Court File and Parties

Court File No.: 18-19624 Date: 2018/09/18 Ontario Superior Court of Justice

Between:

Her Majesty the Queen, Respondent – and – Farbod Ghaemmagham-Farahani, Applicant

Counsel: Jon Fuller, for the Crown Vanessa B. Carew, for the Accused

Heard: September 17, 2018

Reasons for Decision

O’Bonsawin J.

[1] Mr. Ghaemmagham-Farahani (“Applicant”) applies for a variation of his release order made by Justice Perkins-McVey on June 20, 2018 and later by Justice Doody on July 6, 2018. The material change in circumstances relates to the fact that the Applicant has been accepted to a Bachelor’s Degree program in Law at Carleton University. His courses begin on September 24, 2018. The Applicant currently residence at Limoges Residence which cannot accommodate his request for driving to and from the University. The Applicant seeks to change his residence from the Limoges Residence to his mother’s residence in Carleton Place in order to attend the University. His mother, Ms. Bourke, is willing to act as her son’s surety and permit her son to reside with her.

[2] The Applicant was charged with unlawful entry in a dwelling house, possession of a weapon (a large black hunting knife), assault with a weapon, attempt to break and enter, assault of a peace officer and carry/use of a weapon and unlawful possession of a Schedule I substance (cocaine). The complainant is the Applicant’s estranged wife. The incidents are alleged to have occurred on June 8, 2018 in front of their two children. On June 9, 2018, the Applicant received a Non-Communication Order requiring him not to communicate the complainant either directly or indirectly.

[3] On June 20, 2018, the Applicant was released from custody after a contested bail hearing in front of Justice Perkins-McVey with a condition that he reside at the Limoges Residence. In addition, his Recognizance of Bail included the condition that he not communicate in any way either directly or indirectly with the complainant and their children.

[4] The Applicant was charged for a breach of his no-contact condition for an offence alleged to have occurred when he telephoned the complainant from jail. He was released on consent on July 6, 2018 before Justice Doody.

[5] On August 22, 2018, the Applicant pled guilty to breaching his no-contact condition. He received a suspended sentence with pre-trial custody credit of eleven days and one day of probation.

[6] The Applicant currently has one outstanding file related to the alleged incidents on June 8, 2018 and a preliminary hearing is scheduled for April 1, 2019.

[7] 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 the Applicant’s innocence.

[8] The Defence brings before this Court an Application and argues that there has been a material change in circumstances. I have reviewed the transcript of the hearing before Justice Perkins-McVey, the exhibits and the testimony of the witnesses that occurred yesterday.

[9] As per the R. v. St-Cloud, 2015 SCC 27 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. In this matter, it is argued there is admissible new evidence, namely, the Applicant’s admission into the University and the Limoges Residence’s incapacity to drive him to and from the University.

[10] The Applicant testified that he was accepted with a full scholarship in Carleton University. Although things have been going generally well for him at the Limoges Residence, they cannot drive him to and from the University. For his fall semester, the Applicant would have classes on Monday (Arabic language from 8:35-11:25), Wednesday (Arabic language from 8:35-11:25) and Friday (Arabic language from 8:35-10:25; Law from 2:35-4:25 and discussion group from 5:35-6:25). During the winter semester, the Applicant would have classes on Tuesday (Arabic language from 11:35-1:25), Wednesday (Arabic language from 8:35-11:25) and Friday (Arabic language from 8:35-11:25, Law from 12:35-2:25 and discussion group from 3:35-4:25).

[11] At Limoges Residence, when the Applicant has medical appointments, he must provide them with notice and they organize a driver to take him to and from his appointments. He testified that he understood that he is on house arrest and cannot leave the residence unless he is with a staff member.

[12] If he is granted permission to change his residence from Limoges Residence to his mother’s residence in Carleton Place, the Applicant testified he understood that the other list of his conditions would still apply to him including no contact with the complainant and their children, he could not possess a weapon and would have to abide by house arrest other than to attend his courses at the University.

[13] The Applicant testified that his mother is a registered nurse at the Civic Hospital in the neurosurgery unit. The Applicant’s plan includes that his mother would drop him off at the University when she works days and then would pick him up after work. If his mother works until 3:30, the Applicant would go to the library after his course until she arrived to pick him up. His mother would also take him to all of his medical appointments. He is currently seeing a neurologist and his family physician. He is scheduled to have surgery on November 7, 2018 to replace a missing part of his skull. This surgery is required as a result of a self-inflicted gunshot wound to his head.

[14] During his cross-examination, the Applicant explained that the Limoges Residence is staffed 24/7. Their job is to supervise him. On the days where the Applicant would not be in class at the University, he would stay at his mother’s residence alone and unsupervised. In addition, no one would supervise him while he is on the University campus. Furthermore, his mother currently has a good relationship with the complainant and their children. His children visit his mother at her residence.

[15] The Applicant agreed in cross-examination that since his suicide attempt, he has seizures and other side effects including difficulties with impulsiveness and anger. The Crown asked the Applicant about his testimony on June 20 in front of Justice Perkins-McVey. The Applicant agreed that he had sworn to tell the truth and that it was important for him to be honest with the judge since she would rely on what he said and he knew it was wrong to lie to a judge. When specifically asked by Justice Perkins-McVey about his alleged telephone call from the jail to the complainant, the Applicant denied the allegation. However, he subsequently pled guilty to breaching his no-contact order in August before Justice Wadden. When asked if the Applicant had lied to Justice Perkins-McVey, he responded that he did not; he was offered a deal that he could not pass up. The Applicant agreed that he told Justice Wadden that he had called the complainant. This for him was a strategic deal and it made sense to him to lie to the judge to get the deal.

[16] The Applicant’s mother, Ms. Bourke, testified afterwards. She advised the Court that she was prepared to post a bond in the amount of $1,500-$2,000. Ms. Bourke has never acted as a surety. She testified that she understood her role as a surety. If her son was under her supervision and he deviated from his conditions, she would call police. Ms. Bourke said that she had no problem calling the police because she wanted to apply the law.

[17] Ms. Bourke is a registered nurse in neurosurgery at the Civic Hospital Trauma Centre. Her usual work hours are from Monday to Friday, 7:00 a.m. to 3:30 p.m. and every sixth week she works from 2:30 p.m. to 11:30 p.m. for one week. Her plan consists of taking her son with her, dropping him off at the University, go to work then pick him up after work and take him home. Ms. Bourke testified that she will ask her son to stay in the library at the University until she picks him up. She would also check in with her son by cell phone, however, when she is in the operating room, she could not do so. Ms. Bourke testified that if she thinks that her son is not abiding by the plan or he is not at the pickup point, she would call the police. She is also prepared to drive her son to and from his medical appointments.

[18] Ms. Bourke also testified that on November 7, 2018, her son was scheduled to have a cranioplasty. She was also asked about her ex-husband’s involvement with the Applicant. Ms. Burke responded that her son has a relationship with his father. She also testified about her excellent relationship with the complainant and her grandchildren. At times, she helps the complainant by babysitting her grandchildren. Ms. Bourke is aware and supports the no-contact condition between her son and the complainant and their children. In addition, she will always inform the complainant when her son is at her residence.

[19] Lastly, Ms. Bourke testified that she has a good relationship with her son. She corrects him and reminds him when to do or not do certain things. She knows that he is generally remorseful and that he is committed to follow the rules and respect the law. Her son knows that this is the last chance that she is giving him; “if he breaches [her] trust and does not obey the rules, it is done, this is the last time”.

[20] The Crown also cross-examined Ms. Bourke. She testified that her son lived with her and her ex-husband for the first three years of his life. Afterwards, the Applicant resided with his father and she saw him on weekends. Her son resided with her for the first time in June 2018. Approximately one week after the Applicant came to live with Ms. Bourke, she had to call the OPP and her son was apprehended under the Mental Health Act. She felt he was a danger to himself and others. Her son was under the influence by taking all of his anti-seizure medication. The Applicant had deteriorated quickly. When the police arrived, her son was resistant at first and then they took him to the hospital. Mrs. Bourke thinks that her son was suffering from depression. She was not aware at the time that her son had substance abuse issues. Ms. Bourke agreed that at one point, her son tried to commit suicide by trying to encourage the police to shoot him.

[21] Ms. Bourke agreed with the Crown that her son has an acquired brain injury and he acts unpredictably and impulsively. When asked about her son’s school schedule, she agreed that some of his classes are only for ninety minutes and her schedule is over eight hours. The Applicant would thus be by himself on campus for five hours. During this time, she told the Applicant that he would have to go and stay at the library. Ms. Bourke advised that when her son is not in class, he would be in her residence. She agreed that in her residence while she works, her son would be alone and unsupervised.

[22] I turn to the application of the law to the facts of this matter. In R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27, the Supreme Court relied on the Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775, decision regarding a review of a material change in circumstances. In Palmer, the Supreme Court established the following criteria in order for evidence to be considered new evidence:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. The evidence must be credible in the sense that it is reasonably capable of belief; and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the trial (para. 128).

[23] In my opinion, the four criteria are met in the Applicant’s case. The Applicant testified before Justice Perkins-McVey that he had received his confirmation from the University that he was accepted into the undergraduate law program with a full scholarship and he expected to attend his courses during the day. Since the Applicant had not yet moved into the Limoges Residence, there was no indication from them that they would be incapable to transport the Applicant to and from the University. The evidence is clearly relevant, it is credible since it has been confirmed by his mother and it could affect this proceeding.

[24] The Applicant’s acceptance into the University and the fact that Limoges Residence cannot transport him to and from the University constitutes a material change in circumstances that leads me to repeat the analysis as if I were the initial decision-maker. This Court must consider all of the circumstances of the case.

[25] The primary ground as per ss. 515(10)(a) that the detention is necessary to ensure the Applicant’s attendance in Court is not a relevant consideration in this matter.

[26] As per ss. 515(10)(b) of the Criminal Code, “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 circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. From the perspective of the public, there must be a good safety plan in place to ensure the safety of the public. The proposed plan of the Applicant residing with his mother is not a good safety plan. Justice Perkins-McVey indicated in her decision “it’s a very close call” (p. 50 of the Transcript). She had concerns about the stability of the Applicant. Justice Perkins-McVey wanted him to be supervised and to have the staff at Limoges Residence ensure he got to and from his appointments and that he did not have the opportunity to see the complainant and their children (p. 52). She made it clear that she wanted the Applicant supervised when he was going into the city (p. 55). I too echo Justice Perkins-McVey’s concerns. I also worry about the Applicant’s stability. He confirmed during cross-examination that he had difficulties with impulsiveness and anger. I have strong concerns that should the Applicant be permitted to reside with his mother, he would at times be alone and unsupervised at the University for a period of up to five hours. His impulsivity could easily lead him to leave the campus and breach his no-contact condition with the complainant and his children.

[27] Sub-section 515(10)(c) expressly refers to four circumstances that must be considered in this case. Firstly, this Court must review the apparent strength of the prosecution’s case. Based on the evidence before this Court, the prosecution’s case is strong.

[28] Secondly, the Court must consider the gravity of the offence. The Applicant faces serious charges of unlawful entry in a dwelling house, possession of a weapon (a large black hunting knife), assault with a weapon, attempt to break and enter, assault of a peace officer and carry/use of a weapon and unlawful possession of a Schedule I substance (cocaine). These are serious allegations. In addition, it is alleged that this incident occurred in front of the Applicant’s children.

[29] Thirdly, the Court must also review the circumstances surrounding the commission of the offence including whether a firearm was used. In this case, it is alleged that a knife was used as a weapon. This evidence is confirmed by a police officer who saw the knife in the Applicant’s hand.

[30] Fourthly, the Court must also review that the accused is liable for a potentially lengthy term of imprisonment. If the Applicant is found guilty on all charges, he can face a potentially lengthy term of imprisonment.

[31] This Court must also consider the combined effect of the four factors in the context of all the circumstances. I have considered the fact that in the past, the Applicant has been in breach and he has an addiction to cocaine. I also find it concerning the Applicant agreed during cross-examination that he strategically lied to a judge to “get a deal”. In addition, during his evidence before Justice Perkins-McVey, the Applicant testified that he sent his mother and the complainant suicidal texts to try “to manipulate [the complainant] to get [him] back in the house” (p. 18). This shows that the Applicant can be manipulative.

[32] Bail conditions are put in place to manage the accused’s risk while in the community. The plan put forward by the Defence does not appropriately manage the Applicant’s risk. The plan is a partial control of the risk. In this matter, the plan must totally control the risk. The possibility of the Applicant staying at his mother’s residence unsupervised and for him to remain on the University campus unsupervised for a period of up to five hours is insufficient.

[33] Even if there has been a material change in circumstances in this matter, I find that based on secondary and tertiary grounds, the Applicant must remain on his current plan and conditions as set by Justice Perkins-McVey. I therefore dismiss his Application.

Justice M. O’Bonsawin Released: September 18, 2018