ONTARIO SUPERIOR COURT OF JUSTICE

Information No. 15-11676

HER MAJESTY THE QUEEN

v.

MOSTAFA MOHAMED ISSA

BAIL REVIEW

RULING

GIVEN ORALLY BY THE HONOURABLE JUSTICE C. MCKINNON,

on Monday, November 16, 2015, at OTTAWA, Ontario.

APPEARANCES:

J. Daller
Counsel for the Crown

A. Brass
Counsel for Mostafa Issa

Monday, November 16, 2015

U P O N R E S U M I N G:

RULING: MCKINNON, J.

The facts of the case against Mr. Issa are serious and troubling. On August 5th, Mr. Issa was arrested on 36 charges. Is that correct, 36 on August 5th, because there were 82 following, for a

total of 118.

MR. DALLER: That’s right.

THE COURT: So on August 5th the accused was charged with 36 charges, largely relating to prescription frauds. In looking at the facts

surrounding those prescription frauds, it is clear that on an application by the Crown to apply the similar-fact evidence rule, it would likely be successful.

Following his arrest, Mr. Issa was brought to a show cause hearing, and on that occasion the Crown agreed to his release upon strict conditions, specifically that he not ingest non-prescription drugs, and that he not attend at any pharmacy

without a parent or guardian with him.

Notwithstanding that, over the next few months the accused has been charged with 82 new offences, the vast majority of them being prescription frauds

which, as I have noted earlier, would likely be

subject to the similar-fact evidence rule. Independent of that, on numerous occasions he

presented his own identification, passport identification. He was seen in a vehicle with a licence plate that was clearly identifiable. He was seen in videotapes, and it would not be an

exaggeration to say that the evidence against this accused, on these offences, is overwhelming.

The most troubling aspect is that, following his release and his promise to the court that he would

be good and not commit other offences, the second- last set of charges include an allegation of a robbery on September 23rd, where he threatened to harm a pharmacist if he did not receive drugs, and then finally on the day of his arrest, after a

foot pursuit when he was tackled and forcibly arrested, police returned to the spot where the accused had crouched down behind a car and found a loaded nine-millimetre Luger semi-automatic

pistol, a restricted firearm, with a bullet in the

chamber.

The pattern of alleged offences led to a troubling increase in severity. The loaded restricted firearm charge, S.95(2), would almost certainly

attract a serious term of incarceration, without commenting on whether the three-year mandatory minimum would be found to be an appropriate punishment for that crime.

Many of the charges are for breaching the promises he made on August 5th, and when brought to court for his bail hearing Justice of the Peace

Blauveldt determined that Mr. Issa should be released. In determining that he should be released, the Justice of the Peace made errors in

law, which in my view are serious.

Crown counsel argues that the mischaracterisation of the secondary grounds places an impossible burden on the Crown. With that submission I do not agree. The learned justice of the peace

referred to the secondary grounds’ test as follows:

“The decision whether or not to release you

is based on the balance of probabilities that

you will further offend, or your release will affect public confidence in the

administration of justice.”

The secondary ground does not require the Crown to

adduce proof on a balance of probabilities that the accused will reoffend, rather the test is a consideration of whether there is a substantial likelihood that the accused will commit a criminal offence or interfere with the administration of

justice.

In my view, those two tests are not appreciably different. Substantial likelihood that an accused will commit a criminal offence cannot be said to

be very different from a proof on a balance of

probabilities that the accused will reoffend, and

I do not agree that phrasing it in that manner

amounts to an impossibly high standard, but in any

event that is just by-the-by.

The Crown argues that the justice of the peace

applied a one-sided view of the “public” under the tertiary grounds in S.515(10)(c), and also that

the justice of the peace cited a de facto

prohibition on pre-trial detention, which places an impossible burden on the Crown.

The learned justice of the peace stated, at page

85:

“The term ‘public’ means a reasonable,

informed, and dispassionate public that is aware of the presumption of innocence and the prohibition against pre-trial punishment.”

In the decision of the Supreme Court of Canada in

R. v. St-Cloud, 2015 SCC 27, 2015, S.C.C. 27, the Supreme Court revisited S.515 of the Criminal Code, as it had previously been considered in R. v. Hall, 2002 SCC 64, 2002, S.C.C. 64, and the Supreme Court determined, at paragraph 80, that:

“...the person in question

in s. 515(10)(c) Cr.C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the

circumstances of a case is inaccurate or who

disagrees with our society’s fundamental values. But he or she is not a legal expert

familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are

available to accused persons.

“In short, there is not just one way to undermine public confidence in the administration of justice. It may be

undermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but

also if a justice orders detention where such a result is not justified.”

I agree with the Crown’s submission that the presumption of innocence is not the only operative principle informing the public’s view of pre-trial detention. If it were, then it would always

militate in favour of release.

The second alleged principle, namely, the prohibition against pre-trial punishment, gives rise to a significant legal error, in my view.

Invoking a prohibition against pre-trial punishment suggests that the learned justice of

the peace was of the view that pre-trial detention is a form of punishment, and is therefore prohibited in law, but this characterisation of

the law would irreparably prejudice the Crown in

its ability to advocate for detention under the tertiary grounds.

Nowhere in the Criminal Code, nowhere in the Charter of Rights and Freedoms, nowhere in the ruling of the Supreme Court of Canada in R. v. St-

Cloud, is there any mention of a prohibition against pre-trial punishment. In fact, the Supreme Court upheld the detention order in St-

Cloud under the tertiary grounds, saying the following, at paragraph 167:

“I believe that a reasonable member of the public who, although not a legal expert, is nonetheless properly informed about the philosophy underlying the legislative

provisions, Charter values and the actual circumstances of the case would not understand why the respondent should not remain in custody pending his trial. Such members of the public are not people who

would allow themselves to be guided by their emotions and to be swayed by the mob or by incomplete or distorted information.”

If the Supreme Court’s “public” in St-Cloud were

to be moved by a so-called prohibition against

pre-trial punishment, then the accused would have been released, and the very purpose of the

tertiary grounds for detention would be completely undermined. In practise, the tertiary grounds

would almost never apply.

Now, in reviewing the four factors in S.515, the

justice of the peace invoked an implicit requirement that the tertiary grounds’ concerns must “rise to a level of maximum force” before detaining an accused. Now, in referring to the

four factors, the learned justice of the peace

said the following with respect to the strength of the prosecution’s case:

“In my view, while identification may be at

question for a number of the allegations, for many others the Crown has presented

convincing evidence in the form of documentary, line-up and/or video identification. As well, the sheer number of

similar alleged fraud offences works in support of the Crown’s case.”

For the second factor, the gravity of the offences, she stated:

“The Crown has described the alleged offences as alarming, especially the most recent ones, which escalated to robbery and carrying firearms. The defence has also characterised

the allegations as extremely serious and a cause for alarm. I concur with both assessments that the offences are of significant concern.”

For the third factor, circumstances surrounding the commission of the offences, including the use of firearms, the positions of the Crown and the

defence were stated, but not the assessment of the learned justice of the peace. She stated the

following:

“The third factor is circumstances surrounding the commission of the offences, including the use of firearms. The Crown has described the presence of a loaded gun in

your latest allegations as ‘chilling’. The

Crown noted the escalation in activities, and raised concerns about the involvement of

other individuals in the alleged robbery incident. The defence states that none of the offences involved any violence on your

part, and that a gun was never used.”

Regrettably, no analysis of that third factor was undertaken by the justice of the peace. The justice of the peace then goes on to speak about

the fourth factor:

“The fourth factor is the fact that the accused is liable, upon conviction, for a potential lengthy term of imprisonment. For

this fourth factor, it is clear that there are implications for a significant period of time in prison if there were a guilty conviction. Both the Crown and defence agree on this.”

The learned justice of the peace summed up her analysis of the four factors in these words:

“To sum it all up, my overall assessment of the four factors is that, while there may be triable issues surrounding identification in

some instances of the alleged fraud attempts, and regarding firearms possession, there is ample evidence presented by the Crown in

other incidents. The later alleged offences involving robbery and gun possession approach

a higher end of gravity, although in no instance was violence actually used or a gun produced in its commission. A lengthy term of imprisonment could be the outcome of a guilty conviction.”

Then she states:

“Nevertheless, I do not find that the seriousness and circumstances of the offences

rise to a level of maximum force. In addition, I mentioned that all the circumstances of the alleged offences must be considered. These may include the accused’s personal circumstances, age, health, support

systems, criminal history, and fear in the community or lack thereof, amongst others.

“In your case, you are young, in apparent

good health, and you have no criminal record.

You have a supportive family and prospects for employment. These are all positives, despite your denial of your drug problem.”

Now, just dealing with the notion of “maximum force”, nowhere in S.515(10)(c) of the Criminal Code, and nowhere in the Supreme Court’s decision

in St-Cloud, is there any indication that “maximum force” is a threshold requirement when assessing the seriousness of an offence under the tertiary grounds. The notion of “maximum force” implies a theoretical upper limit of severity which must be

achieved before detention is justified, and so the issue arises whether even the most heinous crime could rise to the theoretical limit of “maximum force”. One can always imagine a more serious crime than the crime being considered.

More importantly, in R. v. St-Cloud at paragraph

87, the Supreme Court stated that:

“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.”

The notion of “maximum force”, in my view, contradicts the Supreme Court’s reasoning as set out in that paragraph.

A court may interfere with a previous decision

made in respect of release or detention where

there is an error of law. At paragraph 121 of St-

Cloud it is stated:

“It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to

exercise this power if 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. The reviewing judge therefore

does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly

specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted

by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that

evidence shows a material and relevant change in the circumstances of the case.”

In the case at bar, we’re dealing with the appropriateness of intervening on two grounds:

one, erring in law; and second, where the decision was clearly inappropriate. In my view, the decision amounted to an error in law and was inappropriate.

Why was the decision inappropriate? The accused is charged with 118 criminal offences, covering a four-month span. Almost all these offences relate

to prescription frauds. He was arrested on August

5th, 2015, and released on his own recognisance. He was placed under conditions not to attend any pharmacy in Ottawa without his parents, and not

possess any drugs not legally prescribed.

Since that release on August 5th, where the accused made his promises to the court, the

accused has been charged with 33 breaches of those

conditions and has been charged with 82 offences following his release. The second-last set of charges includes allegations of robbery on September 23rd, where he threatened to harm a pharmacist if he didn’t receive drugs. The

pharmacist complied, and those allegations post-

date the August 5th release.

The last set of charges include allegations that the accused attended a pharmacy and attempted to

tender a forged prescription. Police were called, police approached the accused, police observed the accused crouch next to a vehicle, followed by a foot pursuit where the accused was finally tackled and arrested. Police returned to the spot where

the accused had crouched and found a loaded nine-

millimetre Luger semi-automatic pistol, a restricted firearm, with a bullet in the chamber.

The pattern of alleged offences shows a troubling

increase in severity, the most serious one being

the loaded restricted firearm, as I indicated earlier. That offence may possibly bring a three-

year sentence. In Mr. Issa’s case, where he is simultaneously committing prescription fraud following a robbery while breaching his release, he too falls within the broad category of “most

cases” that would justify the mandatory minimum of three years. The robbery offence attracts a maximum sentence of life in prison, so the seriousness of the offences must be considered.

In considering the evidence before her, the

learned justice of the peace found that the mother only recently learned about the drug problems of the accused, which she believed were not serious, and that seems quite remarkable, given the fact

that the evidence from the accused is that he had always lived at home. The mother did not know the name of the accused’s girlfriend that he had been seeing for a year, and does not know his friends.

The justice of the peace found that, while the accused’s younger brother was otherwise a respectable surety, there was a troubling lack of knowledge about his own brother. The brother did not even know if the accused owned a cell phone,

despite living under the same roof.

Furthermore, the learned justice of the peace commented on the accused’s own credibility when she said, at page 84:

“You stated that your drug abuse problem started roughly one month ago, and your

recognisance. This draws into question both your credibility and the fact that you do not respect the orders of the court.”

So this evident dishonesty on the part of the

accused, and the curious lack of knowledge of the accused’s life by his own immediate family, all serve to undermine the plan which was set up, against the strong weight of the tertiary ground factors, the litany of breaches, and the

increasing severity of the offences.

The justice of the peace stated, after reviewing the facts, as I’ve referred to them:

“Under these circumstances, and having given full consideration to the tertiary grounds factors, I do not believe your detention is necessary to maintain confidence in the administration of justice. You have met your

onus under these grounds. I believe that, with a plan including strict conditions and close supervision by your sureties, you may be released today.”

With respect to the justice of the peace, that conclusion is simply not borne out by her own analysis of the various factors and the evidence

before her. In fact, that conclusion contradicts her findings. It could not be fairly stated that the accused met his onus of showing that he should be released, given the findings of the justice of

the peace with respect to the credibility of the accused himself, and the lack of knowledge on the part of the proposed sureties of the accused’s lifestyle, not to mention that the accused himself was unaware of his own brother’s employment

situation.

In conclusion, I find that, for the reasons stated, the justice of the peace erred in law in her application of the tertiary ground, and

secondly that the conclusion that she arrived at was inappropriate in all the circumstances, and the decision of the justice of the peace is set aside, and the accused ordered detained.

I pause to state that it’s very unfortunate that I have to come to that conclusion in circumstances where the accused has been, in fact, released, and appears to be making some progress, but I must apply the law as mandated by the Supreme Court of

Canada, and for those reasons the detention of the accused is ordered.

In the event the reasons for decision are ordered, I reserve the right to edit them for appropriate

paragraphing and citation of case law.

...RULING ENDS

Certification.

NOTE:

Pursuant to directive from Court Reporting Services dated December 15, 2010

Certification does not apply to the foregoing Reasons for Judgment

which was judicially reviewed and formatted as instructed.