CITATION: R. v. Hammoe, 2016 ONSC 1790
COURT FILE NO.: 15-13230
DATE: 2016/03/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
GARIP HAMMOE
Applicant
Jamie Bocking, for the Crown
Paolo Giancaterino, for the Applicant
HEARD: February 11, 2016
REASONS FOR decision
PATRICK Smith J.
[1] The Applicant, Garip Hammoe, brings this application pursuant to section 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of his detention and for an order granting him judicial interim release pending his trial.
[2] Mr. Hammoe was detained when Justice of the Peace Blauveldt denied his release following a bail hearing on October 18, 2015.
The Charges before the Court
[3] Mr. Hammoe is charged as follows:
• Two counts of uttering a threat contrary to section 264.1(1)(a) of the Criminal Code;
• One count of possession of a weapon for a dangerous purpose contrary to section 88(1) of the Criminal Code;
• One count of possession of a Schedule 1 substance contrary to section 4(1) of the Controlled Drugs and Substances Act;
• One count of trafficking in persons contrary to section 279.01 of the Criminal Code;
• One count of receiving a benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1), contrary to section 279.02(1) of the Criminal Code;
• Two counts of defrauding the public or any person of a sum of money of a value exceeding five thousand dollars, contrary to section 380(1)(a) of the Criminal Code; and
• One count of attempting to defraud the public or any person of a sum of money of a value exceeding five thousand dollars, contrary to section 463(b) of the Criminal Code.
The Circumstances of the Charges before the Court as alleged by the Crown
[4] In 2015, Victoria Mutschler met Laura Gaudreault at the Youth Service Bureau shelter in Ottawa. Ms. Gaudreault informed Ms. Mutschler that she worked as an escort.
[5] When Ms. Mutschler left the shelter and moved into an apartment, she asked Ms. Gaudreault to teach her how to become an escort. Ms. Gaudreault agreed and, in return, Ms. Mutschler allowed Ms. Gaudreault to live in her apartment.
[6] Ms. Gaudreault then introduced Ms. Mutschler to the Applicant, Garip Hammoe. Shortly after that meeting, Ms. Mutschler contacted Mr. Hammoe and asked if she could work for him as an escort.
[7] Around this time, Ms. Mutschler needed to move out of her apartment and find another place to live. She told the police that she asked the accused to help her find a place to live and that he told her that if she did “sexual stuff” with his father she could live at his father’s house “free of charge”.
[8] Ms. Mutschler agreed and moved in with Mr. Hammoe’s father, but soon complained that Mr. Hammoe’s father was too sexually aggressive. She told the police that she wanted to leave his father’s residence three nights a week to get away from his father and to work as an escort. During her interview with the police she stated that the accused refused her request and told her to keep his father happy or she would get “kicked out”.
[9] The accused introduced Ms. Mutschler to Jarear Saad. Ms. Mutschler later called Mr. Saad to propose that she work for him as an escort but without the accused knowing about it.
[10] Ultimately, Mr. Hammoe found out about this arrangement, triggering disputes with Mr. Saad about sharing the compensation earned by Ms. Mutschler for her work as a prostitute.
[11] On October 2, 2015, police intercepted phone communications between Mr. Hammoe and Mr. Saad. Both were very angry and threatened to kill each other. Mr. Hammoe also threatened to kill Mr. Saad’s father, Ghassan Saad.
[12] The Crown’s evidence is that the police also intercepted a call between Mr. Saad’s father, Ghassan Saad, and Mr. Hammoe.
[13] During that call Ghassan Saad agreed to meet Mr. Hammoe at the South Keys Shopping Centre. During his interview with the police Ghassan Saad stated that during the meeting Mr. Hammoe did not directly threaten to kill him, but that he did say that he wanted money for Ms. Mutschler’s services, that he had a gun and made Mr. Ghassan Saad feel it under his left arm.
[14] In the evening of October 3, 2015, Mr. Hammoe was arrested. At the time of his arrest and subsequent search, police found a Royal Bank of Canada bank receipt dated October 2, 2015 for a $1,500 withdrawal from an account that had a balance of $87,091.57 CAD, a Royal Bank of Canada bank card in the name of Garip Hammoe, and an Arab Bank cash deposit slip in the amount of $9,500 USD in the name of “Grip Hammoe”, dated March 26, 2014. Police also found 1.9 grams of crack cocaine and a half gram of cocaine in his possession.
The Release Plan Put Forward before the Justice of the Peace at the Bail Hearing
[15] At the bail hearing, the proposed plan presented to the Justice of the Peace was that Mr. Hammoe be released and reside at 60 Greenboro Crescent, Ottawa, his mother’s house, where his sister, Gulzar Hammoe, also resided and would act as his surety and post a $5,000 bond.
[16] Mr. Hammoe proposed that he be confined to house arrest and that if the Justice of the Peace required it, he would go to work accompanied by his surety. Mr. Hammoe was also prepared to abide with the condition that he not have any cellular phones in his possession and that he abstain from contacting Jarear Saad, Gassan Saad and Victoria Mutschler.
[17] Mr. Hammoe also proposed that his friend, Bruce Uguccioni, act as his second surety. Mr. Uguccioni was prepared to post a bond in the amount of $5,000.
The Decision of the Justice of the Peace
[18] The Justice of the Peace detained Mr. Hammoe under the secondary ground for detention pursuant to subsection 515(10)(b) of the Criminal Code. Subsection 515(10)(b) reads as follows:
- (10) for the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(b) where the detention is necessary for the protection or safety of the public […] 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;
[19] The Justice of the Peace agreed with the Crown that the plan proposed for Mr. Hammoe’s release did not fully address concerns that he would reoffend. She found that there would be insufficient monitoring and control of Mr. Hammoe’s activities and a high risk that he would not observe his release conditions.
[20] The Justice of the Peace found that, notwithstanding the imposition of strict conditions, the sureties put forward in Mr. Hammoe’s plan were not convincing in their abilities to enforce them and manage Mr. Hammoe’s behaviour.
[21] The Justice of the Peace found that the Crown had met the onus of proving on a balance of probabilities that there was a substantial likelihood that Mr. Hammoe would reoffend if he were released from detention and ordered him detained.
The Proposal for Release in the Application before the Court
[22] In his affidavit filed in support of this application, Mr. Hammoe proposes that the terms and conditions of his release be as follows:
• That he keep the peace and be of good behaviour;
• That he reside at 60 Greenboro Crescent, Ottawa, Ontario with his sureties – his brother, Mohammed Hammoe and his sister, Gulzar Hammoe;
• That he abstain from communicating or associating directly or indirectly with Ghassan Saad, Jarear Saad or Victoria Mutschler;
• That he abstain from the possession of any weapons, as defined by the Criminal Code;
• That he abstain absolutely from the possession or consumption of any substances listed in the Schedules to the Controlled Drugs and Substances Act or any paraphernalia related to drug trafficking, including but not limited to packaging materials, buffing agents, scales and cellular phones;
• That he not be outside his place of residence between the hours of 9:00 p.m. and 6:00 a.m., except for medical emergencies;
• That he, at his own expense, be subject to GPS monitoring by Recovery Science Corporation (“RSC”) which shall include:
o Entering into RSC’s Participant Agreement;
o Wearing a GPS ankle bracelet at all times;
o Permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;
o Complying with RSC leave notification and battery changing requirements;
o Co-operating fully with RSC staff.
The Law of Bail Review
[23] Section 520 of the Criminal Code gives an accused the right, at any time before the trial, to apply to a judge for a review of an interim detention order made against him or her by a justice. It is limited to the review of orders made in connection with offences other than the ones referred to in section 469 of the Criminal Code.
[24] Section 520 of the Criminal Code reads as follows:
- (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.
(7) …
and [the judge] 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.
[25] The approach to be taken by the Court in a bail review under sections 520 and 521 of the Criminal Code was clarified by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. At paragraph 120 of that decision, the Court held that sections 520 and 521 of the Criminal Code do not provide for a de novo hearing and “do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must therefore determine whether it is appropriate to exercise this power of review”.
[26] Writing for the Court, at paragraph 6, Wagner J. stated that exercising the power of review and engaging in a section 515(10) analysis will be appropriate in only three situations:
where there is admissible new evidence;
where the impugned decision contains an error of law; or
where the decision is clearly inappropriate.
[27] In the case before the Court the defence has confined its argument to the first situation and argued that there is new material and admissible evidence that was unavailable when bail was decided by the Justice of the Peace.
Is There New Evidence and is it Material?
[28] At paragraph 120 of St-Cloud, the Supreme Court stated that a judge can review a Justice of the Peace’s decision with respect to the detention or the interim release of an accused where new evidence is submitted by the accused or the prosecutor if that evidence shows a material and relevant change in the circumstances of the case [emphasis added].
[29] The Supreme Court stated that the meaning of “new evidence” should be interpreted broadly and generously in the context of sections 520 and 521 of the Criminal Code and cited the four criteria set out in Palmer v. R., 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 [Palmer], as being relevant to the determination of what constitutes “new evidence”. The four Palmer criteria are as follows:
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
The evidence must be credible in the sense that it is reasonably capable of belief, and
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.
[30] If the new evidence meets the four criteria set out in Palmer, the reviewing judge is then authorized to conduct an analysis under section 515(10) of the Criminal Code.
[31] The third and fourth of the Palmer criteria are an issue in Mr. Hammoe’s application.
The Grounds of the Application
[32] The grounds of the application are set out in the Notice of Application as follows:
The applicant proposes a change in circumstances which would see him residing with a surety who is able to supervise him closely in the community, with the aid of an ankle monitoring bracelet from Recovery Science.
The ‘New Evidence’
Mohammed Hammoe
[33] In addition to re-proposing his sister, Gulzar Hammoe, as his surety, Mr. Hammoe also proposes his older brother, Mohammed Hammoe.
[34] The application before the Court contains no new evidence or material regarding Gulzar Hammoe. I understand that Ms. Hammoe is no longer working, however I agree with the observations of the Justice of the Peace that she is not capable of monitoring the accused – her older brother. My comments will therefore focus on the testimony of Mohammed Hammoe.
[35] Mohammed Hammoe is 35 years of age and is the sole proprietor of Moe’s General Auto Repairs where he works from 9:00 a.m. until 7:00 or 8:00 p.m., 6 days per week. His plan is to employ his brother as a mechanic and to pay him the minimum wage for full-time work (40 hours per week – 9:00 a.m. to 5:00 p.m.).
[36] Mohammed Hammoe’s testimony was that he was a surety for the accused in 2008 when the accused was charged with robbery, that he understands the duties and responsibilities of a surety and that he was able to successfully monitor his brother previously without incident. As a surety, he stated that he would sign a $10,000 bond, live in his mother’s home with the accused during week days and work co-operatively with his sister and mother to monitor his brother.
[37] I do not find Mohammed Hammoe’s testimony credible for several reasons.
[38] During cross-examination, Crown counsel asked if he recalled meeting an individual by the name of Chris Sypes. His answer was vague. He initially replied that he was not sure who Mr. Sypes was but then stated that he would know Mr. Sypes if he saw him. When asked if Mr. Sypes had attended the wedding of another of Mr. Hammoe’s brothers, he answered that he would be surprised if Mr. Sypes was at the wedding. The Crown then produced two photographs of Mr. Sypes: one photo was taken at the wedding in question; the other depicted Mr. Sypes with the accused and was taken at Mr. Hammoe’s car repair shop.
[39] The evidence is set out below:
CROSS EXAMINATION BY MR. BOCKING:
Q. Mr. Hammoe, you know Chris Sypes?
A. No. I’ve met him.
Q. Did he work for you at some point?
A. No. Not for me.
Q. Okay. How do you know Chris Sypes?
A. I’ve met him through Garip.
Q. So he’s friends with Garip. Is that fair to say?
A. I’ve only seen him like once or twice, ever. I wouldn’t say if he’s friends or not I wouldn’t know.
Q. Okay. Was there a wedding in the family lately; last couple years?
A. I think in 2010 maybe.
Q. All right. And that’s your second oldest brother?
A. Yes.
Q. What’s his name?
A. Faris(ph).
Q. Faris. Did you see Mr. Sypes at Farus’ wedding?
A. I’m not too sure. I don’t remember who was all there.
Q. Okay. Would it surprise you to find out that Mr. Sypes was at that wedding?
A. Pardon me?
Q. Would it surprise you to find out that Mr. Sypes was at the wedding?
A. Absolutely, yeah.
Q. Okay. Would you know Mr. Sypes to see him?
A. Yes.
Q. I’m gonna show you something. May I approach Your Honour?
THE COURT: Yes.
Q. Do you know that person that’s there?
A. Yeah, that’s Chris.
Q. Okay. And in the top right hand corner, who’s that?
A. It’s Garip.
Q. Okay. And do you know what’s going on in this photograph here?
A. Yeah, that was my brother’s wedding.
Q. Okay. So that guy is at your brother’s wedding?
A. Mmm-hmm.
Q. Okay. And I’m gonna show you another picture, do you recognize the guy in the photograph? The guys in the photograph?
A. Yeah.
Q. Who are they?
A. That’s Chris.
Q. Yeah.
A. And that’s another one of his friends Eddie.
Q. Okay, Eddie. And where are they? Do you know [where] this is?
A. It’s Marionville shop.
Q. Okay. And what’s at the Marionville Shop?
A. What do you mean?
Q. Like who’s in the Marionville shop?
A. Garip owns it.
Q. Garip owns it.
A. Yes.
Page 39, Line 20 to Page 41, Line 15. Transcript of R v. Hammoe – Bail Review Proceeding, February 11, 2016.
[40] There is evidence before the Court that the accused attempted to defraud an insurance company regarding an accident that he orchestrated with his friend, Chris Sypes. Allegedly the accused developed a plan whereby Sypes hired a vehicle and arranged to fake an accident with a car driven by Mr. Hammoe. Mr. Hammoe has filed a claim for damages he says he sustained in the accident. According to his Statement of Claim his injuries were serious and debilitating.
[41] During this hearing Mohammed Hammoe testified that he only heard about the alleged fraud the day of the court hearing. The Crown questioned him about his brother’s work history since his Statement of Claim asserted that his injuries were so severe that he was unable to work. The following questions were asked and answered:
Q. So you filled out some documentation with the Ministry relating to Garip’s claim, right. That he was in an accident. Right?
A. Yes.
Q. Okay. Did he tell you at all about what happened to him?
A. Vaguely.
Q. Okay. And did he tell you at all that the guy ran into him worked at a shop?
A. No, he did not tell me.
Q. All right. You just, were you here when I read in what happened at the —
A. Yes, I was.
Q. All right. So what’s going on? Let make you this. You know your brother pretty well eh?
A. Yes.
Q. Okay. You probably know him as well as most of the people in your family. Right?
A. Yes.
Q. You’re his older brother. Right?
A. Yes.
Q. Okay. What’s going on?
A. I don’t know.
Q. Is this the first time that you heard about this fraud?
A. Yes.
Page 41, Line 23 to Page 42, Line 17, Transcript of R v. Hammoe – Bail Review Proceeding, February 11, 2016.
Q. He testified that he worked with you until 2014. Is that right?
A. I wouldn’t say 2014. I was a tenant at his garage in Marionville, and he was working on his own.
Q. So in 2014, he wasn’t working with you?
A. No.
Q. Would he have been working with you in 2013?
A. Yes.
Q. Doing what?
A. Buying, selling cars.
Q. Driving.
A. Driving, yeah.
Q. Okay. You heard the Statement of Claim. Right?
A. I did.
Q. His lawyer says basically he’s got a litany of ailments, right, there’s like a boat load of problems. Right?
A. Mmm-hmm.
Q. When you think back to 2013 when supposedly he has those problems, he can’t work.
A. Mmm-hmm.
Page 44, Lines 13 – 33, Transcript of R v. Hammoe – Bail Review Proceeding, February 11, 2016.
[42] Although Mohammed Hammoe lives in Calypso with his wife and four children, he proposes to live at 60 Greenboro Crescent during the week, in the residence of his mother along with his sister and the accused. He stated that he planned to visit his wife and children whenever he was able to do so because he was “mobile”.
[43] Mohammed Hammoe testified that he received a call about a family dispute involving his mother and father and immediately attended a residence located in Ottawa at 1717 Herron Road. When he arrived he stated he saw his mother in handcuffs being removed from the residence by the police. When asked to explain the reason for his mother’s arrest, he replied that to this day he does not know what transpired and that he has not asked his mother or father about the incident. Further, he stated that he did not know that 1717 Herron Road was the residence of his father or his brother, Garip.
[44] The transcript from the hearing contains the following exchanges:
Q. What’s going on? Your mom, she’s on conditions. Right?
A. Yes.
Q. All right. What’s that about?
A. As far as I know, all I know is that I got a call from my younger brother to go and they were having problems.
My mom was at 1717 Heron Road, and they had a family dispute.
Q. So your younger brother, which brother was this?
A. That was Hassan.
Q. Okay. Hassan was living at home, right, at 1717 Heron. Is that right?
A. No.
Q. He was living with your mom?
A. Yes.
Q. Okay. Your mom and your dad split up at some point?
A. I’m not sure if they split up or not.
Q. Your dad had a house though at 1717 Heron Road. Right?
A. I’m not sure. I don’t know who owned that house.
I had never gone into it.
Q. Your dad lived there though, right?
A. I don’t know.
Q. Who lived there?
A. The only time that I’m aware of 1717 Herron
Road was because Hassan phoned me and told me that there was a dispute, family dispute. And I was to go and pick up my mom.
So I don’t know who lived there. I don’t know who owned it.
Q. All right. So what had happened? You drove your mom. Where did you drive your mom?
A. I didn’t end up driving her. When I got there she was being arrested by the police, by the Ottawa police.
Q. Where did your mom live?
A. My mom lived at 60 Greenboro Crescent.
Q. So when you got there you basically had no idea what his place was?
A. I didn’t, no.
Q. What happened when you got there? What did you see when you got there?
A. I just saw the police escorting my mother into the police car.
Q. There was a bunch of damage though, right?
A. I didn’t see that. I was on the sidewalk. I didn’t go on the property.
Q. Did you ask what happened?
A. I couldn’t ask anybody. I asked the police what’s going on. Nobody would answer me.
Q. Since that date did you find out what happened?
A. No. I never asked.
Q. Your mom’s being let away in a squad car. Right?
A. Yeah.
Q. That, like you love your mom. Right?
A. Absolutely.
Q. Right. Have you ever seen your mom being pulled away in a squad car before?
A. No.
Q. And how old is your mom at the time, would she have been?
A. I think she was in her 60's.
Q. That must have been very emotional for her. Right?
A. Yes.
Q. You didn’t ask nobody what’s going on?
A. I asked —
Q. You didn’t ask what happened?
A. I asked the police what happened, nobody would answer me.
Q. Oh—
A. They told me to stay on the other side and wait.
Q. Okay.
A. So I did. And I saw them putting her in the car and they took her to Elgin Street, and that’s all I was told. So I went to Elgin and I phoned to speak to her. They said I couldn’t speak to her.
Q. So did you ask your brother? Did you ask what happened?
A. No.
Q. Did you ask Hassan what happened?
A. I asked Hassan, he didn’t know neither.
Q. Did you ask your mom what happened?
A. Once she came out I asked her vaguely and she said she had a dispute with her husband.
Q. Her husband being your dad?
A. Yes.
Q. Well what kind of dispute did they have?
A. I don’t know.
Q. Has it been resolved?
A. I don’t know.
Page 45, Line 3 to Page 47, Line 27, Transcript of R v. Hammoe – Bail Review Proceeding, February 11, 2016.
[45] During the preliminary hearing Mr. Hammoe was asked at page 34 whether he had a drug habit. He answered that he didn’t. Shortly thereafter at page 39 of the transcript he admitted that he did have a problem. Mohammed Hammoe testified that he knew nothing of his brother’s substance abuse problem.
[46] I did not find Mohammed Hammoe to be a credible witness. I have no confidence whatsoever that he would effectively monitor the accused. I will set out some portions of his testimony that I find are not believable.
[47] It is not believable that he would leave his wife and four children to live with the accused at the residence of his mother for 5 days each week.
[48] Further, I do not believe his testimony that he did not know that 1717 Herron Street was the residence of his father or that his brother lived there, or that he has never learned why his mother was taken from that residence in handcuffs.
[49] Also, Mr. Hammoe’s evidence regarding his knowledge of the relationship between Chris Sypes and his brother is not believable.
[50] In view of my conclusions about the credibility of Mohammed Hammoe, I do not accept him as an appropriate surety nor do I find that any of his evidence qualifies as fresh evidence.
Ankle Bracelet Monitoring
[51] Peter Marshall is the President of Recovery Science Corporation (“RSC”), an electronic monitoring company. Attached as exhibit “A” to his affidavit filed in support of this application is an overview of the compliance monitoring programs offered by RSC.
[52] Briefly, Mr. Hammoe’s proposal is that he would be fitted with a GPS monitoring device while residing at the residence of his mother (60 Greenboro Crescent), which is an area of good cellular coverage allowing the equipment to effectively communicate location data and alerts.
[53] Paragraph 25 of RSC’s Overview states that monitoring can alleviate risk and support supervision goals in two ways:
By providing a disincentive to an accused to breach condition because he/she knows that a record is being kept of their movements; and
By removing the possibility that exists when an accused is unmonitored that they might be able to breach house arrest or other movement restrictions before being detected.
[54] As noted in paragraph 27 of RSC’s Overview, one key risk of using monitoring technology is the false sense of security engendered by the tendency to assume that technology is a panacea for managing risk, rather than understanding it as a tool with limitations and that there is a risk of failure.
[55] Mr. Hammoe also submits that his proposal to be subject to GPS monitoring by wearing an ankle bracelet from RSC is new evidence that constitutes a material change in circumstances.
[56] I am not satisfied that this evidence could reasonably be expected to have affected the Justice of the Peace’s decision. The Justice of the Peace was not convinced that the two proposed sureties had the ability to ensure that Mr. Hammoe observed conditions. She found that the secondary ground, that Mr. Hammoe might reoffend and put at risk the protection of the public, was not satisfied.
[57] Similarly, I find that requiring Mr. Hammoe to wear an ankle bracelet with GPS monitoring does not alleviate concerns under the secondary ground.
[58] As provided in RSC’s GPS Monitoring Program Summary, while GPS monitoring can have a disincentive effect on offenders by keeping a record of their movements and detecting violations of movement restrictions, it is a “tool with limitations and the risk of failure”. GPS monitoring provides reactionary supervision rather than preventative supervision. It does not restrict the movements of the person wearing it, it cannot prevent an accused from fleeing or from committing another offence, and it cannot guarantee police intervention if a breach or offence is in progress.
[59] Paragraphs 16 and 17 of RSC’s GPS Monitoring Program Summary provide the following disclaimer:
While the system can and does deliver violation alerts very quickly, typically in 1-10 minutes, we do not encourage reliance on rapid response time as a factor in making a decision to release rather than detain an accused. This is for two reasons: firstly, because there are many factors that create the potential delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence.
These considerations regarding response time lead us to encourage decision makers to view monitoring not as a prevention tool but as a risk management tool…
[60] On several occasions, courts have recognized the limitations of electronic monitoring. Justice Trotter has commented on such limitations in United States of America v. Ugoh, 2011 ONSC 1810, 269 C.C.C. (3d) 380, at para. 11:
On occasion, and in the extradition context, judges have been presented with plans that involve privately-retained, electronic monitoring firms. It has been recognized that, while evolving technology has made electronic monitoring more efficacious, it is not infallible. Electronic monitoring cannot prevent someone from absconding; it merely helps notify the authorities when the person has left: United States of America v. Pannell, supra, paras. 40 and 42 and United States of America v. Khadr, supra, at pp. 150-151.
[61] In R. v. Bahman, 2007 CanLII 56479 (Ont. S.C.), at para. 23, Justice Nordheimer commented on the effectiveness of electronic monitoring in the context of release orders:
[E]lectronic monitoring, at best, only establishes where a person is. It does not establish what that person is doing. Electronic monitoring does not, therefore, address the secondary ground concerns where the subject may be able to engage in criminal activity but remain within the geographic area that is the focus of the electronic monitoring. Electronic monitoring does not, therefore, displace the need to have capable sureties who will monitor the activities of the accused person and report any breaches of the conditions of release without hesitation to the authorities.
[62] Recently, the Ontario Superior Court of Justice in R. v. Obi, 2015 ONSC 4444, specifically addressed the limitations of the GPS monitoring program offered by RSC at paragraph 36:
While I observed with counsel that the technology used in electronic monitoring continues to evolve and seems now to be focused principally on GPS-based tracking which appears capable of providing greater certainty relative to the location of an accused person, Crown counsel then, at the end of the hearing, noted from discussions with one of her colleagues that in another extradition matter where release was recently denied by the Court of Appeal, R. v. X.Y, an anonymous and unreported matter, the Court of Appeal nevertheless reviewed the disclosure materials relative to electronic monitoring that are provided by Recovery Science Corporation with respect to its electronic monitoring program, and specifically notes at paragraphs 38 (a), (b), (c) and (g), that significant deficiencies remain and at root, that when a court determines that there is a risk that an accused individual may be determined to flee or offend despite the consequences, it cannot be assumed that monitoring with active alerts can guarantee a sufficiently timely intervention by police authorities to prevent the accused from fleeing.
[63] Furthermore, as with any technology, there is a possibility of system malfunctions. As a result of a federal pilot project to outfit parolees with electronic anklets in 2008, the Correctional Service of Canada found that GPS monitoring technology was faulty and often failed to pinpoint a parolee’s whereabouts accurately. One of the main problems identified was that the monitoring map inaccurately identified the parolee’s location by a difference of up to 200 metres.
Summary
[64] Mr. Hammoe promises to abide by the release conditions that he proposes. There must be some assurance before a court accepts a promise and releases a person in circumstances as exist in this case and for a court to believe that the promise will be honoured. I do not believe that Mr. Hammoe is trustworthy, credible or that he will keep his promise to keep the peace and not re-offend.
[65] He testified at his bail hearing that he did not have a drug problem and then shortly thereafter admitted that he did.
[66] He has falsified a claim for personal injuries by faking a car accident that he orchestrated with his friend Chris Sypes.
[67] He has a history of violence (robbery convictions), disobeying court orders and drug abuse.
[68] In my view, the evidence relied upon by the Applicant does not qualify as new evidence and does not constitute a material change in circumstances, because it does not satisfy both the third and fourth requirements of the Palmer test.
[69] The evidence of both Mohammed Hammoe and the accused, Garip Hammoe, is not credible in the sense that it is reasonably capable of belief.
[70] The proposal of GPS monitoring, when taken with the other evidence before the Court, would not have affected the decision to detain the accused at the bail hearing, because it does not adequately control the accused’s behaviour and high risk of re-offending.
Conclusion
[71] There must be new evidence showing a material and relevant change in the circumstances of the case for a judge to proceed to the analysis required by section 515(10) of the Criminal Code. I am not satisfied that there is new evidence that meets the four criteria of the Palmer test and hence there is no need to proceed to a section 515(10) analysis.
[72] For the reasons set out above, this application under section 520 of the Criminal Code is dismissed.
Patrick Smith J.
Released: March 18, 2016
CITATION: R. v. Hammoe, 2016 ONSC 1790
COURT FILE NO.: 15-13230
DATE: 2016/03/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
GARIP HAMMOE
Applicant
REASONS FOR Decision
Patrick Smith J.
Released: March 18, 2016