of the CDSA and s. 465(1)(c) of the Criminal Code.

[3] The amount of opium seized is significant; three five-kilogram packages of opium with a total weight of 15 kilograms. The opium was concealed inside three large metal gears, which were delivered via DHL courier from the United States and picked up by someone purporting to be a “Jeff Smith”. The RCMP investigation included a controlled delivery of the third package to a self-storage facility at which time Jeff Smith, determined to be Mr. Ibrahimi, attended to pick up the package. The owner of the storage facility identified Mr. Ibrahimi as the person he knew as Jeff Smith; who had given him cash earlier to pay for the shipment. The phone number provided by “Jeff Smith” to the storage facility was the same number Mr. Ibrahimi provided to police when he was arrested.

[4] When Mr. Ibrahimi’s vehicle was searched incident to arrest, drug paraphernalia was found including a plastic bottle that appeared to have been converted into a bong that contained some residue which the officer felt was consistent with opium, a mini propane tank, a baggie filled with additional bottle straws, some bent paperclips and a lighter, all of which the officer associated with the use of drugs. A search warrant executed at Mr. Ibrahimi’s home revealed a small quantity of opium estimated by the RCMP officers to be approximately two to three grams inside the pocket of a man’s leather coat.

[5] The person who sent these packages was named with an address in Iraq. Mr. Ibrahimi allegedly gave a statement to police stating that he had rented the locker with a friend named Jeff Smith whom he had not seen in two years but who had called him and asked him to pick the package up.

The Bail Hearing before the Justice of the Peace

[6] The bail hearing proceeded before the Justice of the Peace on December 17, 2014. It was a reverse onus hearing given the drug charges. The Crown provided the Justice of the Peace with Mr. Ibrahimi’s criminal record which was admitted for the purpose of the bail hearing. It notes a finding of guilt in 1997 from Rome, Italy for conspiracy to import heroin. The quantity of heroin is not known but the final sentence, as modified on appeal, was 10 years and 8 months.

[7] Mr. Osman Vahid-Volargho, a friend of Mr. Ibrahimi, testified before the Justice of the Peace in support of his pledge to sign a surety bond in the amount of $100,000. Mr. Vahid-Volargho has never acted as a surety for anyone before. He testified that he is a good friend of Mr. Ibrahimi and has known him for at least 20 years since they were in Canada. Mr. Vahid-Volargho was aware that Mr. Ibrahimi was in trouble for a period of time because he lost touch with him for four to five years in the late 1990s. He heard through friends and the paper that it had to do with drugs but he did not know any of the details. Mr. Vahid-Volargho has never known Mr. Ibrahimi to have any type of drug problem or other substance abuse problem. He said that Mr. Ibrahimi has his parents and brothers and sisters back in Iran.

[8] Mr. Vahid-Volargho works as a taxi driver during the day and his wife is a housewife taking care of their two children. She takes an English as a Second Language course between 10 a.m. and 1 p.m. each day and takes their young children to and from school. Other than that she is home all day. Mr. Vahid-Volargho testified that he has equity in his home, which he purchased 18 years ago, of about $250,000-$350,000, which would support his financial pledge and that his wife is aware that he is pledging this amount. The plan of supervision proposed to the Justice of the Peace was that Mr. Ibrahimi would live in his own residence with his wife and Mr. Vahid-Volargho would do his best to talk to Mr. Ibrahimi every day by phone, ask him where he was going to be working and visit him whenever he could. Mr. Vahid-Volargho was going to rely on his wife to ensure that Mr. Ibrahimi follows the rules. He lives a 10 to 15 minute drive from where Mr. Ibrahimi lives.

[9] Mr. Vahid-Volargho testified that he and Mr. Ibrahimi spend time together, they go out together and they talk to each other. They are from the same city in Iran but met in Canada. He sees Mr. Ibrahimi once, maybe twice a week, and he has been to his home and Mr. Ibrahimi has been to his. Mr. Ibrahimi was married in Iran about a year ago and his wife is now here and is pregnant. Mr. Ibrahimi and his wife now spend time with Mr. Vahid-Volargho and his wife. In October 2014 they went on a vacation together to Cuba.

[10] Mr. Vahid-Volargho testified that he almost treats Mr. Ibrahimi as his brother and that he trusts him family wise. He testified that if necessary Mr. Ibrahimi and his wife could live with them but it would be a tight squeeze.

[11] Mr. Vahid-Volargho gave some evidence which was inconsistent with his other evidence about his relationship with Mr. Ibrahimi. He said that he has some friends that he just talks to and has coffee with and he doesn’t ask many, if any, questions about what happened in their lives or what they did in Iran and that Mr. Ibrahimi fell into this “lighter” category. In the last while however, their relationship has become more intense as their wives are getting close.

The Reasons of the Justice of the Peace

[12] Before the Justice of the Peace the Crown raised concerns on the primary and secondary grounds. In her Reasons the Justice of the Peace noted that opium is a highly addictive drug and that 15 kilograms of opium is worth hundreds of thousands of dollars on the street. The Crown submitted that if sold on the street the quantity seized is worth $900,000. The Justice of the Peace found that the Crown’s case was strong at this point and considered the fact that Mr. Ibrahimi’s criminal record from his conviction in Italy was serious enough to warrant 13 years in jail that was brought down to 10.

[13] With respect to the primary ground, the Justice of the Peace found that if the allegations are borne out there is a fair amount of money that exchanged hands in terms of a drug deal of this magnitude and that as a result:

Even with giving up a passport, it still might be possible for Mr. Ibrahimi to be a flight risk, he does have family in another country, they (i.e. he and his wife) both do and have no reason to stay in this country if they don’t have to. I mean the temptation is great in terms of getting out of the country, facing what Mr. Ibrahimi is.

So I believe the primary grounds are credible grounds.

[14] The Justice of the Peace went on to find that on the secondary ground there was “clearly … a significant risk to the … public.” The only rationale provided was that “it is a well known fact that past behaviour is the best predictor of future conduct.” She concluded that given the weakness of the plan before the court that she could not release Mr. Ibrahimi because:

The supervision is not strong enough. If the surety had brought his wife and she said ‘while I’m home all day, I can keep an eye on him, he can come stay with us’, that’s a completely different thing. We know where he is, and we know what he’s doing. But this plan is not a strong plan for the level of risk to the … public.

The Evidence on the Bail Review

[15] Counsel agreed that the evidence given by Mr. Vahid-Volargho at the bail hearing applies to this application for review. Before me, counsel also relied on an affidavit sworn by Mr. Vahid-Volargho which confirms that he remains willing to sign a surety bond in the amount of $100,000. Two other sureties were proposed that I did not hear from who were prepared to pledge amounts in the $2,000-$3,000 range. Mr. Paas argued that they represent another set of eyes to supervise Mr. Ibrahimi. Mr. Campbell asked that they not be added if I grant the application as it would make it more difficult to estreat the $100,000 posted by Mr. Vahid-Volargho. He argued that given the amount these new sureties were proposed to pledge it was not much of a “pull”.

[16] Hajar Vahid-Volargho, Mr. Vahid-Volargho’s wife, also filed an affidavit. Although she does not propose herself as a surety, she swore that she recognized that her husband was risking her interest in the family home and that she was prepared to have Mr. Ibrahimi and his wife live with them, if that was what was ordered by the court, and help supervise Mr. Ibrahimi.

[17] Mr. Ibrahimi testified before me. He is 50 years old and came to Canada in December 1989 as a landed immigrant. He became a Canadian citizen three years later. He was a student at the time and obtained his high school diploma and then took a course to become an x-ray technician. When Mr. Ibrahimi left Iran his life was in danger. He admitted that the law has since changed and that he could return to Iran now without any problem. Mr. Ibrahimi admitted that in October 1996 he was convicted and incarcerated in Italy for about four years. He then came to Canada to serve the remainder of his sentence which he said was a further four months in custody. He testified that he was then moved to a halfway house and remained on parole until 2007. I note the Crown advised the Justice of the Peace at the original bail hearing that the warrant expiry date was July 2008. With respect to this conviction Mr. Ibrahimi took the position that he was in the “wrong place at the wrong time” and that he had nothing to do with the alleged offence and did not have any money or drugs on his person.

[18] Once Mr. Ibrahimi was released and after working at various jobs in retail, he started working as an interpreter in March 2007. He was certified in 2009 and now works for six to seven agencies translating three different dialects of Kurdish, Farsi, Turkish and Italian. In the past year he has worked in Toronto, Hamilton, Kitchener, Niagara Falls and Newmarket. He will go anywhere where the rate is reasonable and covers his travelling costs. He does not work in the courts save for traffic tickets but has other work involving accident benefits and doctor’s appointments, etc.

[19] Mr. Ibrahimi testified that over the past six months his average income per month from translation is between $500 and $1,500. He supplements this income by the fact that he is on disability and has been since 2007. As a result of his other income, some of his disability payments are clawed back.

[20] Apart from the addition of the two sureties who are friends of Mr. Ibrahimi and are prepared to pledge in the range of $2,000 – $3,000 each, it is now proposed that Mr. Ibrahimi would use an electronic monitoring bracelet provided by Recovery Science Corporation at a cost of $540 plus tax per month. When asked if he could afford this Mr. Ibrahimi testified that he would be able to get some help from his family back in Iran. He said that he has not yet asked his family to help but his wife did and he understands that if he asks they will send money. He testified that his family back home is running a jewelry business that is doing well so the amount of the monitoring would not be a “big amount” for them to pay. Mr. Vahid-Volargho said that if there was any shortfall in the ability to pay for the electronic monitoring bracelet he would be able to assist.

[21] Over the past five years Mr. Ibrahimi has been back to Iran three to four times. One trip was to get engaged and another was to marry in October 2013. His wife came to Canada five months ago; sponsored by Mr. Ibrahimi. She does not work and is pregnant. I understand that Mr. Ibrahimi has no children. Mr. Ibrahimi has no other family here. He rents an apartment and testified that he has no assets here save for $2,000 in an RRSP. His last car was written off in an accident and he has not yet replaced it. Apparently his case got some publicity and he does not know if his employment as a translator is still available. Mr. Ibrahimi denies having a drug problem and stated that he only takes medication for his disability.

[22] Mr. Ibrahimi’s Iranian and Canadian passports are with police and he was asked what he would need to do to get another Iranian passport. It was his evidence that he would not be able to get a new one without his old one and that he would have to go to an office in Pakistan or to the United States. He didn’t really explain how that would work if he had legitimately lost his passport or it had been stolen.

The Positions of Counsel

[23] Mr. Paas argued that the Justice of the Peace applied the wrong test when she considered the primary ground and that Mr. Ibrahimi has shown that there is no substantial likelihood that he would flee. He submitted that the possibility of a flight risk is not enough to justify detention on the primary ground, relying on the decision of R. v. M.A., [2011] O.J. No. 6599 (O.C.J.). In that case the accused was charged with sexual assault with a weapon and had been on bail and permitted to go to England to live pending his trial. He did not return to Canada for his trial and was extradited back to Canada and brought an application for judicial interim release. A surety with $100,000 was proposed who was going to provide a cash deposit of $5,000. The accused would be under house arrest and only be able to leave his home under very strict conditions. In that case the surety had already signed a participation consent form with Recovery Science Corporation and it was proposed that the accused wear an ankle bracelet. At para. 22 the court noted that the ankle monitoring would allay the concerns on the primary grounds for the four days a week when the surety and his wife would not be home. Significantly the court also noted that the time the accused had spent in custody most likely exceeded what he would receive if he were found guilty of a common assault.

[24] Mr. Paas also argued that there has been a material change because it is now proposed that Mr. Ibrahimi be monitored by electronic monitoring. In that regard Mr. Paas relied on the decision of R. v. N.J., [2012] O.J. No 6532 (S.C.J.). The Crown in that case raised the concern on the primary ground that Mr. Campbell has; namely if Mr. Ibrahimi removes his ankle bracelet he will have a head start and be able to disappear and eventually find his way out of Canada. The court in N.J. granted release on condition that the accused be within 500 metres of the residence unless in the company of a surety. She was also required to provide Recovery Science with 24 hours’ notice of the fact that she would be leaving the vicinity of her residence.

[25] Mr. Paas suggested that Mr. Ibrahimi be required to provide a work schedule to the surety who could get a report from Recovery Science as to where he had been. In reply Mr. Paas submitted that the surety could monitor house calls to deal with the communication issue raised. He also advised that any alarm could be set to go directly to the police.

[26] As for the secondary ground, Mr. Paas pointed out that Mr. Ibrahimi’s prior conviction was 17 years ago and that Mr. Ibrahimi was back in Canada by 2001 and has been out of trouble since that time. Part of that time was on parole and presumably he complied with all conditions.

[27] Mr. Campbell opposed Mr. Ibrahimi’s release on the primary and secondary grounds. He argued that the primary ground risk was “not entirely removed” in that if the ankle bracelet comes off, ten minutes could pass until a warning was sent to police. This would give Mr. Ibrahimi time to disappear and he would have a lot of places to flee to. He suggested Mr. Ibrahimi might be able to take an international flight. One could not expect cooperation with the Iranian authorities in not issuing a new passport to Mr. Ibrahimi. There is no extradition treaty with Iran so if he were to flee there is little or no prospect of getting him back to Canada. Mr. Campbell submitted that the risk is there because Mr. Ibrahimi does not have strong ties to Canada and does have a pull to Iran. The reason he fled Iran is no longer there and he has family there with a successful business and his wife was living there until recently. He has no family here, he is not making a lot of money here and he is facing a second lengthy sentence. With respect to the surety, Mr. Campbell argued that there is always a risk of indemnification when an accused is involved in international trafficking as the accused is likely to have significant assets.

[28] With respect to the secondary ground, Mr. Campbell argued that these types of packages containing opium can be delivered anywhere. It would not have to be a self-storage facility but could be a courier’s office or a coffee shop. This is the type of offence that is very hard to detect. Mr. Campbell also argued that when he asked Mr. Ibrahimi if he was addicted to any drugs there was a long pause before he answered. He also relied on the paraphernalia that was found in his vehicle as some evidence of drug use. If Mr. Ibrahimi is addicted to opium he would need money to support his habit.

[29] It was Mr. Campbell’s position that if I were to release Mr. Ibrahimi it would have to be with house arrest where someone could monitor not only Mr. Ibrahimi but also receipt of packages.

Analysis

[30] I accept that there is a material change by offering electronic monitoring as found in N.J. but only because the primary concern in this case is the primary ground and that of flight risk. This allows me to proceed by way of a de novo hearing.

[31] Detention may be justified on the primary ground if Mr. Ibrahimi’s detention is “necessary to ensure his attendance in court”. There are a number of factors to consider in determining this question. First of all, Mr. Ibrahimi has been charged with a very serious offence and the period of incarceration, if found guilty, will no doubt be long; I would expect at least as lengthy a sentence as the sentence Mr. Ibrahimi was given for his conviction in Italy. Given Mr. Ibrahimi has already been served a lengthy sentence, his exposure to another one will be all the more concerning to him. This is particularly so as the Crown’s case seems to be quite strong at this stage, bearing in mind the presumption of innocence and the fact that disclosure has not yet occurred.

[32] What is also of particular significance is the fact the Mr. Ibrahimi has no family here and has only his wife who came from Iran five months ago. Mr. Ibrahimi has no other family here and no assets here and his reported income is minimal. However, his parents and siblings and other family are in Iran and they have a successful jewelry business. I presume his wife’s family is in Iran as well. Although Mr. Ibrahimi has been in Canada for a long time he really has no roots here. There is no risk to him going back to Iran; his wife only just got here. In my view, the temptation to flea back to Iran would be powerful.

[33] I appreciate that Mr. Ibrahimi’s Canadian and Iranian passports are with police but I do not accept Mr. Ibrahimi’s evidence that he needs to have his Iranian passport to obtain another one. Clearly it must be possible to replace a stolen or lost passport. There is no Iranian embassy in Canada any longer and there are no diplomatic ties between Canada and Iran but Mr. Ibrahimi admitted that to get an Iranian passport you can go to the United States or an office in Pakistan. Mr. Ibrahimi has family with money in Iran and, as Mr. Campbell submitted, one could not expect cooperation with the Iranian authorities in not issuing a new passport to Mr. Ibrahimi. There is no extradition treaty with Iran so if he were to flee there is little or no prospect of getting him back to Canada.

[34] In considering the flight risk, there is the fact that Mr. Ibrahimi served the sentence from his Italian conviction in full, seemingly without any breach of condition. Furthermore, his friend Mr. Vahid-Volargho and his wife are prepared to pledge $100,000 and it seems that this money could be estreated from the equity in their home if necessary. Mr. Vahid-Volargho is a taxi driver and his income is modest. I accept that this is a very significant amount of money for them to pledge.

[35] Mr. Campbell argued that there is always a risk of indemnification when an accused is involved in international trafficking as the accused is likely to have significant assets. I have no information as to the value of the opium that was seized in bulk, but as the Justice of the Peace concluded, is in the hundreds of thousands of dollars. Significant cash or other consideration must have been exchanged for such a significant quantity of opium to be shipped to Canada.

[36] With this in mind what concerns me is the strength of the relationship between Mr. Ibrahimi and his wife and Mr. Vahid-Volargho and his wife. Accepting that they are getting closer now that Mr. Ibrahimi’s wife is here, given Mr. and Mrs. Vahid-Volargho’s financial circumstances it is difficult to see how their relationship, which is that of friends, not family, would cause them to legitimately risk such a significant sum of money. The circumstances do suggest the possibility of indemnification. There is no evidence, however, of Mr. Ibrahimi having an extravagant lifestyle-in fact the evidence is to the contrary. Accordingly, I have presumed that the surety is in fact pledging his own funds for the purpose of this review.

[37] In considering the risk of flight I have also considered the proposed release plan. It is not proposed that Mr. Ibrahimi be under house arrest and even if I were to order that and I directed that he and his wife live with his sureties, he would not be supervised 24/7. Mr. Vahid-Volargho is out for many hours during the day and his wife is out from time to time as well.

[38] What then is the impact of Mr. Ibrahimi wearing an electronic monitoring bracelet from Recovery Science? It would, as Mr. Paas submitted, give police a GPS trail so long as the bracelet was on and functioning. That is certainly an improvement from the plan put to the Justice of the Peace. However, since Mr. Ibrahimi will not be under strict 24/7 supervision under the proposed plan, if he were to remove the ankle bracelet he could, as Mr. Campbell argued, disappear and not be found by police. The device does not restrict his movements and would only tell police where he last was. As Justice Trotter stated in United States of America v. Ugoh, 2011 ONSC 1810, at para. 11: “Electric monitoring cannot prevent someone from absconding; it merely helps notify the authorities when the person has left.” (See also The United States of America v. Pannell, 2005 CanLII 22 (Ont. C.A.).)

[39] I recognize that the use of electronic monitoring has been accepted by the courts in certain circumstances. For example, Mr. Paas referred me to the case of R. v. Gilmore, [2014] O.J. No. 2531 (SCJ). However, in that case the court found that although there were primary ground concerns they were not as significant as they appeared to be.

[40] For these reasons I find that Mr. Ibrahimi still represents a significant flight risk under the new plan of release given the strong pull to Iran. I find that his detention is necessary on the primary ground.

[41] I turn then to the secondary ground which Mr. Campbell also relied on; admittedly it was not his primary concern. I accept his submission that with the proposed plan, Mr. Ibrahimi would still have the opportunity to engage in the importation of opium. It would seem he would need only a means of communication as places to accept delivery of parcels are abundant. The proposed supervision plan would not limit his communication nor do I see how that could be done. The bracelet would monitor his movements but no one would be suspicious about a trip to a coffee shop. The issue, however, is whether or not there is a substantial likelihood that he would commit a criminal offence. There is certainly evidence that Mr. Ibrahimi uses opium or some sort of drug. There is also the fact that he was convicted of this type of offence before. That said, if this were the only concern I would not detain Mr. Ibrahimi on the secondary ground as I am not satisfied, given the significant gap in his criminal record, that there is a substantial likelihood that he would commit a criminal offence if released under strict supervision terms.

[42] For these reasons, I find that Mr. Ibrahimi’s detention is necessary on the primary ground to ensure his attendance in court in order to be dealt with according to law. The application for review is dismissed.

SPIES J.

Released: February 2, 2015

COURT FILE NO.: CR-15-00000019-00BR

DATE: 20150202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ABDOLRAHMAN IBRAHIMI
Applicant

REASONS FOR JUDGMENT

SPIES J.

Released: February 2, 2015