Court File and Parties

COURT FILE NO.: 1 6-0000131-00BR DATE: 20160712 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – MOHAMMAD HANSA

Counsel: Daniel Brandes, for the Crown Nader Hasan and Carlo Di Carlo, for the accused

HEARD: July 7, 2016

M. DAMBROT J. :

[1] The accused was ordered detained in custody after a judicial interim release hearing in relation to charges of attempt murder, aggravated assault and other related offences by a justice of the peace on April 14, 2016. He brings this application for a review of the detention order.

[2] In addition, after the accused commenced this application, he was charged with obstructing a peace officer, personation with intent and public mischief arising out of an incident on February 8, 2016. On that occasion, it is alleged that the accused was stopped by a police officer for speeding. He identified himself as his brother to keep the officer from knowing that he was driving while his licence was suspended. As a result, a speeding conviction and a conviction for failure to surrender his licence were registered against his brother.

[3] In order that all of his outstanding charges could be dealt with together, he consented to a detention order on the later charges and applies for a review of that detention order as well.

Background

[4] Hamzah Shaikh was a drug dealer. John Zikos sold marihuana and cocaine on his behalf. On March 27, 2016, Zikos organized a meeting between Shaikh and an unidentified man in a parking lot near Highway 401 and Kennedy Road in Toronto to facilitate the sale by Saikh of nine ounces of cocaine to the man. Shaikh arrived in a Jeep with a second man, and Zikos and the purchaser arrived in a second vehicle. Saikh, Zikos and the purchaser met as planned, while the second man remained in the Jeep. Shaikh handed the cocaine to Zikos, who handed it to the purchaser. The purchaser then handed a package to Zikos that was supposed to contain $15,700 as payment for the cocaine. The purchaser then fled with the cocaine. When Zikos opened the package, it contained empty CD cases, but no money. This transaction was recorded on videotape.

[5] Shaikh took Zikos into the Jeep, and the three men chased after the purchaser, but were unable to apprehend him. Sheikh and the second man then abducted Zikos. They drove to a Metro supermarket just across the 401 from the location where the drug transaction took place, where two additional men entered the vehicle. The Crown alleges that one of the two men was the accused.

[6] Sheikh and his associates then drove Zikos to the waterfront of Lake Ontario near Cherry Beach where they met up with two more men, one of whom was Shaikh’s supplier. All of the men viciously attacked Zikos and began beating him, and demanded that he pay them $14,000 to compensate them for the lost cocaine. They told him that if he didn’t come up with the money he was dead.

[7] Using his cell phone, Zikos was able to persuade a friend to bring the money. The kidnappers spoke to the friend, and told him that Zikos would be killed if he didn’t comply. The friend did in fact drop the money off at an agreed upon location, but when Shaikh arrived to pick it up, he observed another vehicle belonging to an unrelated individual nearby. He believed that this was the police, and abandoned the money.

[8] Sheikh returned to the waterfront, enraged, and he and his friends resumed beating Zikos with their fists, a baton or a pipe, and pieces of rock and broken concrete for a period of three hours. One of then tried to rip his ear off repeatedly. To say that the beating was severe is a gross understatement. The men also burned Zikos with cigarettes and attempted to poke his eyes out.

[9] Finally, the men took $1,000 in cash from Zikos as well as his cell phone, his wallet and his identification, stripped him down to his underwear and told him that if he survived and didn’t pay the money by that evening they would kill his family. They then threw him in the lake and left him for dead.

[10] Once the men left, Zikos was able to crawl out of the water onto the beach where he was found, covered in blood, by a passer-by who called the police. When he was found, Zikos had grotesque injuries to his face, head and body as a result of the beating. He had massive swelling about his face and severe lacerations about his body and head, apparent facial and head fractures, an apparent broken nose and a soft spot towards the rear of his skull. He was taken to intensive care for treatment.

[11] As I mentioned, the Crown alleges that the accused was one of the men who participated in the beating of Zikos. Specifically, the Crown alleges that after Shaikh kidnapped Zikos, he drove with Zikos and the second man to a Metro supermarket where he picked up the accused and another man. The Crown relies on several pieces of evidence to identify the accused as one of the men entering the vehicle:

• Surveillance video at the Metro store shows two men entering Shaikh’s motor vehicle.
• The accused identified himself as one of the two men entering the vehicle in a post-arrest statement at 55 Division on April 10, 2016.
• A Community Response Unit officer viewed the surveillance video on March 27, 2016 and identified this man as the accused, and as an associate of Shaikh, on the basis of a vehicle stop.
• The Community Response Officer had stopped the accused in the company of Shaikh in a motor vehicle registered to the mother of a female associate of the accused on March 20, 2016 and charged the accused with stunt driving.
• Although the accused lived with his parents, he did not return home the night of these alleged offences, and his parents did not know where he was.

[12] On the other hand:

• The accused’s statement at 55 Division was not recorded, apparently because the accused did not want to have his conversation with the police recorded.
• The victim was unable to identify the accused in a photo line-up.

[13] The accused had a high school education and was working six days a week at Amaan Truck Trailer as a mechanic at the time of the arrest. He would leave for work each day at about 10:00 a.m. and return home in the evening at about 8:00 or 9:00 p.m.

[14] The accused’s parents were proposed as sureties, and the accused proposed entering into a form of house arrest under their supervision. The accused’s parents did not know that he drank alcohol, did not know that he had a girlfriend, did not know who his friends were and did not know that he had been arrested for stunt driving.

The Judicial Interim Release Hearing

[15] The justice detained the accused on the secondary ground (his detention was necessary for the protection or safety of the public) and tertiary grounds (his detention was necessary to maintain confidence in the administration of justice). She was of the view that public confidence in the administration of justice would be eroded if the accused were released. She took into account the gravity of the alleged offences, the fact that she viewed the Crown’s case as fairly strong, the fact that although the accused had no criminal record, he was connected to individuals in the illegal drug trade, and the fact that the proposed sureties were unaware of the accused’s life outside of the home, including: his associates, his consumption of alcohol and his having a girlfriend.

[16] She also bore in mind the accused’s age, the fact that he was employed, and that he resided with his parents.

The Review Hearing

[17] The accused proffered two additional sureties on this review: his two older sisters. They each testified, and were each intelligent, sincerely concerned about their brother, and committed to doing their best in supervising him should he be released. They are both married, work part time and have young children, and would inevitably leave the dominant role of supervision to their parents. Notably, neither of them knew anything more about their brother’s life outside of the home than did their parents.

[18] Counsel for the accused argued both that the justice made errors of law and that there were changes to his circumstances that justified his release.

Analysis

[19] I will consider the arguments of the accused in turn.

Errors of law

[20] The accused argued that the justice erred in law by relying on bad character evidence and in holding that there was “no real connection between Mr. Hansa and his parents.” I begin with bad character evidence.

Bad character evidence

[21] The accused argued that the justice erred in receiving and relying on two pieces of bad character evidence: that the accused was an associate of individuals in the illegal drug trade, and that he had been charged with the offence of stunt driving.

[22] I begin by saying that the rule against the admission of bad character evidence has no place at a judicial interim release hearing. It is hard to imagine how a justice could ever determine that an accused’s detention was necessary for the protection or safety of the public if the justice could not take bad character evidence into consideration. The purpose of the general exclusion of evidence of the bad character of an accused at a criminal trial is to prevent wrongful convictions. It is not a rule of relevance. It is sometimes said that bad character evidence is inadmissible because it is too relevant. Where bad character evidence is relevant to an issue at a judicial interim release hearing, there is no reason to exclude it. I emphasize that the bad character evidence must be relevant, because some bad character evidence is irrelevant. For example, the mere fact that an accused has been arrested and charged with a criminal offence on a previous occasion, standing alone, will rarely be relevant.

[23] The accused relies on the decision in R. v. Krasniqi, [2008] O.J. No. 5815 (S.C.J.) for the proposition that the list set out in s. 518(1)(c) of the Criminal Code of categories of evidence related to an accused’s criminal antecedents that a court can consider on a bail hearing is a closed list, and that only those categories of such evidence can be relevant. As a result, he says, the two items of evidence I have mentioned should not have been received and relied upon here. With great respect, I disagree with this proposition.

[24] I see nothing in s. 518(1) to limit the admissibility of evidence in this manner. Section 518(1)(a) provides that a justice may make such inquiries of and concerning the accused as he or she considers desirable. Section 518(1)(c) provides that the prosecutor may, in addition to any other reliable evidence, lead evidence: of prior convictions; outstanding charges; that the accused has committed the offences of escaping lawful custody or being unlawfully at large; and of the circumstances of the alleged offence. The list of examples does not preclude the Crown from adducing or the justice from relying on other relevant evidence, whether it relates to the criminal antecedents of an accused or not.

[25] In this case, evidence that Shaikh is a drug dealer will be relevant at trial. It is a part of the narrative of the alleged offence. Similarly, the fact that the accused has associated with Shaikh in the past will be a relevant piece of circumstantial evidence at trial to support the inference of their connection. It is hard to imagine how this evidence could be admissible at trial but inadmissible at the bail hearing. It is admissible pursuant to s. 518(1)(c)(iii) because it is a piece, albeit a small piece of evidence that shows the circumstances of the offence and the strength of the Crown’s case. Further, in my view nothing in s. 518 precluded the justice from taking this association into account when assessing the secondary and tertiary grounds. It is relevant and probative with respect to both issues.

[26] Similarly, the prior arrest for stunt driving will be admissible at trial, not to show that the accused is a stunt driver, but rather, once again, to show his association with Shaikh. The justice drew no inference from the stunt driving charge; only from the association with Shaikh. Again, I see no error in her doing so.

[27] There is no merit to this allegation of error.

The absence of a “real connection” between the accused and his parents

[28] The accused argues that the justice erred in making use of the fact that the accused’s parents did not know about the accused’s consumption of alcohol or his romantic life, because this flows not from an absence of connection, but rather from the fact that his parents are devout Muslims. This would discourage their children from discussing their engaging in prohibited conduct with them.

[29] In my view, this misses the point. The simple fact is that it would be more difficult for the accused’s parents to supervise the accused, and keep him out of trouble, if they don’t know who his friends are and how he conducts himself when he is away from home. This is what the justice meant when she referred to an absence of real connection between the accused and his parents. The fact that there is a cultural reason for the parents not knowing these things about their son does not undermine the justice’s concern. There is no merit to this second allegation of error.

Changes in circumstance

[30] The accused relies on two changes in circumstance: the additional availability of his sisters as sureties, and the argument that the Crown’s case is not as strong as was suggested at the bail hearing.

[31] With respect to the first point, I see no particular significance to this change in the accused’s proposed plan of release. While I consider his sisters to be intelligent, sincere and entirely well-motivated, I don’t think that their addition to the plan makes it stronger to any significant degree.

[32] I turn then to the strength of the Crown’s case. The accused points to two new pieces of evidence learned from disclosure made after the bail hearing: (1) the victim sat next to the accused in the Jeep on the ride down to the lakeshore and spent time talking to his assailants when they got there; and (2) according to the accused, it is “virtually impossible to identify anyone” from the surveillance photos at the Metro supermarket. When this is added to the accused’s “problematic” admission that he is seen entering Shaikh’s vehicle in the surveillance photo (because of the failure to record the statement) the justice’s characterization of the case as fairly strong is seriously undermined.

[33] There is no question that the failure of the victim to identify the accused will be an issue at trial, but in the circumstances, it is not entirely surprising, and in any event was known to the justice who put little weight on it. It was obvious without the new information that the victim had ample opportunity to see the accused. Similarly, the quality of the surveillance video will be in issue at trial, although I am far from sharing the accused’s view of it. Finally, while the failure to record the accused’s statement will be an issue at trial, it should be borne in mind what Charron J.A. actually said in R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) at para. 65. She stated:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt

[34] In this case, the limited information before the justice was that rather than deliberately setting out to interrogate the suspect without giving any thought to the making of a reliable record, the police did not do so because the accused did not want to have his conversation with the police recorded. It will be for the trial judge to determine the circumstances of the taking of the statement. But on the state of the record before the justice and before me, it cannot be said that the admissibility of the statement is problematic.

[35] As a result, although the accused has identified some of the issues that will be raised by the defence at the trial of the accused, and although they are arguable, in the end, I am of the view the justice’s description of the Crown’s case as fairly strong is not far off the mark.

[36] Accordingly, the changes in circumstance since the judicial interim release hearing do not, in my view, justify vacating the order of detention made by the justice. On the contrary, the new offences added after the bail hearing provide additional reasons to detain the accused on both the secondary and tertiary grounds. His willingness to lie to the police and implicate his brother in offences that he did not commit, however minor, gives rise to an increased concern that the accused will violate any release order made by the court.

Conclusion

[37] The accused is alleged to have participated in a very serious offence. The Crown’s case is fairly strong. The circumstances surrounding the offence are horrifying. Detention on the tertiary ground in particular is well-justified.

Disposition

[38] For these reasons, the application is dismissed. The detention order made in respect of the original charges stands as does the detention order made on consent with respect to the second set of charges.

Dambrot J.

RELEASED: July 12, 2016