CITATION: R. v. Sharmake Egueh 2017 ONSC 6293
COURT FILE NO.: 17-A12336
DATE: 2017/10/20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Sharmarke Egueh
Respondent
Suzanne Schriek for the Crown
Alan Brass for the Accused
HEARD: October 16, 2017
reasons for decision
o’bonsawin J.
[1] Mr. Egueh applies for a review of his continued custody as a result of a finding by Kehoe J. on September 14, 2017 that the plan provided was insufficient and the detention was warranted on the secondary grounds.
[2] Mr. Egueh was charged with robbery and assault offences that occurred on or about March 26, 2017. It is alleged that Mr. Egueh and two co-accused assaulted the victim outside of a restaurant. All three accused punched and kicked the victim and stabbed him in the head with a broken bottle. Items were also stolen from the victim. As a result of the assault, the victim suffered several cuts and bruises. The victim advised police that there were 6 to 7 suspects assaulting him at the time.
[3] On September 14, 2017, a show cause hearing took place before Kehoe J. She determined that Mr. Egueh should be detained on secondary grounds.
[4] I must start off by noting that the right to bail is a constitutionally protected right. As we are aware, there is a presumption of Mr. Egueh’s innocence.
[5] In his factum, Mr. Egueh argues that Kehoe J. erred in law. However, his counsel did not make any submissions regarding this allegation and I will therefore not consider it.
[6] Mr. Egueh’s counsel brings before this Court an Application and argues that there has been a material change in circumstances. I have reviewed the transcript of the show cause hearing. Kehoe J. states in her decision that “even with all the problems Mr. Egueh has himself, when all of the circumstances are considered, a surety and conditions may satisfy that that Court could release Mr. Egueh and address the public safety concern, but there is a substantial likelihood that he would commit further offences.” It is clear from the transcript that Ms. Whyte acting as a surety was not appropriate and the plan was insufficient. However, Mr. Egueh now proposes that Mr. Barry Pilon and Mrs. Brenda Pilon are prepared to act as sureties. They are the grandparents of Mr. Egueh’s girlfriend. Furthermore, Mr. Bryan Manuel is willing to act as a surety and to hire Mr. Egueh full-time in his construction business if he is released from custody. They all testified before this Court.
[7] As per the St. Cloud decision, this Court has the power to review a judge’s decision only in three situations: 1) where there is admissible new evidence; 2) where the impugned decisions contains an error of law or 3) where the decision is clearly inappropriate.
[8] Mrs. Pilon works day shifts from 7:00 a.m. to 3:00 p.m. at a health centre for the past 19 years. She is off every second Tuesday and every Wednesday and Thursday. Mr. Pilon works the day shift from 7:30 a.m. to 5:00 p.m. although he sometimes works until 7:00 p.m. for a heating and cooling company for the past 25 years. A teenage granddaughter, a son and a great-grandson also reside with Mr. and Mrs. Pilon. Ms. Pilon testified that they have the space to accommodate Mr. Egueh in the basement. They both testified that they have a good relationship with Mr. Egueh. Mrs. Pilon was more aware of Mr. Egueh’s criminal record. However, both Mr. and Mrs. Pilon testified that they have total trust in Mr. Egueh and they expect him to follow their rules. They are also prepared to permit Operation Door Knock to attend to their residence and assist Mr. Egueh in having access to drug and alcohol treatment. In addition, Mr. and Mrs. Pilon each testified that they knew of their obligations as sureties. Mr. and Mrs. Pilon are prepared to post a bond in the amount of $1,000.00 no cash amount. During their testimony, both Mr. and Mrs. Pilon were asked if they were prepared to post a higher bond than $1,000.00 and they responded that they were willing to do so. I asked Mr. and Mrs. Pilon if they were prepared to provide a police officer or another with a copy of their monthly telephone bill if I released Mr. Egueh and they agreed. Based on their evidence, Mr. and Mrs. Pilon are strong sureties.
[9] Mr. Manuel also testified. It was clear from his testimony that Mr. Manuel would not be able to properly monitor Mr. Egueh since he has different work sites and it cannot be expected that these two men will be joined at the hip during the whole work day. Furthermore, on cross-examination, it came to light that according to the CPIC, Mr. Manuel had an outstanding warrant for his arrest for fraud in Saskatchewan. He was extensively cross-examined by the Crown on the rest of his criminal record. Based on his responses in cross-examination, I am not confident that Mr. Manuel would call the police if he became aware that Mr. Egueh breached any of his conditions. I do not find him to be an appropriate surety and employer for Mr. Egueh.
[10] Mr. Egueh also testified. It is clear that he did not recall all of the events related to all of his charges and convictions. However, he advised the court that he has not consumed drugs for a while although he was forthright that he had a relapse in March. He is willing to seek treatment for his drug addiction and abide by the rules set by Mr. and Mrs. Pilon and the conditions set by this Court.
[11] The Crown asserts that Mr. Egueh is parroting what the Court wants to hear from him in order to achieve bail. She also raises the issue that Mr. Egueh and Mr. and Mrs. Pilon live in different worlds. They have pro-social lifestyles and Mr. Egueh leads a criminal lifestyle. On the face of it, this may be true. However, if Mr. Egueh gets released on bail with very strict conditions, he will be forced to disassociate from his world to live in the Pilon world.
[12] Consequently, I find that there is a material change in circumstances and therefore this Court is authorized to repeat the analysis as if I were the initial decision-maker. This Court must consider all of the circumstances of the case. Section 515(10)(c) expressly refers to four circumstances that must be considered in this matter.
[13] Firstly, I must review the apparent strength of the prosecution's case. This is not a slam dunk case. There are strengths and weaknesses in the Crown's case. The Defence is likely to argue that the victim’s account of the alleged offence is not solid, however, the fact that Mr. Egueh admits to calling the victim’s sister after he was arrested is not of assistance to him.
[14] Secondly, the Court must then consider the gravity of the offence. The charges relate to an assault that caused injuries to the victim and also trying to communicate with the victim. These are serious offences.
[15] Thirdly, the Court must also review the circumstances surrounding the commission of the offence including whether a firearm was used. In this case, a bottle was used as a weapon. Shots were fired nearby, however, Mr. Egueh was not charged with a firearm related offence.
[16] Fourthly, the Court must also review that the accused is liable for a potentially lengthy term of imprisonment. In this case, counsel advised me that the robbery charge carries a maximum of imprisonment for life, however, the Crown has advised that it will likely seek a term of two years if Mr. Egueh plead guilty on the charges.
[17] This Court must also consider all the relevant circumstances, including the fact that Mr. Egueh has repeated breaches of court orders, he is willing to seek treatment for his addictions and he has solid sureties in place.
[18] From the perspective of the public, there must be a good safety plan in place to ensure the safety of the public and I believe that this can be achieved with Mr. and Mrs. Pilon acting as sureties and strict conditions imposed on Mr. Egueh.
[19] I am prepared to conclude that there has been a material change in circumstances in this matter and that Mr. Egueh should be provided bail with the following conditions:
(a) Mr. and Mrs. Pilon must act as Mr. Egueh’s sureties and post a bond in the amount of $2,000.00 without cash deposit;
(b) Mr. Egueh must sign a recognizance in the amount of $2,000 without a cash deposit;
(c) Mr. Egueh must reside with Mr. and Mrs. Pilon in Ottawa;
(d) Mr. Egueh must report to the Ottawa Police Services at 474 Elgin Street on Wednesdays starting on October 25, 2017 and he must bring with him proper picture identification;
(e) Mr. Egueh must remain in the Pilon residence 24/7 unless he leaves the house with either Mr. or Mrs. Pilon to attend a medical appointment, any other type of appointment or attend his weekly check in with the Ottawa Police Services;
(f) if Mr. Egueh attains work, he must bring a variation to his conditions;
(g) Mr. Egueh cannot have access to a cell phone at any time and must provide his cell phone to the Ottawa Police Services within 48 hours of release;
(h) Mr. and Mrs. Pilon must provide the Ottawa Police Services with their monthly residential telephone bill within 5 days after it is received;
(i) Operation Door Knock will be in effect;
(j) Mr. Egueh must not contact or communicate in any way directly or indirectly by physical or electronic or other means with Banchir Nur and his sister, Zeina Nur, Osman Hassan, Jovan Morales and must not attend within 100 meters of their place of residence, place of work or place of education;
(k) Mr. Egueh must not contact or communicate in any way directly or indirectly by physical or electronic or other means with Ali-Ramadan Hassan, Samatar Youssouf except in the presence of legal counsel for the preparation of their defence;
(l) Mr. Egueh shall not have access to or have in his possession any firearms, knives, crossbows, or any other items that could be considered as a dangerous weapon;
(m) Mr. Egueh shall not buy, possess or consume alcohol or other intoxicating substances and shall not possess or consume any unlawful drugs or substances as per the CDSA except with a valid prescription with Mr. Egueh’s name;
(n) Mr. Egueh must seek treatment for his drug and possibly alcohol addiction within 45 days of his release and provide proof to the surties.
These conditions will take effect immediately after Mr. Egueh’s release.
Justice M. O’Bonsawin
Released: October 20, 2017
CITATION: R. v. Sharmake Egueh 2017 ONSC 6293
COURT FILE NO.: 17-A12336
DATE: 2017/10/20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Sharmake Egueh
reasons for decision
O’Bonsawin J.
Released: October 20, 2017