Court File and Parties
COURT FILE NO.: CR-18-50000235-00BR DATE: 20181221 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ZAID MOHAMMED Accused
Counsel: Jason Gorda, for the Crown Sina Shabestary, for the Accused
HEARD: December 19, 2018
B.A. ALLEN J.
Reasons for Decision on a Bail Review
Background
[1] This is a reverse onus case. Zaid Mohammed, now age 23 years, was charged in relation to three incidents that involve federal and provincial offences. He has a minimal criminal record involving charges from 2016 which, as I understand it, were disposed of by conditional discharges.
Incident 1
[2] The first incident occurred on April 9, 2018 and involved a stabbing which resulted in Mr. Mohammed being charged on provincial charges of assault with a weapon, aggravated assault, attempted murder, etc. One of his co-accused is Mr. Mohammed’s girlfriend, Darlique Rand. Mr. Mohammed was arrested on April 10, 2018 and granted bail under house arrest on April 13, 2018 with his father as surety. Those charges are still live.
[3] The alleged facts underlying this incident involve an attack by Mr. Mohammed, and others including his girlfriend, on a long-time friend of Mr. Mohammed, because the friend, the complainant, was alleged to have stolen Mr. Mohammed’s pregnant dog whose puppies Mr. Mohammed thought, would sell for thousands of dollars. After verbal and text message confrontations a physical fight occurred and Mr. Mohammed with a blade and another with a knife launched a series of attacks on the friend. Mr. Mohammed threatened to kill the complainant. The blade lodged in the complainant’s eyes causing blindness in his left eye. The assailants fled the scene. The incident was captured on video surveillance.
Incident 2
[4] On April 20, 2018, Mr. Mohammed was arrested on federal offences alleged to have been committed on April 10, 2018 involving possession of a controlled substance (Tylenol 3s), possession of a controlled substance (Tylenol 3s) for the purpose of trafficking and possession of proceeds of crime.
[5] It is alleged that Mr. Mohammed was in possession of a bottle of Tylenol 3s when he was arrested on April 10th but was not charged at that time. Subject to a search warrant, on April 12th the police searched Mr. Mohammed’s vehicle where the proceeds of crime were seized. He was not charged with the drugs or proceeds of crime offences until April 20th. The vehicle search produced nothing related to the incident 1 offences. The federal Crown did not seek to cancel the recognizance of bail under s. 524 of the Criminal Code and Mr. Mohammed was released on bail to his father on April 21st.
[6] On December 4th, Mr. Mohammed pleaded guilty on the incident 2 offences to one count of simple possession of a controlled substance and a $500.00 fine was imposed. The other federal charges of possession for the purpose of trafficking and the proceeds charges were withdrawn.
Incident 3
[7] On July 17th, a bail variation was granted on consent adding two additional sureties, Mr. Mohammed’s mother, Wafaa Kadhem, and a family friend who resided with them. Mr. Mohammed remained on bail.
[8] The police were conducting a surveillance investigation in relation to suspected marijuana trafficking out of Mr. Mohammed’s mother’s home. On July 25th, Mr. Mohammed was arrested on federal offences, alleged to have been committed on that day, charges of possession and trafficking of the controlled substances marijuana and hashish and possession for the purpose of trafficking of hydrocodone. He was also charged with possession of proceeds of crime and on provincial charges of breaches of recognizance.
[9] The girlfriend is a co-accused in the incident. Mr. Mohammed’s girlfriend was charged on July 25th with breach of recognizance in relation to a no-contact order prohibiting her from contacting Mr. Mohammed. Mr. Mohammed was not subject to a no-contact condition in relation to his girlfriend.
[10] The facts alleged behind the arrest on July 25th are that the police observed Mr. Mohammed exit his mother’s home with two young males, neither of them a surety. It is alleged that ten minutes later he returned home alone. The officers then saw Mr. Mohammed and a female exit the home and enter a vehicle and drive off.
[11] The mother testified at the show cause hearing that it was she who left the house with Mr. Mohammed. She said she was with him in his vehicle when the police arrested Mr. Mohammed and seized marijuana, hashish and some currency from the vehicle. The mother testified she was asleep when Mr. Mohammed was alleged to have left and returned to the house on July 25th. But he was at home at 9:00 a.m. asleep in his bedroom when she awoke and went to his room the next morning.
[12] The police then attended the home and executed a search warrant and seized marijuana and hydrocodone. The girlfriend who was under a no-contact order in relation to Mr. Mohammed was in the home when the police entered. The mother was home at the time but was not aware that the girlfriend was in the home or that there were drugs in the home.
[13] The mother testified at the show cause hearing that she would move Mr. Mohammed’s bedroom from downstairs to upstairs near her bedroom and ensure that all doors are shut and locked at all times. She stated that she would search his room and belongings and cellphone if he were permitted to have one. She testified she was away in the Middle East when Mr. Mohammed was arrested for the previous offences and returned home in May 2018 when she learned of his arrest.
Remaining Charges
[14] At the bail hearing held on August 20, 2018, Mr. Mohammed was denied bail by Justice Rondinelli of the Ontario Court of Justice. On September 7, 2018, all federal drug and proceeds charges arising from incident 3 were withdrawn.
[15] Mr. Mohammed therefore remains charged with the offences from incident 1, one federal charge of simple possession of a controlled substance from incident 2 and with the two provincial breach of recognizance charges from incident 3. The provincial charges were sent to be prosecuted in the provincial court.
The Law
[16] Section 11(e) of the Charter of Rights and Freedoms states that, “Any person charged with an offence has the right ... not to be denied reasonable bail without just cause”. This provision is directed at assuring that the accused will not be denied bail without reason and only will be denied bail where necessary.
[17] Subsections 515(10) (a), (b), and (c) of the Criminal Code provide that bail may be denied on three grounds:
- On the primary ground bail can be denied where the detention is necessary to ensure the accused’s attendance in court. The concern is whether the accused is a flight risk.
- On the secondary ground, bail can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk” a standard below proof beyond a reasonable doubt: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.).
- On the tertiary grounds, bail can be denied in order to maintain confidence in the administration of justice, having regard to all the circumstances… Bail can only be denied if the court is satisfied that in view of the factors enumerated under s. 515(1)(c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: R v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.).
[18] On the tertiary grounds, in determining whether detention of the accused “is necessary to maintain confidence in the administration of justice” the following factors referred to in s. 515(10) (c) must be considered:
(a) the apparent strength of the prosecution’s case; (b) the objective gravity of the offence in comparison with other offences in the Criminal Code; (c) the circumstances surrounding the commission of the offence, whether a firearm was used; and (d) whether the accused is potentially liable for a lengthy term of imprisonment.
[19] The court is required to consider all the circumstances of each case with particular attention to the four enumerated factors. No single circumstance is dispositive. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The ultimate question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice: R. v. St.-Cloud
[20] The Supreme Court of Canada in R. v. Antic further elucidated the right to be afforded reasonable bail, citing two aspects of the right that must be considered:
Under the first aspect, a provision may not deny bail without “just cause” — there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.
R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 (S.C.C.)
[21] R. v. Antic proposes a methodology, referred to as “the ladder principle”, that articulates the manner in which alternative forms of release are to be imposed. The analysis starts from the principle that unconditional release on an undertaking is the default position when granting release, except in exceptional circumstances:
- Release is favoured at the earliest reasonable opportunity and, having regard to the statutory criteria for detention, on the least onerous grounds;
- If the Crown proposes an alternative form of release, it must show why this form is necessary;
- Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release;
- Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms;
- A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate; and
- It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release.
[22] The Crown seeks detention on secondary and tertiary grounds. There are no primary ground concerns.
[23] There are three bases upon which a court on a bail review can vary an order:
- where the justice has erred in law;
- where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor. But not on the basis that the justice would have weighed the factors differently; or
- where there is a material change in circumstances.
R. v. St.-Cloud, at para. 121
[24] The defence seeks release based on a material change in circumstances. The material change in circumstances in the defence’s view lies in the fact that only two of the four informations filed are before the court. As noted above, the provincial charges, related to incident 1, aggravated assault, assault with a weapon and attempt murder etc., remain before the court. One federal charge of simple possession of a drug, related to incident 2, remains and two provincial breaches of recognizances in relation to incident 3 remain to be prosecuted.
The Show Cause Hearing
[25] The defence sought release on bail before Justice Rondinelli on August 20, 2018. The Justice was satisfied on the secondary grounds but denied bail on the tertiary grounds with concerns that release would bring the administration of justice into disrepute.
[26] On the secondary grounds, the Justice stated:
Speculation that the accused might commit further offences or interfere with the administration of justice is not enough to warrant detention. Having heard submissions from counsel and evidence from Mr. Tan and Mr. Mohammed’s mother I am satisfied that the defence has shown cause why Mr. Mohammed’s continued detention is not justified on this ground.
[27] On the tertiary grounds the Justice focussed on the most serious of the offences, those related to incident 1, the attempt murder and other related charges.
[28] On the first factor, the apparent strength of the Crown’s case, the Justice found that the video surveillance of the incident and the Crown’s intention to rely on identification and recognition witnesses lent strength to the Crown’s case. The Justice in saying that did consider the reality that due to the earliness of bail proceedings in the criminal process the Crown’s position at the bail stage may be over-inflated.
[29] On the second factor, the Justice recognized, as a factor pointing to detention, the gravity of the offence of attempt murder being one of the more serious offences in the Criminal Code.
[30] And with regard to the third factor, on the circumstances surrounding the offence, the Justice recognized that while a firearm was not involved, he acknowledged the exceptional violence of the incident in which Mr. Mohammed is alleged to have used a blade, and with several others, attacked a lone victim resulting in the loss of one of his eyes.
[31] Regarding the fourth factor, the potential of a lengthy sentence, the Justice observed that in spite of Mr. Mohammed’s youthfulness the seriousness of the charges will result in a lengthy sentence.
[32] The Justice heeded the caution expressed in R. v. St-Cloud that detention should not be the automatic result where the findings on the four factors favour detention and he recognized that the factors must be considered together with other relevant factors in determining whether detention is appropriate in a particular case.
[33] The factor that tipped the balance in favour of detention was the fact that there were two releases in play when Mr. Mohammed was arrested on the incident 3 drug charges and the fact that the later charges were similar to those he was arrested for in incident 2.
Conclusion
The Secondary Grounds
[34] I find that a material change in circumstances has resulted from the fact that the most serious of the federal charges related to drug trafficking and proceeds of crime arising from incidents 2 and 3 are no longer before the court on this review. Mr. Mohammed has pleaded to one simple possession charge. The incident 1 attempt murder, etc. and the breach of recognizance offences remain to be considered on bail. This alters Mr. Mohammed’s jeopardy in the criminal justice system.
[35] I must look at the proposed plan of supervision having regard to the change in circumstances and the seriousness of the crimes that remain. I considered that there is no evidence Mr. Mohammed has any addiction or mental health problems. He has a minimal criminal record.
[36] I am mindful in arriving at a decision that the defence has proposed a plan of release at one of the upper-most rungs on the Antic ladder. The plan is more stringent than that accepted by the Justice when the plan is viewed in relation to the lesser number of the charges Mr. Mohammed faces on review and the increase in the surety pledge.
[37] I acknowledge the mother’s failing in not being aware that her son had left the house when she was asleep one evening and not being aware he kept drugs in the house. But I realize the mother had recently returned to Canada in May 2018 from a two-year stay in the Middle East and was reasonably not quite acclimatized by July 2018 to the practicalities of her obligations as a surety. It is now seven months after her return to Canada and she expresses a keen preparedness to undertake her duties as surety.
[38] The mother is not employed and is available 24 hours a day to supervise her son. I accept the mother’s word as expressed in her affidavit filed for this hearing that she will closely supervise her son. She will ensure that he complies with no-contact terms and check his phone on a daily basis if he is permitted to possess one. The mother will make sure he goes with her wherever she goes and will contact the police if he breaches any of the bail conditions.
[39] The mother substantially increased her pledge from the show cause hearing from $25,000.00 to $75,000.00. She has $600,000.00 equity in her home. Regarding electronic monitoring, Stephen Tan, the proprietor of Recovery Sciences Corporation, attested at the show cause hearing that the company has successfully offered many electronic monitoring services to the criminal justice system over the years.
[40] The plan is: Mr. Mohammed will reside with his mother at 10 Lovilla Blvd., North York; the mother will make a $75,000.00 surety pledge; house arrest except for medical emergencies and when outside the home with his surety; not to associate or communicate with his co-accuseds or the complainant, with exceptions for Daniel Douglas, Tyrell Smith and Darlique Rand, when in the presence of legal counsel for the purpose of preparing a defence; not to be within 500 metres of the known residence, school, or place of employment of Gramar Bromfield or Chentel Logan; use electronic monitoring and comply with Recovery Science Corporation policies; do not possess any weapons. I accept the defence’s observation that any gaps due to human frailty can be covered by electronic monitoring.
[41] I find there is no substantial likelihood that Mr. Mohammed will commit a criminal offence or interfere with the administration of justice if released on those terms. In the circumstances, Mr. Mohammed should be released on the secondary grounds.
The Tertiary Grounds
[42] I focus on the more serious incident 1 charges which include attempt murder. I accept, and the defence concedes, the strength of the Crown’s case at this juncture in the process given the video surveillance and potential eyewitnesses. It is a reality that at times the Crown’s case can fade as the process moves along.
[43] It is clear that the circumstances surrounding the offences are particularly violent even though a firearm was not used. There is no question of the gravity of the offences and that the accused is liable to a lengthy term of imprisonment if he is convicted.
[44] The four factors appear to favour detention. But a determination that the four factors favour detention must not lead automatically to detention. Automatic detention disregards the fact that the test to be met under s. 515(10) (c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice: R. v. St.-Cloud, at para. 69. The court goes on to say:
The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination.
R. v. St-Cloud, at para. 69
[45] The age of the accused and their criminal record are contextual considerations: R. v. St-Cloud, at para. 71. Mr. Mohammed is a young man of age 23 with a minimal criminal record.
[46] The context also includes the fact that the more serious incident 2 federal drug charges were withdrawn leaving only a plea on a simple possession charge. Also to be considered is the fact that all the federal drug charges from incident 3 were withdrawn. What is left from incident 3 are breaches of recognizance charges that arise from the incident 2 charges that were ultimately withdrawn.
[47] The public safety concern addressed by the secondary grounds is also a relevant consideration in assessing public confidence in the administration of justice: R. v. Mordue (2006), 223 C.C.C. (3d) 407, at para. 23, (Ont. C.A.). The plan of supervision is at an upper end rung of release conditions. House arrest under the supervision of a surety who will be available all day, every day, together with electronic monitoring and a sizeable pledge are facts to consider. Though not determinative in maintaining confidence in the administration of justice the existence of a strict plan of supervision is a factor to weigh in the balance: R. v. Mordue, at para. 23.
[48] I cannot ignore the fact that Mr. Mohammed was on two separate releases when he was charged with the offences related to incident 3. Mr. Mohammed’s non-compliance with existing releases cannot be overlooked in arriving at a determination.
[49] Ultimately the review court must balance the four factors and all the relevant contextual circumstances and decide at the end of the balancing exercise whether detention is necessary to maintain confidence in the administration of justice. It is a difficult exercise. There is no science or mathematical formula that can assist with this determination.
[50] In arriving at my decision, I have in mind guidance offered by St.-Cloud where the court held there is just cause to deny bail only if the denial occurs in a narrow set of circumstances and the denial is necessary to promote the proper functioning of the bail system. R. v. Antic reminds us that certain principles should be adhered to when applying the bail provisions in a contested hearing. Prime among those principles is that accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail: R. v. Antic, at para. 67. These are over-arching considerations when determining bail.
[51] When the four factors under s. 515(10) (c) are viewed in the context of the relevant surrounding circumstances, I find detention is not necessary in this case to maintain confidence in the administration of justice.
[52] I find in all the circumstances Mr. Mohammed has satisfied the tertiary grounds.
Disposition
[53] I grant the application for interim judicial release.