Court File and Parties

COURT FILE NO.: BR-18-40000114-0000 DATE: 20180705 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – ALEX SHEIKH

Counsel: Hank Goody, for the Crown Magdalena Wyszomierska, for Alex Sheikh

HEARD: July 4, 2018

M. Dambrot J.:

Reasons for Decision

[1] Alex Sheikh brings this application to review a detention order made by Justice of the Peace Wilson on April 30, 2018.

[2] Mr. Sheikh was arrested on April 21, 2018, and charged with assault, carrying a concealed weapon, possession of a weapon, unauthorized possession of a firearm, possessing a firearm knowing its possession was unauthorized, possession of a prohibited or restricted firearm with ammunition, possession of a firearm obtained by crime, possession of a firearm or ammunition contrary to a prohibition order and failing to comply with a probation order. Without in any way diminishing the seriousness of the allegations made against the accused, I note that all of the weapon and firearm offences relate to a single firearm: a stolen, fully loaded, Smith and Wesson model 36, .38 calibre five-shot handgun.

[3] At the time of this arrest, the accused had been in a romantic dating relationship with the alleged victim of the assault, whom I will refer to as M., and, according to the accused’s mother, was living with her. In February 2018, M. became pregnant with the accused’s child. This apparently triggered some domestic unrest. Between February 2018 and April 21, 2018, two domestic incidents involving the accused and M. were reported to the police.

[4] On April 21, 2018, at about 2:00 a.m., the accused and M. were out drinking at a restaurant on Yonge Street in North York. An argument erupted between them and they proceeded outside. Once they were on the street, the accused became angry at M. and allegedly began to assault her by banging her head on the pavement. The assault was witnessed by two Toronto police officers who were driving by. They stopped, exited their vehicle and approached the scene. The accused began walking away from M., who was still lying on the ground. The officers immediately arrested him for assault, handcuffed him, advised him of his right to counsel, placed him in their vehicle, conducted a pat-down search and located the loaded firearm. The officers spoke to M., who appeared to be intoxicated, but she refused to give them a statement. They observed fresh injuries to the side of her face. The officers transported her to her home.

[5] The handgun seized from the accused was discovered to have been stolen from a home in Waterloo, Ontario in 1997. The accused was not licenced to carry a firearm, and was bound by three firearm prohibition orders at the time of this arrest.

[6] Mr. Sheikh is 29 years old and single. He has completed high school and several courses at Ryerson University. He has held employment as a commercial construction worker on a contract basis, and was so employed at the time of his arrest.

[7] The accused had no outstanding charges at the time of his arrest, but had a significant criminal record, beginning in 2003 when he was a youth. His convictions as a youth included offences of assaulting a police officer; robbery; fraud; theft; break, enter and theft; possession of property obtained by crime over $5,000; assault; possession of a weapon; three offences of failing to comply with a disposition and one offence of failing to comply with a recognizance.

[8] As an adult, he has been convicted of possession of property obtained by crime under $5,000; assault; assault with a weapon on two occasions; uttering threats; assaulting a peace officer while threatening to use a weapon; unauthorized possession of a firearm; over 80; driving while disqualified; two additional convictions for failing to comply with a recognizance; and one conviction for failing to comply with a probation order. His last failing to comply conviction was in 2010. Despite the number and nature of his offences, the accused has only been sentenced to imprisonment for longer than five months once: for unauthorized possession of a firearm in 2013, for which he was sentenced to 12 months imprisonment in addition to 8 months pre-sentence custody.

[9] In her evidence at the judicial interim release hearing, the accused’s sister testified that the accused had a problem with alcohol, which has been the cause of his problems in the past, and his mother testified that he has “problems,” and that was why he is abusive with women.

[10] At that judicial interim release hearing, the accused proposed that he be released on a recognizance with two sureties, his mother and his sister, each in the amount of $5,000.

[11] The accused’s mother lives in a townhouse with her daughter, her younger son and her grandson. She proposed that the accused also live with her, and be supervised by her and her daughter. They both worked, but one, the other or both of them could be home with the accused at all times.

[12] The accused’s sister is 26, and has a good relationship with her brother. Her child is three years old. She explained that it would mostly be her that would be at home with the accused.

[13] The Justice of the Peace gave brief reasons for detaining the accused. He emphasized the accused’s serious criminal record, and noted in particular that the record included frequent breaches of court orders and unlawful possession of a loaded firearm. He also observed that the onus was on the accused to show cause why he should be released, emphasized the need for a bail plan in which he could have confidence, and concluded:

Your mother and sister are very well-meaning, good people who want to help you, but your … record of non-compliance with court orders, whether it be probation orders, bail orders or weapons prohibition is overwhelming. And it would appear also that you have failed over time to listen to the advice given by … your mother and sister who, as part of a family, wanted you to change your ways. The end result of this is I cannot trust you in this plan to comply with yet another recognizance order, and therefore there’s a detention order.

[14] Although mention was made of both the secondary and tertiary grounds for detention in the course of the hearing, I am satisfied from a review of the reasons that the justice ordered the accused detained solely on the secondary grounds: detention was necessary for the protection and safety of the public having regard to all of the circumstances, including any substantial likelihood that the accused would, if released, commit a criminal offence.

[15] In my view, the justice did not err in concluding that if the accused were released on the bail plan advanced before him, there would be a substantial likelihood that the accused would not comply with the release order. More specifically, if released, there would be a substantial likelihood that the accused would commit criminal offences. Indeed, if I were in his shoes, I would have reached the same conclusion. Counsel for the accused does suggest that the justice erred in reaching this conclusion.

[16] It is common ground that the only basis upon which I could release the accused on this review is if there has been a material change in circumstances that satisfies me that the accused would comply with the release order, and again, more specifically, that, if released, there would not be a substantial likelihood that the accused would commit criminal offences. In her attractive argument, ably presented, Ms. Wyzomierska proffered four changes to the accused’s bail plan that she argued were material, and should satisfy me that it is no longer necessary to detain the accused on the secondary ground, namely:

1. The accused now offers a third surety, Nicholas Odonkor, who is a friend of his, who is prepared to pledge $2,500, which is a lot of money for him, and who will assist in the supervision of the accused on weekends;
2. The accused’s mother has changed her hours of work, and will no longer work on weekends;
3. The accused is prepared to undertake alcohol treatment, and his family has identified a potential programme for him and obtained a referral to be filled out by the accused’s family doctor; and
4. The accused’s family has arranged for the possibility of the accused wearing a GPS monitored ankle bracelet.

[17] I will say a brief word about each of these changes.

[18] First, the new surety. I was impressed with Mr. Odonkor. He is a sincere and thoughtful young man. He is confident that the accused would not breach his trust or imperil his money by violating a bail order. While his addition as a surety adds little in the way of supervision, I am satisfied that it does increase the moral suasion on the accused tending to deter him from committing new offences, but only incrementally. I say incrementally because in my view, Mr. Odonkor’s confidence in Mr. Sheikh is somewhat naïve and exaggerated. The accused’s criminal history, and in particular his many prior breaches of court orders make me far more sceptical than is Mr. Odonkor.

[19] Second, the change in the accused’s mother’s schedule seems to me to be of little moment. Both she and her daughter assured the justice of the peace that one of them would be present with the accused at all times. The change in schedule may make it easier for them to accomplish this, but the justice did not doubt that they could accomplish what they promised without the change, and nor do I.

[20] Third, alcohol treatment. The accused’s willingness to enter an alcohol treatment programme is promising. But his mother testified at the judicial interim release hearing that she had communicated to her son that he can only come home if he looks for help in dealing with his problems, and his sister testified that the accused would be getting the help he needed for his alcohol problem, and that he would listen to her and his mother when they tell him to get it. As a result, this willingness by the accused to undertake treatment is not really new. It was always a necessary part of the bail plan. It is true that the planning for such treatment has advanced since the initial bail hearing, but it is still nothing more than an idea. The accused has yet to apply, and there is no evidence about the likelihood that he will be admitted, or when his treatment would begin.

[21] Fourth, monitoring. I do believe that a condition requiring GPS monitoring will lessen the likelihood of the accused committing further offences. While monitoring provides early warning of geographical breaches, and not conduct breaches, as Crown counsel emphasized, it is still not without significance on this hearing. First, geographical breaches and conduct breaches are not unrelated. There is unlikely to be a conduct breach without a geographical breach. And second, monitoring makes it clear to the accused that no breach is likely to go undetected. As a result, the existence of electronic monitoring provides some deterrence to both geographical and conduct breaches. But, of course, it cannot prevent either.

[22] Looking at the four changes in circumstances cumulatively, I conclude that they do reduce the likelihood that the accused, if released, will commit criminal offences to some degree, but not enough to tip the balance. Having regard to the accused’s history of repeatedly being willing to breach court orders and commit offences, as well as to his history of alcohol abuse and problems of self-control, I am of the view that the changes do not carry the day. It will remain the case that if released, there would be a substantial likelihood that the accused would commit criminal offences.

[23] Accordingly, and despite the able argument of Ms. Wyzomierska, the application is dismissed.

M. DAMBROT J. RELEASED: July 5, 2018

COURT FILE NO.: BR-18-40000114-0000 DATE: 20180705 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – ALEX SHEIKH REASONS FOR DECISION DAMBROT J. RELEASED: July 5, 2018