COURT FILE NO.: CR-18-0876-00
DATE: 2018 03 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Tyler Powell for the Crown
Respondent
- and –
MOHAMMED NASR
Adele Monaco and A. Dresser for the Applicant
Applicant
HEARD: February 9, 2018
REASONS ON BAIL APPLICATION
D.E HARRIS J.
[1] The applicant, Mohammed Nasr, applies under Section 522(1) of the Criminal Code R.S.C. 1985, c. C-46 for release pending his trial on one count of first degree murder. The Crown respondent concedes that the applicant has met his reverse onus on the attend court primary ground but argues that neither the secondary nor tertiary grounds have been discharged.
The Secondary and Tertiary Grounds
[2] The text of the secondary and tertiary grounds in Section 515(10) of the Criminal Code reads as follows:
Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(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.
The Allegations
[3] The alleged offence took place two years ago, on March 5, 2016. A friend of the applicant’s, Samer Samarah, drove to the applicant’s neighbourhood with the deceased, Lamadani, who was in the passenger seat of the car. Lamadani and the applicant knew each other but the nature of their relationship is unclear. There is some evidence that the applicant knew that Lamadani was coming over. Apparently Lamadani had told the applicant by cell phone to “watch it” the day before.
[4] Before the two arrived, the applicant was seen searching the area of the dumpsters behind his apartment. He had an unknown object in his hands. Later, after arrest, the applicant confirmed he had a knife in his pocket and was searching the area for a metal object. He found a piece of a broken pink baby stroller. The Crown seeks to infer that the applicant intended to plant the stroller piece on the victim to justify his subsequent assault as self-defence.
[5] When the car with Samarah and Lamadani arrived, according to Samarah, the applicant came to the car and said to Lamadani that he—Lamadani--owed him something. The applicant started pushing him. A physical fight with grappling and pushing ensued between the applicant and Lamadani outside the car. The applicant was winning. Samarah attempted to intervene. The applicant got increasingly angry and the two combatants starting hitting each other in the face.
[6] Samarah described two stages to the fight. In the first, the two were on the ground and then the fight was broken up. Then the two began to fight again.
[7] Samarah saw the applicant produce a knife in the second stage of the fight. The applicant stabbed Lamadani 3 to 4 times. Samarah said that Lamadani was just standing there, taking it. The two then separated voluntarily. Samarah helped Lamadani back in the car and he drove Lamadani home. Lamadani did not want to go to the hospital.
[8] One of the other witnesses, at the conclusion of the fight, saw a person who must have been Lamadani, walk across the street. The applicant went in the other direction. Another witness saw Lamadani get into the car, apparently unassisted.
[9] Lamadani was wearing several layers of clothing and the extent of his injuries was unclear. Samarah did not think the knife penetrated the puffy coat Lamadani was wearing. At home, about an hour after the incident, Lamadani began to fail. Emergency services were called but did not arrive for approximately 40 minutes.
[10] Tragically, Lamadani died. The pathology report suggested that if he had received prompt medical attention after the wound was inflicted, his life could have been saved.
[11] There were several other witnesses to the incident. Some did not see a knife but this is of little moment. The pathology evidence makes it clear beyond question that the deceased died of stab wounds.
[12] The applicant texted the deceased soon after the incident and said, “U r a pussy… Ima Kill u if I ever c u.”
[13] The applicant surrendered into custody the next day. The police had been attempting to contact his cell phone for some time and had also tried his two brothers, his sister and his mother. They spoke to his sister.
[14] The applicant made an inculpatory statement which reinforces the already formidable evidence that the applicant stabbed the deceased and caused his death. In his statement, the applicant said that the deceased had attacked him with a knife but none of the witnesses corroborate this. The applicant’s statement is the only evidence that the deceased had a knife.
[15] The applicant showed extreme remorse for his actions in his statement to the police. He said that it was not his intention to kill the deceased.
[16] The applicant said that a person he would not name helped him dispose of his clothing and the knife in a Mississauga dumpster.
[17] The allegations of the Crown conclude with a note on planning and deliberation:
EVIDENCE OF PREMEDITATION
The video of the accused looking for a second weapon and the accused’s confirmation that he went to see the victim with a knife, indicates some premeditation on his part.
[18] The allegations also note in this concluding section that a pink tubular stroller piece was later found in the snow.
[19] The summary of the autopsy indicates that the deceased died of a stab wound to the inferior left chest passing through the left 5th intercostal space and injuring the inferior surface of the 5th rib. There was bleeding from injury to the vascular structures that run along the inferior border of the ribs. These are small caliber vessels and would bleed slowly. There was an accumulation of blood in the left pleural space which led to hemorrhagic shock.
[20] There were also three stab wounds to the upper left arm and another to the chest, besides the fatal one. These wounds penetrated muscle only and were non-fatal. As mentioned above, the deceased could have been saved if he had received prompt medical attention.
The Accused
[21] At the time of the incident, the applicant was 19 years old; he is now 21. He has no criminal record or prior involvement with the police. He completed high school and was accepted into two different colleges for Police Foundations. He decided instead to work at a variety of jobs including Dairy Queen, construction, and part-time for his condominium superintendent doing maintenance and cleaning.
[22] The applicant’s mother is proposed as a surety, as is his older sister Gihad, who is 23 years old. It is proposed that he live with them and his other siblings, who include Khalid (27), Lena (19), and Abdul Rahman (16). The applicant’s father is not in the picture.
The Sureties
[23] The proposed sureties reflect in their affidavits a full appreciation of their obligations and potential liabilities.
[24] The applicant’s mother is a stay at home mother. She is 35 years old. She pledges $100,000 as surety for her son.
[25] The applicant’s oldest sister Gihad is a criminology student at the University of Toronto Mississauga campus. She pledges her entire savings, $20,000.
[26] The third and last proposed surety is family friend, Shadi Ibrahim. He is 33 years old and works as a tow truck operator with the applicant’s brother, Khalid. Mr. Ibrahim has worked with Khalid for seven years. Mr. Ibrahim pledges the entire equity in a condominium he owns, $250,000.
The Plan
[27] The plan put forward is 24 hour house arrest with no exceptions except for medical emergencies, lawyer visits, and when required in court. The applicant would have to be home in the company of one or more of his sureties at all times.
[28] Jemtec Inc. will provide a 24-hour electronic and GPS ankle bracelet. Any attempt to venture outside the residence will trigger an alarm. The breach will be reported immediately to the police. The police will be provided the GPS coordinates immediately. There will be a camera monitored by Alarm Force 24 hours a day and by the sureties. There will be contacts on all the windows. No visitors will be allowed except for Mr. Ibrahim and the applicant’s lawyer. Lastly, there will be a double bolt lock system on all doors and keys will be required both to get in and to get out.
The Secondary Ground
[29] Paraphrasing from the language of the secondary ground, has the applicant shown that detention is not necessary for the protection or safety of the public including any substantial likelihood that the accused will, if released, commit a criminal offence?
[30] The Crown argues that the sureties see the applicant through rose-coloured glasses. Their loyalty is to him, not to the court. The sureties lacked the character for the onerous responsibility of supervising the applicant.
[31] The Crown cross-examined all three sureties extensively. He stated at the outset that he was not attacking their truthfulness in the affidavits but wished to bring up other matters not dealt with there.
[32] With the mother and to some extent the sister, the emphasis was on the night of the alleged offence and their communication for the purpose of getting the applicant to surrender to the police. He surrendered mid-morning the next day. There seems a reasonable chance that he was dodging the messages from the police conveyed by his mother, sister and brother. He admitted, in his police statement, to destroying evidence. The Crown characterizes this as actively undermining the investigation. The conclusion sought to be drawn is that the applicant cannot be properly supervised and the sureties are inadequate to the task.
[33] It was also pointed out, particularly in the mother’s cross-examination and in submissions, that the mother was not aware of her oldest son Khalid’s problems with the police. He is currently charged with uttering threats. Although his mother was aware of this charge, she did not know that Khalid was cautioned for obstruct police in 2011, that he was charged under the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) with driving with a suspended licence in 2012, or charged with careless driving under the HTA in 2014. She did not know that he was arrested for possessing cocaine in a hotel room in 2014. Khalid was not convicted of any of these allegations.
[34] The Crown also suggested in cross-examination that the applicant had not listened to his mother when she asked him to stop smoking marijuana. She admitted that this was true but said he was honest about when he smoked and had complied with her request not to smoke in the house or near their apartment building.
[35] The Crown pointed out that the applicant’s grades in high school were poor to mediocre and asked the applicant’s mother why that was so. She said that she talked to him about it frequently but he did not seem to have the ability to do any better. His sister Gihad seemed to echo this sentiment.
Conclusion on the Secondary Ground
[36] The Crown’s submissions touch on the nucleus of the secondary ground, but only incidentally. The real issue is whether there is a necessity to protect the public from the applicant’s criminal conduct. The supposed poor quality of the surety supervision argued by the Crown, is a component of this, no doubt. If sureties do not provide adequate supervision, the risk of re-offending is not likely to be diminished from what it would be without any supervision at all. But the underlying question is dangerousness and public safety.
[37] The overarching concept of the secondary ground is to protect the public from further criminal behaviour. The substantial likelihood of committing other offences is merely an element in this bigger question. The full context of the secondary ground, including the substantial likelihood component, requires calculating the risk of commission of potential criminal offences and their likely seriousness if committed. The degree of risk and the gravity of the harm must both be gauged. A high risk of the commission of petty offences does not significantly endanger the public. A low risk of a very serious offence against the person, on the other hand, may well endanger the public: see R. v. Young, 2010 ONSC 4194, [2010] O.J. No. 3280, at paras. 20-21.
[38] I recognize that the evidence demonstrating the applicant is guilty of at least manslaughter is strong. This increases the concern on the secondary ground. An inference of propensity or future dangerousness has more force when there are well-established facts from which to draw inferences attempting to predict future behaviour.
[39] Nonetheless, I believe the applicant has discharged his onus on the secondary ground. He has no criminal record. The Crown was able to dredge up from the mother in cross-examination that the applicant was investigated for stealing a bike when he was 12 years old. If anything, this highlighted his absence of a criminal record or criminal antecedents.
[40] Some criminal offences may suggest by their very nature and how they are committed, a propensity to commit further similar offences: Garry T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters), at s. 3.3(b)(iii); R. v. Badgerow, 2017 ONCA 670, [2017] O.J. No. 4688 at para. 31; R. v. Rondeau, 1996 CanLII 6516 (QC CA), [1996] J.Q. no 1090 (Que. C.A.); R. v. Gulyas, 2013 ONCA 68, [2013] O.J. No. 417.
[41] The allegation here does not seem of that kind; it appears to be situation specific and is not indicative of a general disposition for violence. However, it is somewhat worrisome that whatever motive lay behind the applicant’s alleged acts against the deceased, it must have been trivial.
[42] This could be argued to increase the possibility of further offences against the person as the applicant could be a person who reacts violently to real and imagined slights. But there is no previous indication of this type of behaviour and I do not put much weight on it.
[43] Furthermore, this is where the supervision and proposed plan comes in. If the sureties do what they have sworn under oath they will, the applicant will have very limited social interaction outside his sureties and family. This will further reduce the risk of any criminal behaviour.
[44] In my view, the sureties are reliable and the plan is good. While the applicant did not surrender immediately into custody after the police began looking for him, he did surrender within 24 hours. There was no convincing evidence that the family, and specifically the mother and the sister, were involved in any significant delay or obstruction. A lawyer was hired before the surrender, as is only prudent. This delayed the process somewhat and was completely justifiable.
[45] The mother may not know all the ups and downs in the life of her son Khalid but that does not mean she will not be a capable and responsible surety for the applicant. The situations are in no way analogous. Khalid is 27 years old, and is an adult with a full-time job. That the mother was not fully aware of some of the allegations made against him, none of which have been proved or appear to be of great seriousness, is of no real concern.
[46] The applicant, on the other hand, is charged with the most serious offence in the Criminal Code. He will, if released, be placed on a very strict house arrest. To suggest that an arguably hands off approach with respect to Khalid demonstrates that the mother is not up to her responsibilities as a surety for the applicant is far too sweeping an inference.
[47] The Crown largely agreed that the sister will be an excellent surety. I perceived her as a very serious and mature person who fully understood the gravity of the situation, both the charge and the proposed bail. She is willing to delay her graduate work to see her brother through the case against him.
[48] I believe that the three sureties are up to the task ahead of them. Both counsel at the hearing pointed out the basic paradox of surety bail. A surety must be someone with close ties to the accused in order to create “the pull of bail.” The behaviour of the accused is controlled, at least partially, by the financial consequences which could otherwise befall his or her surety. The accused is deterred from violating his or her bail because it could mean their close friend or family member, the surety, will lose the entire amount of value pledged: see Canada (Attorney General) v. Horvath and Mirza, 2009 ONCA 732, [2009] O.J. No. 4308, at paras. 40-54.
[49] However, in conflict with this, the closeness of the surety to the accused could lead to reluctance to enforce the bail. This dilemma will be present in some form in virtually every surety bail. It will be up to the justice or judge to assess whether the sureties will perform their duties faithfully despite this potential conflict in loyalties. In the case here, I have observed the sureties testify and believe they will fulfill the responsibilities upon them.
[50] Any deficiencies, flaws or concerns in the protective cordon formed by the surety supervision will be filled by the proposed electronic monitoring. This additional layer of supervision, monitored by a third party, is of considerable comfort. In my view, taking all matters into account, there is no necessity to detain the applicant in custody for the protection or safety of the public.
The Tertiary Ground
[51] Is detention necessary to maintain public confidence in the administration of justice? The Supreme Court’s interpretation of the tertiary ground in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 and R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 are the leading authorities.
[52] The philosophy behind the tertiary ground is that in serious cases with a strong Crown case and a likelihood of a lengthy term of imprisonment, the release of the accused on bail could bring the administration of justice into disrepute in the eyes of the public. Even in the absence of the threat of further offences or failure to appear in court, a person who will likely be incarcerated for a lengthy period of time for a very serious offence ought not to be at liberty in the community. It would be an affront to the public. In these circumstances, pre-trial custody is a justifiable limitation upon the presumption of innocence and the cardinal rule that accused people should be released on bail: St. Cloud, at para. 70.
[53] There is a powerful tension between detention under the tertiary ground and the presumption of innocence and the right not to be denied bail without “just cause” in Section 11(e) of the Charter of Rights and Freedoms. There are four circumstances specifically enumerated in Section 515(10)(c)(i-iv) which form the core of the tertiary ground: strength of the case, gravity of the offence, circumstances of the commission of the offence, and prospect of a lengthy term or imprisonment. Reduce the weight of any one of these—with the exception of the circumstances of commission which stands on a slightly different footing—and the case for detention under the tertiary ground is deflated.
[54] If the offence is not serious, release would not be an affront and would not undermine the confidence of the public. If the offence is serious but the case is exceedingly weak, release may well be acceptable to the reasonable informed person. On the other hand, if there is every reason to expect that there will be a lengthy term of imprisonment in light of the seriousness and strength of the case, release will make the administration of justice look impractical and out of touch with reality.
[55] In this case, the apparent strength of the prosecution’s case, the gravity of the offence, and the potential for a lengthy term of imprisonment can all be dealt with together. The gravity of the offence produces an easy answer: first degree murder is the most serious charge in our Criminal Code. The term of incarceration is, correspondingly, the longest definite sentence in the Criminal Code: life with no eligibility of parole for 25 years.
[56] What about the strength of the prosecution’s case? Mr. Powell, to his credit, conceded that the case on first degree murder is weak. I would call it non-existent. There may have been planning and deliberation. However, the problem is that it was clearly not planning and deliberation for murder, as it must be: R. v. Palmer, [1986] O.J. No. 10, (1986) 1986 CanLII 4630 (ON CA), 24 C.C.C. (3d) 557 (Ont. C.A.). It was planning and deliberating to fight and to assault the deceased. At the most, there may have been a pre-existing plan to use a knife to inflict violence on the deceased. But there was no evidence whatever of a plan to kill.
[57] There was some animosity between the two men. The applicant had a knife and may have armed himself with a piece of the pink stroller. The two combatants engaged in a fight, perhaps a consensual fight. It ended. A second fight took place in which the deceased used a knife to inflict the fatal wound. But then this fight broke up too. The deceased walked to his friend’s car, got in, and was driven away. There was no doubt plenty of time and opportunity to attack again if there had been a pre-existing plan to kill.
[58] The applicant’s conduct here displays none of the hallmarks of a first degree murder. Any planning and deliberation cannot be attributed to the killing.
[59] A planned and deliberate murder would look quite different. There would be a concerted effort to inflict fatal wounds, probably from the start but at least from some distinct point in the attack. The required planning and deliberation cannot be formed once the assault has commenced: R. v. Smith, 1979 CanLII 2233 (SK CA), [1979] S.J. No. 476,(1979) 51 C.C.C. (2d) 381 (Sask. C.A.); R. v. Ruptash, 1982 ABCA 165, [1982] A.J. No. 424, (1982) 68 C.C.C. (2d) 182 (Alta. C.A.).
[60] No one present, judging from their conduct, had the impression the deceased was in significant distress. Given the tragically inaccurate impression that Lamadani was not seriously injured, an accused with premeditated intention to kill would not have permitted him to simply leave.
[61] The after the fact text that the applicant was going to kill the deceased if he saw him again cannot be used retrospectively to demonstrate true intent to kill, let alone premeditation. What the applicant actually did must be the focus, not threats made afterwards. The animus demonstrated by the text added nothing to what was already apparent from the knife attack.
[62] I view as preposterous the idea that the applicant was going to plant the pink tubular stroller piece on the victim in order to make a false claim of self-defence. There is not one scintilla of evidence to support this theory and there is a considerable body of circumstantial evidence to contradict it.
[63] The absence of any evidence to support first degree murder is a real concern. Overcharging and over prosecuting can pose an impediment to the fairness and efficiency of criminal justice. Justice Moldaver wrote recently:
31 … The Crown is entitled to pursue charges with a reasonable prospect of conviction that are in the public interest. Nonetheless, the Crown must be careful not to exercise its discretion with too heavy of a hand. As this Court cautioned in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 45:
Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete.
32 Screening out marginal charges that add complexity is a particularly important function given the strains of our overburdened criminal justice system: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 79. Nothing in these reasons should be read as incentivizing the Crown to pursue unnecessary charges.
R. v. Sciascia, 2017 SCC 57, [2017] S.C.J. No. 57
[64] Fairness to the accused and the proper management and administration of the court dictate that excessive charges not be laid. The distortions caused to the entire process are very costly.
[65] In recommending post-charge Crown screening of charges against accused persons, the Martin Committee (Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, (1993) The Honourable G. Arthur Martin, O.C., O.Ont., Q.C., LL.D., Chair) said this about overcharging [pp. 137-139]:
…there may be "over charging," either by laying a more serious charge than is warranted, or by laying more charges than are warranted. First and foremost, over charging is an irresponsible exercise of charging discretion by the police, and must be prevented through police education. However, any over charging that does occur must, in the Committee's view, be corrected to the greatest extent possible in the [Crown] screening process. More particularly, it is not, in the Committee's opinion, appropriate to permit excessive charging to pass unaltered through the screening process in order to accord the Crown bargaining leverage in the conduct of resolution discussions. Such a practice misrepresents the nature of the offence, and lengthens and complicates resolution discussions by requiring additional effort and exchange to remove what is ultimately an artificial impediment to agreement. The English Code for Crown Prosecutors, s. 12, aptly, in the Committee's view, states the applicable principles as follows:
A multiplicity of charges imposes an unnecessary burden on the administration of the courts as well as upon the prosecution, and often tends to obscure the essential features of the case.... Multiplicity of charging should never be used in order to obtain leverage for the offering of a plea of guilty.
Charge screening that eliminates over charging may alter the dynamic of subsequent resolution discussions, particularly in localities where some over charging might have historically existed to provide subject matter for plea bargaining.
[66] At the bail stage, the detrimental effects of overcharging are particularly harmful. The words of Justice Iacobucci, dissenting in Hall, explain it well:
59 … pre-trial detention can …have serious practical effects on the accused’s ability to raise a defence, and can thereby have a second, more indirect, prejudicial effect on the accused’s liberty rights and the criminal justice system as a whole. H. L. Packer, in his classic work on the subject, The Limits of the Criminal Sanction (1968), points out some of the difficulties faced by an accused who is detained before trial (at pp. 214-15):
An accused person who is confined pending trial is greatly impeded in the preparation of his defense. He needs to be able to confer on a free and unrestricted basis with his attorney, something that is notoriously hard to do in custody. He may be the most likely person to interview and track down witnesses in his own behalf — something he cannot do if he’s in jail. His earning capacity is cut off; he may lose his job; his family may suffer extreme economic hardship. And all these things may happen before he is found to be guilty. Furthermore, the economic and other deprivations sustained as a result of pre-trial confinement all act as coercive measures that inhibit the accused person’s will to resist. He is rendered more likely to plead guilty, and, as a result, to waive the various safeguards against unjust conviction that the system provides. When this happens on a large scale, the adversary system as a whole suffers because its vitality depends on effective challenge.
These prejudicial effects that pre-trial detention can have on the accused’s ability to raise a defence appear to be borne out by the findings of Professor Friedland, noted above. Moreover, since Professor Friedland’s study, the connection between pre-trial detention and conviction has been pointed out by several authors and studies: see Trotter, supra, at pp. 31-50; Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995), at pp. 113-16; Justice and the Poor: A National Council of Welfare Publication (2000), at pp. 28-50.
[67] In Central West Region, toiling under the burden of over 30 years of chronic delay, overcharging and over prosecuting is not something we can afford to tolerate. The imperatives of Jordan and principles of basic fairness are implicated when accused are over-charged.
[68] Moving on to look at the strength of the case on second degree murder, there are further questions raised. The Crown stated that the case on second degree murder is “fairly strong.” I would not put it so high.
[69] The mens rea in Section 229(a) of the Criminal Code is either an intention to kill or intention to cause bodily harm that the accused knows is likely to cause death but is reckless whether death ensues of not. Once again, it is hard to make out this mental element when the applicant, after stabbing Lamadani, desisted voluntarily. No one at the scene appeared to believe that Lamadani was grievously injured. The wound itself, based on the pathology report, did not cause profound injury to the body. Instead, the injury caused slow internal bleeding which over time resulted in death.
[70] The defence argument at trial is not difficult to anticipate. If the applicant truly intended to kill the victim, where is the manifestation of that intention at the scene of the crime? Why did he let him leave without mounting further attacks?
[71] Attempting to apply the permissive inference that a person intends the natural consequences of his actions, demonstrates the problem: see R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. At the least, a trial judge would be obligated to incorporate the circumstance that no one at the scene believed that Lamadani was badly injured. Also, the nature of the injury was not the direct injury to an organ or large vessel usually associated with a fatal knife wound. This would defuse the force the inference generally produces. The inference that the accused intended to kill the deceased is not strong given the nature of the wound and that the applicant did not continue the attack.
[72] If anything, the after the fact threat reinforces that the applicant thought the deceased was not significantly injured and did not intend to kill him.
[73] At this stage of the proceedings, recognizing that there has not yet been a preliminary hearing, this homicide case looks like a manslaughter case, not like a murder case. The case on manslaughter is very strong, the case on second degree murder is mediocre, and there is no case on first degree murder.
[74] This conclusion has obvious importance to the question of whether bail release is appropriate: see R. v. Oland, 2017 SCC 17, at para. 68. The likely sentence for manslaughter, which I must surmise following Section 515(10)(c)iv (see para. 65 of St. Cloud and Trotter, S. 3.4(f)(iv)), is difficult to predict with any degree of assurance. I would hazard a guess that the appropriate bottom to top range, making allowance for the full gamut of aggravating and mitigating factors, would start at 6 years at the very low end and go up as high as low double-digits. Care must be taken to qualify this by adding that this was of course not a sentencing hearing--it was not focussed on the precise range that might be appropriate--and so the articulated range is rough and based on incomplete information. It is strictly for the purpose of analyzing the tertiary ground.
[75] The preliminary hearing is scheduled for eight days in August. The trial will not be until 2019 at the earliest and probably well into that year. The applicant has already been in custody for two years. With the usual credit for pre-trial custody as a result of the absence of parole remission and the conditions in local lock-up correctional facilities, this is the equivalent already of three years: R. v. Summers, 2014 SCC 26, [2014] SCC 26, [2014] 1 S.C.R. 575.
[76] The residual, non-specified factors under the tertiary ground line up in favour of the applicant: see St. Cloud, at para. 71. The applicant was very young at the time, 19 years of age. He has no criminal record. Numerous character letters and 13 signatories to a general letter have expressed strong support for the applicant.
Conclusion on the Tertiary Ground
[77] Returning to the ultimate question, would a reasonable, thoughtful person, not prone to emotional reactions, aware of the rule of law, the importance of the presumption of innocence, the fundamental values of our criminal law and sensitive to the importance of long-term community values, be opposed to the applicant’s release? Would it shake their confidence in the administration of justice? See St. Cloud, at paras. 77-83.
[78] This was a horrific, tragic and senseless loss of a young life. Whatever the dispute between the applicant and the deceased, it could not have been something of any real significance. The death is made all the more poignant by the fact that the victim’s life could potentially have been saved.
[79] A member of the public, as described above, would be sickened and heartbroken for the deceased family and for the community. A member of the public would recognize that the applicant was likely responsible for the killing. But they would see the crime, aggravated by the use of a deadly weapon, as best described as manslaughter, not murder and certainly not first degree murder.
[80] A member of the public would take into account the likely sentence range which I have identified and the fact that the applicant has been in pre-trial custody for two years and will likely do another year—and probably considerably more—before he is tried. This could constitute a significant portion of the sentence which would be imposed down the road in the penalty phase.
[81] The normative standard of a hypothetical member of the public would also incorporate into the question of the confidence in the administration of justice the applicant’s youth, then and now, his lack of a criminal record, and the community support behind him. In the same vein, they would take some comfort from his surety and family support and from the rigorous monitoring plan. Trotter agrees that this is an appropriate consideration on the tertiary ground: see Trotter, Law of Bail, at s. 3.4(1)(g).
[82] Although release in a homicide case may be the exception, there are many instances in which release has been ordered: see R. v. Manasseri, 2017 ONCA 226, [2017] O.J. No. 1460 (C.A.); R. v. Badgerow, R. v. A.A.C., 2015 ONCA 483, [2015] O.J. No. 3450 (C.A.); R. v. McRae, [2017] O.J. No. 638 (S.C.J.); R. v. McMorris, [2016] O.J. No. 7068 (S.C.J.); R. v. Wilson, [2015] O.J. No. 3616 (S.C.J.); R. v. Gonsalves, 2013 ONSC 4379, [2013] O.J. No. 3062 (S.C.J.); R. v. Lesniak, [2012] O.J. No. 6687 (S.C.J.); R. v. Malik, [2012] O.J. No. 6642 (S.C.J.); R. v. Modeste, [2009] O.J. No. 5155 (S.C.J.); R. v. Ibrahim, [2005] O.J. No. 4442 (S.C.J.).
[83] There will be a bail release on a $300,000 surety bail with the three sureties proposed named in the order. I would ask counsel to translate the plan and additional conditions, as proposed in the affidavits and at the hearing, into a draft order. The draft can be sent to the trial coordinator. I will then review it and either approve it or make the necessary amendments.
D.E HARRIS J.
Released: March 2, 2018
COURT FILE NO.: CR-18-0876-00
DATE: 2018 03 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MOHAMMED NASR
Applicant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: March 2, 2018