Court File and Parties

Citation: R. v. Kahssay, 2016 ONSC 6524 Court File No.: CR-16-10000245-00BR Date: 2016-10-18

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Tsega Kahssay, Accused

Counsel: David Tice, for the Crown Chris O’Connor, for the Accused

Heard: October 17, 2016

Before: B.A. Allen J.

DECISION ON A BAIL REVIEW

FACTUAL BACKGROUND

[1] This was a Crown onus on the show cause. The Crown sought a denial of release on secondary and tertiary grounds. The Crown seeks the same on review. The defence does not seek review on the basis of any legal errors by the justice of the peace.

[2] Tsega Kahssay, 23 years of age at the time, and co-accused, Ahmed Nuur, were arrested on May 5, 2016 for being involved in an altercation that occurred at College Park in Toronto. Mr. Kahssay faces gun, assault and theft charges. The charges are based on the following facts which were before the justice of the peace at the show cause hearing on May 10, 2016:

[3] The complainant, William Ingram, was outside in the courtyard at College Park. He placed a bag of groceries on a bench while he smoked a cigarette. Mr. Kahssay and Mr. Nuur walked up to him and asked Mr. Ingram for a cigarette to which he responded, “no”. Mr. Kahssay responded that he was going to take Mr. Ingram’s beers. Mr. Ingram told Mr. Kahssay to get away from his stuff and shoved him off when Mr. Kahssay started to check the contents of the bag. Mr. Kahssay stumbled and fell and a gun dropped from his waist area. Mr. Kahssay struggled to get up and retrieve the gun. Mr. Ingram, fearing he would be shot, grabbed the gun and ran into College Park.

[4] Mr. Ingram ran through College Park holding the gun, yelling for someone to call the police. He discarded the gun at the feet of a construction worker at College Park. Mr. Ingram then exited College Park onto College St. and ran to the corner of College St. and Bay St. He saw a marked police patrol car at the intersection. At this point Mr. Ingram was placed in a choke hold from behind by Mr. Khassay and Mr. Nuur who also kicked and punched him in the body and face while asking him to give the gun back. Mr. Khassay took Mr. Ingram’s cellphone from his pocket. The police observed the altercation and arrested both accuseds and transported them to the police station. Mr. Ingram was treated for scrapes to his knee, a broken nose and bruising around his eyes.

[5] The police found 4.7 grams of marijuana in Mr. Khassay’s possession and he was charged with possession for the purpose of trafficking. The drug charge was not addressed by the justice of the peace at the show cause hearing so consideration of that charge will therefore not form part of my determination.

THE SHOW CAUSE HEARING

[6] The show cause hearing was conducted on May 10, 2016. The defence proposed two sureties to supervise Mr. Kahssay if he is released, Mr. Kahssay’s mother, Malumetbet Desta Hailu, and her brother, who is Mr. Kahssay’s uncle, Hailu Negousse. The defence proposes the same two sureties on this review. The defence relies on the evidence adduced at the show cause hearing with respect to the sureties and the circumstances of the incident leading to the arrest, and relies on additional information from subsequent disclosure.

Mr. Kahssay

[7] Mr. Khassay has been unemployed for two years. He is single with no dependants. He is a young man with no criminal record. He is a recipient of social assistance.

The Mother

[8] The mother is age 63 and a citizen of Canada with no criminal record. She resides with her son in an apartment on Chestnut St. where she has lived for three years. She has not previously been a surety. She indicated she did not know Mr. Nuur, her son’s co-accused. She indicated her brother, the other proposed surety, who visits her every other day and lives in Scarborough, could assist with her son’s supervision if bail is granted.

[9] The mother indicated she was not aware he was charged with gun offences. When Mr. Kahssay spoke to his mother over the phone after he was taken into custody, he did not tell her he was arrested for gun offences. She first found out about the gun charges on the day of the show cause hearing. She indicated she did not often know where her son was when he left the home.

[10] The mother indicated she was not aware if her son had any substance abuse problems and that she would have to speak to him about that. She said she would assist him to find help and counselling if he was found to have a substance abuse problem. She indicated she was in receipt of ODSP and could pledge $500 as surety.

[11] An incident occurred in March 2016 where Mr. Khassay was on the roof of his mother’s apartment building. The police had to bring him down because he was hanging over the edge. His mother said it seemed that he wanted to hurt himself. He was taken to CAMH where he was assessed as being under the influence of a substance. The mother indicated she did not talk to him about that problem. She stated she wanted to take him to a doctor but he refused saying he did not have a problem. She said it was he who would have to want to get help.

[12] The mother did not see him go out on the evening of May 5, 2016 and did not know where he went that night. In spite of the March incident, the mother said she did not think her son needed to tell her where he was going at his age. She described him as a “responsible kid”. She said it was news to her that he was charged with robbing a man.

[13] The mother testified she is willing to check his room and supervise him much better as his surety. She indicated she would be willing to call the police on her son if he broke any bail conditions.

[14] The mother indicated she has health issues and could not walk at the time of the show cause hearing. She said that she would need surgery due to a back problem and indicated she had to see a cardiologist. She indicated she would have her brother supervise her son if she was unable to do so due to medical issues.

The Uncle

[15] The uncle is age 75, a citizen, with no criminal record. He is retired and volunteers half-days two or three times a week. He has never previously acted as a surety. He indicated he would help his nephew get volunteer work with him if he is released on bail. He testified he sees the mother and his nephew two or three times a week and his nephew displays some respect towards him. The uncle indicated he did not know Mr. Nuur, his nephew’s co-accused, or any of his friends.

[16] The uncle indicated his main assistance to the mother is in giving advice. He indicated he was not aware his nephew had substance abuse and emotional issues until the show cause hearing. He indicated he had only a vague memory about the roof incident which occurred in March, two months before the show cause hearing. The uncle stated that he did not speak to his nephew about the roof incident or about any substance abuse issues. He did not recall if he went to the mother’s apartment after the rooftop incident. He indicated he had not spoken to his nephew since his arrest. He stated that his nephew is difficult sometimes and at times he cannot persuade him to take his advice.

THE DECISION OF THE JUSTICE OF THE PEACE

[17] The justice of the peace addressed the secondary and tertiary grounds.

The Secondary Grounds

[18] On the secondary grounds, the justice of the peace expressed concern that the sureties did not display the ability to adequately supervise Mr. Kahssay. She pointed to the following concerns:

• the absence of a strong organized plan of supervision;

• the mother’s own health issues with a heart problem and limited mobility;

• The mother’s acknowledgment that her son did not receive the counselling recommended by CAMH;

• the fact the uncle lives in Scarborough, not close to the mother;

• the uncle’s and mother’s lack of knowledge of the son’s legal and emotional issues until the show cause hearing

• the uncle’s only vague memory of the roof incident in March 2016;

• the uncle’s and mother’s inability to persuade the son to attend counselling for substance abuse;

• the uncle’s admission that his nephew could be difficult; and

• the mother’s and the uncle’s lack of knowledge about Mr. Kahssay, who his friends are and what he does with his time.

[19] The defence argued on show cause that the plan of supervision is appropriate. Both sureties are not employed, except for the uncle’s volunteer work, and have sufficient time to supervise Mr. Kahssay. The mother is a residential surety who can supervise her son at home if house arrest or a curfew condition is ordered. The uncle is available and willing to assist when necessary.

[20] The defence pointed out that there is some information that was not before the justice of the peace on the secondary grounds. The mother no longer requires surgery so support from the uncle for that reason is no longer necessary. If the mother has any medical appointments the uncle will be available to supervise his nephew. In addition, the defence pointed out that the mother is willing to increase her bail from $500 to $1,000 and the uncle will give $1,000 as well.

Conclusion on Secondary Grounds

[21] I share the justice of the peace’s concerns on the secondary grounds. I am concerned there is a substantial likelihood for Mr. Kahssay to re-offend. Although I recognize he has no criminal record and he is a young man, he is facing very serious firearms and assault charges. It appears he has substance abuse and possible emotional issues that have not been addressed. The seriousness of the offences demands a strong plan of supervision which I find does not exist in this case. I therefore endorse the justice of the peace’s denial of release on the secondary grounds.

The Tertiary Grounds

[22] The justice of the peace found the Crown’s case to be relatively strong and that the tertiary grounds are engaged. In her reasons she pointed to:

• the gravity of the offence, particularly the firearm and robbery offences, the firearm being a stolen, loaded .357 magnum;

• the fact the incident with Mr. Ingram was an entirely unprovoked physical attack;

• the circumstances of Mr. Kahssay walking around the community with a loaded handgun in a public place; and

• the fact that Mr. Kahssay will likely face a lengthy prison term.

[23] The justice of the peace concluded the tertiary grounds are engaged in respect to: the seriousness of the offences; the fact the Crown has a relatively strong case; the surrounding circumstances, including the weak plan of supervision and the situation in which the offences occurred; and the potential for a lengthy prison term.

[24] Defence counsel argued there is evidence that was obtained in disclosure after show cause that the justice of the peace did not have. He argues that based on this new information the tertiary grounds are not engaged. The defence pointed to the following evidence:

• the criminal record of Mr. Ingram who himself has seven to 12 year old convictions for drugs, assault and theft offences;

• when Mr. Ingram was arrested on the current charges he was in possession of 14 individually packaged amounts of marijuana and was arrested for possession for the purpose of trafficking, which charge was later withdrawn;

• five eyewitnesses to the incident at College Park saw Mr. Ingram running with the gun yelling “call the police”; one witness saw the altercation and saw something he did not know was a gun and only assumed it came from Mr. Kahssay; three other witnesses saw Mr. Ingram sucker-punch Mr. Kahssay;

• video surveillance from College Park that shows Mr. Ingram running through College Park holding the firearm which he places on the ground and then goes back to pick it up and places it on the ground again; and

• police notes taken during the videotaped interview of Mr. Nuur on May 6 and initial police notes taken at the roadside on May 5 where there are statements that the firearm came from Mr. Ingram.

Conclusion on the Tertiary Grounds

[25] I find the tertiary grounds remain engaged even in light of the additional evidence on disclosure. The offences, the loaded firearm carried into a public place and the unprovoked physical attack remain serious criminal offences. As noted above one, of the surrounding circumstances to be considered is the fact that the plan of supervision is weak. It is all the more critical that an accused be closely supervised on release with such serious charges before the court. As well, there is a potential for a lengthy prison term with these offences.

[26] On the strength of the Crown’s case, I find that while the further disclosure provides more background information, some of the information is subject to being interpreted in different ways and will be subject to testing and considerations as to weight. Testing the evidence and assigning weight are the tasks of the trier of fact at trial. I do not find that the additional evidence appreciably affects the justice of the peace’s conclusion that the Crown’s case is relatively strong. This is sufficient to engage the tertiary grounds.

[27] I also endorse the justice of the peace’s denial of release on the tertiary grounds.

[28] The sureties impress me as very loving and caring people who are very concerned about Mr. Kahssay’s wellbeing. Like the justice of the peace, I feel that Mr. Kahssay might be suitable for release with a stronger, more organized plan of supervision which would necessarily involve sureties more able and willing to keep closer control over him.

DISPOSITION

[29] The application is dismissed.

B.A. ALLEN J.

Released: October 18, 2016