CITATION: R. v. Ali, 2017 ONSC 4731
COURT FILE NO.: CR-17-10000104-00MO
DATE: 20170808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
HER MAJESTY THE QUEEN ) J. Capozzi and T. DiMuzio, for the
) Crown
Respondent )
-and- )
AYUB ALI ) C. Israel, for the Defendant
Defendant/ Applicant )
) HEARD: July 6-7, 2017,
) at Toronto, Ontario
Michael G. Quigley J.
Reasons For Ruling
Re: s. 522 Application for Judicial Interim Release
[1] Ayub Ali was charged with first degree murder along with his co-accused, the alleged shooter, Mohamud Dirie. They were charged with having murdered Kabil Abdulkadir on Sunday, August 9, 2015 at 2:42 a.m. when he was standing in the southbound lanes of Bay Street in downtown Toronto behind his stopped vehicle, close to the Marriott Hotel and City Hall. The killing was carried out execution style with Mr. Abdulkadir shot multiple times from point blank range, in the face and elsewhere as he fell and lay on the ground.
[2] On March 31, 2017, at the conclusion of a multi-week preliminary inquiry, Khawly J. committed the accused to trial in the Superior Court, but not on the first degree murder charges initially laid. Instead, Mr. Dirie was committed on a charge of second degree murder and Mr. Ali was committed on the lesser offence of having been an accessory after the fact to murder.
[3] As these reasons will show, it is relevant to my decision on this application that the Crown is seeking certiorari of Justice Khawly’s committal decision. On that application the
Crown seeks to have the committals entered by the preliminary inquiry judge quashed and instead to have committals entered against both accused as originally charged, that is for first degree murder involving the planned and deliberate killing of Mr. Abdulkadir. That hearing is scheduled for November of 2017. The trial is scheduled for February of 2018.
[4] On this application, Mr. Ali asked the Court to permit him judicial interim release pending his trial under section 522 of the Criminal Code. As she acknowledges, the onus in this matter rests upon his counsel, Ms. Israel, to demonstrate to the Court in bringing this application that his continued detention in custody is not justified. Normally, an accused person is required to be released pending their trial unless the Crown shows that their detention in custody is justified. This being a reverse onus case reverses that burden of persuasion. It is the defence who must persuade the Court that the continued detention of Mr. Ali is not justified.
[5] In the result, I have not been persuaded that the Applicant’s continued detention is not justified and that he should be released at this time. I advised counsel of that conclusion after hearing the defence submissions, but I did not call upon the Crown to respond orally, though I had its position clearly set out in its responding application record and factum. These are my formal reasons for denying the application at this time.
Crown Theory of the Case
[6] As noted, Kabil Abdulkhadir was shot multiple times and killed while standing at the trunk of his vehicle on Sunday, August 9, 2015, at approximately 2:42 a.m. He was standing in the southbound lanes of Bay Street just south of Dundas Street in downtown Toronto. The deceased was 29 years old.
[7] On the same morning just prior to the killing, the Applicant, Ayub Ali, his co-accused, Mohamud Dirie, and the deceased attended the Bar Code nightclub located at 11 Polson Street in Toronto.
[8] There had been a long-standing history of animosity between the Mr. Dirie and the deceased dating back to 2009, including Mr. Dirie believing that the deceased was responsible for the arrest of some of his relatives. In 2010, the deceased also suffered a beating at the hands of Mr. Dirie and Mr. Dirie’s brother while in a holding cell at the 2201 Finch Avenue West courthouse in Toronto.
[9] While at the Bar Code, it is alleged that the deceased and the accused Mr. Dirie had some interaction during which the deceased attempted to make amends but was rebuffed by Mr. Dirie.
[10] Sometime after this, the Applicant walked to a blue Hyundai Elantra, licence plate BVLL 973, that was parked in the Bar Code parking lot. The deceased followed shortly thereafter and walked to his vehicle that was in the same parking lot. The Applicant entered the driver’s side of the vehicle and waited for Mr. Dirie to join him. After Mr. Dirie got into the front passenger seat of the Elantra, the Applicant waited for the deceased to drive away from the parking lot at which point he followed him out.
[11] The Applicant drove Mr. Dirie to the Marriott Hotel located at 525 Bay Street and he then drove into the Eaton Centre parkade, located just north of the hotel and waited in the vehicle with Mr. Dirie for a short time.
[12] Meanwhile, the deceased and his party had arrived on Bay Street, facing southbound, opposite the Eaton Centre parkade. The deceased was in a silver Honda vehicle. He stopped on Bay Street in the passing lane next to a black Chrysler 300 vehicle, just north of the hotel. The Applicant then drove out of the parkade with Mr. Dirie, turning northbound onto Bay Street. The deceased exited his vehicle and walked to the back of the car. He leaned into the trunk of the car and as he did, a car pulled up from behind him. It is alleged that the blue Elantra had done a U-turn shortly after heading north from the Eaton Centre parkade and was the vehicle that pulled up behind the deceased’s vehicle. It is then alleged that Mr. Dirie exited the Elantra, approached the deceased and shot him at close range. The deceased was unarmed and facing away from Mr. Dirie.
[13] The deceased was shot five times, collapsing to the ground during the shooting. Forensic Pathologist, Dr. Toby Rose, found that one of those gunshots was to the face. She found nothing to contradict the suggestion that the deceased suffered the gunshot to the face first and then the others after collapsing and falling to the ground. Her findings also indicate that three of the remaining gunshot wounds were inflicted while the deceased was on the ground.
[14] Following the shooting, the deceased’s vehicle and the Chrysler 300 sped away. These vehicles were followed by the Elantra allegedly driven by the Applicant. As the Applicant drove away southbound on Bay Street, a retaliatory shooter ran onto Bay Street from the area of the Marriott Hotel and fired several shots at the Elantra.
[15] The retaliatory shooter, Hassan Abdulle, was charged with firearms offences relating to this incident. He testified at the preliminary inquiry, but refused to answer questions on the grounds it may incriminate him. Later he claimed to have no memory of the incident. In addition, the occupants of both the deceased’s vehicle and the Chrysler 300 still have not been identified or located by the police, nor have any of them come forward to date.
[16] Two witnesses, Kory Buker and Lisa Reid, were pedestrians on Bay Street at the time and witnessed part of the shooting and returned to the deceased after the vehicles left the scene. Emergency Services attended and the deceased was pronounced dead on scene.
[17] The blue Hyundai Elantra vehicle allegedly used and driven by the Applicant in the shooting had been rented by Abdullahi Alifarah in late July. He let the Applicant take the vehicle shortly after renting it. Mr. Alifarah had requested its return on many occasions in August but the Applicant did not return the vehicle.
[18] However, at approximately 4:00a.m. on August 9, 2015, only an hour after the shooting, Mr. Alifarah was given information about where he could find the vehicle, which he retrieved at that time.
[19] Mr. Dirie was arrested for first degree murder on August 22, 2015 and the Applicant was arrested for first degree murder on September 19, 2015.
Applicable Principles and Analysis
[20] Regardless whether an application for judicial interim release is a reverse onus matter, like this one brought under section 522 of the Code, whether release ought to be granted is still determined under the primary, secondary and tertiary grounds criteria set out in ss. 515(10).
The Primary Ground
[21] The primary ground is set out ins. 515(10)(a). It calls for an accused to be detained in custody pending his trial where the detention is necessary to ensure that the accused person will be in attendance in court in order to be dealt with according to law. That first factor addresses what is referred to as “flight risk”. It is focused on the risk of the accused vanishing into the ether, so to speak, if he is released from custody.
[22] Counsel for the Applicant claims that there is no risk under the primary ground, were the applicant to be released on bail. She observes that the Applicant is a Canadian born citizen who is claimed to have strong ties to the community. The Applicant’s family and his whole life is connected with Canada and she notes that the Applicant lived with his mother and two of his sisters prior to his incarceration, and that he will be welcomed back to his home if released. Ms. Khali Hassan, his mother, and Hanan Ali, his eldest sister, are being proposed as the residential sureties for the Applicant. As such, counsel for the Applicant asserts that any concern the Court has on the primary grounds are satisfied by the strict supervision plan being proposed.
[23] However, the Crown claims that there is some degree of primary ground risk here, and that the nature of the offence and the potential penalty are relevant in considering whether the Applicant will appear for trial.
The Secondary Ground
[24] The secondary ground addresses the circumstance where the continued detention of the accused is necessary for the protection or safety of the public, having regard to all of 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. It requires an analysis of whether detention is warranted and necessary “for the protection or safety of the public, including any victim of or witness to the offence.”
[25] In R. v Morales[^1], Chief Justice Lamer notes that:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for
those who pose a "substantia/likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.
[26] In order to assess the substantial likelihood that the accused will commit a further offence, the Court must consider:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
the nature of the offence;
the relevant circumstances of the offence which may put into issue events prior to and subsequent to the offence;
the likelihood of conviction and the degree of participation of the accused; the relationship between the accused and the victim;
the profile of the accused which includes his occupation, lifestyle, criminal record, family situation and mental state;
his conduct prior to the commission of the alleged offence; and
the danger which the interim release of the accused represents for the community specifically affected by the matter.[^2]
[27] Counsel for the Applicant argues that the accused has met his burden of showing why his detention under the secondary ground is not justified, considering these factors as a whole. In her submission, the Applicant does not present a substantial risk of reoffending or interference with the administration of justice. The supervision plan being proposed will require the Applicant to live with his mother and be bound by a strict house arrest so in her submission, any concerns raised under the secondary ground are addressed by the supervision plan being proposed.
[28] In the Crown’s view, however, the Applicant poses a significant risk of committing further offences while on bail, and contends that there is a substantial likelihood based on the circumstances of the offence, his affiliations, and his actions, that he will continue to commit violent offences.
[29] The circumstances of the offence involve the Applicant and his co-accused following the deceased, waiting for his arrival and then positioning his vehicle to facilitate the killing of an unarmed man by multiple gunshot wounds on a main street in downtown Toronto. The deceased was facing away from the accused, looking into the trunk of his car when he was shot.
[30] At the time of the shooting, there were many vehicles and pedestrians in and around the area. In R. v. Gulyas[^3], the Court of Appeal noted that the circumstances of the offence itself can lead to the conclusion that there is a substantial likelihood that the applicant would re-offend, particularly in circumstances like this, where this killing appears to be a cold, premeditated and
planned execution.
[31] A further consideration which goes to the question of whether there is a substantial likelihood of re-offending is raised by the Applicant’s inmate records from the Toronto South Detention Centre during his detention to date, produced on the application, which show that he has been involved in altercations with other inmates.
[32] Finally, but of considerable importance on the secondary ground is the Crown’s contention that the evidence shows that the Applicant appears to have been an associate of the alleged shooter, Mohammed Dirie, for at least several weeks leading up to the killing. Given that the Applicant was the alleged driver of the blue Hyundai Elantra that was used to transport the shooter to the scene of the crime and then drove him away after the victim had been shot five times at point blank range, that association takes on considerable importance since Mr. Dirie himself has a significant criminal record.
[33] That criminal record includes: (i) having failed to comply with conditions of an undertaking (2009) for which he received 1 day in jail; (ii) robbery, possession of Schedule I substances for the purpose of trafficking and uttering threats (20 10), for which he received a suspended sentence and probation with 407 days of pre-sentence custody noted; and (iii) possession of a weapon, carrying a concealed weapon, possession of a prohibited or restricted firearm with ammunition, possession of a firearm knowing its possession is unauthorized, possession of a firearm or ammunition contrary to a prohibition order, and failure to comply with probation (2013) for which he received 4 years on each of counts 1 to 4 concurrent and 6 months on counts 5 and 6.
[34] Plainly, this is a significant criminal record. When combined with the Applicant’s association with Mohammed Dirie in the several weeks preceding the shooting, it suggests it is very likely that the Applicant would have been aware of Mr. Dirie’s criminal antecedents, yet willingly continued to choose to associate with him. This factor of criminal association also suggests an increased likelihood of re-offending, because it suggests that the Applicant may be part of a group that involves Mr. Dirie and that is engaged in criminal activity. Further, some of the participants in these events remain at large and could themselves be targeted to ensure they do not come forward or are not available to come forward if they were located. It should be remembered this is an ongoing investigation as the Toronto Police Service continue to follow leads and make efforts to locate these other individuals. As such, Crown counsel contends that after considering all of the relevant factors, there is a substantial likelihood that the Applicant will commit further offences if released and that he should continue to be detained on the secondary ground.
[35] However, defence counsel argues that the plan of allegedly strict supervision by the sureties which is proposed as the basis upon which the Applicant's release is sought is sufficiently strict and more than adequate to counter any concerns on the secondary ground. That plan involves his mother and eldest sister being supervisory and residential sureties and would involve him residing with them. They have each indicated a willingness to pledge $5,000. On a murder bail those amounts might seem woefully inadequate to serve as a financial incentive to the applicant to ensure he respects his bail conditions, but in fairness to the two sureties, each of them testified that given their means and financial circumstances, $5,000 is a lot of money to each of them. What I find to be considerably less certain is whether the Applicant would regard those amounts and their potential forfeiture if bail conditions were breached, as sufficiently important to him to cause him not to breach bail terms, if release was granted.
[36] There is also a plan proposed for the Applicant to work at a restaurant as a dishwasher supervised by the owner, or alternatively for him to commence re-attending Humber College pending his trial. However, I had concerns based on the evidence of the sureties and the Applicant about the ability of the sureties to fully and without interruption supervise the Applicant on a 24 hour basis, recognizing that the evidence of the supervisors and the residential sureties still left some holes that might arise from time to time. That said, I acknowledge there is no such thing as a perfect plan of release and ultimately, the success of any plan is dependent on the commitment and willingness of the accused to abide by the terms of a plan of release.
[37] In the result, because of the factors discussed above, I was not totally satisfied that the secondary ground onus on the Applicant was met. However, regardless of whether I would have denied release on the secondary ground, and even recognizing that the plan could perhaps have been improved further to make it acceptable for purposes of managing secondary ground risk, I have determined that the Applicant needs to continue to be detained for the present time, principally on the tertiary ground as I explain in the following paragraphs.
The Tertiary Ground
[38] A person will be kept in custody on the tertiary ground where detention is necessary in order 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 could be liable, on conviction, for a potentially lengthy term of imprisonment.
[39] In considering whether detention is necessary having regard to all the circumstances, the Court of Appeal has elaborated recently that the confidence in the administration of justice that is to be maintained by the tertiary ground is that of a “reasonable, informed and dispassionate public,” a public that understands the presumption of innocence.[^4] Just as a release in a situation where detention is justified undermines public confidence in the administration of justice, so too does a decision to detain in circumstances where detention is not justified.[^5]
[40] Counsel for the Applicant concedes that the gravity of the offence and the potential for a lengthy term of imprisonment are made out, as well as the fact that a firearm was used in the offence which must also weigh against the Applicant’s release, but she contends that the case is dependent upon the identity of the Applicant as the driver of the vehicle and observes that there is no present allegation that he knew of or used the firearm.
[41] Defence counsel correctly notes that the Supreme Court of Canada has recently affirmed that bail provisions should be applied consistently and fairly with a view to adhering to certain principles and guidelines, incorporating the guideline that the least restrictive form of release appropriate to the accused and the circumstances of the case is what should be the outcome.[^6] In addition to balancing the four factors listed under s. 510 (l0)(c), I am required to consider “all of the circumstances,” including the strength of the supervision plan and any defences raised. To do otherwise would unjustly “ignore the arguments that the defence might raise and accept only the evidence that the prosecution states it is able to produce.”[^7]
[42] Considering the four factors enumerated under s. 515(10)(c), the Applicant’s counsel contends there is nothing in the circumstances of the offence that would justify the Applicant’s detention in order to maintain the public’s confidence in the administration of justice. It is the Applicant’s position that he has met his onus under the tertiary ground, and that his detention on this ground cannot be justified. Balancing all three factors under s. 515(10), the Applicant argues that he has met his burden and should be released.
[43] However, Crown counsel contends that the Applicant’s detention is necessary on the tertiary ground, regardless of whether he is detained on the primary or the secondary ground, in order to maintain confidence in the administration of justice having regard to all of the circumstances of this particular offence. In the Crown’s submission, reasonable members of the community reasonably informed of the law and the facts of this case would be shocked if the Applicant were to be released pending his trial. I agree with that position at this particular time given the present situation of this case procedurally.
[44] Although the Applicant currently only faces a charge of accessory after the fact to murder following the preliminary inquiry, not that such a charge is not itself very serious, an application for certiorari to reinstate the original charges is scheduled to be heard on November 14, 2017. That fact is directly relevant in my view as to whether the Applicant ought to be released at this time.
[45] The Crown took a strong position in its written materials that the certiorari application is likely to succeed and that once the application is heard, the Applicant and his co-accused will again be facing a first degree murder offence, as originally charged. It is not my place to prejudge that proceeding and its outcome, but the factors that have lead to it being brought are relevant and do partially inform the correct analytical perspective relative to the release that the Applicant seeks on this proceeding.
[46] The case of R. v. Asfaha[^8] was similar to the case involving the Applicant. In that case, the alleged shooter, Mr. Asfaha, was driven to the scene of the murder by his co-accused, Mr. Sheriffe. Mr. Asfaha shot the victim three times in the back and then ran to the vehicle driven by Mr. Sheriffe, who drove the shooter and that vehicle to his home. As in this case, at the preliminary inquiry, both accused were discharged on the charge of first degree murder and the driver, Mr. Sheriffe, was committed on the lesser charge of accessory after the fact. However, in finding that the preliminary inquiry judge had erred in not committing Mr. Sheriffe on first degree murder, the judge who heard the certiorari application found:
The fact that the Respondents had a loaded firearm available to them, that Mr. Sheriffe turned his vehicle around, stopped it nearby where Asfaha could disguise himself, approach the deceased from behind on foot and shoot Mr. Golub 3 times in his back without any prior contact between them, are significant facts to which the preliminary inquiry judge did not give significant weight. In addition, there is evidence that Sheriffe acted as a getaway driver from the scene. All of this evidence could lead to an inference that the 2 respondents planned to kill the
deceased.[^9]
There is almost precisely the same set of circumstances in this case as in that case. That is the factual matrix that underlies the question whether the Applicant should continue to be detained pending his trial.
[47] In R. v. St-Cloud[^10]
the Supreme Court sought to clarify the application of the tertiary
ground as it had been interpreted by various courts over the years. The Court made clear that the
tertiary ground “is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused”. It is not to “be interpreted narrowly or applied sparingly” and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
[48] The combined effect of the four circumstances listed in s. 515(10)(c) must be considered as a whole in order to determine whether continuing detention is justified. The perspective to be adopted is that of the “public”, being a reasonable person properly informed of the law, Charter values, and the circumstances of the particular case.[^11]
[49] Looking at the first factor under the tertiary ground, the Court in St-Cloud held that a justice must consider the following considerations when assessing this factor:
...the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial
evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case.[^12]
[50] The Supreme Court cautioned, however, that when a justice is considering the quality of the evidence tendered by the prosecutor, the prosecutor is not required to prove beyond a reasonable that the accused committed the offence. It stated:
...the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing.[^13]
Analysis
[51] In this case, the evidence of the involvement of the Applicant and Mohamud Dirie consists of both “direct” evidence provided by the video surveillance footage that constitutes a significant component of the case for the Crown, but also circumstantial evidence that may permit inferences of culpability to reasonably be drawn. A case grounded in circumstantial evidence is not necessarily a weak case. The evidence in relation to the Applicant in this case is partially of a circumstantial nature, but the Crown contends it is more than sufficient to support a conviction. The Crown emphasizes in its factum that there are reasonable inferences that may be drawn from the evidence, assessed logically and in light of human experience, which can and ought to support the conclusion that the accused is guilty, not only of the lesser offence of being an accessory, but also the offence as originally charged of first degree murder engaging elements of planning and deliberation.[^14]
[52] In the Crown’s view, the evidence here strongly suggests that the Applicant waited in his car in the parking lot of the Bar Code nightclub for the deceased to go to his vehicle. Once that was done, phone records showed that there was communication between both accused. Shortly after, the accused Mr. Dirie, the alleged shooter, walked to the car where the Applicant was waiting for him. This is all said to be plainly apparent from the video surveillance footage. That footage shows that whoever was in the blue Hyundai Elantra vehicle, alleged to be this Applicant, then waited for the deceased to drive his vehicle out of the parking lot at which point he followed Mr. Abdulkhadir out of the parking lot, while taking care to ensure they would not be detected by the deceased.
[53] The cellphone records show that Mr. Dirie’s cellphone moved from the area of the club to uptown, to the area of the Marriott Hotel located at 525 Bay St. Surveillance video in that vicinity shows the blue Elantra, with its licence plate visible, the same vehicle the Applicant took from Mr. Alifarah, having turned into the entry to the Eaton Centre parkade by the Marriott, then waiting in that location while the vehicles they were following arrange themselves on Bay Street, just north of the Marriott. The surveillance video then plainly shows the blue Elantra vehicle, allegedly driven by this Applicant, quickly exiting the parkade shortly after the arrival of the deceased on Bay Street. The Elantra turns northbound, but then it plainly must have done a U-turn and returned southbound.
[54] This inference can be drawn from the fact that the Elantra was seen, moments later, speeding away southbound on Bay Street after the deceased had been killed, even if the actual entire motion is not captured on the video. But the seemingly inescapable conclusion that arises from the whole of this circumstantial evidence is that the Elantra necessarily made a U-turn after exiting the Eaton Centre parking lot and that in doing so, the driver of that vehicle was setting up his position to ambush the deceased once he exited his vehicle. When the blue Hyundai Elantra drove up behind the accused's vehicle, Mr. Dirie was in perfect position to exit the passenger side and accost the unsuspecting, unarmed deceased. Mr. Dirie fired one shot to the deceased’s head. After he collapsed, he fired four more shots, with three being inflicted after the deceased was on the ground.
[55] If he was indeed the driver of the vehicle, as the video footage suggests, this necessarily means that this execution style homicide took place directly in front of the Applicant as he would have watched from the driver’s seat of the Hyundai vehicle. Immediately after the shooting, however, he did not flee, or disassociate himself with those events, but instead the Applicant waited for Mr. Dirie to re-enter the car and then they fled the scene together, with the Applicant driving the Hyundai Elantra at a high rate of speed southbound, taking Mr. Dirie with him. Cellphone records show that he and Mr. Dirie moved from the downtown area to the west part of the city where both accused were living at the time. There is no evidence that the Applicant provided any assistance to the deceased after just witnessing this execution-style murder.
[56] The preliminary inquiry judge was not persuaded that the inferences that might reasonably be drawn from this evidence should be drawn. He considered the Crown’s case to be weak, and that the accused and Mr. Dirie should be committed only on lesser charges. In doing so, however, my review of his reasons for committal suggests that the justice presiding on the November certiorari application may conclude that the preliminary inquiry judge failed to weigh the potential inferences on the preliminary inquiry in favour of the Crown, as he was required to do.
[57] When the available inferences are weighed in favour of the Crown as they are required to be weighed on a preliminary inquiry, in my view the circumstantial case against the Applicant may reasonably be considered more persuasive in favour of the Crown and the charges as originally laid than the preliminary inquiry judge found to be the case. Of course, it will be up to the certiorari judge to decide how the inferences should be weighed, but if that justice decides that the preliminary inquiry judge did not accord appropriate weight to the available inferences in favour of the Crown, that may be found to be legal error that could result in reinstatement of the charges of first degree murder as originally laid. Were that to occur, that would plainly be a factor that would weigh in support of detention in the circumstances here.
[58] Turning to the second factor under the tertiary ground, the gravity of the offence, the Applicant concedes at paragraph 22 of the Application Record that the gravity of the offence weighs against the Applicant’s release. The gravity of the offence is determined on an objective basis in comparison with other offences in the Criminal Code. The offence of accessory after the fact to murder is punishable by a maximum term of life in prison. As such, plainly this factor weighs heavily in favour of detention.
[59] In addition, however, after the certiorari application is heard, the Applicant may well be facing the offence of first degree murder again and detention would be even more strongly favoured if the certiorari judge concluded that the available inferences had not been correctly weighed by the preliminary inquiry judge.
[60] Turning to the circumstances surrounding the commission of the offence including whether a firearm was used, in St-Cloud, the Supreme Court provided a non-exhaustive list of circumstances that are relevant in assessing this third factor underlying the tertiary ground:
...the fact that the offence is violent, heinous or a hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, elderly or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating and mitigating factors that are considered by courts for sentencing purposes can also be taken into account.[^15]
[61] The circumstances of the offender must also be taken into account. The offender here is relatively youthful and has only limited prior youth criminal convictions, and no outstanding charges. While these factors may on their own favour release, clearly they do not preclude a finding that detention is necessary on the tertiary ground. All of the circumstances must be taken into account.[^16]
[62] The circumstances of this offence are of cold, calculated murder. They are extremely aggravating.
[63] One of the circumstances relevant to this factor is whether a firearm was used in the commission of the offence. In this case, although it is not alleged that the Applicant is the one who shot and killed the deceased, it is alleged that he assisted his co-accused by driving the shooter, following the deceased and ambushing him on Bay Street. Further, the Crown does allege that the evidence supports an inference that the Applicant knew that Mr. Dirie was armed with a firearm and that he participated in a plan to kill the deceased.
[64] In addition, the evidence shows that a firearm was brought into a populated area of downtown Toronto and fired not only killing the deceased, but potentially endangering those driving and walking nearby. The public is at risk when there are individuals firing guns, regardless of whether they are a target or not.
[65] The circumstances surrounding the commission of the offence should weigh in favour of the Applicant’s detention, in my view, whether the charge he faces is only accessory after the fact to a homicide, or whether the charges are reinstated to first degree murder.
[66] Finally, the last relevant factor under the test in St. Cloud is whether the Applicant is liable for a potentially lengthy term of imprisonment. Here, again, the Applicant concedes at paragraph 22 of the Application Record that the potential for a lengthy term of imprisonment is made out and the fact that a firearm was used in the offence weighs against the Applicant’s release. If convicted, the Applicant would be subject to a term of life imprisonment, which is the longest sentence available in the Criminal Code. This factor also weighs heavily in support of detention on the tertiary ground.
[67] I acknowledge that the four factors enumerated in St. Cloud are not exhaustive, but merely four factors the Court must consider in its analysis. Additional factors may be considered.
[68] In my view, other helpful guidance on the tertiary ground can be found in R. v. Blind[^17], where the Saskatchewan Court of Appeal wrote that the test under subsection 515(10)(c) contemplates circumstances where “the sensibilities of the community are so affected that to have the person free in the community, notwithstanding the presumption of innocence, could lead to real harm to the administration of justice”, or indeed to the defendant himself.
[69] In considering the application of the tertiary ground in circumstances where the offence alleged is one of murder, it bears remembering that some murders are worse than others. Plainly, this appears to be a horrific execution style homicide perpetrated on an unarmed victim in public on a major thoroughfare in downtown Toronto, steps from a popular downtown hotel, the Toronto City Hall and Nathan Phillip’s Square, a popular downtown Toronto public space, and just a block east of the Court House.
[70] I acknowledge that the mere fact that the crime charged is one of murder, does not necessarily engage the tertiary ground. Justice Nordheimer makes this point in R. v. Modesta[^18]. However, I have concluded that the tertiary ground must require the continued incarceration of the Applicant in this case, at least until there is certainty brought to the level of gravamen of the charges that are being alleged here. Accessory after the fact to a homicide is itself a serious enough offence in circumstances like these where I am satisfied that reasonable members of the community would be shocked by the release of this Applicant pending trial, given the circumstances of this homicide. It is the entire aggregation of circumstances that leads to that view. The tertiary grounds reasons for continued detention will be even materially stronger should the Crown’s certiorari application succeed.
[71] In the result, I have concluded that this Applicant cannot be released at this time. In order to be able to determine whether he should be released pending his trial, the certiorari application needs to be determined. That result will either weigh in favour of release if that application is denied, when combined with the proposed plan of release, or the continued detention of the applicant will be considerably strengthened, if the application is successful. In either event, however, given the horrific and cold blooded circumstances of this execution style killing on a major downtown Toronto street at 2:00 a.m., with passersby in the vicinity, I am satisfied that detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances.
[72] The Applicant is to be detained in custody pending the November certiorari hearing, but may apply again for release as soon as the outcome of that proceeding is known.
Michael G. Quigley J.
Released: August 8, 2017
CITATION: R. v. Ali, 2014 ONSC 4379
COURT FILE NO.: CR-17-10000104-00MO
DATE: 20170808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and-
AYUB ALI
Respondent
Defendant/Applicant
REASONS FOR RULING
S. 522 Application for Judicial Interim
Release
Michael G. Quigley J.
Released: August 8, 2017
[^1]: R. v Morales, 1992 53 (SCC), [1992] 3 SCR 711, 77 CCC (3d) 91 at para. 39. [^2]: R. v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C. (3d) 474 (Q.C.A.) at para. 15, translated in R. v. Wu (1998), 117 BCAC 305, [1998] B.C.J. No 2854 at para. 10. [^3]: 2013 ONCA 68, [2013] O.J. No. 417 (C.A.) at paras. 7-11. [^4]: R. v. Hope, 2016 ONCA 648 at para. 27. [^5]: R. v. Trudeau, [2015] OJ No 4327 (QL) at para. 72 (Sup.Ct) citing St-Cloud at paras. 86-87. [^6]: R. v. Antic, 2007 SCC 27, [2007] S.C.J. No. 27 [^7]: R. v. Turcotte, 2014 QCCA 2190, [2014] QJ No. 13532 (QL) (CA) at para. 45, citing R. v. Coates, 2010 QCCA 919 at para 45; R. v Stacey, 2016 NLCA 38, [2016] NJ No 255 (QL) at paras. 19 and 26. [^8]: R. v. Asfaha, [2012] O.J. No. 231. [^9]: Ibid., at par. 24. [^10]: R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 at para. 87. [^11]: Ibid. supra at para 87. [^12]: St-Cloud, supra at para. 58. [^13]: Ibid .. [^14]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 35 to 43. [^15]: St-Cloud, supra at ,61. [^16]: See R. v. David, [2006] O.J. No. 3833 (S.C.J.) at 43-47, R. v. McGowan, [2009] O.J. No. 3686 (S.C.J.) at 11-12. [^17]: (1999), 1999 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.). [^18]: 2009 67002 (S.C.J.).