Court File and Parties

COURT FILE NO.: 16-12797-BR DATE: 2017/06/27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – CHALLA DAOUD Accused

COUNSEL: S. Eagles for the Crown K. Irwin, for the Accused

HEARD: June 26, 2017

Reasons for Decision on Bail Review

O’Bonsawin J.

[1] I must start off by noting that the right to bail is a constitutionally protected right. As we are aware, there is a presumption of Mr. Daoud’s innocence. It must also be noted that since this is Mr. Daoud’s Application for an Order granting his release from custody pending trial due to a material change in circumstances in his bail plans, he has the onus of proof.

[2] Mr. Challa Daoud was charged with 10 firearm related offences for incidents that occurred on October 3, 2016. His first bail hearing took place on December 19, 2016. He was released on bail with conditions. Although I was not provided with the specific conditions, the transcript provides that one included: “Do not buy, possess, or consume alcohol or other intoxicating substances” (p. 20).

[3] On February 26, 2017, when he returned from a weekend pass to be with his surety, Amanda Michaelis, he tested positive for cocaine. Ms. Michaelis did not report this breach to the police.

[4] On March 18, 2017, the police located Mr. Daoud who was intoxicated in the lobby of Ms. Michaelis’ apartment building. He was arrested at that time. For a second time, Ms. Michaelis did not report this breach to the police.

[5] On May 2, 2017, a bail hearing took place before Justice of the Peace Brecher. She determined that Mr. Daoud should be detained. I will review her reasons for decision afterwards.

[6] Mr. Daoud’s counsel has brought before this Court an Application because “there has been a material change in circumstances in that the Applicant’s bail plan has changed.” It must be noted that Mr. Daoud’s counsel did not ask for a review of the Justice of the Peace’s decision based on an error of law.

[7] Two new sureties were put forward: Mr. Stephen Michaelis, Ms. Michaelis’ father, and Michael Potoczny, Mr. Daoud’s former brother-in-law. They are both individually prepared to sign a bond in the amount of $5,000 each. Both testified before this Court today.

[8] During cross-examination, Mr. Michaelis testified that he had been asked to offer himself as a surety and was available on May 2nd. Mr. Potoczny testified that he was not asked to be put forward as a surety on May 2nd and could not recall if he was available.

[9] It is clear that Mr. Daoud has serious issues with alcoholism and may also have issues with cocaine. Both Mr. Michaelis and Mr. Potoczny were aware of the alcohol issues, however, during his testimony, Mr. Michaelis did not mention Mr. Daoud’s issues with cocaine and when Mr. Potoczny was asked in cross-examination if he knew about the extent of Mr. Daoud’s cocaine problem, he responded that he did not.

[10] It is clear that there are issues regarding the Anchorage Program. At Tab 5 of the Bail Review Documents, in the Salvation Army’s June 5, 2017 letter, Mr. Stewart states that “Please be aware that staff are limited in their ability to monitor compliance to all conditions…Please note that staff do not accompany clients to outside appointments or court appearances” (p. 2).

[11] In addition, I have serious concerns about the plan as it relates to the Anchorage Program. As noted in the Salvation Army’s April 27, 2017 letter at Tab 3, Mr. Daoud was discharged from the program due to having yielded a positive result for cocaine in a urine sample, as per its policy. In reality, it could also possibly occur for the consumption of alcohol.

[12] If Mr. Daoud were to relapse and breach his bail conditions again by testing positive on a urine test, he would likely be discharged from the Anchorage Program. Mr. Michaelis testified that he is prepared to accept Mr. Daoud into his home after his discharge from his four months at the Anchorage Program. However, if Mr. Daoud is discharged early for non-compliance, there is not a plan in place if this occurs. In addition, I asked Mr. Potoczny if he were prepared to accept Mr. Daoud into his home if Mr. Michaelis can no longer have him reside at his home. He responded that he could not take him into his home.

[13] It is also important to note that Mr. Daoud has had 32 convictions for not following court orders. This is uncontested by Mr. Daoud. His complete disregard for court orders is quite worrisome.

[14] In her submissions, Mr. Daoud’s counsel submitted that the plan now proposed offers some assurances to the court that the Justice of the Peace did not find were present at the time. I disagree. The only change is that there are two sureties instead of one and a slight increase in the amount of the bond.

[15] With regards to Justice of the Peace Brecher’s decision, I will highlight the relevant portions.

[16] At p. 104, she states: “I have to tell you that the one 2008, 2012, 2014, as well as most recently 2016, those are serious criminal offences and convictions and they surface alongside of these breaches.”

[17] She concludes that these facts heighten the awareness on the secondary grounds that there is a probability of the substantial likelihood of reoffending and that the plan that was proposed at that time does not mitigate against that. I agree that this remains the case. Her review of the facts and law were correct. She states: “this plan on secondary grounds just does not fly” (p. 106).

[18] Justice of the Peace Brecher also makes findings with respect to the tertiary grounds. She finds that Mr. Daoud has already received some jail time associated with certain violent crimes. When it comes to the community, it is on high alert and “their confidence in the administration of justice is shaken if those circumstances also include firearms offences” (p. 107).

[19] Justice of the Peace Brecher also finds that the firearms offence is a very serious offence. She determines that we have to look at the whole context. She continues by adding that the legislature tells us that we have to look at the apparent strength of the Crown’s case which is strong, the gravity is serious, the circumstances related to his efforts regarding his addictions and that the gun was not loaded (p. 108).

[20] Finally, she concludes: “But in any event, my assessment through on tertiary grounds is that despite everything that I have heard and the tipping scale here is that this plan might in some small measure have assisted on the tertiary grounds, it does not…So as a result, we are going to be detaining you, primarily on secondary grounds. The prospect exists on tertiary grounds” (p. 109).

[21] I have reviewed the leading case of R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328, R. v. Ferguson, [2002] OJ No 1969 and R. v. Toussaint, 2017 ONSC 1000, judgment of Kurke J. dated February 15, 2017.

[22] There are similarities between Mr. Daoud’s case and that of Mr. Ferguson’s matter. Both are cases where the accused’s counsel brought forward Notice of Applications pleading a material change in circumstances. In Ferguson, the accused’s plan offered the parents as sureties in the amount of $75,000. As in this case, Mr. Ferguson’s lawyer did not argue any legal error on the part of the presiding Justice of the Peace.

[23] I agree with Hill J. that “the advancement of fresh perspective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. 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” (para 17).

[24] In Mr. Daoud’s case, the only change is the sureties grew from 1 to 2 and the amounts of the bonds increased to $5,000.

[25] I am prepared to conclude that there has not been a material change in circumstances in this matter and that Mr. Daoud should remain detained.

[26] As an aside, if it has been argued that Justice of the Peace Brecher had committed a legal error, based on my review of the documents, evidence and the caselaw, I would have found that it was a solid decision without error.

Justice M. O’Bonsawin Released: June 27, 2017