CITATION: R. v. Shamji, 2017 ONSC 5151

COURT FILE NO.: CR-17-40000200-00BR

DATE: 20170830

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED SHAMJI

Applicant/Defendant

Henry Poon and Elizabeth Stokes, for the Crown

Lisa Pomerant and Liam O’Connor, for the Applicant/Defendant

HEARD: August 24-25, 2017

WARNING

A publication ban was ordered in this proceeding pursuant to section 517(1) of the Criminal Code on August 24, 2017.

Reasons for Ruling

s. 522 Application for Judicial Interim Release

M.F. BROWN J.

I. Introduction

[1] Dr. Mohammed Shamji is charged with the offence of first degree murder of his spouse Dr. Elana Fric-Shamji and with the offence of offering an indignity to the human remains of Dr. Elena Fric-Shamji.

[2] Dr. Shamji applies for judicial interim release under s. 522(1) of the Criminal Code. He seeks to be released on bail with strict conditions pending his trial.

[3] Pursuant to s. 522(2) of the Criminal Code, Dr. Shamji bears the onus of establishing that his detention in custody is not justified based on any of the three grounds set out in s. 515(10) of the Criminal Code. The Crown opposes Dr. Shamji’s release on the basis of the primary, secondary and tertiary grounds in s. 515(10)(a), (b), and (c) of the Criminal Code.

II. Factual Allegations

i. Overview

[4] The accused Dr. Mohammed Shamji and the deceased Dr. Elana Fric-Shamji were married in September 2004. They had 3 children: Marius (3 years old), Faiza (9 years old), and Yasmin (11 years old). At the time of the offence, the family lived in Toronto, at 49 Verwood Avenue in North York. There was conflict in the marriage. On November 28, 2016 the deceased's family lawyer emailed a formal notice to Dr. Shamji that the deceased intended to leave the marriage.

[5] Two days later, on November 30, 2016, the deceased was killed. The cause of death was blunt/compressive neck injury. The deceased had been badly beaten and portions of her long hair were cut off. Her body was stuffed into a suitcase and dumped in the Humber River in the area of Nashville Road and Howland Mills Road, in the City of Vaughan. Her body was found on December 1, 2016 and identified the following day.

[6] The allegations relied upon by the Crown have been set out at Tab 1 of Exhibit 3, filed on the bail hearing. These allegations were also supplemented by the post mortem report prepared in regard to the deceased filed at Tab 2 of Exhibit 3 and various photographs of the deceased filed at Tabs 3-7 of Exhibit 3. In addition, the defence also filed a supplementary application record, Exhibit 2, setting out various police interviews with Yasmin Shamji, Dr. Saul Mandelbaum, Dr. Melissa Newton, Mr. Thomas Beach, and police notes of Police Officers Kummer and McDermot. A Biology report was also filed as Exhibit 4 in relation to the blood stains on the comforter in the master bedroom.

ii. Factual Allegations

[7] For ease of reference I include portions of the following summary of the factual allegations of the Crown that appear at pp. 1-17 of Exhibit 3. I will also make reference to certain portions of the factual allegations found in Exhibit 2, the supplementary application record, filed by the defence.

a) History of Domestic Abuse and Marital Discord

[8] Based on ante mortem statements made by the deceased to various people, the deceased had been subjected to verbal, emotional and physical abuse by the accused throughout the marriage.

[9] In May 2005, in Ottawa, the accused was charged with domestic assault and threatening bodily harm against the deceased and Yasmin. The deceased had visible injuries resulting from this incident. The accused resolved the domestic charges by entering into a peace bond in July 2005.

[10] In 2012, in Ottawa, a neighbour (Elizabeth Allan) observed an incident where she heard screaming and yelling in the middle of the night on the street. Ms. Allan saw the deceased walking away from the Shamji residence. The accused was walking after her and yelling at the deceased. The accused called her a "fucking whore," and said ''I'm gonna get you." Ms. Allan recalls Yasmin Shamji (approximately 7 years old) standing on the driveway in her sleep clothes crying after her parents. Throughout, the accused yelled at Yasmin words to the effect of "your mother doesn't want you, she's a fucking whore." When the deceased saw Yasmin on the driveway, she returned to the house and they all went inside. Ms. Allan called CAS after this episode.

[11] In 2012, the deceased began to consider divorce, suspecting infidelity on the part of the accused. The deceased agreed to try to work things out at first, but to no avail.

[12] Between May 2016 and the time of the killing in November 2016, the marital relationship deteriorated as the divorce discussions intensified.

[13] In the weeks leading up to her murder, the deceased had moved to the basement of the matrimonial home to physically separate herself from the accused. During this time, based on ante mortem statements of the deceased to a number of people, the accused sexually assaulted the deceased on two occasions.

b) Marital Separation

[14] The deceased contacted the family law firm of Grant and Sadvari on May 16, 2016, inquiring about initiating separation proceedings with the accused. The deceased spoke with lawyer Melanie Battaglia and said she had been unhappy for a long time in the relationship. The deceased described the accused as very controlling. She said that the accused had been physically violent with her in the past, as well as emotionally and verbally abusive. The deceased believed that the accused was about to resume an intimate relationship with a woman in Calgary with whom he had an affair in 2012.

[15] The deceased told her friend Neely Savard around this time that she was considering divorce. She said that she was afraid of the accused, worried about her safety, and worried about what he might do to her. She said "if something ever happened to me or I went missing, you'll know what happened to me."

[16] The deceased decided not to proceed with the separation in May. She told two friends that the accused had promised to change and that he talked her out of the separation.

[17] Between May and the end of October 2016, the relationship continued to deteriorate. The deceased again broached the idea of separation with the accused and he asked her to wait until after the Christmas holidays. On November 19th, the deceased confided in her friend, Dr. Caterina Mastrogiacomo, that the accused was threatening to show up at an Ontario Medical Association council meeting that the deceased was attending in order to "make a scene." The deceased texted "I am in a state of constant distress," and "I just need a safe person with whom I can confide." The next day, November 20th, the deceased texted "he is delusional" and texted that she had told the accused numerous times that it was happening (meaning the separation) and he kept saying "no it's not."

[18] The deceased contacted lawyer Melanie Battaglia again and met with her on November 24, 2016. She provided more details about the verbal, emotional and physical abuse in the relationship including the assault that occurred early in the marriage. The deceased described being sexually assaulted by the accused in late October 2016 and again on November 22, 2016. Both sexual assaults involved forced penetration, and the deceased had moved out of the marital bedroom to prevent further assaults. The deceased was crying and upset during the meeting with Ms. Battaglia.

[19] The deceased told Ms. Battaglia that she was hopeful for an amicable separation but she thought the accused would make it problematic. The deceased was concerned about the accused's reputation and him losing his job. She did not want to remove the children from the home and disrupt their routine. The deceased did not want the abuse in the marriage to become public and was very clear that she did not want any of the abuse allegations in a court application.

[20] On November 28, 2016 Ms. Battaglia emailed a formal letter to Dr. Shamji indicating the deceased's intention to separate. Ms. Battaglia followed up with the deceased by email. On November 30 at 4:17pm the deceased replied: “He is having a hard time accepting things but there is no violence currently. Thank you for the email :)”

c) The Deceased is Reported Missing

[21] On the evening of Thursday December 1st, the deceased's mother, Ana Fric, contacted the Toronto Police Service to report that she had been unable to contact her daughter since the previous night and was concerned that something had happened between her and her husband.

[22] Later that evening, Toronto Police Service officers Kummer and Peters attended the Shamji home and spoke with the accused. The accused said it was good the police were there and that he planned to report his wife missing the following day after he dropped the kids off at school. He was under the impression that he had to wait 24 hours before he could report her missing.

[23] The accused advised the officers that around midnight on November 30th the deceased told him she was in love with another man and that she was leaving to go and see him. He said that the deceased walked out of the bedroom and left the house. He assumed she left with her vehicle, as the keys were gone. The accused said that the man the deceased had left him for was a married doctor by the name of “Saul”. The accused told the officers that he had tried to contact the deceased and had texted her, but had not heard anything from her and was worried.

[24] The officers searched the home, including the exterior property, for the deceased but did not locate her. At the time, the children were found to be sleeping in their beds. The family's Honda Pilot was in the garage. The entire house was checked; it appeared neat and tidy. There were no signs of any physical altercations, and nothing in the house appeared suspicious.

[25] Officers spoke with Dr. Saul Mandelbaum, a general surgeon at Scarborough General Hospital. This is the same male believed by police to have been having an affair with the deceased.

[26] Dr. Mandelbaum advised that he believed that the deceased served separation documents on her husband earlier that week. He said that the deceased was a very responsible person, and would not leave without her kids. Dr. Mandelbaum advised that the last time she contacted him was when he received a text message on Wednesday, November 30, 2016 at 3:06 pm stating “mental health day” which indicated that she had the day off for an OMA conference the following day. Dr. Mandelbaum texted the deceased several more times, but she did not reply to him.

[27] Upon subsequent investigation, Dr. Mandelbaum's whereabouts from the early evening of Wednesday November 30th to Thursday December 1st at 3:06 pm, when the deceased's body was discovered, have been accounted for. Dr. Mandelbaum's wife, Dr. Melissa Newton, advised that on November 30th, Dr. Mandelbaum took their two boys to Tae Kwan Do which started at 6:50 pm or 6:45 pm. She met them at the studio. He took the boys home following their class at around 7:30 pm, and returned to the Tae Kwan Do studio on St. Clair West to pick up his wife at about 8:30 pm. They had dinner together at home and the kids went to bed around 9:30 pm or 10:00 pm. They stayed at home together for the rest of the evening. Dr. Newton does not remember who went to bed first, but she does not usually go to bed before midnight. The next morning Dr. Newton woke up between 6:00 am- 6:30 am, and her husband was at home. He left for work close to 7:00 am because he was scheduled to operate that day.

[28] Records from the Scarborough General Hospital confirm that Dr. Mandelbaum arrived at the hospital at 7:18 am on December 1st and performed surgery on a patient that morning.

d) Elana Fric-Shamji’s Body is Found

[29] On December 1st 2016, a resident of the City of Vaughan called the police to report a suitcase, which he observed in the Humber River while he was going to pick up his mail.

[30] York Regional Police Service officers attended the location and observed the suitcase, approximately 3-4 feet from the east shoreline. The suitcase was lying in shallow water on the south side of the bridge west of Nashville Road and Howland Road.

[31] The police officers retrieved the suitcase from the river and unzipped it. They observed the body of the deceased inside. The deceased’s knees were pushed up against her chest and her arms were stretched behind her back.

[32] A white tea towel with blue and grey stripes was also found inside the suitcase.

[33] The distance between the Shamji residence and the location where the suitcase was found is approximately 35.9 kilometres. It takes approximately 30 minutes to travel that route by car.

e) Arrest of Mohammed Shamji

[34] On December 2, 2016 at approximately 12:58pm, Dr. Shamji attended at 32 Division Station at the request of the police. He was advised that the Toronto Police would be sealing the house at 49 Verwood Avenue. The accused left the police station shortly after and his movements were monitored by police. The accused was observed checking into the Holiday Inn Hotel at 3540 Dufferin Street in Toronto with his brother.

[35] At 3:50 pm members of the Toronto Police Service Homicide Squad were notified regarding the nexus between the female body located in York Region and the missing person report for the deceased. At 7:55 pm Dr. Shamji was arrested for first degree murder. At the time of his arrest, he was in a coffee shop on Lakeshore Blvd. meeting with his lawyer. The accused’s passport was seized from the Holiday Inn after his arrest and is being held by the Toronto Police Service.

f) Statement of Yasmin Shamji

[36] At 2:30 pm on December 2, 2016, the three Shamji children were picked up at their school by members of the Toronto Police Service Youth Bureau. They were transported to 32 Division station. At 4:20 pm Yasmin Shamji, then 11 years old, spoke to the police on video and described the daily routine in the home, the events of the previous few days, and various arguments she had overheard between her parents.

[37] Following Yasmin's interview, the children were told of their mother's death by Ana Fric in the presence of three police officers and CAS workers. At 8:05pm, Ana and the children left the police station to stay with family in Brampton. At 9:00pm, police were notified that Yasmin had additional information to provide. At 10:12pm, Yasmin Shamji provided a second video recorded statement to police. The following is a summary of that statement.

[38] Yasmin last saw her mom at home during the evening of Wednesday November 30th 2016. Yasmin went to her bedroom to go to sleep around 8:00 pm - 9:00 pm and saw her mom go into her bedroom. At this time the whole family was home, and both of Yasmin's siblings were already asleep in their bedrooms.

[39] Yasmin was about to fall asleep when she heard arguing through the walls as her bedroom is beside her parents' bedroom. She couldn't make out any words.

[40] Yasmin was lying in bed and almost fell asleep when she heard her mom scream. She didn't hear any words, just a scream like she was in pain and then a loud bang, like something hitting against wood.

[41] After Yasmin heard the scream, she waited about two minutes and went into her parents' bedroom. When she entered the room it was silent. Yasmin saw her dad, Dr. Shamji, crouched behind the bed. Yasmin could only see his head and shoulders as the bed was blocking the rest of his body. The location where Yasmin observed her father is on the south side of the bed.

[42] Yasmin saw her dad pulling a quilt towards him and off the bed. He then told her to "Go to your room, just go to your room." Yasmin paused for approximately five seconds then went back to her bedroom. When she walked into the room, Yasmin did not see her mother in the bedroom, although she did see her enter it initially.

[43] Approximately one minute later, Yasmin heard a banging noise coming from the walk-in closet. The walk-in closet is where the suitcases were kept. The noise sounded like something hitting the floor. Yasmin returned to her parents' bedroom after hearing the loud banging, and was met by her father who said "It's just nothing; mom is out for a walk." Yasmin could not hear any other voices, and her father was standing near the doorway of the main bedroom.

[44] Yasmin proceeded to go back to her bedroom and fall asleep.

[45] Yasmin woke up the next day on Thursday December 1st, 2016 at approximately 6:15 am or 6:30 am. She was in the process of getting on her school uniform but became worried about her mother so she went inside her parents' bedroom to look inside.

[46] Inside the bedroom Yasmin couldn't find anything. It looked normal and nobody was inside. She looked around the bed, but did not check the bathroom or walk-in closet. At the time her father was downstairs. Yasmin was looking around her parents' bedroom for about ten seconds when her dad called her downstairs for breakfast.

[47] At breakfast, Yasmin asked her dad where mom was and why she wasn't answering her phone. He said she went out with a friend and didn't know why she wasn't picking up her phone. He then drove her and the rest of the kids to school. Yasmin advised that her mom usually takes the kids to school; very rarely does dad drive them.

[48] After school on Thursday, while Dr. Shamji was driving the kids to martial arts class, Yasmin again asked him where mom was. He said she was at a friend's house. On Friday December 2nd 2016 in the morning at breakfast, Yasmin again asked her dad where mom was. He said "As I said, she's at a friend's house".

g) Post-Mortem Examination

[49] The deceased’s body showed obvious signs of injury and her long hair had been cut short. Numerous strands of hair were trapped within the suitcase zippers, and were found on the bottom of the suitcase and on her hands.

[50] Forensic pathologist Anita Lal determined that the deceased’s cause of death was blunt/compressive neck injury. The deceased suffered significant bruising to her face and neck; fractures of the larynx and a hyperflexion injury of the cervical spine with fracture. These injuries were caused by sustained pressure to the neck, the possible application of a ligature, and a strong force to break the larynx. Force was applied to the back of the head or neck resulting in a forward bending of the neck beyond its normal limits. This force was strong enough to break the neck.

[51] Bruising and lacerations to the deceased’s face and head indicate that the deceased was struck multiple times. She had lacerations on her scalp, both ears, left eyelid, tongue and lips. The deceased had bruising on her ears, eyes, cheeks, nose, oral cavity, scalp, both jaw muscles and tongue. The impacts to the lower face were sufficiently forceful to cause diffuse soft tissue bleeding.

[52] The opinion of Dr. Lal was that the deceased was also hit repeatedly in the torso. Her right front ribs were fractured. She had bruising to her upper back and left mid-back, muscular bruises of the pectoralis and trapezius muscles, abrasions to her lower back, and abrasions and contusions to all four extremities.

h) Forensic Evidence

Blood Evidence at 49 Verwood Avenue

[53] Forensic Identification Services officers observed blood staining on the duvet in Dr. Shamji and the deceased’s bedroom. The staining was on the south side of the bed, near the pillow. DNA testing found that the deceased cannot be excluded as the source of the major and minor female DNA profiles found in the blood stains on the comforter. The random match probability was calculated at 1 in 6.9 quadrillion. At this point, however, it is unknown whether the female DNA profiles on the comforter came from the blood stains or has some other DNA origin.

[54] A major male DNA profile was obtained from two cut-outs of the bloodstain from the top side of the comforter. The source of this DNA profile has yet to be determined.

[55] Traces of blood were also found in the garage, where the deceased’s Honda Pilot was parked. A small blood wipe pattern, a 4 mm bloodstain, and partial footwear impressions in blood were all found on the garage floor. A female DNA profile was obtained from swabs of these bloodstains. DNA testing at the Centre of Forensic Sciences has found that the deceased cannot be excluded as the source of that DNA profile. The random match probability was calculated at 1 in 6.9 quadrillion.

[56] Evidence of blood was also observed in the Honda Pilot, in the following areas:

• On the lower rocker panel and the trim below the rear door opening;
• On the front of the rear middle seat seatback almost behind the child seat;
• On the front of the passenger rear seat;
• The Bluestar blood reagent indicated the presence of blood that was not visible to the naked eye on the threshold of the rear door and on the side of the child car seat.

[57] A female DNA profile was obtained from 3 swabs of blood from the car. The deceased cannot be excluded as the source of that DNA profile. The random match probability was again calculated at 1 in 6.9 quadrillion.

i) Trace Evidence (Cut Hair)

[58] During the forensic examination of the Shamji home, the police collected various strands of hair samples from the upper landing to the second floor, the master bedroom, the en suite bathroom and laundry room area.

[59] A forensic examination found that a total of 38 of the submitted hairs from 49 Verwood Avenue were cut scalp hair fragments. They were found to have macroscopic and stereomicroscopic characteristics similar to sections of the comparison scalp hairs from the deceased.

[60] 106 hairs were collected from the suitcase containing the deceased’s body. The CFS examination found that 100 of those were cut scalp hair fragments which had macroscopic and stereomicroscopic characteristics similar to sections of the comparison scalp hairs of the deceased.

j) Tea Towels

[61] A white tea towel with blue and grey stripes was found in the suitcase with the body of the deceased. That tea towel was analysed by a forensic scientist and compared with five tea towels found in a kitchen drawer at 49 Verwood Avenue. Two of those tea towels were white with red and grey stripes. These two towels were indistinguishable in towel fabric and yarn constructions, and fibre composition to the tea towel found with the deceased. The towels cannot be excluded as having originated from the same set. Therefore, they have either originated from the same set or another set comprised of towels produced by the same manufacturer.

k) Phone Evidence

[62] The deceased's cellular phone was consistently used through the afternoon and early evening of November 30th, 2016. After 3:20pm, each call made and received by the deceased's cellular phone connected to the cell tower location at 4222 Bathurst Street, North York, less than 600m away from the family home. The deceased spoke to her mother at 7:42pm for 3 minutes 44 seconds. The last activity on the deceased's phone was at 7:57pm. (It was an outgoing call to the number 1611, the Rogers Customer Service line; one of the children said they were having trouble with the internet connection around 8pm). Following that call, the deceased's cell phone no longer connected to any cell tower locations, indicating that the phone was off.

[63] Dr. Shamji called the cell phone number of the deceased four times in the early morning of December 1st. The first call was placed at 2:26am, followed by calls at 3:02am, 5:25am, and 7:06am. Each time the phone connected to voicemail and each call lasted 2 seconds or less. The accused's phone connected to the 4222 Bathurst Street tower location when those calls were made.

[64] The accused made three more calls to the deceased's phone on the afternoon of December 1st, all of which went to voicemail. The times and durations of those calls are 12:22pm (1 second), 4:35pm (1 second) and 7:13pm (3 seconds).

l) Other Post-Offence Conduct

[65] Family lawyer Stephen Codas left a voicemail message for the deceased's lawyer Melanie Battaglia on December 2nd, 2016 at 11:11am, which was followed by a letter. Mr. Codas indicated that he “just got retained” by Dr. Shamji. Mr. Codas stated “apparently your client has not been seen or heard from since Wednesday night. Our client is concerned.” The letter further indicated that Dr. Shamji “would also like to resolve this matter amicably by way of Separation Agreement.”

III. Dr. Shamji’s Background

[66] Dr. Shamji is 41 years old. He is a Canadian and British citizen. His passports are in the custody of the police. He does not have a criminal record. He was born in Ottawa and grew up there. His mother is Dr. Ismet Nathoo-Shamji and his father is Dr. Farid Shamji. Dr. Shamji also has a brother, Dr. Alykhan Shamji, who is two years younger than him. His younger brother is currently studying at Harvard Medical School.

[67] From 1995-1999, Dr. Shamji attended Yale University in New Haven, where he obtained Bachelor’s and Master’s degrees. Dr. Shamji attended Queen’s Medical School from 1999-2003 and graduated with a gold medal. From 2003-2005, he completed a junior residency in neurosurgery at the University of Ottawa (Ottawa Hospital). In 2005, he moved to Durham, North Carolina, to attend Duke University. There, he obtained a PhD in biomedical engineering.

[68] From 2008-2011, he completed his senior residency at the University of Ottawa (Ottawa Hospital). In 2011, he wrote and passed the neurosurgical licensing exam and moved to Calgary for one year to complete a Spine Surgery and Fellowship. In 2012, he moved to Toronto and practiced as a neurosurgeon at Toronto Western Hospital (University Hospital Network). His practice at the Toronto Western Hospital consisted of general neurosurgery with specialization in minimally invasive and complex spine surgery, spinal cord stimulation to treat pain, and spinal fusion to treat hypermobility disorders.

[69] He held the position of assistant professor of surgery at the University of Toronto from 2012 onward and assistant professor of biomedical engineering until 2016. He was responsible for supervising students in medical and scientific training. Since 2012, he has also been a member, and assumed leadership roles, in numerous global and national spinal associations. He has also spoken frequently as a panelist at conferences all over the world.

[70] He married the deceased in September 2004. As noted, he has three children. Dr. Shamji has lived in a home at 49 Verwood Avenue in North York, Toronto, with his family from 2012 until the time of his arrest on December 2, 2016.

[71] His family, his community, and his profession are here in Toronto. With the exception of his mother’s sister in England, and his younger brother who attends school at Harvard, all his family is here in Canada. Pursuant to a court order dated January 18, 2017, his personal and matrimonial assets have been frozen pending resolution. He does not have access to any monies except those set aside for legal fees in his lawyer’s trust account.

IV. The Proposed Release Plan

[72] Dr. Shamji is proposing a release plan of strict supervision, essentially amounting to house arrest. If released, Dr. Shamji will reside with his parents, Dr. Farid Shamji and Dr. Ismet Nathoo-Shamji, in Ottawa. His aunt Roshan Nathoo and uncle Alnoor Nathoo will provide relief and will assist in supervising Dr. Shamji so that he is supervised 24 hours a day. Dr. Shamji's parents, aunt, and uncle will act as sureties. They are prepared to pledge a total sum of two million dollars. It is also proposed that Dr. Shamji will be monitored electronically through an ankle bracelet.

V. Analysis

The Legal Test for Detention

[73] A person charged with murder must be detained unless and until he or she shows cause why detention is not justified. The justifications for detention are codified in s. 515(10) of the Criminal Code. There are three grounds for continued lawful detention, which have historically been referred to as the primary, secondary, and tertiary grounds.

[74] Section 515(10) reads as follows:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

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.

[75] The onus is on Dr. Shamji to demonstrate, on a balance of probabilities, that his continued detention is not justified on any of the primary, secondary, or tertiary grounds.

[76] The Crown resists the release of Dr. Shamji on all three grounds.

[77] I will examine each ground in turn, beginning with the primary ground.

i. The Primary Ground

[78] The primary ground is set out in s. 515(10)(a) of the Criminal Code. Both the primary and secondary grounds involve an exercise in risk prediction. The risk addressed by the primary ground is a classic one: that a person charged with a serious criminal offence, and facing a potential life sentence, may flee the jurisdiction.

[79] The primary ground involves a consideration of factors that include the nature of the offence and the potential penalty, the strength of the Crown’s case, the accused’s ties to the community and any history of an accused’s compliance with court ordered conditions, or alternatively, any history of flight.

[80] The Crown submits that the risk of Dr. Shamji fleeing in these circumstances, even with a solid release plan, cannot be easily dismissed. He is facing a possible sentence of life imprisonment with no eligibility for parole for 25 years. Given his professional accomplishments, the Crown submits that Dr. Shamji has a lot to lose, more than most accused. Therefore, his risk of fleeing in these circumstances is significant.

[81] I will review Dr. Shamji’s proposed plan of supervision in a moment. However, the plan of supervision alone leads to me to the conclusion that there is a low risk of flight. While it is possible that Dr. Shamji may elect to flee the jurisdiction it is not in my view probable. The very modest risk of flight is controlled by the plan of supervision proposed. Dr. Shamji has ties to this jurisdiction. His family, his community, and his profession are in Toronto. He has no history of failing to abide by court orders. Furthermore, Dr. Shamji has no access to his own assets. They have been frozen pursuant to a court order.

[82] Dr. Shamji is also an extremely well-educated man. He certainly knows that he would not be able to avoid detection for very long if he were to try to flee the jurisdiction.

[83] Overall, I do not find the primary ground to be a reasonable basis for his detention.

ii. The Secondary Ground

[84] The secondary ground permits the detention of an accused for reasons that are not related to whether the accused will attend in court for trial. This ground deals with two distinct but related concepts. It focuses on the commission of offences by an accused while on bail and interference with the administration of justice while on bail.

[85] Detention is warranted on the secondary ground where necessary for the protection or safety of the public, including any victim of or witness to the offence. The court must look at all of the surrounding circumstances, including any substantial likelihood that the accused will reoffend or interfere with the administration of justice if released. The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness. See R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711. Bail is denied under the secondary ground only for those individuals who pose a “substantial likelihood” of committing further offences or interfering with the administration of justice and only when this substantial likelihood endangers the protection and safety of the public.

[86] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of the criminal record of the accused, the strength of the Crown’s case, and whether the accused is already on bail or probation at the time of the alleged offence. See R. v. K.D., 2006 ONCJ 232.

[87] If the court concludes that public safety is at risk, and/or that there is a substantial likelihood of re-offence or interference with the administration of justice, then the issue will be whether the proposed terms of release will adequately address the secondary ground concerns. Here, the accused bears the onus to satisfy the court that the proposed sureties and their plan of supervision will sufficiently reduce the risks.

[88] With respect to the secondary ground, the Crown submits that there is no substantial risk of the accused re-offending but does submit that, if Dr. Shamji is released, there is a risk of interference with the administration of justice. This is because Dr. Shamji could attempt to influence the testimony of his daughter, Yasmin, who will be an important Crown witness in the case.

[89] The Crown submits that there is a risk of such interference, even inadvertently, through Dr. Shamji’s parents, who are proposed sureties for Dr. Shamji. Dr. Shamji’s parents are seeking to have supervised access to their grandchildren, including Yasmin. That issue is currently in family court and no supervised access order has yet been made. I make no comment with respect to that issue other than to say that it is not surprising to me that this is a highly emotional matter for Dr. Shamji’s parents. I accept that their desire to see their grandchildren is a sincere one. I also accept their evidence that they will abide by any orders that I would impose if I were to grant Dr. Shamji bail.

[90] While there is always a risk of inadvertent influence on a child witness when there is any communication between a child and their parent or a child and their grandparent, I am satisfied that there is currently no order for supervised access for Dr. Shamji’s parents with their grandchildren. As well, if I were to release Dr. Shamji, the conditions of his release would include a non-communication order between Dr. Shamji and his children. This would address any concerns about interference with the administration of justice.

[91] In view of the strict proposed plan of supervision, I am satisfied that any concerns about interference with the administration of justice do not rise to the level of substantial likelihood of interference. To the extent that there are concerns about interference with the administration of justice under the secondary ground, they are insufficient to warrant Dr. Shamji’s continued detention.

iii. The Tertiary Ground

[92] I now turn to the third, or tertiary, ground. This ground permits the detention of an accused person where that person’s detention is necessary to maintain confidence in the administration of justice having regard to all of the circumstances. Section 515(10)(c) provides that all circumstances of the case must be considered, including four enumerated factors. They are as follows: the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment.

[93] The Supreme Court of Canada commented on the proper interpretation of the tertiary ground found in s. 515(10)(c) of the Criminal Code in R. v. St-Cloud, 2015 SCC 27. At para. 87, the court summarized the essential principles that must guide judges in applying s.515(10)(c), as follows:

• Section 515(10)(c) does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. Section 515(10)(c) provides a distinct basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) must not 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.
• The four circumstances listed in s. 515(10)(c) are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question of whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[94] As the court noted at para. 56 of St-Cloud, it must be kept in mind that at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the Crown’s case, or the possibility of a lengthy term of imprisonment.

[95] The court in St-Cloud emphasized at para. 70 that it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter. This entitlement rests in turn on a cornerstone of Canadian criminal law – the presumption of innocence that is guaranteed by s. 11(d) of the Charter. These fundamental rights require the justice to ensure that interim detention is truly justified, having regard to all the relevant circumstances of the case.

[96] I will now examine the four statutory factors set out in s. 515(10)(c) that I must consider, among other circumstances, in determining whether Dr. Shamji’s detention is necessary to maintain confidence in the administration of justice.

a) The Apparent Strength of the Crown’s Case

[97] In determining the apparent strength of the Crown’s case, bail justices must be alive to the fact that there are many cases where the strength of the Crown’s case appears to be overwhelming at the pre-trial stage, only to have it unravel as the trial progresses. See R. v. Blind, (1999) 1999 12305 (SK CA), 139 C.C.C. (3d) 87 at para. 15. As Trotter J.A. observed in his seminal text, The Law of Bail in Canada, 3rd ed., (Toronto: Carswell Publisher, 2016) at 3-6, the expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown. In St-Cloud, Justice Wagner commented at para. 56 that a bail hearing is a summary hearing in which more flexible rules of evidence apply. As a result, some of the evidence admitted at the bail hearing may later be excluded at trial.

[98] Despite the difficulties inherent in the hearing process, the justice at a bail hearing must nevertheless determine the apparent strength of the Crown’s case. It stands to reason that no matter how serious the allegations, and notwithstanding the potential penalty that an accused may face, detention based on a weak or doubtful case may tend to undermine confidence in the administration of justice, not maintain it. See R. v. Dang, 2015 ONSC 5254.

[99] In assessing the strength of the Crown’s case, a bail justice must be careful not to play the role of trial judge or jury. The Crown is not required to prove beyond a reasonable doubt that the accused committed the offence. Matters such as the credibility of witnesses must be analyzed at trial, not at the release hearing. 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. See St-Cloud at para. 58.

[100] The vantage point at a bail hearing is far different than what will be the case at trial. The Crown’s case may be strengthened or weakened as time goes on. But on the basis of the record now before me, I conclude that the Crown has a very strong circumstantial case against the accused for second degree murder. In saying this, I am not suggesting that the case for the Crown on first degree murder is weak, but simply that I do not view the Crown’s evidence regarding planning and deliberation as being strong.

[101] In coming to this conclusion on the strength of the Crown’s case, I rely on the following evidence:

• The statement of Yasmin Shamji, to which I made reference earlier. Yasmin described hearing arguing, and then her mom screaming and a loud bang like something hitting against wood. She described later hearing a banging noise from the walk-in closet. The noise sounded like something hitting the floor. She also described her observations of her father and two brief conversations with him, once inside the master bedroom and once with him standing near the bedroom doorway;
• The traces of the deceased’s blood on the garage floor;
• The traces of the deceased’s blood in the Honda Pilot;
• The cut hair, similar to the deceased’s hair, in the master bedroom;
• The inference that the tea towel found in the suitcase originated from the house;
• The evidence that the Shamji family suitcases are normally stored in the walk-in closet of the master bedroom;
• The evidence that Dr. Shamji was home the entire evening;
• The evidence of escalating animus in the marriage, which goes to the issue of the identity of Dr. Shamji as the perpetrator of the offence and the state of mind with which the offence was committed.

[102] In assessing the apparent strength of the Crown’s case, the bail justice must also consider any defences raised by the accused. If there appears to be some basis for the defence, the bail justice must take this into account in analyzing the apparent strength of the Crown’s case.

[103] In this case the defence submits that there are significant frailties in the Crown’s case regarding the identification of Dr. Shamji as the perpetrator of the offences. At trial, the Crown bears the burden of proving the identification of Dr. Shamji as the perpetrator of the offences in question beyond a reasonable doubt. In support of the identification defence is a third party suspect defence. Anyone charged with an offence may seek to introduce or rely on evidence that shows or tends to show that somebody else, not the person charged, committed the offences. In this case the defence submits that there is some evidence that shows or tends to show that Dr. Mandelbaum, the person with whom the deceased was having an affair, committed the offences with which Dr. Shamji is charged.

[104] With regard to the issue of identification, the defence submits that this is a circumstantial case that relies on the evidence of Dr. Shamji’s daughter, Yasmin Shamji. The defence submits that the credibility of Yasmin Shamji is questionable, given the material change between the first and second statements to the police. In her first statement to the police, she says that she heard arguments and then went to sleep. In the second statement, she says she also heard her mother scream and then heard a loud bang, like something hitting against wood. She also said she later heard a banging noise coming from the walk-in closet. The walk-in closet is where the suitcases were kept. In the second statement, Yasmin also described visits she made to her parents’ bedroom, observations she made of her father and brief conversations she had with him.

[105] The defence submits that Yasmin provided these new details in the second statement only after she had been in the presence of her maternal grandmother, who the defence submits was prejudiced against Muslims and Dr. Shamji in particular. This raises the inference that Yasmin’s grandmother coached her testimony in between the first and second statements.

[106] As noted by Justice Wagner in St-Cloud at para. 58, matters of credibility of witnesses must be analyzed at trial, not at a bail hearing. The strength or weakness of Yasmin’s evidence may well change the strength of the Crown’s case at trial. However, at this stage of the proceeding, without having the benefit of hearing Yasmin’s evidence directly, it strikes me that the change between the first and second statements could be explained as an innocent omission.

[107] Yasmin, an 11-year-old child, may have failed to appreciate the significance of this evidence before she actually knew that her mother had been killed. In her first statement to the police, on p. 25, Yasmin said that she had emailed her mother that morning. This is some indication that she believed her mother to be alive.

[108] In my view, the idea that Yasmin’s grandmother colluded with and coached her to the extent that she invented a detailed new account is a matter of speculation at this point in the proceedings.

[109] The defence also argues that it is uncertain whether the ante mortem statements of the deceased will be admissible, because they may not survive a probative value/prejudicial effect analysis. As well, the defence submits that the sexual assault allegations against the accused by the deceased are untestable, with no physical corroboration. The defence position is that the sexual assaults did not happen.

[110] The defence also submits that the accused’s post-offence conduct, which the Crown alleges is inculpatory, is equally exculpatory. The defence argues that this conduct is consistent with the deceased having left the family home with someone else and not being seen or heard from again.

[111] It is very difficult at this stage of the proceedings to predict evidentiary rulings by the trial judge on the basis of the record before me. However, the case for the admissibility of the Crown’s evidence regarding the ante mortem statements and the evidence of post-offence conduct of the accused appears strong.

[112] With respect to the third party suspect defence in relation to Dr. Mandelbaum, the defence relies on the following evidence from his police interview:

• That he was having an affair with the deceased;
• That he had been in the Honda Pilot;
• That he had been in the house when the accused was not there;
• That he guessed the police wanted to speak to him about the deceased before they mentioned her name, indicating that he suspected or knew that she was dead.

[113] The defence also submits that there are concerns about the alibi provided by Dr. Mandelbaum’s wife, because she does not have a clear memory of the evening in question.

[114] At this early stage of the proceeding, given the limited evidence I have regarding Dr. Mandelbaum’s relationship with the deceased and the alibi evidence from Dr. Mandelbaum’s wife regarding the evening in question, I do not view this as a viable defence.

[115] By the time of the police interview, it was reasonable for Dr. Mandelbaum to suspect that something had happened to the deceased. He had not heard from her in several days. He knew that she was in an abusive relationship and had just asked for a divorce. On p. 26 of his statement, he states: “when I didn’t hear from her on Thursday, I immediately thought the worst”. Dr. Mandelbaum’s past presence in the house and in the Honda Pilot is probative of little other than his affair with the deceased, which he admitted.

[116] As for the alibi evidence, while Dr. Mandelbaum’s wife does state on p. 20 of her statement that she does not remember if he went to bed before or after she did, she nevertheless states that “he was home with me” that evening.

[117] The deceased’s cell phone appears to have been turned off after 8 p.m. that evening. The idea that Dr. Mandelbaum somehow met with the deceased that night appears speculative. The deceased did not communicate with him by cell phone, and Dr. Mandelbaum’s wife stated that he was at home. The idea that Dr. Mandelbaum somehow entered the deceased’s house that evening, given that Dr. Shamji and the children were at home, does not seem to be a reasonable suggestion.

[118] In all the circumstances, taking into consideration the potential defences submitted before me, the very early stage of the proceedings and the limited record before me, I am of the view that the Crown has a very strong case against the accused for second degree murder. The circumstantial evidence points very strongly to Dr. Shamji as being the perpetrator of the violence against his wife.

b) Gravity of the Offence

[119] “Gravity of the offence” refers to the “objective” gravity of the offence in comparison with the other offences in the Criminal Code. This is assessed on the basis of the maximum sentence provided in the Criminal Code. First degree murder provides a sentence of life imprisonment without eligibility for parole for 25 years. Second degree murder provides for a sentence of life imprisonment without eligibility for parole for a period of time between a minimum of 10 years and a maximum of 25 years. Our society considers these to be among the most serious criminal offences.

c) Circumstances Surrounding the Commission of the Offence

[120] This was a particularly brutal and heinous murder. It is alleged to have been committed in a context involving domestic violence. The deceased was badly beaten. Portions of her long hair were cut off. She was stuffed into a suitcase and then dumped by the side of the Humber River. The circumstances surrounding the commission of the offence, therefore, are extremely serious.

d) The Potential for a Lengthy Term of Imprisonment

[121] Dr. Shamji is liable on conviction for a potentially lengthy term of imprisonment whether he is convicted of first or second degree murder. Both first and second degree murder carry with them an automatic sentence of life imprisonment with varying degrees of eligibility for parole.

e) Other Additional Circumstances

[122] St-Cloud stresses that the criteria listed in s. 515(10)(c) are not exhaustive. The four listed circumstances are simply the main factors to be balanced by the bail judge, together with any other relevant factors, in determining whether detention is necessary to achieve its purpose of maintaining confidence in the administration of justice in this country. Although Justice Wagner in St-Cloud did not set out an exhaustive list of the additional circumstances relevant to the analysis required by s. 515(10)(c), he did give a few examples at para. 71. One of those examples is the personal circumstances of the accused. In this case, the accused is 41 years of age with no criminal record. He is an accomplished neurosurgeon at Toronto Western Hospital. He is a Canadian citizen. His roots, his family, and his profession are here. As I have already stated, I do not find the primary ground to be a reasonable basis for Dr. Shamji’s detention in this case.

[123] Dr. Shamji also has a solid release plan. An accused person’s release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained. See Dang, at para. 58. A reasonable and knowledgeable member of the community may take a different view of a case where an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused.

[124] Another factor favouring release is that Dr. Shamji is currently in custody at the Maplehurst Correctional Centre. I appreciate the difficulties involved in preparing for trial when one’s client is in custody. It is difficult for the lawyer and for the client.

[125] While all the above noted additional circumstances favour release, they do not preclude a finding that detention is necessary on the tertiary ground. All of the circumstances must be taken into account.

f) Balancing all the Relevant Circumstances for the Tertiary Ground

[126] After balancing all of the relevant circumstances, the ultimate question to be asked by the court is whether detention is necessary to maintain a reasonable person’s confidence in the administration of justice. That is the test to be met under s. 515(c), the tertiary ground.

[127] To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case. This reasonable person would be conscious of the fact that Dr. Shamji is presumed to be innocent of these offences. Such a person would be aware that Dr. Shamji has no criminal record and is not a flight risk. This reasonable person would be conscious of the quality and quantity of the proposed sureties, the seriousness with which they would undertake their duties, and the strict plan of supervision that is proposed.

[128] In short, this reasonable person in question in s. 515(10)(c) is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate, or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. See St-Cloud at para. 79.

[129] This reasonable person’s confidence in the administration of justice may be undermined not only if the court declines to order detention where detention is justified having regard to all the circumstances in the case, but also if it orders detention where detention is not justified.

[130] Having balanced all the relevant circumstances in this case, I believe that the public would lose confidence in the administration of justice if Dr. Shamji were to be released. As I have noted, the allegations in this case are of a wife’s brutal and heinous murder by her husband. The deceased was badly beaten. Portions of her hair were cut off. The murder is alleged to have been committed in the context of domestic violence. The deceased was stuffed into a suitcase which was dumped into a river. The circumstantial evidence that Dr. Shamji committed this murder is very strong.

[131] Notwithstanding the fact that Dr. Shamji has met his onus on both the primary and secondary grounds, I am of the view that a reasonable person’s confidence in the administration of justice would be undermined if Dr. Shamji were to be released in all the circumstances of this case, including the apparent strength of the Crown’s case, which I consider to be very strong, the gravity of this offence, the length of the potential penalty, and the circumstances surrounding the commission of the offence. Those circumstances include the domestic nature of the offence and the extent of the violence used in committing it, as well as other acts of degradation to the deceased.

[132] In this case, I do not believe that the stringent release plan is sufficient to mitigate concerns about the public’s confidence in the administration of justice. At para. 88 of St-Cloud, the court emphasized that pre-trial detention will usually be ordered in cases of serious or violent crimes, where there is overwhelming evidence against the accused, and if the victim was vulnerable.

[133] In R. v. Mordue, (2006) 2006 31720 (ON CA), 223 C.C.C. (3d) 407, a bail review case involving the murder of an accused’s estranged wife, Juriansz J.A. stated at para. 36:

More weight should have been attached to the circumstances of the offence…In this case, it is alleged that the respondent brutally murdered his wife because she had left him and had started seeing another man. As already noted, the evidence that he did so is quite overwhelming. A reasonable member of the community would rightly be concerned with the public’s confidence in how the justice system responds to acts of domestic violence if the respondent were granted bail.

[134] A similar result occurred in R. v. Stevenson, 2007 ONCA 378, [2007] O.J. No. 1955, in which the Court of Appeal for Ontario upheld the pre-trial detention of an accused on the tertiary ground in circumstances of an alleged murder in a domestic context.

[135] Here, the gravity of the offence, the circumstances of the offence and the length of the potential sentence are all at the high end of the scale, while the Crown’s case for second-degree murder appears to be very strong.

[136] After balancing all of the relevant circumstances, I am satisfied that Dr. Shamji’s detention is necessary to maintain confidence in the administration of justice. Dr. Shamji has failed to discharge his onus on the tertiary ground.

Conclusion

[137] For the reasons just expressed, Dr. Shamji has failed to establish that his detention in custody is not justified based on the tertiary ground set out in s. 515(10)(c) of the Criminal Code. Accordingly, his application for judicial interim release is dismissed.

M. F. Brown J.

Released: August 30, 2017

CITATION: R. v. Shamji, 2017 ONSC 5151

COURT FILE NO.: CR-17-40000200-00BR

DATE: 20170830

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED SHAMJI

Applicant/Defendant

REASONS FOR RULING

s.522 Application for Judicial Interim Release

M. F. BROWN J.

Released: August 30, 2017