ONTARIO SUPERIOR COURT OF JUSTICE
CITATION: R. v. Hanif, 2016 ONSC 7720
COURT FILE NO.: CR-14-09306
DATE: 20161209
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUHAMMAD HANIF Defendant
COUNSEL:
Mr. Peter Westgate, for the Crown
Mr. Daniel Brown, for Surety Fozia Fozia
HEARD: December 5, 2016
REASONS FOR DECISION
EDWARDS J.:
Overview
[1] Mr. Muhammad Hanif (Mr. Hanif) was charged with sexual assault, touching for a sexual purpose a person under the age of 16 years and unlawful confinement. He was convicted of all three charges on January 6, 2016 by Tetley J. Sentencing submissions were received on March 29, 2016, at which time a request was made on behalf of Muhammad to postpone sentencing so that he could get his financial affairs in order. The request was granted and the matter was put over for sentencing to Monday July 4, 2016.
[2] At the time of the adjournment from the original sentencing date of March 29, 2016, Muhammad’s bail conditions were varied such that the amount of the surety was increased from $5,000 to $50,000.
[3] Muhammad’s surety was his wife, Fozia Fozia (Mrs. Fozia).
[4] Early Monday morning, July 4, 2016 at approximately 6:00 a.m., Mrs. Fozia says that she received a telephone call from her husband, Mr. Hanif, indicating that he was in Pakistan.
[5] The sentencing hearing was scheduled for 9:30 a.m. on July 4, 2016. Mrs. Fozia showed up. Mr. Hanif did not.
[6] Ultimately, Mr. Hanif was sentenced in absentia by Tetley J. on October 27, 2016. He received a global sentence of seven years.
[7] The Crown now seeks an order forfeiting the $50,000 bail as against the surety, Mrs. Fozia.
The Facts
[8] At the time of Mr. Hanif’s arrest and subsequent release Mrs. Fozia swore an “Affidavit of Justification by a Surety” (the Affidavit), in which she states that she owns her current residence at 49 Abdus Salam Street, Vaughan, Ontario (the home), which had a property value of $560,000 subject to a $280,000 mortgage. In the Affidavit sworn by Mrs. Fozia, she confirmed that she understood the obligations and consequences of being a surety. Amongst the various consequences that she swore that she understood was the following:
I understand that if the accused person fails to appear in court as required or breaches any terms of the bail, the court may order me to pay the full amount of the bail set opposite my name on the recognizance, even if I have supervised the accused person to the best of my ability. [Emphasis is found in the affidavit – emphasis is not mine]
[9] Mr. Hanif was released upon terms that included he was to reside with his wife, Ms. Fozia, at 49 Abdus Salam Street, Vaughan, Ontario, and that he was to deposit his passport with the York Regional Police. There were other terms of his bail conditions that are not relevant to this estreat hearing.
[10] For reasons that were not explained during the course of the hearing before me, the bail conditions were varied on July 10, 2015 to provide that Mr. Hanif would reside with his wife, Mrs. Fozia, no longer at 49 Abdus Salam Street, Vaughan, Ontario, but rather would reside with Mrs. Fozia at 159 Boom Road, Vaughan, Ontario. I was provided with no information on the estreat hearing with respect to the ownership of 159 Boom Road, Vaughan, Ontario, nor any information with respect to any encumbrances on that address.
[11] When the matter came before Tetley J. on March 29, 2016 Mrs. Fozia, together with Mr. Hanif, executed a variation of undertaking or recognizance increasing the amount of bail from $5,000 to $50,000. Mrs. Fozia also executed an Affidavit of Surety on April 28, 2016, in which she swore:
That I am aware that I continue to be responsible for supervising the accused and must do so in accordance with the amendment as attached.
Evidence of Mrs. Fozia on the Estreat Hearing
[12] Mrs. Fozia testified with the assistance of an Urdu interpreter. Mrs. Fozia came to Canada in 2001 and is a Canadian citizen. She has three daughters and one son. Mrs. Fozia has a grade ten education which she obtained in Pakistan. She does not work. All three of her children are university educated. According to her evidence, her husband who is an electrical engineer, earned in the order of $90,000 per annum.
[13] At the present time the only source of income that Mrs. Fozia’s family would appear to have comes from her eldest daughter, who is also an engineer earning $2,900 per month net after taxes. Living in the residence with Mrs. Fozia are her three daughters, the eldest of which is married to a gentleman who is doing his PhD in Buffalo but comes home on weekends. One of her other daughters is married to a gentleman who presently lives in Pakistan but provides no financial support at this time to his wife. Mrs. Fozia’s son is attending university and lives away from home. Mrs. Fozia assists with her son’s rent, which she states runs in the order of $500 per month. The home mortgage carries at $1,765 per month. There are utilities that she estimated are in the range of $1,500 to $1,600 per month. Ms. Fozia estimates that the food costs for the family are $250 per month, although with four adults living in the same residence it is highly unlikely that the food costs are as low as $250 per month.
[14] While Mrs. Fozia does not drive it would appear that there are three vehicles amongst the children, one of which is driven by her son, a Honda Civic, and two of which are driven by her daughters. I received no evidence with respect to the carrying costs of any of those vehicles, but one can safely assume that there are not insignificant amounts that would be incurred for vehicle maintenance, gas and insurance.
[15] If the only source of income available to the family comes from the eldest daughter, one can readily appreciate that the $2,900 per month that she has available (apart from the daughter’s own personal needs) cannot possibly carry the financial needs of the family. I can only surmise that someone is providing financial assistance to Ms. Fozia as she cannot possibly afford to carry the expenses disclosed in her evidence to the Court. I do not accept Mrs. Fozia was being entirely candid with the Court as it relates to her present circumstances.
[16] Mrs. Fozia testified that initially after her husband left for Pakistan she had some limited savings that have now been exhausted. Those savings were used to assist her children with respect to their university tuition and related costs.
[17] Mrs. Fozia testified that when the sentencing of Mr. Hanif was postponed in late March, it was done to allow her husband to complete two contracts that would provide some financial security for the family once they were completed. Those contracts, according to Mrs. Fozia, required her husband to work long hours, and on weekends she stated that her husband would attend at Sheridan College in Oakville and he would sleep in his vehicle overnight. While it may have been laudable that Mr. Hanif was trying to provide financial security for his family, by sleeping in his vehicle he was violating the terms of his bail conditions requiring him to reside with his wife at 49 Abdus Salam Street, Vaughan, Ontario. Mrs. Fozia did not report this violation of the bail conditions to the police. A variation of the bail conditions that would have allowed Mr. Hanif to work and not reside with his wife was also not sought from the Court.
[18] Mrs. Fozia testified that on Sunday July 3, 2016, she last saw Mr. Hanif sometime between 10:00 a.m. and 11:00 a.m. when he left to work at Sheridan College in Oakville. She stated that during the day she visited her mother and returned home at around 8:00 p.m. It was Ramadan and she was preparing to break her fast at around 9:00 p.m. She attempted to call her husband but his phone was off. She stated that this was not unusual because the signal at Sheridan College was not always that good.
[19] Mrs. Fozia stated that between 9:00 p.m. and 3:00 a.m. she spent time reciting the Koran and preparing for the continuation of her fast which would begin around 4:15 a.m. She went to bed at around 4:15 to 4:30 a.m., and slept until approximately 6:00 a.m. to 6:30 a.m. when she received a phone call from her husband, Mr. Hanif, who spoke for only a few seconds and indicated that he was in Karachi, Pakistan.
[20] Mrs. Fozia stated that when she received the phone call she really was not sure whether she was dreaming. There had been no indication to that point in time that Mr. Hanif was going to do anything other than show up in Court. She stated that she saw no signs that he had packed a bag. She stated she did not know he had any other passport other than the Canadian passport he had been required to surrender to the police.
[21] Mrs. Fozia attended at 202 Court in Newmarket on July 4, 2016. She did not see Mr. Hanif’s lawyer, Mr. Rabinovitch, who as it turned out was coincidentally ill on the morning of July 4, 2016. Ultimately Mr. Rabinovitch did attend before Tetley J. in the afternoon of July 4, 2016, and apologized that he had been ill and had been at a walk-in clinic seeking medical treatment. There is absolutely no suggestion that Mr. Rabinovitch was in any way connected with Mr. Hanif’s non-attendance in Court on July 4, 2016.
[22] Mrs. Fozia maintains that she has no knowledge as to where her husband is in Pakistan. She has not seen him, nor has she spoken to him. She acknowledges that there has been an exchange of emails with Mr. Hanif that has been initiated with the assistance of one of her daughters. Mrs. Fozia maintains that she does not know how to use email communication. She does, however, confirm that through those email communications her husband has made it clear that he is not coming back to Canada.
[23] Mrs. Fozia stated, in response to various questions put to her in-chief, that she had absolutely nothing to do with assisting her husband leaving the country and that she had no knowledge this would happen.
[24] Mrs. Fozia acknowledged that after she received the phone call from her husband sometime between 6:00 a.m. and 6:30 a.m. on July 4, 2016, she did not contact the police to report the disappearance of her husband as she was not sure whether the phone call was a dream.
[25] It is not without significance that at the hearing before Tetley J. on July 4, 2016, Mrs. Fozia was asked by Tetley J. whether she knew anything about the disappearance of her husband. In response to the questioning from the Court Mrs. Fozia stated, “He was saying that, ‘I’m innocent. I am not going to jail’. I had no idea about his intentions” (see transcript, page 5, proceedings before Tetley J. July 4, 2016).
[26] In cross-examination on the hearing before me, Mrs. Fozia was confronted with the above-noted statement and testified that after her husband’s conviction he never said anything about being innocent and not going to jail, and that he never talked about it. Clearly, this evidence is in striking contrast to what she told Tetley J. as reflected above and reflects badly on her overall credibility.
[27] Mrs. Fozia states that she saw her husband sometime between 10:00 a.m. and 11:00 a.m. on July 3, 2016 when she believed that he was heading to Sheridan College in Oakville. In response to questions put to her by the Court, she stated that to her knowledge there were flights to Pakistan on Tuesdays and Fridays that usually left Toronto at around 5:00 p.m. She was not certain whether there were flights on Sunday. A direct flight to Karachi takes 13 hours.
[28] Mrs. Fozia was very hesitant as to whether there was even an overseas flight to Pakistan on a Sunday in the relevant timeframe. Even accepting the possibility that there may have been a flight on Sunday, the timelines are such that if the flight actually left on time at 5:00 p.m. Toronto time and that it was in fact a direct flight lasting 13 hours, this would assume that immediately upon Mr. Hanif’s arrival in Karachi he called his wife to advise of his whereabouts.
[29] In my view, there are only two explanations for the timeline offered to the Court by Mrs. Fozia. Either Mr. Hanif had not actually left the country and was not in Pakistan when he called Mrs. Fozia, or Mr. Hanif had left the Greater Toronto Area some time earlier than Sunday July 3, 2016. I cannot resolve this discrepancy in the evidence, but I can conclude that Mrs. Fozia knew that her husband was not residing with her when he was allegedly sleeping overnight at Sheridan College, and at the very least was not properly supervising her husband at that time.
Position of the Crown
[30] Mr. Westgate, on behalf of the Crown, argues that the full amount of the surety should be forfeited to the Crown. He notes that Mrs. Fozia has substantial equity in the home.
Position of Mrs. Fozia
[31] On behalf of Mrs. Fozia, Mr. Brown suggests that to forfeit the entire amount of $50,000 would cause financial hardship not just for Mrs. Fozia but also the family members. He suggests that there is no evidence that the absconding of her husband was in any way related to the fault of Mrs. Fozia. He acknowledges that there should be some consequences, and that the “pull of the bail” should result in a forfeiture of something in the range of $15,000 to $20,000.
The Law
[32] An estreat hearing is governed by s. 771(2) of the Criminal Code which provides that after giving the parties, including the surety, an opportunity to be heard, the presiding judge “may…in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper”. [Emphasis added]
[33] In terms of who bears the onus of proof, the Court of Appeal in Canada (Attorney General) v. Horvath, 2009 ONCA 732, [2009] O.J. No. 4308 at para. 27, makes clear that the onus of proof is on the surety to show why the recognizance should not be forfeited. As such, in this case Mrs. Fozia has the onus to prove why the $50,000 surety should not be forfeited to the Crown.
[34] The most important factor that a Court, in exercising its discretion in an estreat hearing, must apply is what has been described as the “pull of bail”. In Horvath, the Court of Appeal stated:
For the purposes of this case, the most important point that comes from the English cases is what is referred to as the “pull of bail”.
[35] Citing English authority, the effect of the pull of bail is to cause an accused to attend his or her trial rather than subject “his nearest and dearest who has gone surety for him to undue pain and discomfort”. As the Court of Appeal in Horvath noted:
Our system depends upon accused attending court and if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective…An overemphasis on the surety’s lack of fault could undermine the “pull of bail” and have an adverse impact on the criminal justice system, which depends upon the accused complying with release conditions.
[36] In exercising the Court’s discretion in determining whether or not the full amount of the surety should be forfeited or something less, one of the factors that the Court must consider is the diligence of the surety, which includes an assessment of the extent to which the surety took steps to ensure that an accused abided by his or her terms of bail. In this case, in my view, there is at least some evidence that Mrs. Fozia did not enforce the strict terms of Mr. Hanif’s release which required that he reside with Mrs. Fozia. Even on Mrs. Fozia’s own evidence, Mr. Hanif did not abide by that condition when he was working away from the home, allegedly sleeping in his car.
[37] In terms of analyzing the degree of a breach of recognizance, this case presents the most serious of breaches in that Mr. Hanif absconded and left the jurisdiction so as to avoid the ultimate sanction from this Court in terms of the sentence that he knew he was about to receive, having been convicted of serious sexual assault charges. In Romania v. Iusein, 2014 ONSC 623, at para. 26, Speyer J. commented on absconding as follows:
Without in any way diminishing the importance of a surety supervising and attempting to enforce an accused’s conditions of bail other than attendance in court, the primary responsibility is ensuring an accused’s attendance in court. Absconding is more serious than most, if not all, other breaches of recognizance. The extent of a surety’s liability when the breach concerns curfew violations and residency requirements may well be mitigated by the diligence exhibited by the surety in the context of what can be reasonably expected. That said, an important counterbalancing consideration is to ensure there is not an overemphasis on a surety’s lack of fault. Such overemphasis could adversely impact the effectiveness of the bail system.
[38] The Crown in this case seeks forfeiture of the entire amount of the surety, $50,000. Counsel for Mrs. Fozia emphasizes that she did everything she could to ensure compliance with the bail conditions, and the fact that any amount of forfeiture will have a significant financial impact on her suggests something significantly less than full forfeiture. In my view, applying the governing principles, particularly the “pull of bail”; the fact that Mrs. Fozia did not comply strictly with her supervisory responsibilities by allowing her husband to be away from the family residence overnight; and the fact that this is a case of absconding, the full amount of the surety should be forfeited to the Crown.
[39] This Court, however, does have discretion in terms of the ultimate order that it makes. Mr. Hanif has potentially put his wife in a situation where the equity that she has in the family home may be not insignificantly depleted. She could potentially lose her home. Mr. Hanif is the person who is responsible for the situation that he has now placed his wife and his children. Mr. Hanif, according to his wife in comments made to Tetley J., believed that he was innocent and should not be going to jail. As Tetley J. quite correctly commented, if Mr. Hanif did in fact believe that he had been wrongfully convicted, his appropriate course of action should have been to file a Notice of Appeal and to seek bail pending appeal. As Tetley J. also commented, Mr. Hanif likely would have been a good candidate for bail pending appeal. Mr. Hanif chose to abscond from the jurisdiction and now has placed his family in a situation of his own making. Mr. Hanif can still make amends for what he has done by voluntarily returning to this jurisdiction. Mr. Hanif has to understand that while Canada does not have an extradition treaty with Pakistan (assuming that in fact Mr. Hanif is in Pakistan), his ability to travel outside of Pakistan has been severely compromised as a result of actions taken by the authorities to alert Interpol.
[40] Mr. Hanif can return to this country on a voluntary basis. Whether the Crown would still see Mr. Hanif as a good candidate for bail pending appeal, and whether the Crown would even consent to an extension of time to file a Notice of Appeal is obviously something that would have to be dealt with upon his return. In order to provide Mr. Hanif and his wife an opportunity to avoid the potential forfeiture of $50,000, with the impact that that will have on Mr. Hanif’s family, I am exercising the discretion that in my view I have under s. 771(2) to stay the enforcement of the forfeiture of $50,000 for a period of 45 days. In exercising my discretion in that regard, I note that a five judge panel of the Court of Appeal in Horvath forfeited $180,000, but provided that if the accused was taken into custody within 15 days of the release of the judgment the sureties could apply in writing for relief from all or part of the order.
[41] In this matter, I want to provide certainty to Mr. Hanif that he has a means by which he can avoid the predicament into which he has placed his wife and family. He simply has to return to this jurisdiction with the certainty of knowing that the forfeiture of $50,000 can be avoided. The choice is Mr. Hanif’s. I rely upon the evidence of Mrs. Fozia that given her daughter is in email communication with Mr. Hanif, that a copy of these Reasons can be sent to Mr. Hanif so that he will understand the impact of his actions. If Mr. Hanif chooses not to return the full $50,000 shall be forfeited to the Crown.
Justice M.L. Edwards
Released: December 9, 2016
CITATION: R. v. Hanif, 2016 ONSC 7720
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MUHAMMAD HANIF
REASONS FOR DECISION
Justice M.L. Edwards
Released: December 9, 2016