ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-A11424

DATE: 2015/11/02

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Moussa Osman

Applicant

H. Shouldice, for the Crown

G. Castle-Trudel, for the Applicant

HEARD: October 26, 2015

REASONS FOR JUDGMENT RE BAIL

Aitken J.

Nature of the Proceedings

[1] The Applicant seeks a review under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 of the Decision of Justice of the Peace Soulière, dated August 4, 2015, in which she detained the Applicant in custody pending trial under the secondary and tertiary grounds set out in s. 515(10)(b) and (c) of the Code.

[2] The Applicant takes the position that there has been a material change in circumstances since August 4, 2015. According to the Applicant, the disclosure received from the Crown reveals that witnesses saw only one gun at the time of the incident, which seems to have been held by someone other than the Applicant. During the original bail hearing, the Crown proffered evidence that the Applicant had a gun during the incident in question.

Background Facts

[3] The Applicant is 29 years old. He is unmarried and has one six-year old child. The child and her mother live in Toronto. The Applicant resided in Toronto following his release from prison in 2011 until he relocated to Ottawa in June 2015. While in Toronto, he worked as a forklift operator and then a personal trainer with Goodlife.

[4] The Applicant has been in custody at the Ottawa Detention Centre since July 14, 2015 after his arrest at a residence where one person was badly beaten and the Applicant suffered two gunshot wounds.

[5] The police synopsis presented at the original bail hearing was as follows. In June 2015, the Applicant moved back to Ottawa from Toronto and started to rent a room from Sophia Rochon, the tenant at 52 Lilas Private. On July 13, the Applicant had a party at this residence. Approximately 10 to 12 individuals were present, consuming alcohol and marijuana. One of those persons was the Applicant’s girlfriend, Brittany Kilbride. She got into an argument with Kurlan Lawrence. The Applicant intervened, and he and Mr. Lawrence went up to the Applicant’s bedroom. A struggle occurred in the bedroom. When Ms. Rochon inquired as to whether everything was alright, the Applicant advised that everything was fine. The two men subsequently returned downstairs. Ms. Kilbride noticed a scratch on the Applicant’s neck. The Applicant became angry and punched Mr. Lawrence repeatedly in the face.

[6] Approximately two hours later, 911 calls were placed in regard to the Applicant and Mr. Lawrence being in a physical altercation in front of 52 Lilas Private. Shots were heard. A casing and a bullet were recovered inside the residence. Ms. Rochon was upstairs when she heard the shots. When she went downstairs, she saw the Applicant moving towards the front door. She could not see whether he had anything in his hand. The rest of the people were running outside the residence through the back door. Neighbours observed both Mr. Lawrence and the Applicant at the front of the residence. One of the 911 callers said that both Mr. Lawrence and the Applicant had guns, one was black and one was silver. Another witness said that the man without the shirt (which fit the Applicant’s description) had a gun. Another witness said that it was Mr. Lawrence who had a gun. When the police arrived, Mr. Lawrence was inside a bathroom in the residence. The Applicant was outside running away. He refused to stop when advised to by a police officer. He was observed throwing something over a fence. Subsequently a knife was located in the yard where the item was thrown. Both the Applicant and Mr. Lawrence were arrested at the scene. The Applicant had suffered two gunshot wounds, one to the abdomen and one to his buttock. He had point two grams of crack cocaine in his possession. Mr. Lawrence had multiple injuries, including a bone fracture below the orbital bone on the left side of his face and a broken ankle. No firearms were ever retrieved at 52 Lilas Private. When the other individuals were exiting the back door of the residence, a witness observed one appearing to conceal something in his waist band. The Applicant, Mr. Lawrence, and the other individuals at the party were all friends. None has provided a statement.

[7] Following these events, the Applicant was charged with 12 firearm offences, one count of aggravated assault, and one count of possession of crack cocaine.

[8] The Applicant has a lengthy criminal record, which can be summarized as follows:

2003

-robbery: sentenced to 30 days, under supervision in the community 15 days, 18 months probation, 50 days pre-sentence custody

-failure to comply with conditions of undertaking: sentenced to 18 months probation concurrent

-theft under $5,000, possession of break in instruments, flight while pursued by peace officer: sentenced to 18 months probation on each charge concurrent

2004

-failure to comply with recognizance: sentenced to 14 days time served and one day probation

-failure to comply with recognizance: sentenced to one day probation concurrent

2004

-obstruct peace officer: sentenced to 18 months probation

-failure to comply with recognizance: sentenced to 18 months probation concurrent

-obstruct peace officer

2006

-robbery: sentenced to 3 months, one year probation, mandatory weapons prohibition, 9 months pre-sentence custody

-failure to stop at scene of accident: sentenced to 3 months consecutive, one year probation concurrent, one year driving prohibition

-carrying concealed weapon: sentenced to 3 months consecutive, one year probation concurrent

2007

-resist arrest: sentenced to one day, 12 months probation, 147 days pre-sentence custody

-failure to comply with conditions of undertaking: sentenced to one day concurrent, 12 months probation concurrent

-possession of schedule I substance: sentenced to one day concurrent, 12 months probation concurrent, weapons prohibition

2008

-failure to comply with probation order: given suspended sentence, one day probation, 14 days pre-sentence custody

2009

-driving with more than 80 mgs of alcohol in blood: sentenced to 12 days, two year driving prohibition

-driving while disqualified: sentenced to 12 days concurrent, two year driving prohibition

2009

-possession of a loaded prohibited or restricted firearm: sentenced to 28 months, 10 year mandatory weapons prohibition, four months pre-sentence custody

2010

-assault: sentenced to 90 days consecutive to sentence being served, weapons prohibition order

-failure to attend court: sentenced to 30 days consecutive

[9] The Applicant’s proposal regarding judicial interim release is that he would reside at his mother’s home in Ottawa with his two younger brothers and his 14-year old sister and would attend all required appointments under the John Howard Bail Verification and Supervision program. One of the Applicant’s brothers living with his mother has a criminal record. From the evidence given by the Applicant at the initial bail hearing, it would seem that the Applicant does not have a close relationship with his mother, in that he had not visited her for years prior to his return to Ottawa, he did not know her phone number, he did not try to call her from the hospital after his arrest, he did not ask her to be his surety, and she has not visited him in prison.

Analysis

[10] In R. v. St. Cloud, 2015 SCC 27, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) “the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.

[11] In para. 128 of St. Cloud, the Supreme Court, adopting its earlier statements in Palmer v. the Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, outlined the following criteria that must be met for evidence to be considered “new evidence” admissible on appeal:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. It must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

(Reproduced in R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, at para. 50.)

[12] The Applicant seeks his release on the basis of a material and relevant change in circumstances. The primary change alleged is that the Crown has now made disclosure and statements from individuals who made 911 calls are not included. The witness statement that was produced refers to someone having a gun but does not put the gun in the hands of the Applicant. Defence counsel argues that Justice of the Peace Soulière detained the Applicant as a result of the investigating officer’s statement that there were eye witnesses placing a gun in the hands of the Applicant.

[13] There is no issue in regard to due diligence. The question of what evidence the Crown can actually tender at trial only arose after disclosure had been made.

[14] Clearly, the extent to whether the Crown has evidence to tender on the issue of whether the Applicant was in possession of a gun on July 14 is central to whether the Crown will succeed on 12 of the 14 outstanding charges against the Applicant.

[15] The evidence is credible – it is contained in the Crown brief regarding disclosure.

[16] The real question is whether the new evidence is significant. Is it reasonable to conclude, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the Justice of the Peace under s. 515(10)(b) and (c)? Would the decision of Justice of the Peace Soulière likely have been different had she been aware that witnesses were no longer prepared to testify that they had seen the Applicant in possession of a gun? In my view, it is not reasonable to think that the decision of Justice of the Peace Soulière would have been different. I note her comments on p. 107 of the Transcript of proceedings on August 4, 2015:

The charges that you face before the Court are very serious. Notwithstanding the gun charge, the gun – the gun has not been found. Notwithstanding the gun charge, even on the crack cocaine charge, in combination with the assault on Mr. Lawrence, where he had a broken ankle, broken orbital bone in his face, a split lip, all of the multiple injuries that he had, just being found guilty on those alone – because you spent that length of time in jail [28 months], you would get a lengthy sentence, separate out from the gun charge.

[17] In regard to the secondary grounds, the Justice of the Peace started with the observation that there were witnesses and a victim involved in this case and, in regard to witnesses, there were already concerns that at least one witness was not prepared to give a formal statement due to fear of reprisals. Therefore, in addition to the concern that a 29-year old with a lengthy criminal record showing the regular commission of offences over an eight year period would simply carry on with further criminal activity as his way of life, there was the additional concern of protecting potential witnesses.

[18] The focus of the analysis by the Justice of the Peace under the secondary grounds was that the Applicant was an irresponsible person. He had 22 previous convictions relating to criminal offences that occurred on virtually an annual basis from 2003 to 2010. Despite spending much of his youth in prison, he was someone who did not learn to change his ways. Justice of the Peace Soulière did note that there was a period of approximately two and a half years when the Applicant was employed in Toronto and contributing to his own support and the support of his child. However, she also noted that the Applicant voluntarily gave up that employment, moved to Ottawa for the purpose of having an extended vacation, and, according to him, has been living off the generosity of friends because he had no way of supporting himself. Despite that, the Applicant managed to get crack cocaine for his own use, he owned two cell phones, and he threw many parties at the home where he was residing where alcohol and marijuana flowed freely. The Justice of the Peace also noted that there was no evidence that the Applicant had any family or social connections that would assist him in avoiding a life of crime. He was estranged from his spouse in Toronto. He stopped seeing or supporting his child. There was no evidence that he spent any time with his family in Ottawa. He offered no one as a surety. He was not proposing any bail plan aside from reporting to the John Howard Society.

[19] Justice of the Peace Soulière noted, in particular, that the Applicant had seven convictions for failure to abide by the terms of probation, recognizances, or undertakings, and for failure to attend court. She concluded as follows:

So, without evidence that shows you can be responsible, how can I have peace of mind to know that you are going to follow any condition that I impose? I can put a million conditions on a piece of paper and release you. It is no guarantee that you are going to be responsible enough to follow it. So, I also have concerns under the secondary grounds. Serious concerns, because there has been no attempt to show that you have any capacity to be a responsible person. Aside from the job that you held for two-and-a-half years, there is no other evidence before this Court.

[20] It is clear to me that, even absent evidence of the Applicant being in possession of a firearm, and with only the charges of aggravated assault and possession of crack cocaine being considered, on the secondary grounds alone, Justice of the Peace Soulière would not have released the Applicant on bail. For this reason, I cannot conclude that there has been a material change in circumstances so as to meet the requirements in Palmer and St. Cloud. Having arrived at this conclusion, I need not consider whether the change in the strength of the Crown’s case regarding possession of a firearm could reasonably be expected to have changed the Justice’s decision on the tertiary grounds.

[21] Consequently, on October 26, 2015, I denied the Applicant’s Application under s. 520, with written reasons to follow. These are those reasons.

Aitken J.

Released: November 2, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

Moussa Osman

Applicant

REASONS FOR JUDGMENT RE BAIL

Aitken J.

Released: November 2, 2015