ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: DRCP 1219/15

DATE: 20151210

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FAZAL ZABAN

Defendant

S. Martins for the Crown

W. Jaksa for Mr. Zaban

HEARD: November 20, 2015

ENDORSEMENT ON S. 520 BAIL REVIEW APPLICATION

RESTRICTION ON PUBLICATION

A Non-Publication Order is made that publication of this ruling is prohibited until the trial has ended.

Ricchetti, J.:

Table of Contents

THE CHARGES.
THE APPLICATION.
THE ALLEGED FACTS RELATING TO THE CHARGES.
June 2014.
September 6, 2014.
September 7, 2015.
September 8, 2015.
The Police Investigation.
September 23, 2015 Shooting.
THE PROPOSED PLAN OF RELEASE.
THE REVISED PLAN OF RELEASE.
MR. ZABAN.
MR. ZABAN'S CRIMINAL RECORD.
THE LAW.
SECONDARY GROUND.
TERTIARY GROUND.
ANALYSIS.
SECONDARY GROUND.
TERTIARY GROUND.
Strength of the Crown’s Case.
Gravity of the offence.
Circumstances Surrounding the Offence.
Length of Potential Prison Term if Convicted.
Other relevant considerations.
Conclusion on the Tertiary Ground.
CONCLUSION.

THE CHARGES

[1] Mr. Zaban is charged with the following offences in 2014:

i. Kidnapping Mr. Ghafoori;

ii. Unlawful confinement of Mr. Ghafoori;

iii. Robbing Mr. Ghafoori;

iv. Assaulting Mr. Ghafoori with a weapon;

v. Assaulting Mr. Ghafoori; and

vi. Impersonating a peace officer.

[2] After arrest and a bail hearing, Mr. Zaban was released on a Recognizance with conditions and surety dated February 13, 2015. After the bail hearing, the release on the Recognizance was on consent of the Crown.

[3] The surety was Pamela Brij, Mr. Zaban’s wife. The Recognizance included a condition that Mr. Zaban remain at his home, except when in the company of his surety, for medical emergencies or court purposes.

[4] On June 23, 2015 Mr. Zaban was located by the police at his music studio in Toronto without his surety, in breach of the Recognizance. Mr. Zaban offers no explanation for this breach. However, from the evidence of Ms. Brij at the bail hearing before Justice of the Peace Chang-Alloy, she had left him alone at the music studio so that she could take her child to her parents. There was no other explanation for this clear and apparent breach offered by either Mr. Zaban or Ms. Brij.

[5] Mr. Zaban was charged with breach of a Recognizance on June 23, 2015 and detained in custody on these charges.

[6] As a result of the breach of the Recognizance, a s. 524 bail hearing was heard by Justice of the Peace Chang-Alloy on July 24, 2015. At that time, the Defence proposed a release plan that included 24 hour a day supervision with house arrest at Mr. Zaban’s parent’s condominium and the proposed sureties were: Ms. Brij (Mr. Zaban’s wife); Abbool Zaban (Mr. Zaban’s father); Jessiman Zaban (Mr. Zaban’s mother); and Shashena Walsh (Mr. Zaban’s sister). This was a reverse onus situation. The presiding justice of the peace determined that continued detention was necessary.

[7] A judicial pre-trial is scheduled for December 10, 2015. While not entirely clear, this pre-trial is likely before the OCJ and it will be a considerable amount of time before a trial is scheduled.

THE APPLICATION

[8] Mr. Zaban seeks a bail review. Counsel agree that there exists a material change in circumstances, namely, a significantly different plan of release. As a result, I need not deal with the Defence position that Justice of the Peace Chang-Alloy erred in ordering detention.

[9] Because of the admitted material change, this is a fresh consideration of whether detention is still justified. See R. v. St-Cloud, 2015 SCC 27:

[138] If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr.C. as if he or she were the initial decision maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified….

(emphasis added)

THE ALLEGED FACTS RELATING TO THE CHARGES

June 2014

[10] In early June 2014, three men (Mustafa Muhammed, Fargoh Sadat and Taleb Saleh) were arrested as part of an investigation into guns. The police seized two loaded guns, drugs, a silencer, a bullet proof vest, and a number of cell phones. The police also found a journal setting out surveillance notes of what appeared might be an intention to kidnap Mr. Ghafoori.

September 6, 2014

[11] Mr. Ghafoori, while driving home, was pulled over by a Dodge Caravan. The Dodge Caravan had flashing red lights. Mr. Ghafoori thought it was the police and pulled over. Mr. Zaban and two other persons exited from the Dodge Caravan. Mr. Zaban went to Mr. Ghafoori. He identified himself as a police officer. He was wearing a badge around his neck. Mr. Ghafoori was forced out of his vehicle at gunpoint. His captors put a hood over his head and placed him in the rear of his own vehicle.

[12] While in the back seat of the vehicle with a hood on, Mr. Ghafoori was hit by his captors with the gun and was punched several times.

[13] The Dodge Caravan, which Mr. Zaban was driving, was registered to Mr. Zaban’s wife, Ms. Brij. However, Mr. Zaban was a regular user of this vehicle. Ms. Brij acknowledged that Mr. Zaban is also called “Fuzz”.

[14] Mr. Ghafoori was driven to 1220 Concession Road No. 7 in Uxbridge. Additional persons became involved in this criminal venture at 1220 Concession Road No. 7. Mr. Jonathan Kozuch is the owner of this property. Mr. Ghafoori described Mr. Kozuch as the person at this property who transported Mr. Ghafoori to the second property and who was present during the beating and extortion. Mr. Ghafoori also stated that Mr. Kozuch was the person who later brought him food and the first aid kit.

[15] After a short while, Mr. Ghafoori was driven to 3199 Concession Road No. 7, Uxbridge. There is an abandoned garage at this location. Mr. Ghafoori was placed in the abandoned garage, and beaten for several hours. A Taser gun was used on Mr. Ghafoori while he was held captive. His captors sought to extort money and information from Mr. Ghafoori.

[16] During this beating, Mr. Ghafoori’s hood had been removed; he identified Mr. Muhammed and Mr. Sadat. Mr. Ghafoori had previously known these men.

[17] After one of his captors found a police business card in Mr. Ghafoori’s cell phone case, Mr. Ghafoori explained to his captors that he had been told by the police his life might be in danger and the police would be watching him. This “spooked” the captors. They stopped beating him, cleaned his wounds and gave Mr. Ghafoori food.

[18] The captors then returned Mr. Ghafoori to 1220 Concession Road No. 7.

September 7, 2015

[19] On the next day, Mr. Ghafoori was driven to 3300 Dufferin Street and released to return home in his own vehicle. The captor’s plan was that Mr. Ghafoori would be allowed to return home, give money to his captors and then provide the name of another individual for his captors to kidnap and extort. The captors gave Mr. Ghafoori a secure cell phone on which they would contact him.

[20] Later that evening, Mr. Ghafoori met with the captors and gave them $5,000.

September 8, 2015

[21] On the following day, Mr. Zaban called Mr. Ghafoori and told him he needed some additional money and required Mr. Ghafoori to provide the name(s) of someone else they could kidnap and extort for money. Instead, Mr. Ghafoori called the police.

The Police Investigation

[22] The police were able to obtain surveillance video from a Canadian Tire store showing Mr. Mohammed and Mr. Kozuch at the store buying some of the items used in the kidnapping.

[23] The police were also able to obtain surveillance video from a Zehr’s store showing Mr. Mohammed and Mr. Kozuch buying food and beverages of the kind given to Mr. Ghafoori.

[24] The police executed a search warrant at 3199 Concession Road No. 7 and found at that location Mr. Mohammad’s fingerprints, Mr. Ghafoori’s blood, Mr. Zaban’s DNA on cigarettes. The police also found cigarettes as well as the food and beverage items bought by Mr. Mohammed and Mr. Kozuch at the stores.

[25] The police found surveillance video showing the traffic stop and Mr. Ghafoori’s kidnapping on the streets. The police also obtained Hwy 407 toll photos of Mr. Zaban’s Dodge Caravan within the time frame consistent with the kidnapping events described by Mr. Ghafoori.

[26] Mr. Muhammed was interviewed and told the police that Mr. Zaban was involved with them in the kidnapping of Mr. Ghafoori. Mr. Mohammed stated that Mr. Zaban was brought into the operation by Mr. Sadat and Mr. Muhammed was concerned that Mr. Zaban was upset with Mr. Muhammed and Sadat because Mr. Zaban had been told Mr. Ghafoori would not go to the police.

[27] Not all of the persons involved in the kidnapping, beating and extortion have been apprehended.

September 23, 2015 Shooting

[28] On September 23, 2015 there was a shooting at Mr. Sadat’s home, killing Mohammad Alakoozi and wounding another person.

[29] As part of this investigation, the police were able to obtain authorized wiretap evidence that:

a) The person with Mr. Zaban in the Dodge Caravan was a black male known as Fingers and an unidentified white male; and

b) A telephone conversation between a person, believed to be Fingers, and Mr. Muhammed discussing the kidnapping of Mr. Ghafoori with various references to Mr. Zaban’s involvement in the kidnapping

[30] The investigation of this shooting continued. Mr. Saleh Alakazoo is Mr. Mohammad Alakoozi’s (the victim of the Sadat home shooting) brother. Mr. Saleh Alakazoo gave a statement to the police that after his brother’s murder, he met with Mr. Zaban. Mr. Zaban described how he, Mr. Sadat, Mr. Mohammad, Fingers and a white male kidnapped, beat and extorted money from Mr. Ghafoori. Mr. Zaban described himself as a “killer” and someone who makes his living as a killer.

[31] Ms. Brij also confirmed a longstanding connection, as late as February 2015, between Mr. Zaban and Fingers.

[32] Mr. Raaz Alakoozi also gave a statement that Mr. Zaban admitted being involved in the kidnapping of Mr. Ghafoori for Mr. Sadat.

[33] There is no doubt that the Crown has a very strong case against Mr. Zaban as involved in the kidnapping, beating and extortion of Mr. Ghafoori.

THE PROPOSED PLAN OF RELEASE

[34] The Defence offers the following sureties:

a) Shashena Walsh (Accused's sister) - pledge up to $25,000;

b) Jessiman Zaban (Accused's mother) - pledge her interest in her condominium owned with her husband valued at $140,000;

c) Abdool Zaban (Accused's father) - pledge his interest in his condominium owned with his wife valued at $140,000; and

d) Alfaz Zaban (Accused's brother) - pledge up to $900,000.

[35] The proposed terms of release, in addition to the statutory terms of release, are:

a) Mr. Zaban would reside with his parents;

b) Mr. Zaban would be under house arrest unless in the company of one of his sureties;

c) Mr. Zaban would be under continuous electronic monitoring;

d) Mr. Zaban would have no contact with the co-accused or any Crown witnesses in this matter;

e) Mr. Zaban would have no cell phone and not permitted to use anyone else's cell phone; and

f) Mr. Zaban would deposit his passport with the police.

[36] Mr. Zaban’s mother, father, and sister testified at the prior bail hearing before Justice of the Peace Chang-Alloy, and by virtue of the Defence Application Record, their evidence is evidence at this bail hearing.

[37] Alfaz Zaban (Mr. Zaban’s brother) testified at this bail hearing. Alfaz Zaban has previously been a surety for Mr. Zaban in the past. He appeared to be honest and sincere. He appeared to be a person who would take his surety role seriously. While initially, prepared to pledge up to $150,000, he agreed he would pledge up to $900,000 being the entire equity in his home. At the same time, he admitted that Mr. Zaban is "a work in progress".

[38] Stephen Tan, a principal of Recovery Science Corporation (RSC) testified at this bail hearing. RSC is an independent company which enters into a contract for electric monitoring with an accused on terms imposed by the court. The cost of the electronic monitoring is born by the accused. A high degree of communication between RSC and police is integrated into the contractual terms and terms of release. I am satisfied that this electronic monitoring would provide the police, within approximately ten to twenty minute’s notice that Mr. Zaban has left the condominium and would allow RSC to follow up.

[39] Justice of the Peace Chang-Alloy referred to Mr. Zaban’s parents and sister who testified before him as “salt of the earth” people. I need not make any comment regarding Ms. Brij as she is not being proposed as a surety in this bail hearing.

THE REVISED PLAN OF RELEASE

[40] During the course of the hearing, Defence counsel conceded that Mr. Zaban would be prepared to commit to a complete house arrest - no exceptions to house arrest except with a surety AND ONLY when going directly to and from meetings with counsel, attending court and medical emergencies. In other words, Mr. Zaban would not be permitted to leave the condominium even in the company of one of his sureties except for these very limited reasons. Further, while Mr. Zaban was in the condominium, one of the sureties would always be at home with him. ("Revised Proposed Plan of Release")

[41] This “complete house arrest” avoids Mr. Zaban being able to be at large in public whenever he wants to provided that he is in the company of one of his sureties. The limitations proposed are very narrow and constricting and reduces the possibility of a repeat of the events on June 23, 2015 when Mr. Zaban was at large without a surety.

[42] In addition to the “complete house arrest”, the Defence proposes third party electronic monitoring by RSC, both RF and GPS 24/7 monitoring.

[43] As a result, there are several key portions of the Revised Proposed Plan of Release:

a) Mr. Zaban would always been in his parents' condominium. They are retired and, between them and Mr. Zaban's brother and sister, one of the four of them would always be at home with Mr. Zaban - no exceptions;

b) Mr. Zaban would only be allowed out of the condominium for limited reasons set out and only with a surety;

c) Mr. Zaban would be subject to GPS and RF continuous 24/7 monitoring by RSC; and

d) Approximately $1,065,000 would be pledged by the sureties.

MR. ZABAN

[44] Mr. Zaban is 39 years old. He is a Canadian citizen.

[45] Since 2014 he has operated a small music studio which is no longer in operation.

MR. ZABAN'S CRIMINAL RECORD

[46] Mr. Zaban has the following relevant convictions:

a)Fail to comply with Recognizance (January 1991 Youth);

b) Assault (March 1991 Youth);

c)Possession of stolen property (June 1991 Youth);

d) Theft over and obstruction of justice (September 1991 Youth);

e)Break and Enter (November 1991 Youth);

f) Possession of stolen property (November 1991 Youth);

g) Fail to comply with Recognizance (January 1992 Youth);

h) Possession of a Weapon (January 1992) – he pulled out a black handgun and pointed it at a victim;

i) Assault (October 1994 Youth);

j) Drug related charges (November 1996) - 2 year sentence after pre-sentence custody;

k) Possession of a restricted firearm/Possession of counterfeit monies (April 2005) - one year sentence, weapons prohibition order for life – guns and counterfeit monies were found in the vehicle Mr. Zaban was in; and

l) Possession of drugs (July 2007) - fine and pre-sentence custody.

THE LAW

[47] Section 520 (7) of the Criminal Code provides:

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

(emphasis added)

SECONDARY GROUND

[48] The secondary ground requires detention:

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;

[49] As set out in R. v. Morales,1992 53 (SCC), [1992] 3 S.C.R. 711:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

TERTIARY GROUND

[50] The Supreme Court in St. Cloud set out the approach to bail under the tertiary ground:

[55] Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.

[56] It must be kept in mind that, at this stage of 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.

[71] Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

[51] The Supreme Court in St. Cloud summarized the essential principles applicable to s. 515(10)(c) bail application as follows:

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

i. Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.

ii. Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

iii. The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

iv. A court must not order detention automatically even where the four listed circumstances support such a result.

v. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

vi. The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.

vii. No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

viii. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

ix. To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre‑trial detention will usually be ordered.

ANALYSIS

[52] The onus remains on Mr. Zaban to establish that continued detention is not required under s. 515(10).

[53] I accept that the Crown had originally consented to the release of Mr. Zaban in February 2015 on a Recognizance with conditions and a surety. However, in light of the breach of Recognizance and agreed material change, this hearing is a fresh consideration for bail based on a consideration of the provisions of s. 515 (10) of the Criminal Code.

[54] There are two significant issues this court must keep in mind: Mr. Zaban breached the Recognizance and the onus to establish that detention is not justified is on Mr. Zaban.

[55] The Crown relies on the secondary and tertiary grounds for continued detention.

SECONDARY GROUND

[56] In my view, given the conditions in the Revised Proposed Plan of Release, the Defence has satisfied me that it has met its onus that there is not a substantial likelihood Mr. Zaban would commit a further offence if released on the Revised Proposed Plan of Release.

[57] Given that some of the perpetrators have not been identified and arrested, I have some concerns for Mr. Ghafoori’s safety. However, this concern is not very high given the Revised Proposed Plan of Release. This concern, by itself, would not have warranted detention on this ground.

TERTIARY GROUND

[58] This is the real issue to be decided in this case.

Strength of the Crown’s Case

[59] Given the above facts, the Crown has a very strong case against Mr. Zaban as a leader and participant in the kidnapping, beating and extortion of Mr. Ghafoori. At this point, no defence has been identified by Defence counsel, as is an accused’s right not to do so at this or any stage.

[60] The Defence argued before Justice of the Peace Chang-Alloy that the evidence of Mr. Saleh Alakzooli and Mr. Muhammed should be considered in light of the “source”. That will be something to be dealt with at trial. At this time, there is nothing before me to suggest that these statements are not credible evidence showing Mr. Zaban’s participation in the crimes, particularly, as the statements are consistent with the rest of the evidence of the vehicle used and its movements, Mr. Zaban’s identification by Mr. Ghafoori, and Mr. Zaban’s DNA at the abandoned garage.

Gravity of the offence

[61] The gravity of the offences alleged is on the very high end of the spectrum. The impersonation of a police officer at a vehicle stop, a police officer, kidnapping at gun point, beating with a gun, and extortion are very serious offences. These were extremely serious and violent crimes targeted at a member of the public for two reasons; the first was that the perpetrators believed Mr. Ghafoori had money to pay to be released; and, secondly, because the persons committing the offences didn’t believe that Mr. Ghafoori would report the matter to the police. There is also evidence that this was not intended to be an isolated act of kidnapping and extortion.

[62] Ms. Brij, in her cross-examination, described a continuing relationship between Mr. Zaban and Fingers at least until February 2015. Mr. Zaban and Fingers were together in the 2005 arrest (guns and counterfeit monies). Ms. Brij contacted Fingers on the day Mr. Zaban was arrested.

[63] Further, the statements made by Mr. Zaban to Mr. Saleh Alakzooli that he was a killer and had no problems with guns and Mr. Zaban’s request for another person’s name to kidnap and extort, suggests a broader concern of criminal behaviour by Mr. Zaban.

Circumstances Surrounding the Offence

[64] This was a violent and vicious crime committed solely for the purpose of financial gain allegedly committed by Mr. Zaban and others.

[65] Mr. Zaban had a very significant role in these crimes. He impersonated a police officer with flashing lights and a police badge. He facilitated the kidnapping at gunpoint. A gun was used to force compliance by Mr. Ghafoori. A hood was placed on Mr. Ghafoori’s head and forced into the rear of the vehicle. Mr. Ghafoori was beaten while hooded in the back of the vehicle. Mr. Zaban drove Mr. Ghafoori to the remote abandoned garage where Mr. Ghafoori was beaten and tasered for money and information. Even after release, Mr. Zaban contacted Mr. Ghafoori looking for more money and the name of another potential victim. Mr. Zaban’s role in these crimes was very significant.

[66] In addition to the trauma caused to Mr. Ghafoori, it is hard to imagine a more serious and violent crime that impacts society’s lessened feeling of security while being in public and when stopped by a police officer.

Length of Potential Prison Term if Convicted

[67] No doubt, if convicted, Mr. Zaban faces a very lengthy period of incarceration for these offences. His prior conviction(s) for firearms will no doubt be an aggravating factor in any sentencing.

Other relevant considerations

[68] While the above four factors are the “main factors to be balanced” (See St.-Cloud para 69), this court is obliged to consider all other relevant factors in determining whether, in the case before me, detention is necessary to achieve the purpose of maintaining confidence in the administration of justice.

[69] I must consider is the safety and security of Mr. Ghafoori in making this order. Even with the Revised Plan of Release, I have some concerns for the safety of Mr. Ghafoori. Not all of the participants in his kidnapping have been identified or charged. On the other hand, no issues arose relating to Mr. Ghafoori’s safety from February 2015 and June 2015 when Mr. Zaban had been released on house arrest.

[70] Would the Revised Proposed Plan of Release reduce or eliminate any concerns an informed member of the public might have?

[71] It is hard to imagine that any plan of release is much better than the Revised Proposed Plan of Release. There is a substantial amount of money pledged. Mr. Zaban would be on a strict house arrest with one surety present at all times. The exceptions to the house arrest are extremely limited and would always be in the company of a surety. Mr. Zaban would also be monitored 24/7 by a third party provider by electronic means.

[72] On the other hand, we have already seen a flagrant disregard by Mr. Zaban and his wife of the prior conditions of release which has resulted in the reverse onus situation.

[73] Should detention be ordered despite the Revised Proposed Plan of Release?

[74] I note that in St.-Cloud, the offence was aggravated assault. The accused had allegedly assaulted the bus driver on a public transit vehicle, beating him for some time leaving him with long term injuries. The Supreme Court upheld the detention of the accused pending trial.

[75] While Mr. Ghafoori would not be a “vulnerable person” as described in St.-Cloud (para 61), in my view, he is a vulnerable person in the context of these offences. When any member of the public sees flashing red lights and someone approach them with a police badge, the person generally complies with the demands because of the position of authority held by the police. That makes the person stopped by the apparent police officer in these circumstances vulnerable.

[76] I repeat paragraph 88 from St.-Cloud:

[88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre‑trial detention will usually be ordered.

[77] In the present case, the crime was very serious and very violent, there is overwhelming evidence against Mr. Zaban and Mr. Ghafoori was a vulnerable member of the public in the circumstances.

Conclusion on the Tertiary Ground

[78] It is important to remember that, in the present bail application, the onus is on Mr. Zaban to establish that detention is not required under s. 515(10).

[79] Balancing the four factors, all relevant circumstances, and accepting that the release of accused persons is the cardinal rule, detention is the exception, I am satisfied that Mr. Zaban’s detention is necessary on the tertiary ground to protect the public’s confidence in the administration of justice.

[80] Mr. Zaban has failed to discharge the onus on him.

CONCLUSION

[81] The Defence application is dismissed. Mr. Zaban is ordered to remain in custody.

Ricchetti, J.

Released: December 10, 2015

COURT FILE NO.: DRCP 1219/15

DATE: 20151210

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

FAZAL ZABAN

EnDORSEMENT ON S. 520 BAIL REVIEW APPLICATION

Ricchetti J.

Released: December 10, 2015