Regina v. Ervin Lami

CITATION: R. v. Lami, 2016 ONSC 8022

COURT FILE NO.: CR-16-50000219-00BR

DATE: 2016-12-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Ervin Lami

BEFORE: E.M. Morgan J.

COUNSEL: Jill Cameron, for the Crown Ayderus Alawi, for the Applicant

HEARD: December 20, 2016

ENDORSEMENT – Bail REVIEW

[1] Mr. Lami has been charged with a number of offenses, including possession and use of stolen credit cards, break and enter, unauthorized possession of a firearm, robbery with a firearm, possession of stolen property and possession of a Schedule 1 substance. He was denied bail and detained by Justice of the Peace V. Bubran on December 11, 2015, and brings this application for bail review under s. 523(2)(c) of the Criminal Code.

[2] Counsel for Mr. Lami relies primarily on the submission that this review embraces a material change or new evidence – being the proposal that Mr. Lami wear an electronic monitoring device. As laid out in R v St Cloud, 2015 SCC 27, [2015] 2 SCR 328, at para 128, quoting Palmer v the Queen, 1979 8 (SCC), [1980] 1 SCR 759, 775, he submits that the new evidence, when taken together with the other evidence adduced before the Justice of the Peace, effects a change in the result and that bail should be granted.

[3] Counsel for the Crown contends that an electronic monitoring device is not new in the sense that it could have been proposed on the previous occasion. She also submits that it is not an answer to the problems that Mr. Lami’s case raises in terms of the secondary ground under s. 515(10)(b) of the Criminal Code – i.e. the risk that he might re-offend. Crown counsel points out that the current proposal for terms of release is not significantly different than the proposal that was before the Justice of the Peace, and that was rejected for failing to adequately address the secondary ground.

[4] The Crown supports this argument by setting out the chronology of Mr. Lami’s charges and interim release applications, as follows:

• June 27, 2014 – Mr. Lami is arrested for intimidating a justice system participant, assault with a weapon, and uttering threats.

• June 28, 2014 – Mr. Lami is released on $2,000.00 bail. The surety is a friend, Mohammed Khan.

• November 24, 2014 – While still on bail for the previous offence, Mr. Lami is arrested for breaking and entering, stealing credit cards, and using stolen credit cards. A search warrant executed at his home reveals a firearm with ammunition. He is seen in convenience store security videos with his girlfriend and co-accused, Nadia Zenoglio, who is purchasing merchandise with the credit cards.

• December 17, 2014 – Mr. Lami’s previous bail is revoked.

• January 12, 2015 – New bail is granted on review by Code J. The sureties are Mr. Lami’s parents and a friend, Asbren Ismaili. Mr. Lami is not permitted out of his house without his sureties and is not to be in the company of Ms. Zenoglio.

• October 15, 2015 – While still on bail for previous offences, Mr. Lami is arrested for robbery of a gas station attendant with a firearm as well as possession of hashish. The robbery includes lottery tickets, which are then cashed in convenience stores around the GTA. Mr. Lami’s mother is seen driving him to the convenience stores. When Mr. Lami is arrested at his parents’ home, Mr. Lami’s mother is seen smuggling Ms. Zenoglio out the back door. Women’s clothing is found in Mr. Lami’s room.

• December 11, 2015 – Mr. Lami is detained by the Justice of the Peace.

• March 22, 2016 – Mr. Lami is committed for trial on the breaking and entering, credit card and unauthorized possession of a firearm charges.

• August 15, 2016 – Mr. Lami pleads guilty to the initial charges of assault with a weapon and threatening.

• January 16, 2017 – The preliminary inquiry is scheduled to begin on the armed robbery and possession charges.

[5] The Crown’s view is that Mr. Lami’s parents have been poor sureties. They were supposed to keep him at home under their supervision, and instead they appear to have been at best blind to his continuing spree of offenses and at worst facilitating the breaches of his recognizance. Mr. Lami’s mother testified before the Justice of the Peace that Mr. Lami was at home asleep when the armed robbery took place, but there is evidence that his cell phone pinged on a cell tower near the store that was robbed at just the time of the robbery. The mother is also alleged to have been complicit in Mr. Lami continuing to be visited by, or, perhaps, live with, Ms. Zenoglio, contrary to the terms of his previous interim release.

[6] The defense view is that the charges are not proved and are not supported by strong evidence. Defense counsel submits that there can be technological glitches that explain the cell phone pings.

[7] The Defense further submits that the security videos of the convenience stores show only Ms. Zenoglio, not Mr. Lami, using the stolen credit cards, although Mr. Lami is shown to be accompanying her. Counsel for the defense advises that Ms. Zenoglio has already pled guilty to the credit card charges, and argues that there can be multiple reasons why women’s clothing were found in Mr. Lami’s room at the family home.

[8] It is the Crown’s view that the newly proposed sureties, which include Mr. Lami’s father and brother, are similar to the previous sureties, which included both of his parents. Mr. Lami was supposed to be monitored by them on a full-time basis, but they were obviously remiss in this task. Substituting another member of the same household for the mother does little to inspire confidence that matters will improve.

[9] Furthermore, the Crown points out that, “electronic 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”: R v Bahman, [2007] OJ No 4976, at para 23 (SCJ). Unlike responsible sureties, “Electronic monitoring cannot prevent someone from absconding; it merely helps notify the authorities when the person has left”: USA v Ugoh, 2011 ONSC 1810, at para 11.

[10] In Mr. Lami’s situation, for example, an electronic monitoring device could have established that he is in a convenience store, but could not determine whether he is robbing the store or buying sundries. As Norheimer J. said in Bahman, at para 23, “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.” In proposing that he wear an electronic monitor but continue to live at home with his family members as his sureties, Mr. Lami has not solved the problem that arose with his last set of bail conditions.

[11] The Supreme Court of Canada has observed that, “the principle of finality of judgments and that of the need to avoid a multiplicity of unwarranted court proceedings are important, and the courts must not facilitate ‘judge shopping’: St Cloud, at para 125. When the matter was before the Justice of the Peace on December 11, 2015, it was proposed that Mr. Lami be monitored day and night by his parents, including that one sleep with him in the same room. That was rejected as insufficient to address the secondary ground, given Mr. Lami’s previous experience while released on bail.

[12] If 24/7 monitoring by his family, including during sleeping hours, is not sufficient to address the concern, then 24/7 monitoring by his family members with an extra added electronic bracelet on his ankle will likewise not be sufficient. “A plan of supervision is only as good as the sureties who are to implement it”: Bahman, at para 24. Living in the family home under full-time supervision has not worked before and is not likely to work again.

[13] Counsel for the defense also contends in his Notice of Application – although not much was made of this at the oral hearing – that the Justice of the Peace erred in failing to have regard for the presumption of innocence in s. 11(d) of the Charter. I will simply say that I do not see any such failure.

[14] The Justice of the Peace mentioned “the new allegations of armed robbery and possession of hashish and his bail conditions, including the condition of obeying a house arrest and communicating, directly or indirectly, with his co-accused from a series of charges of break and enter and fraudulent use of credit cards as well as possession of an illegal weapon and ammunition.” This recitation of what Mr. Lami faces, done with care to label the facts as “allegations” and the offenses as “charges”, is a perfectly proper way for the Justice of the Peace to have articulated the case. There is no sense that he jumped to any conclusion with respect to whether Mr. Lami is guilty. The fact is that in a bail hearing, it is necessary for a judicial officer to take into account the facts alleged against the person seeking bail. There is no other way to weigh the risks of release, especially with respect to the secondary ground of re-offending.

[15] In my view, there is nothing new here that was not already considered by the Justice of the Peace at the last bail hearing. The new proposal of an electronic monitoring device is just a technological version of the day-and-night monitoring that was proposed and rejected last time.

[16] The application for judicial interim release is hereby dismissed.

Morgan J.

Date: December 20, 2016