BACKGROUND

[1] During the early morning hours of August 9, 2015 there was a gunfight on Bay Street in downtown Toronto. A silver vehicle was stopped in the southbound passing lane. A man got out and went around the back of the car. He was shot, collapsed, and died on the sidewalk on the west side of the street. Right after that, a man – not the man who shot the victim – ran out of the Marriott Hotel and began shooting at a blue Hyundai Elantra. He then ran over to the body on the sidewalk. He appears to have then run into the Marriott. The Crown alleges that the person shooting at the Elantra was Mr. Abdulle. He is charged with several offences arising out of this gunfight.

[2] Mr. Abdulle is also charged with a robbery. The Crown alleges that on May 22, 2014 Mr. Abdulle befriended another Somali male at the Million Dollar Saloon and invited him to a party. Instead of a party, there was a robbery. Mr. Abdulle and another man allegedly took the victim’s wallet and car. The victim was taken to a hotel and roughed up. The robbers took the victim’s debit card and PIN number. They used the debit card to withdraw money from an ATM. Later the robbers tried to use the debit card at Woodbine Racetrack. The Crown alleges that the surveillance video at Woodbine shows Mr. Abdulle trying to withdraw money from an ATM there.

[3] Mr. Abdulle was detained on all charges on the secondary and tertiary grounds. He now seeks a release on the grounds that the justice of the peace erred in law and that there has been a material change of circumstances.

[4] On December 22, 2015 I dismissed the bail review. I found that the justice of the peace did not err in law. I also found that the proposed plan of release did not amount to a material change of circumstances. I indicated at the time that more extensive reasons would follow. These are my reasons.

FACTS:

(a) The Gunfight

[5] The Crown’s case at the bail hearing was largely dependent on a series of still photographs taken from video cameras and witness statements. It certainly would have been better if the video itself had been introduced at either for the original bail hearing or for the bail review. I will briefly summarize the video evidence. The times are taken from video cameras at the Toronto Eaton Centre:

2:38:20 am A blue Hyundai Elantra drives out of the Marriott Hotel, turns northbound on Bay Street, and then turns into the Toronto Eaton Centre parking facility on the east side of the street.

2:39:11 am A silver four-door vehicle arrives travelling southbound on Bay Street stops in the passing lane. It has its hazard lights on.

2:39:45 am The Elantra exits the Toronto Eaton Centre parking facility. It is not clear from this photograph where it goes.

2:41:48 am A man in dark clothing appearing to carry a paper bag exits the silver car and walks towards the Marriott hotel. The Crown’s theory is that this man is Mr. Abdulle.

2:42:18 am The victim exits the driver’s side of the silver vehicle and goes around back where the trunk is opened.

2:42:42 am The silver vehicle appears to move southbound. A dark vehicle parked in the curb lane (not the Elantra) accelerates southbound on Bay Street.

2:42:49 am The Elantra travels southbound on Bay Street in the passing lane. The silver vehicle can be seen further south on Bay Street.

2:42:50 am The man in dark clothing runs from the parking loop at the Marriott towards the Elantra and appears to begin shooting at it. As the Elantra moves south on Bay the man runs into the middle of the street and appears to keep shooting. The man then crosses to the west sidewalk of Bay Street where the victim was collapsed on the sidewalk.

2:43:02 am The man in dark clothing continues to move towards the victim.

2:43:09 am The man in dark clothing appears to run back towards the Marriott, although Mr. Bogle, as I will related below, argues that this man actually ran towards the north, rather than towards the Marriott.

[6] The following video evidence was taken from the lobby camera of the Marriott. The times are obviously not synchronized with the cameras from the Toronto Eaton Centre parking facility:

2:442:23 Two unknown males enter the lobby of the Marriott.

2:42:27 Two other males can be seen just outside the lobby doors of the Marriott. They enter the lobby shortly after. There is a man in dark clothing the police identify as Mr. Abdulle. He is with a man in a white shirt. The man in the white shirt is carrying a brown paper bag.

[7] There were other pieces of evidence:

• The police found blood on the door handle of the Marriott. One witness says he saw the person who shot at the Elantra touch the victim;

• The police seized shell casings on Bay Street from the spot where the shooter was shooting;

• The police seized the Elantra. It had a bullet hole in it;

• One witness says he saw the shooter leave the deceased and run back towards the Marriott.

• The police say that they have excluded the other people in the Marriott lobby as suspects.

[8] The critical piece of evidence before the justice of the peace is that a police officer from the Guns and Gangs unit identified Mr. Abdulle as the shooter in the videos. That officer has had previous dealings with Mr. Abdulle. Mr. Abdulle appears to be the man entering the lobby.

(b) The Robbery

[9] The Crown’s case at the bail hearing consisted of facts read in by Crown counsel. Two men robbed the victim. The first robber befriended the victim at the Million Dollar Saloon on May 22, 2014 early in the morning. He invited the victim to come over to his house to party. They took the victim’s vehicle and went to Woodbine Racetrack where they picked up another partyer, who turned out to be the second robber. The two robbers then proceeded to assault the victim. They took his possessions, including his wallet, car, phone, and bank debit card. The victim gave the robbers his PIN number so they would not kill him, as they threatened. The robbers obtained $500 from a bank machine. The victim was then able to escape. The robbers then attempted to use the debit card to withdraw $10,000 from an ATM at Woodbine Racetrack. That transaction was caught on video. Mr. Abdulle was apparently identified as one of the two men at Woodbine Racetrack.

[10] The state of the evidence on the robbery charge as read in at the bail hearing was poor. The victim did not pick Mr. Abdulle out of a photo line-up as one of the two robbers. The evidence against Mr. Abdulle consists of identification on the surveillance video from Woodbine Racetrack. It is not clear who identified Mr. Abdulle on the video. It is simply a bare statement by the Crown. It is also not clear whether the Crown alleges that Mr. Abdulle befriended the victim at the Million Dollar Saloon, or whether the Crown alleges that he is the second robber. The Crown did not add any extra evidence at the bail review.

THE BAIL HEARING AND THE DECISION OF THE JUSTICE OF THE PEACE:

[11] Mr. Abdulle proposed a release on house arrest. He proposed three sureties, including his mother, his uncle, and his fiancé. The justice of the peace rejected all three as unsuitable. He found that they were evasive and dissembling (in the case of Luja Abdulle’s mother, and Hamda Dayr, Mr. Abdulle’s fiancé) or simply knew very little about Mr. Abdulle (his uncle). He found that the plan of release was “loose, disjointed, unfocussed” and could not meet the secondary concern grounds given the type of direct, “no-nonsense” supervision called for in this case.

[12] On the tertiary ground, the justice of the peace examined the four circumstances set out in s. 515(10)(c) and recently examined by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27. He found that in balancing the factors, and also taking into account possible defence arguments, he was not satisfied that the tertiary ground concerns could be adequately addressed.

ANALYSIS:

[13] The onus was on Mr. Abdulle at the bail hearing to show cause why he should be released, as he was on bail for dangerous driving and fail to stop at the time of the alleged robbery. He was subsequently convicted of the dangerous driving charge.

[14] In the Supreme Court’s decision in St-Cloud the Court noted that there are three grounds upon which a bail review judge can interfere in a decision of the justice of the peace:

• Where the justice of the peace has erred in law;

• Where the decision of the justice of the peace is “clearly inappropriate”; or,

• New evidence shows that there has been a relevant and material change in circumstances.

[15] Mr. Bogle argues that the justice of the peace made two errors of law, and that there has been a material change of circumstances. I turn to those alleged errors.

(a) Did the justice of the peace make a procedural error?

[16] Mr. Bogle argues that the justice of the peace is owed no deference because the bail hearing was conducted in such a haphazard way. He erred by allowing the Crown to re-examine police officer on points that were dealt with in cross-examination. Specifically, Mr. Bogle argues that after the conclusion of the cross-examination the officer went back and reviewed the video again, and reviewed witness statements. Prior to the re-examination Crown counsel and the officer discussed the officer’s evidence. Mr. Bogle took objection to that. The learned justice of the peace permitted the Crown to re-examine. He found that these were points that came out in cross-examination. As a matter of fairness, he allowed Mr. Bogle to cross-examine again after Crown counsel completed her re-examination. Mr. Bogle argues that this process compromised the fairness of the hearing. He offered no authority for this proposition, but I do accept that if there were real unfairness to the accused person, it would justify intervention by a reviewing court.

[17] I find, however, that there was no real unfairness. The process, as the justice of the peace recognized, was haphazard and took place over several days. The original officer-in-charge of the investigation was not available. Another officer with more limited knowledge testified. The original videotapes from the Toronto Eaton Centre parking facility and the Marriott Hotel were not entered into evidence and the parties had to make due with still photographs.

[18] The bail hearing took place at an early stage. The shooting happened on August 9, 2015. Ms. Abdulle became aware that her son was wanted on August 21, 2015. Mr. Abdulle turned himself in on August 26, 2015. The bail hearing commenced on August 28, 2015. It is clear that there were two police investigations. The Homicide Squad was investigating the murder. The Guns and Gangs unit was investigating the shooting of the Elantra. The Homicide Squad apparently seized the videos from the Toronto Eaton Centre parking garage and the Marriott Hotel. This undoubtedly affected the manner in which the evidence came out. Guns and Gangs only had access to still photographs, not the full videos. It must be said, however, that the scheduling of the bail hearing to accommodate Mr. Bogle’s schedule also had an effect on the manner in which the hearing took place, as the justice of the peace observed. I say that not to be critical but it is a reality of our system that the availability of defence counsel may not coincide with the availability of investigating officers, and it is unrealistic to expect police officers to accommodate the schedule of the defence lawyer as a matter of course.

[19] The real question is whether these difficulties caused any real unfairness to Mr. Abdulle. I find that they did not.

[20] It must be remembered that a bail hearing is not a trial. It is a proceeding held more or less at the time of the accused person’s choosing. It is a strategic choice by the defence when to have a contested bail hearing. Sometimes it is better for the defence to have the bail hearing early in the process, before the investigation is complete. Sometimes it is better for the defence to have the bail hearing later in the process, when there might be disclosure material that would reveal weaknesses in the Crown’s case.

[21] Obviously the outcome of a bail hearing is important, but a bail hearing is not a trial. Guilt or innocence is not at stake. A justice of the peace at a bail hearing has a wide discretion as to the evidence that is taken and the manner in which the evidence is taken. Hearsay is admissible. All courts have the power to control their own process. Section 518 of the Criminal Code states, in part:

(1) In any proceedings under section 515,

(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable;

(i) to prove that the accused has previously been convicted of a criminal offence,

(ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence,

(iii) to prove that the accused has previously committed an offence under section 145, or

(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused;

(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel;

(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.

[22] See: R. v. Powers (1972), 1972 CanLII 1411 (ON SC), 9 C.C.C. (2d) 533 (Ont.H.C.).

[23] I agree with Mr. Bogle to the extent that if there were real unfairness to the accused at the original bail hearing it would be incumbent on me to intervene. I disagree, however, that there was real unfairness. I also think that even if the bail hearing had proceeded along in a more organized way, the result would likely have been the same. An officer with more knowledge would likely have fleshed out more details about the Crown’s case, including the identification of Mr. Abdulle.

(b) Did the justice of the peace make an error of law?

[24] Mr. Bogle also argues that the justice of the peace did not apply the tertiary ground properly, in particular the apparent strength of the prosecution’s case. Mr. Bogle argues that the evidence identifying his client as the shooter is weak. He says that the justice of the peace erred in relying on this factor in order to detain Mr. Abdulle on the tertiary ground.

[25] Notwithstanding Mr. Bogle’s able argument on this point, I must respectfully disagree. I find that the justice of the peace did not make an error in finding that the Crown’s case was strong. There was ample evidence on which he could make that finding.

[26] As my colleague Trotter J. observed in R. v. Dang, 2015 ONSC 4254 at para. 48, I do not have an open-ended discretion to substitute my views for the views of the justice of the peace. The only basis upon which I can interfere is if the justice of the peace gave excessive weight to one factor or insufficient weight to another.

[27] There seems to be no doubt that the shooter ran out of the vicinity Marriott hotel with a handgun, and fired several rounds at the Elantra as it drove southbound on Bay Street. The Elantra was later recovered by the police and had a bullet hole in it. The still photographs show the shooter pointing something (no doubt a firearm) at the fleeing Elantra. The police seized shell cases from the spot where the shooter is seen to be pointing the firearm at the Elantra. The shooter then went to where the body was laying. There is one final photograph where the shooter appears to be running back towards the Marriott, although Mr. Bogle disputes that this is indeed what the photograph shows. The police found blood on the handle of the Marriott. Mr. Abdulle is seen on video entering the Marriott shortly after the shooting. He is wearing dark clothing. He is with a man in a white shirt who is carrying a brown paper bag.

[28] An eyewitness apparently told the police that the shooter left the vicinity of the Marriott Hotel, shot at the Enlantra, crossed Bay Street from east to west, and then ran back into the Marriott. He then says that the shooter went into the Marriott with an individual in a white shirt. That eyewitness can be seen on one of the still photographs walking southbound towards the Marriott. That witness had an excellent view of the incident.

[29] Mr. Bogle argues that the shooter actually ran north. In one photograph the shooter, he argues, can be seen running north after being in the vicinity of the victim on the sidewalk. North is away from the Marriott. If that is the case, he argues, his client could not be the shooter since Mr. Abdulle is very clearly seen in the still photograph taken from the lobby video camera. In cross-examination, the officer would not agree with Mr. Bogle’s suggestion that the shooter ran north.

[30] The photograph and the witness statements as related to the justice of the peace provided evidence upon which a trier of fact could find that the person who shot at the Elantra ran back towards the Marriot. There was, therefore, an ample basis upon which the justice could find that there was a strong Crown case that the shooter was Mr. Abdulle. I find no error in his evaluation of the tertiary ground.

[31] I do think, however, the justice of the peace did make one error. He failed to address the robbery charge when he was balancing all of the factors in his decision on the tertiary ground. Indeed, he treated the robbery charge as almost an afterthought. In my respectful view, however, this error actually helped Mr. Abdulle. I therefore find that it has no weight. As I have noted, the state of the evidence on this charge is poor. If this were the only charge facing Mr. Abdulle, I rather doubt he would be detained. This likely explains why the justice of the peace did not deal with it in a significant way.

[32] I give no weight to the Crown’s argument that there is a problem on the primary ground due to Mr. Abdulle’s failure to turn himself in on the robbery warrant. Crown counsel wisely did not press this argument. There is no doubt that the police were in communication with Jessica Greenwood, Mr. Abdulle’s previous counsel, trying to make arrangements for his surrender. Crown counsel at the bail hearing (not Ms. Malik) kept mistakenly referring to the existence of a bench warrant, although it was clearly an arrest warrant. She argued that it was evidence in support of detention. The justice of the peace did not make that mistake. It turns out that the arrest warrant may never have been signed and may never even have been in existence. Furthermore, there is evidence that Mr. Abdulle did attend 23 Division to turn himself in, but the officers sent him away. I suspect that the warrant did not make it onto the system, as it was unsigned. In any event, the justice of the peace appeared to give the primary ground no weight as well.

(c) Has there been a material change of circumstances?

[33] Mr. Bogle argues that there has been a material change of circumstances because there is a new and better plan of release for Mr. Abdulle. He proposes that Mr. Abdulle’s father now be a surety, and that his mother (who was proposed at the original bail hearing) also be a surety.

[34] The plan is that Mr. Abdulle be under house arrest, and that he should be allowed to go to work so that he can support and assist his family. His family will supervise him at close quarters. He should have an opportunity to return to his job.

[35] In my view, the plan of release does not amount to a material change of circumstances. I have grave concerns about the ability of these sureties to properly supervise their son. The only real change is that Mr. Abdulle no longer offers up his uncle and fiancé as sureties. The justice of the peace found them to be unsuitable, a finding for which there was ample support in the evidence. The only difference between the earlier plan of release and this plan of release is the change of sureties. As Justice Hill observed in R. v. Ferguson, [2002] O.J. No. 1969 (Sup.Ct.):

Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[36] Luja Abdulle is Mr. Abdulle’s mother. The justice of the peace noted that “she surpassed the first witness in both the evasiveness of her answers, and in her lack of knowledge of the accused’s interaction with the justice system.” His Worship further found:

At best, the mother, Ms. Abdulle, presents as a well-meaning, but ill-informed witness for the defence. At worst, she presents as self-serving, and as someone that is willing to say and do anything that might advance the interests of her son. Either way, she is unsuitable, in my view, as a proposed surety…

[37] There was ample support in the transcript for the justice of the peace’s observation and conclusion about Ms. Abdulle. She did no better when she testified before me. She repeatedly failed to answer questions directly. She was evasive on important points. For example, when asked whether her son had stayed with her after his photo was on television as a wanted man, she either would not or could not answer the question. She would not or could not answer questions directly about her husband’s travels. It is unclear why Mr. Abdulle waited 5 days to surrender. Ms. Abdulle shed no light on that issue, although she was repeatedly asked about it. She did not say she didn’t know. Instead, she evaded the questions. Although some allowance must be made for the fact that she was using an interpreter, she did not use an interpreter at the original bail hearing. She appeared to have no language difficulties in that proceeding. Furthermore, she was a surety on Mr. Abdulle’s dangerous driving charge. Mr. Abdulle is alleged to have committed the robbery while on bail for the dangerous driving charge. I agree with the justice of the peace. Ms. Abdulle is not a suitable surety.

[38] Said Abdulle, Mr. Abdulle’s father, also offered himself up as a surety. I have real doubts about his relationship with his son and his ability to supervise him. Said Abdulle stated in his affidavit that he is a landed immigrant and has lived in Canada for 20 years, meaning he immigrated here in 1995. In evidence, however, he said that he came to Canada only in 2003. It is unclear how much time Said Abdulle has spent with his son. He lived in the United States for many years (it is unclear how many) while his wife and children lived in Canada. He travels extensively in Somalia and the United States, but it was unclear how long he spends in each place, and, frankly, why he travels to the United States. I must say, I also found it very odd that Mr. Abdulle was able to travel so much when he is unemployed in Canada and has been trying to get his family farm business going in Somalia. I am not sure where the resources come from to travel that much, but, in fairness, that point was not explored in cross-examination.

[39] Much more importantly, Said Abdulle was unable to answer clearly simple questions about how long he has really lived in Canada, how much he travels, and whether he has any real relationship with his son. He could not answer questions about whether his son lived with him, his wife, or his fiancé, and when. Like his wife, Said Abdulle either could not or would not give straight answers about where Mr. Abdulle was living at various times. In my view he is also not a suitable surety.

[40] Mr. Bogle relied on R. v Dang, a case where the facts had some similarities to this one. Mr. Dang was released despite the gravity of the crime. I think that Dang is distinguishable. The case against Mr. Dang was not strong. He was alleged to be one of several shooters who tried to kill a member of a rival gang. Although there was strong evidence that Mr. Dang was a member of a gang, the shooters had been wearing masks and there was no identification evidence. The justice of the peace in this case found that the Crown’s case on the attempted murder charge was strong, as I have mentioned. There was a solid basis for that conclusion.

DISPOSITION:

[41] The application is dismissed.

R.F. Goldstein J.

Released: January 26, 2016

R. v. Abdulle, 2016 ONSC 632

Case Summary

BACKGROUND

FACTS:

(a) The Gunfight

(b) The Robbery

THE BAIL HEARING AND THE DECISION OF THE JUSTICE OF THE PEACE:

ANALYSIS:

(a) Did the justice of the peace make a procedural error?

(b) Did the justice of the peace make an error of law?

(c) Has there been a material change of circumstances?

DISPOSITION:

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 2