CITATION: R. v. Ibishi, 2016 ONSC 928
COURT FILE NO.: 15-4955
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Shkelqim Ibishi
B. Bentham, Counsel for the Crown
Mr. Rusonik, Counsel for the Respondent
HEARD: October 13, 2015
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
JUDGMENT
Introduction
[1] This is an application brought by the accused for a review of a bail hearing in the Ontario Court of Justice, which resulted in a detention order issuing on consent. It was previously reviewed by a Superior Court judge on an application for release for a short time. He treated the application as a trial de novo since there had not been a prior hearing which resulted in the detention order. I will do the same since the prior application in Superior Court was only for a brief period. The crown alleges that he took part in a home invasion on August 12, 2014. Arising out of this incident he is charged with break and enter and committing robbery and pointing a firearm. A preliminary hearing took place on June 3, 2015. The accused was committed for trial. It is set to commence on January 16, 2016 in Superior Court.
Backgound
[2] Sandra O'Hearn (“Sandra”) and her husband, Jeff Carter (“Jeff”), operated a business called Carters Auto Glass at 350 Burlington in the City of Hamilton. The business was run by Jeff. Sandra assisted him. On Tuesday, August 12, 2014 at about 10:40 a.m. Sandra was sitting behind a bar in a room overlooking the back of their home at 130 Greys Road in Stoney Creek, Hamilton. She was smoking. A door leading out of the room into the backyard was open to let the smoke out of the house. There is a small backyard at the back of the house which is enclosed by a fence. There are some steps leading up to the door into the room where Sandra was sitting. There is a door in the fence with a latch leading into the backyard. She saw a hand in a white glove reach over the door into the yard and unlatch the door. Three men entered into the backyard. They came up the stairs and into the room where Sandra was sitting. The first man who entered the house, upon seeing her, lifted up his hat and pulled down a nylon mask to cover his face. Sandra recognized this man instantly as a man who had brought cars into their shop for repair. She recalled that she had given him a ride home. It is the position of the crown that this man is the accused, Shkelqim Ibishi.
[3] The men thought that there was money in the house. The man who had placed a nylon mask over his face placed a handgun to her head and demanded that she give him money or he would hurt her. He placed a gauze cloth over her mouth. He ripped a gold necklace from her neck. He told her not to scream. He choked her. The other two men placed handguns to her head and demanded money. They searched the house. When she thought that they were distracted she tried to escape. The man with the nylon mask pulled her back to a bench. One of the other two men struck her over her head with the butt of a gun.
[4] After they left Sandra called 911. A police officer attended at her residence. She was hysterical. She was bleeding from the injuries inflicted upon her by the man in the nylon mask. She was taken to hospital. A police officer attended at the hospital and took a statement from her at 12:40 p.m. She described the first man who pulled the nylon mask over his face as being 25 to 30, 6' tall, skinny and looking Hispanic. She called her husband. This description, although general in nature, matches the accused. She told him that she thought that the man had brought cars into the shop for repair, including a copper colored Audi. He said from her description that the man was a man whom he knew as "Skully". Skully is derivative of Shkelqim. Four or five months ago he had brought the Audi into the shop. It had an interlock device or a Breathalyzer in it. They had trouble getting it started. He also brought a green Cadillac into the shop which he said was his father's car. Sandra had given him a ride home to a residence on James Street in the City of Hamilton.
[5] Sandra has been shaken and profoundly frightened by the incident, as one would expect.
[6] The police presented a photo lineup to Sandra on August 17th. She immediately recognized the 5th photograph as the accused. She had a visceral reaction when she saw his photograph and started crying.
[7] The accused filed an affidavit but he did not testify. The accused was born on March 23, 1993 in Kosovo. He was 21 at the time of the offence. He is 22 now. He came to Canada with his parents in 1999 when he would have been 6 years of age. He completed high school here. He has experience in working in landscaping. He lives with his parents at 415 James Street in the City of Hamilton.
[8] He has a criminal record. On October 23, 2007 he was convicted of theft under $5,000, committed on January 23, 2007. He received a sentence of probation for 12 months. On February 12, 2009 he was convicted of failing to comply with a court order, obstructing a peace officer, possession of cocaine and breach of a court order committed on December 27, 2008. He received a sentence of probation for 18 months. On May 18, 2010 he was convicted of possession of a loaded prohibited firearm, two counts of failing to comply with court orders and uttering threats to cause death committed on June 21 and 29, 2009. He spent 326 days in presentence custody. He received a sentence of time served and 2 years’ probation. He was convicted on February 28, 2011 of failing to comply with a court order committed on September 15, 2010. He received a sentence of probation of 12 months. He was convicted on May 9, 2012 of possession of a loaded firearm while prohibited to do so, possession of stolen property of value under $5,000, possession of a firearm with altered serial number, possession of a Schedule 1 drug and careless use of a firearm, all committed on March 4, 2011. He spent 433 days in presentence custody. He was sentenced to an additional 4 months and 3 days on May 4, 2012. He was prohibited from possessing a firearm for life. On December 19, 2012 he was convicted of impaired driving committed on November 4, 2011. He received a $1,500 fine and a driving prohibition for 12 months. He has been convicted of multiple highway traffic offences between November 4, 2012 and September 9, 2014, some of which resulted in the suspension of his driver's license. The Ministry of Transportation required him to have an ignition interlock or Breathalyzer installed on his vehicle between March, 2013 and March, 2014. He was charged with dangerous driving on August 12, 2014, which is the same day as the house invasion. The crown is not proceeding with this charge. He retained counsel and atoned to the court in relation to this charge. He was arrested in Winnipeg by the Canadian Border Services Agency on January 22, 2015. Why he was in Winnipeg on that date is not before me.
[9] Mr. Rusonik, who represents the accused, presented Mr. Muhamet Qerreti as a potential surety. He came to Canada from Kosovo in 1998. He lives on John Street in the City of Hamilton with his wife and son. He is a good friend of the accused's father. He has a successful gardening business. He is prepared to have the accused live with him. He will employ him in his gardening business. He is prepared to pledge as security $25,000 in savings which he has accumulated in the last several years.
[10] On February 17, 2015, the accused consented to a detention order in Provincial Court. He brought an application for a review of the detention order on May 8, 2015 in Superior Court before Justice Reid. He proposed as a surety Bobbi Bird. She was the mother of a former girlfriend of the accused. She is employed by Bayshore Home Care. She is a nurse who provides care to people in their homes.
[11] Mr. Rusonik represented him. He proposed that the accused be released for a short period of time. His current girlfriend was pregnant with his child. He proposed that he be released for the purpose of attending at the birth of his child, which was expected to take place on or about May 24, 2015. The plan contemplated that the accused be in the company of the surety at all times. One difficulty was that Ms. Bird had not consulted with her employer to determine whether it would approve of the accused attending in homes of its clients. This was highly unlikely. Apart from this, Justice Reid found that the accused had not met his onus under the primary, secondary and tertiary grounds, set out in s. 515 (10) of the Criminal Code.
Analysis
[12] The onus is on the accused to show cause why his detention is not necessary on any of the grounds set out in the s. 515(10) of the Criminal Code as follows:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution's case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
Primary Ground – Attend Court
[13] The accused was obviously denied bail in Youth Court on charges that included possession of loaded firearms. He spent a total of 798 days in pre-sentence custody as a young offender. This is over 2 years and 2 months between June 21, 2009 and May 18, 2010, when he was between 16 and 19. The first 326 days of this period started on June 21, 2009 when he was 16 and ended on May 18, 2010 when he was 17. The second period of 433 days started on March 4, 2011 when he was 17 and ended on May 8, 2012 when he was 19. Between the ages of 16 and 19 he was out of custody, when he was 17, for about 10 months between May 18, 2010 and March 4, 2011. He has numerous convictions of disobeying court orders. He has presented no evidence of why he was in Winnipeg when he was arrested on January 27, 2015. He was arrested by the Canadian Border Services Agency which suggests that he was coming into Canada from outside of the country. I find that he is a flight risk. The accused has not satisfied the onus for the primary ground.
Secondary Ground – Protection of the Public
[14] The picture that emerges of the accused is of a young man who has committed multiple criminal offences of escalating seriousness. Clearly orders of the court meaning nothing to him. He has long been out of the control of his parents. In his later teenage years, for much of the time, he was in the custody of the state. There is no evidence of where he was living for the 10 months when he was out of custody when he was 17. He says in his affidavit that he is living with his parents. There is no evidence of his relationship with his parents. The obvious question of why they were not able to control him in his later teen age years is unanswered. The accused has not satisfied the secondary ground.
Tertiary Ground – Maintain Confidence in the Administration of Justice
[15] This ground requires me to consider whether his detention is necessary to maintain confidence in the administration including four enumerated factors. In R. v. St. Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 the Supreme Court of Canada in the judgment of Justice Wagner stated the following:
50 Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply a consequence of the application of s. 515(10)(c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.
54 In conclusion, the application of s. 515(10)(c) is not limited to exceptional circumstances, to "unexplainable" crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove -- except in the cases provided for in s. 515(6) -- that the detention of the accused is justified to maintain confidence in the administration of justice. (See also the decision of the Court of Appeal in the judgment of Justice Cronk in R. v. A.A.C., 2015 ONCA 483, [2015] O.J. No. 3450 at paras. 47, 48).
I will now consider each of the enumerated factors.
Apparent Strength of the Crown's Case
[16] The defence in this case is identity. Mr. Rusonik submits that the evidence of Sandra O’Hearn is unreliable. When the incident occurred she was in pain as a result of injuries suffered in a car accident. She had not slept the night before. She was smoking marijuana to control the pain. She did not identify the accused as a prior customer of the car repair business to the 911 operator or to the first officer on the scene. However, she did say to the officer who interviewed her at the hospital that the first man was a prior customer. She had to talk to her husband to get his assistance in identifying him. She did this. She remembered that the man had brought an Audi into the shop for repairs. She told her husband this. It was this information that permitted her husband to offer the opinion that the man was likely Skully. She knew Scully from having dealings with him several months before at the shop and from having driven him home. She immediately recognized him when he came through the gate and when she saw his photograph five days later in a photo lineup. She and her husband have no records of him coming to the shop. This is because he paid in cash. The man’s pulling a nylon mask over his face upon seeing her is suggestive of his realizing that she could identify him as a prior customer of the car repair business. It is true that wrongful convictions have resulted from the evidence of sincere, but mistaken, witnesses who have testified about their certainty of the identity of the perpetrator of a crime.
[17] The defence argues that the crown has a weak case on identity. I disagree. In my opinion the crown has a substantial case on identity. It is not irrefutable. It is a triable issue. I think that it is likely strong enough to place an evidentiary onus on the accused to testify and deny the allegations if he is to avoid conviction. Whether he was the man who put on the nylon mask will be for the trier of fact to determine, be it a judge or a jury.
Gravity of the Offence
[18] Clearly the offence is very serious.
Circumstance of the Commission of the Offence Including Whether a Firearm Was Used.
[19] All three perpetrators were armed with firearms. The circumstances are very disturbing, not only for the victim, but for the community.
Potential for a Lengthy of Imprisonment
[20] The crown presented case law that would support a range of sentence of 3 to 13 years. Given the accused’s prior record and the severity of the offence I would think that upon conviction that the sentence would be at the outer end of this range.
[21] The accused has failed to satisfy the tertiary ground.
Suitability of Muhamet Qeretti as a Surety
[22] Mr. Qeretti filed an affidavit. He also testified with the assistance of a competent translator. At the outset of his testimony a dialogue took place as follows:
EXAMINATION IN-CHIEF BY MR. RUSONIK:
Q. Mr. Qerreti, I know that you know that you've already sworn an affidavit, a statement in relation to this matter.
A. Right.
Q. There are two or three things that – in your broken English and my pathetic Albanian we didn’t attempt to set out on paper.
A. Right.
Q. And, I want to cover those with you know (now?) if I could. First of all, sir, I want to ask you what’s your understanding of the allegation against Mr. Ibishi, what is the – what are they claiming that he did?
A. All I know is that at the moment he is not guilty.
Q. All right. But, what’s your understanding of the allegation? What is it that the police are claiming that he is guilty of?
A. The authorities say that he committed a crime; he entered, he entered – I know that he is not guilty. I have spoken to him on the phone and I know that he is not guilty.
Q. All right. I just want to make sure at this point that you understand the allegation. Do you know what he was supposed to have done when he entered, when they say he entered that – I don’t, I don’t know what you just called it, a home or a....
A. He’s been accused that he entered into a woman’s house. But, he has swore to me and I believe him that at this moment he is not guilty.
Q. All right. And, I, I appreciate that, and I understand, I understand your belief in that regard. Do you know what it is he’s supposed to have done inside the woman’s house?
A. They can, they can say anything they want but he swore to me and I swear he is not guilty.
Q. That’s not what I’m asking. I’m asking you if – we had better luck in broken English. I’m asking you if you understand what it is. I appreciate you, you, you don’t believe the allegation. But, what is it that he’s supposed to have done inside the home?
A. They are saying that he entered the home...
Q. Yes.
A. ...but I don’t think that he [indiscernible] (entered?) anyone's home. He swore to me I am not guilty and I swear that he is not guilty.
Q. Let, let’s try it another way. What – let me try to give different words. Whether or not he’s guilty, what is he supposed to have done inside the home? Is he supposed to have broken furniture?
A. They can say anything they want. But, the important thing is that he was not inside.
MR. BENTHAM: Your Honour, I have no objection if my friend wishes to lead....
MR. RUSONIK: I’d like to try it in English – I had much more success in English.
MR. RUSONIK: Q. Do you know how many people are supposed to have gone into the home?
A. It’s not supposed to because he wasn’t there.
Q. Do you understand what the word allegation means?
A. I understand.
Q. What does allegation mean?
A. They can call it anything they want but personally he was not inside.
Q. I’m going to ask one more time, sir, what does the word allegation mean? That’s all I’m asking.
A. They are, they are saying that he entered inside but, indeed, he did not enter inside. I – he swore to me and I can swear to this.
Q. All right. If you answer that question the same way again, I’m going to abandon this application because I won't be able to convince the court that you understand what you’re offering to do here. So, you must answer the question I am asking you. What are the police saying that he did in the house? What crime do they say he committed in the house?
A. The police, the police are saying that he entered into this woman’s house, but I swear that he did not.
MR. RUSONIK: I’m sorry, Your Honour, I can’t, I can’t – I don’t, I don’t know what's happened. I didn’t have – I – just a moment please.
MR. RUSONIK: Q. Mr. Ibishi thinks that, that you’re extremely nervous right now. Are you scared to be here?
A. No, I am not scared.
Q. All right. Can you listen to the question, please, and answer the question that I’m asking. We’re not asking you what you think about the allegation, I’m not asking you whether you believe the allegation to be true or not. I’m simply asking what you understand the allegation to be. What, what do the police say he did inside the house? What crime do they say he committed inside the house?
A. The police are saying that he entered into the woman’s house, he produced a gun, and he robbed her. (emphasis added)[^1]
[23] He did explain later that he was aware of the charges against the accused and of what the crown alleges that he did. He is also aware of his criminal record. He thinks that the woman who identified him as a customer of the car repair business, that she and her husband operate is mistaken. He is convinced that the accused is innocent because the accused told him that he was innocent in a telephone conversation when he was in the jail. This man is a friend of the accused’s father. Mr. Qeretti has travelled with the accused’s father to Albania from where they both came. There is little evidence of his relationship with the accused. The plan is that the accused will live with him and his wife. He has never lived with them before. The fact that he has previously been convicted of serious criminal offences, including possession of loaded firearms and possession of drugs, including cocaine, does not give him pause. The accused in his affidavit stated that he has worked in landscaping. There are no particulars. There is no evidence of when he worked in landscaping or what his employers thought of him. Mr. Qeretti would make a better surety if he testified that he finds the accused is credible, but he is reserving his opinion as to whether he was guilty until he has had a full trial. His refusal to answer simple questions that were put to him reflects both a lack of understanding of the judicial system and disrespect for the judicial system. I commend him for his loyalty to the accused’s father, his success in living in this country, and his willingness to come forward as a potential surety. However, on close examination he is not a suitable surety.
Result
[24] The onus is on the accused. He has failed to satisfy any of the grounds in s. 515(10) of the Criminal Code which would justify his release. The application is dismissed.
P.B. Hambly J.
Released: February 5, 2016
CITATION: R. v. Ibishi, 2016 ONSC 928
COURT FILE NO.: 15-4955
DATE: 2016-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Shkelqim Ibishi
REASONS FOR JUDGMENT
P.B. HAMBLY J.
Released: February 5, 2016
[^1]: I am releasing this after the trial. It is interesting to note that the accused pleaded guilty after the selection of a jury on January 16, 2016.