Court File and Parties

Court File No.: CR 18-10000160-0000 Date: 2018-09-27 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ramy Musa, Applicant

Counsel: Althea Francis, for the Crown Kim Schofield, for the Applicant

Heard: September 27, 2018

Ruling on Bail Review

Judge: Anne London-Weinstein, J.

[1] This was an application seeking a de novo hearing under s. 520 of the Criminal Code. The original decision where the applicant was detained on the tertiary ground by Justice of the Peace Churley was reviewed by a reviewing judge of this court who also detained Mr. Musa on the tertiary ground after a three day hearing. See R v. Mirghani and Musa 2018 ONSC 2513.

[2] For reasons detailed below, I found that there had been a material change in circumstances which permitted me to conduct a bail de novo. However, after conducting the bail de novo, I found that Mr. Musa should be detained on the tertiary ground and his application for judicial interim release be dismissed.

Background

[3] Ramy Musa is charged with Mohamed Mirghani and Rami Abu-Amireh with one count of possession of a Schedule I drug for the purpose of trafficking, contrary to s.5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Somewhere in excess of seven and a half kilograms of what was originally believed to be fentanyl, but which later was revealed to be carfentanil were hidden in a trap in a Mercedes Benz parked on the lot of an autobody shop co-owned by the three accused.

[4] In addition, there were two firearms hidden in the trap. Mr. Mirghani and Mr. Musa are jointly charged with offences related to those firearms. They are also charged separately with other gun-related offences based on firearms found in their respective residences. Mr. Musa is charged with a firearm which was found in the vehicle that he was driving at the time of his arrest.

[5] Mr. Musa was arrested on January 23, 2018 along with the co-accused following a short investigation by officers from the Guns and Gangs Task Force. Following a bail hearing, Mr. Musa was ordered detained. His co-accused Mr. Mirghani was also detained. The presiding Justice of the Peace found that both accused had discharged their onus with respect to the primary and secondary grounds. However, the Justice of the Peace based the detention order on the tertiary ground.

[6] The matter was then brought before a reviewing justice of this court for a bail review. At that time, Mr. Mirghani and Mr. Musa had a joint bail review. Mr. Musa argued that the Justice of the Peace erred by misapprehending various aspects of the evidence, which resulted in the detention of Mr. Musa on the tertiary ground. Mr. Musa further submitted that there was a change in circumstance as additional sureties (his father and additional sister, Sue) were proffered along with a GPS monitoring bracelet. At the original bail hearing in front of the Justice of the Peace, evidence was admitted in relation to a prior police investigation known as Project Keystorm. As a result of that project, Mr. Abu-Amireh pled guilty to trafficking nine ounces of cocaine to an undercover officer. Counsel objected to the relevance of this information in relation to Mr. Mirghani and Mr. Musa.

[7] The reviewing justice concluded that the Justice of the Peace, after admitting the evidence relating to the evidence in relation to Project Keystorm, also placed considerable weight on the evidence. The evidence related to Mr. Abu-Amireh using the RTR business to traffic cocaine. While Mr. Musa was a part-owner of the business both at the time of his arrest and during this earlier time frame, there was no connection between Mr. Musa and Project Keystorm. The Justice of the Peace, in considering the tertiary ground emphasized that Mr. Musa had been a co-owner during the 2015 investigation. She referred to his “historic connection” to RTR, and “the time that Mr. Abu was dealing drugs from the business.” This factor, along with other evidence, led her to conclude that it “defied common sense” to conclude that Mr. Musa had no knowledge of what was going on in the shop and with the Mercedes.

[8] The reviewing justice concluded that due to the lack of connection between Mr. Musa and Project Keystorm, the Justice of the Peace erred in relying on that investigation to impute knowledge on his part with respect to the drugs and guns in Mercedes.

[9] The justice of the peace made other errors apprehending the evidence, including concluding that there was a large sum of money found in the Honda associated to Mr. Musa, and that the notebook with Mr. Musa’s name on it was in the Land Rover, which Mr. Musa was driving at the time of his arrest. This was incorrect. The notebook was found in the Honda. No large sums of money were found in any vehicles associated to Mr. Musa, or in his house. As a result of these errors, the reviewing justice embarked on a de novo hearing.

[10] The reviewing justice concluded that there was a strong case against both Mr. Mirghani and Mr. Musa. She found that the offences are extremely serious, given the amount of carfentanil seized, and the serious public safety risks that carfentanil presents. She noted that it is one of the deadliest drugs on the streets of Toronto at the moment.

[11] She noted that the carfentanil in the Mercedes was worth millions of dollars. She found that loaded firearms in homes and vehicles, along with laser sights at RTR, and body armour at Mr. Mirghani’s home are suggestive of the potential for violence. If convicted, Mr. Musa will receive a very lengthy penitentiary term.

[12] She concluded that notwithstanding the fact that neither Mr. Musa or Mr. Mirghani had a criminal record, and had met their onus on the primary and secondary grounds, that the cumulative effect of all four circumstances set out in s.515(10)(c) would undermine a reasonable person’s confidence in the administration of justice if either of the two men were released. She concluded that they had not met their onus on the tertiary ground.

[13] The defence then brought an application in front of me on behalf of Mr. Musa seeking a de novo hearing on the basis that the reviewing justice had erred by failing to consider the effect of a GPS monitoring bracelet and a change in sureties on the tertiary ground concern. Counsel argued that the reviewing justice had made an error in law in failing to consider how the addition of the two new sureties and the addition of an ankle monitoring bracelet would impact the tertiary ground analysis. Counsel also argued that there had been a material change in circumstances. The carfentanil had already been altered for distribution, meaning that it was actually substantially less pure than had initially been estimated, giving it a street value much less than what was in evidence before the reviewing justice. Counsel also now suggested a revised plan of release which contemplated Mr. Musa not working, but remaining at home where he would be under strict conditions. Cameras were to be installed in the front of the home, which could be monitored by his brother or any of the other sureties. The number of sureties was decreased to ensure that all of the sureties were older adults. The defence argues that all of these factors constitute a material change in circumstances which could have affected the balancing of factors required under s. 515(10)(c).

[14] The crown argues that the reviewing justice made no error, and that the qualitative analysis in regard to the carfentanil would not have materially impacted the ultimate disposition of the bail review. The crown disputes that the new plan is distinguishable from the old plan such that it would constitute properly admissible fresh evidence which was not otherwise reasonably available at the prior hearing. The crown argues that the changes in the bail plan are not relevant to tertiary ground issues, but are only applicable to secondary ground concerns.

Nature of Review

[15] In R v. St. Cloud, [2015] 2 S.C.R. 328 the court explained the review process set out in ss. 520 and 521. The court ruled that the provisions do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but rather a hybrid remedy.

[16] Review will be appropriate in only three situations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

[17] The criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759 are relevant to the issue of what constitutes fresh evidence in regard to the review in ss. 520 and 521. The proper approach is to adopt a generous and liberal interpretation of the meaning of new evidence within the context of a bail review. R v. St. Cloud, supra, para 131.

[18] The four Palmer criteria are:

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 result.

[19] In the context of a bail review, this fourth Palmer factor is modified as: “the fresh evidence must be such that it is reasonable to think, having regard to all of the circumstances, that it could have affected the balancing exercise engaged in by the justice under s.515(10)(c) (para 137 St. Cloud).” This language from St. Cloud clearly contemplates that where fresh evidence could have affected, not would have affected, the balancing exercise in regard to the tertiary ground, and meets the other three criteria, the evidence should be admitted.

[20] The crown in this case argues that the proposed changes to the bail plan, including having Mr. Musa at home and not working, and having only older sureties, are not relevant to the tertiary ground consideration, and that to consider these factors is to conflate the tertiary ground with the secondary ground. In effect, the crown argues that each factor relating to each ground must be kept in its own analytical silo and that any overlap is a conflation of the grounds, tainting the tertiary ground analysis.

[21] Further the crown argues that the decrease in street value of the carfentanil from millions and millions of dollars to about $750,000 is also not a material change in circumstances as carfentanil is still a very lethal drug, therefore this factor would remain unchanged when assessing the seriousness of the charge as required in the tertiary ground analysis. Further, the crown argues that there are a number of firearms charges which are serious enough on their own, even without consideration of the reduction in the street value of what is still a very lethal drug therefore, the result would be unchanged.

[22] In R v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 the Court explained that bail denial to maintain confidence in the administration of justice is not a mere “catch-all” for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevant to all three heads. But that does not negate the distinctiveness of the three grounds.” Hall, para 30.

[23] In my view, the specific factors supporting the proposed bail plan are not only relevant to secondary ground concerns, but may also be relevant to tertiary ground concerns. A reasonable person’s confidence in the administration of justice could be affected, by knowing that very stringent terms of release are being proposed, versus very few conditions being imposed. This may have particular significance in close cases.

[24] The public may very well, for example, lose confidence in the administration of justice upon learning that an individual charged with a serious offence was released with few conditions. However, that confidence may not be undermined if the public were aware that very significant restrictions and continuous supervision were in place. The conditions imposed by the court are directly relevant to public perception of the administration of justice. While conditions of release are directly relevant to secondary ground concerns, they may also be relevant to tertiary ground issues.

[25] I have not conflated the secondary ground analysis with the tertiary ground analysis. In my view, the fact that Mr. Musa would no longer be working, but would be supervised by a surety 24 hours a day is a material change in circumstance which could have affected the initial weighing of the factors by the reviewing justice. In fact, in addition to the comments in Hall, supra, which clearly contemplate factors being potentially relevant to all three grounds, in St. Cloud, supra, the Court indicated that all the circumstances of each case must be considered, paying particular attention to the four listed circumstances. However, the four listed circumstances are not exhaustive. 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 the balancing of 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.

[26] The Court notes that 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. The court goes on to point out that the reasonable member of the public is not a legal expert who is knowledgeable in terms of legal defences. St. Cloud, para 87. Even in a case where the secondary ground concerns are satisfied, there may be cases where factors which might traditionally be classified as relating to primary or secondary ground concerns, may be relevant to the public’s confidence in the administration of justice.

[27] The reasonable person is deemed to be properly informed about the philosophy behind the applicable law, Charter values and the actual circumstances of the case. If the reasonable person in the community is presumed to be properly informed about the actual circumstances of the case, then it is reasonable to presume they have some degree of knowledge of the proposed bail conditions. To require that for the purpose of the tertiary ground analysis that this decision be made in an informational vacuum, with no knowledge whatsoever of the terms of release runs counter to the description of the reasonable person described by Justice Wagner in St. Cloud.

[28] For example, in the case of Mr. Musa, the former plan of bail already satisfied any secondary ground concerns even though the plan involved younger sureties and Mr. Musa being able to maintain employment.

[29] The new plan involves only older sureties and Mr. Musa never leaving his home except in the presence of a surety. He is no longer working. This factor is not merely relevant to the secondary ground concerns. The fact that he is never unsupervised is a factor which is also relevant to public confidence in the administration of justice. A reasonably well informed person might feel more confident about release, even though the charges are serious, knowing that the terms of release are highly stringent.

[30] In short, an accused’s person release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained. See R v. B.(A). (2006), 2014 C.C.C. (3d) 490 (Ont. S.C.J.) at p. 501.

[31] And, as Justice Trotter, as he then was, pointed out in R. v. Dang, 2015 ONSC 4254, [2015] O.J. No. 3552 at para 58, s.29(2)(c) of the Youth Criminal Justice Act explicitly recognizes that an accused young person’s release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused young person charged with a violent offence is released into the community with virtually no supervision, versus a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s.515(10)(b) but may also impact on the application of 515(10)(c).

[32] I therefore conclude that the change in the plan requiring Mr. Musa to remain with his surety constantly, and eliminating the ability for him to work, is a material change in circumstance which could have affected the weighing of the factors under the tertiary ground in the reviewing justice’s analysis.

[33] Given that Mr. Musa was working at the time in an attempt to pay his lawyer and his debts, when applying the Palmer test, I find that due diligence would have made no difference in the availability of this change in the bail proposal. At the time of the original bail hearing and the review, it was important that Mr. Musa try and continue to retain his counsel and pay his debts. He was fired by his employer as a result of his being in custody and being unable to work. This was not reasonably foreseeable and if I employ the liberal approach recommended by the Supreme Court in St. Cloud, I would not bar the admission of the evidence on the ground of due diligence. In regard to the second factor of the test, I find for all of the reasons outlined, that Mr. Musa being at home and supervised on a 24 hour basis is relevant to the tertiary ground analysis for all of the reasons I have outlined. Finally, I find that this proposed change could, when taken with all of the other evidence, have affected the balancing of the other factors. The test is whether this proposed change in the plan could reasonably have affected the balancing of the factors, not whether it would actually effect the balancing of the factors.

[34] I will now embark on a de novo hearing. I will begin by repeating the words of the Court in St. Cloud, which is that an accused person is presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case, or the possibility of a lengthy term of imprisonment.

[35] The presumption of innocence is the foundational cornerstone of our criminal justice system. It is also one of the legal principles with which the average reasonable Canadian would be most familiar. It is this familiar principle which rests the entire burden of proving guilt beyond a reasonable doubt—another legal principle with which Canadians are most familiar—at the feet of the Crown.

[36] I concur with the reviewing justice that there are no concerns in regard to the primary and secondary grounds. See R v. Mirghani and Musa, 2018 ONSC 2513 para 74 to 87. Mr. Musa has no criminal record. He is 31 years old and lives with his family at 35 Anticosti Drive. He has a Bachelor of Commerce Degree and was employed full time as an IT specialist at the time of his arrest. His proposed plan of release includes a GPS monitoring bracelet, full time 24/7 supervision by qualified sureties and a significant amount of money pledged on his behalf. In the hearing before me, up to $1M was offered. A curfew and a boundary restriction were also proposed in the hearing before me. Cameras were also to be installed on the front of his home so that those with access to the camera feed could see who was there before the door was opened. I had no concerns in regard to the strength of the bail plan.

[37] The only issue which had to be determined is whether Mr. Musa had met his onus in regard to the tertiary ground, having regard to all of the circumstances, including the four criteria set out in s.515(10)(c) of the Criminal Code. The four criteria are not a closed list. The court must not order detention automatically even where the four listed criteria are present in the case at issue. The court is required to consider all of the circumstances of each case, paying particular attention to the four listed circumstances.

[38] The four factors are: (1) The apparent strength of the crown’s case;(2) the seriousness of the offence;(3) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (4)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.

Apparent Strength of the Crown’s Case

[39] Appearances can be deceiving when it comes to assessing the apparent strength of the crown’s case due to the fundamental nature of bail hearings. The analysis of the apparent strength of the crown’s case begins at a point in time when the crown’s case is at its zenith, before its weaknesses have been exposed by cross-examination. Although credibility assessments often are at the core of judicial determinations at trial, they are largely absent in a bail hearing, given the structure of the hearing.

[40] Secondly, the evidentiary standard at a bail hearing is more relaxed than at trial. These differing standards mean that evidence admissible at a bail hearing may not be admissible at trial.

[41] In this case, I have a very limited window into potential Charter defences. The reality is that there will rarely ever be defence evidence lead at a bail hearing.

[42] In this case, defence counsel in a written addendum to her oral submissions, points out several issues which she expects to raise in this case. In my view, I would be in error if I were to dismiss these arguments as speculative. My task at this stage in the proceeding is to determine whether there is some basis for the defence. St. Cloud para 59. I find that there is some basis for the defences which were argued in Ms. Schofield’s written addendum and in oral argument. I also agree that the investigative time frame was very short and the evidence in the case is circumstantial, particularly in relation to the carfentanil.

[43] When I assess the strength of the crown’s case, given that this is a de novo hearing, I can consider fresh evidence from both the defence and the crown. In the review hearing before me, the crown submitted a photo book. The images are taken from Mr. Musa’s phone. It is not determined whether he took these photos himself, or if they were sent to him by someone else. The first photo is a stack of Canadian currency in elastic bands. The second photo is of Mr. Musa and his two co-accused in the RTR body shop.

[44] The third photo is of a closet, where there are uniform shirts hanging in the closet. One shirt says Moe, one has three letters which are RAM and the last one says Ramy.

[45] The next photo shows a photo of Rami Abu Amireh in body armour holding two hand guns. One is a green Kel Tec. On that same page is a photo of Mr. Mirghani with a shotgun over his shoulder. The photo also depicts a man holding a long gun and a hand gun. The next photo is a garbage bag full of marijuana. There is a photo of stacks of cash on a Versace bag. There are RTR business cards for Ramy Musa, Mohamed Mirghani and Rami Abu-Amireh.

[46] There is a photo of a hand holding on to a Kel Tec gun next to a box which has the name Dina Musa written on it. There is a photo of stacks of cash with a handgun. There is another photo of someone holding a hand gun. There is a photo of a hand gun with what appears to be an overcapacity magazine. There are stacks of American currency. There is what appears to be a screen shot of a video chat featuring 6 handguns.

[47] These photos on Mr. Musa’s phone are circumstantial evidence of involvement in drug trafficking.

Summary of the Evidence presented at the Earlier Review

[48] On January 22, 2018 seven search warrants were obtained based on information gathered and observations made for the following:

a. 35 Anticosti Drive which was the home of Mr. Musa where he lived with his parents. b. The Land Rover which is a vehicle associated with Mr. Musa. c. RTR Auto Depot and the black Mercedes parked at RTR. d. 241 Apache trail which is the address of Mr. Musa’s co-accused, and of the Infiniti which was the vehicle associated to his co-accused. e. On January 23, 2018, and following the arrest of Mr. Mirghani, a search warrant was obtained for the home of Mr. Mirghani and Dora Babkir.

[49] On January 23, 2018 Mr. Musa was pulled over by police while he was driving in a Land Rover. The vehicle was searched on January 24, 2018. Police located a loaded Glock 26 with an overcapacity magazine containing 15 rounds of 9mm ammunition.

[50] The firearm was not in plain view, but was located in the centre console under the armrest. While Mr. Musa has a Possession and Acquisition Licence for firearms, he was not permitted to possess this firearm.

[51] Police also located an overcapacity extended magazine in the front passenger glove box, two safety deposit keys for TD banks and a Dell laptop computer.

[52] Mr. Musa was living with his parents, who attended the bail review at 35 Anticosti Drive. In searching his bedroom the police located four firearms, two of which Mr. Musa was permitted to possess. Mr. Musa was not permitted to possess the loaded Glock 17 or the prohibited, loaded mini Glock 36 which were in a laundry hamper near his bed. He was allowed to possess a shotgun which was under his bed and a Glock 22, which was stored in a safe. Mr. Musa’s parents advised police that he was a part owner of RTR. There was evidence in a former hearing that he attended the RTR shop at least twice a week.

[53] In searching the Honda, police found a notebook with the accused’s name written on the front, along with his former place of employment. The words “fentanyl” and “fentanyl patches” are written on the inside of the notebook, along with the name of Mr. Musa’s co-accused. There are numbers which appear to be references to large amounts of cash.

[54] Mr. Musa has received two Highway Traffic Act tickets over the last two years while driving the Honda. It is unknown how long the notebook was in the Honda and Mr. Musa was last seen driving it on January 18. It is not known who else may have had access to the car after that date.

[55] When the police attended RTR to execute the warrant on January 23, both Mr. Mirghani and Abu-Amireh, who are all part owners of RTR were present. Mr. Abu-Amireh was on parole at the time with respect to drug trafficking offences arising from the 2015 investigation, Project Keystorm.

[56] During the search of RTR the following items were located:

a. A gun holster and the key to the unplated Mercedes were in a clothing locker. Also in the locker were two RTR business cards. Neither of the cards were in Mr. Musa’s name. b. A laser sight for a firearm was on a counter in plain view. It was the same type of laser sight that was found in the Mercedes. c. The key in the locker containing the clothing was used by police to unlock the Mercedes parked in the lot adjacent to RTR. During the search of the vehicle, the police located the following items: i. A bag containing boxes of ammunition behind the driver’s seat in plain view. ii. Cell phones and several boxes of laser sights for a firearm located on the floor in front of the passenger seat. iii. A large camouflage gym bag which was located in the trunk contained three loaded handgun magazines, a food saver vacuum sealer, and a roll of food saver packaging that appeared to be similar to that which was found in the RTR shop. iv. In a hidden trap behind the rear seat of the vehicle there was an AK47 assault rifle wrapped in a blue towel, a .45 caliber handgun and 9 packages of controlled substances which turned out to be street carfentanil. Seven of the packages each appeared to weigh about a kilogram. One package was estimated to weigh half a kilogram and the ninth package was substantially smaller.

[57] The expert opinion report prepared by Det. John Margetson indicated that one unit of carfentanil is 100 times more potent as the same amount of fentanyl, 500 times more potent than a unit of heroin and 10,000 times as potent as a unit of morphine. Carfentanil is an analog of the synthetic opioid analgesic fentanyl.

[58] The evidence linking Mr. Musa to RTR is that he is a part owner of the business and regularly attends the location. There is no direct evidence linking him to the Mercedes. Mr. Musa was not present at RTR when police executed the warrant. He was not in personal possession of a key to RTR. The photographic evidence submitted by the crown in this review, contain photos of a closet which has three RTR work shirts. One of the shirts is labelled Ramy. There is a photo of a RTR business card with the name of Ramy Musa on it. There are cards for his two co accused as well.

[59] The circumstantial evidence linking Mr. Musa to the Mercedes include the fact that he is a part owner of the business, and the key to that Mercedes was located in a locker at RTR. While ownership of RTR does not necessarily establish that Mr. Musa had knowledge of the drugs and firearms, he did regularly attend RTR, so the inference that he was aware of the drugs and firearms is available.

[60] The notebook in the Honda with his name on it and a former place of employment, along with the words fentanyl and fentanyl patches written inside with references to large sums of money is circumstantial evidence that Mr. Musa is involved in drug trafficking. The traffic tickets, and the observations of Mr. Musa driving the Honda about a week before his arrest link him to the Honda. Again, there may very well be evidence which emerges at trial which counters, or lessens the strength of the inferences which can be drawn.

[61] The loaded firearm in the centre console of the Range Rover which Mr. Musa was driving, is also evidence that he was in possession of the firearm. The location of the mini Glock 36 and the Glock 17, both of which were fully loaded and improperly stored in a laundry hamper next to his bed gives rise to an inference that the firearms belong to Mr. Musa.

[62] Mr. Musa had two loaded unauthorized firearms in his home, and one in his car. When the evidence of possession of this many loaded firearms is taken together with the other circumstantial evidence in this case including the notebook, with its references to fentanyl, fentanyl patches and large sums of money, the inference that Mr. Musa is involved in drug trafficking is certainly an available inference which is supported on the evidence. Detective Margetson indicates that firearms are commonly associated with drug trafficking operations as protection against robbery.

[63] It would also be open to a jury to find that the notebook with Mr. Musa’s name on it, which contained references to carfentanil and large sums of money, the location of the key at RTR, and Mr. Musa’s connection to RTR, his links to the Honda where the notebook was located which I have already discussed, could be found to support an inference that he was involved in the drug trafficking that was alleged to have been going on at RTR. The photos in the photo book which were submitted on this review described earlier. strengthen the available inferences connecting Mr. Musa to RTR generally, and to drug trafficking specifically. The crown case against Mr. Musa is apparently strong.

The Seriousness of the Offence

[64] These offences are on the extreme seriousness end of the spectrum. Mr. Musa is charged with having three loaded unauthorized firearms; two in his house and one in his vehicle. He is also charged with trafficking in carfentanil.

Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used

[65] The circumstances surrounding the offences in this case involve a drug which is so lethal that its legitimate application is to sedate elephants. It was never intended for human use. The median lethal dose of standard fentanyl is about 2 milligrams. The seven and a half kilograms seized had a net value of under a million dollars. This was less than was originally thought, but is still consistent with high level drug trafficking.

[66] The magnitude of the weaponry in this case is significant. An AK 47 assault rifle and .45 caliber handgun, as well as ammunition, laser sights and three loaded hand gun magazines were located in the Mercedes.

[67] There was, as already mentioned, a loaded Glock 26 with the over capacity magazine containing 15 rounds of ammunition and an over capacity extended magazine in the Land Rover.

[68] In Mr. Musa’s home, there was a loaded Glock 17 and a loaded mini Glock 36 in the laundry hamper next to Mr. Musa’s bed.

[69] The number of guns, the quantity of drugs, the notebook with its listed sums of money and references to carfentanil, are all suggestive of higher level drug trafficking.

Potential Lengthy Term of Imprisonment

[70] The fact that the accused is liable on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence which involves, or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years or more:

[71] If Mr. Musa is convicted of the firearms offences, it is highly likely he will be sentenced to a term of imprisonment in excess of three years. The quantity and the nature of the drug seized in this case could attract a sentence in the double digits. This is true even though Mr. Musa has no criminal record.

[72] 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, R v. St. Cloud, 2015 SCC 27 at para 87. I must consider all the circumstances of each case paying particular attention to the four listed circumstances. No single circumstance is determinative and I must consider the combined effect of all the circumstances of each case to determine whether detention is necessary in order to maintain public confidence in the administration of justice.

[73] Other relevant circumstances which I have considered include the following:

1. Mr. Musa has no criminal record. In my view, this could effect public perception in relation to his release. It is also relevant to the secondary ground.
2. The bail plan proposed was extremely strong, in fact, it is hard to imagine a plan of bail which was more comprehensive and well thought out. A GPS ankle bracelet was proposed, a hard curfew was proposed, cameras were installed on the front of the house to ensure that no one could attend at the house without them being seen by those who had access to the camera feed. Mr. Musa would be with an adult surety at all times in the home where he has lived for all of his life. In addition, substantial sums of money of up to $1 million dollars was pledged. This money was related to equity in the property of family members. I had no concerns that this money being offered was related to proceeds of crime. In fact, the evidence in this case was that counsel in this case was paid with multiple cheques from different family members, all wanting to help Mr. Ramy Musa get bail. This is understandable now that Mr. Ramy Musa has lost his employment. A boundary restriction even in the presence of a surety was proposed. As I said, the plan was excellent.
3. Mr. Musa has a large and loving family who support him. I regard this factor as being relevant to public perception of the administration of justice in regard to his release. This courtroom had what looked like 25 persons here to show their support to Mr. Musa. His parents were in attendance.
4. Mr. Saamer “Sam” Musa testified in this bail hearing. He impressed me as being an excellent surety. He has secret clearance in relation to his employment. He has been married for 15 years and has four children. He has an MBA. It was clear to me that he was dedicated to his younger brother and that he would be a dedicated surety. I had absolutely no issue with the fact that Mr. Sam Musa has a licence to own legal guns, and sold his firearm since agreeing to be a surety for his brother. Similarly, Mr. Musa’s parents are hardworking people who have been married for 46 years. His mother is home full time and his father who is 73 years old runs a taxi fleet business.
5. Ms. Schofield was wise to change the plan to ensure that only older sureties would be proposed as sureties for Mr. Musa. As I said, I can find no fault with this new proposed plan of bail.

[74] At the end of the analysis the question which I have to answer is whether detention is necessary, in all of the circumstances, in order to maintain confidence in the administration of justice. In this case, I have considered all of the factors discussed. The four criteria: the apparent strength of the crown’s case, seriousness of the offence, circumstances surrounding the offence and potential lengthy sentence if convicted all favour detention. I have gone on to consider factors which in my view are relevant to the tertiary grounds, even if they are also relevant to the secondary or primary grounds. And I have also considered that guns continue to be a serious concern in the City of Toronto. In Regina v. J.G. [2005] O.J. No. 4599 (S.C.J.), Justice Nordheimer, as he then was wrote at para 36:

“The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regarding issues of public safety in this city over the last number of months. Citizens in Toronto are understandably appalled at what appears to be a proliferation of handguns in the city. The alarm that naturally arises from that perception is dramatically increased by the apparent willingness of certain individuals to use those handguns, very often in indiscriminate and horrifying ways, that have resulted in dreadful consequences for entirely innocent people.”

[75] Of course there is no suggestion in this case that guns were used in the ways described by Justice Nordheimer. However, over a decade later, the problem of guns in Toronto remains. It is my view that the public confidence in the administration of justice would be undermined if I were to release Mr. Musa.

[76] For all of the reasons discussed I find that Mr. Musa has not met his onus on the tertiary ground. It is my view that a reasonable person’s confidence in the administration of justice would be undermined if Mr. Musa were granted judicial interim release. The detention order made by the justice of the peace shall remain in effect and the application for judicial interim release is dismissed.

Anne London-Weinstein, J. Released: September 27, 2018