Court File and Parties
COURT FILE NO.: CR-18-10280-00 DATE: 20190401 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MOHAMED ADEN Applicant/Defendant
COUNSEL: K. Stewart, for the Crown S. Agbakwa, for the Applicant/Defendant
HEARD: March 8, 2019
Dawe J.
[1] The Applicant Mohamed Aden was arrested on December 11, 2018 and charged with robbery and various gun offences. A bail hearing in the Ontario Court of Justice was conducted on December 14 and 17, 2018 before Justice of the Peace L. Bartolo, who ordered the Applicant’s detention. He has brought a bail review application to this court pursuant to s. 520(1) of the Criminal Code.
1) Facts and procedural history
a) The allegations against Mr. Aden
[2] On the night of September 17, 2018 the York Regional Police responded to reports of gunshots in Keswick. They found the Applicant lying on the ground next to a silver Honda Civic registered to his mother. He had been shot in the face and seriously injured and was taken to the hospital. When the police searched the Honda they found a handgun in the rear footwell on the passenger side.
[3] A few days later the police obtained a statement from a man named Shawn Douse, who stated on the evening of September 17 he had made arrangements with a Somali drug dealer he knew only as “L” to meet near Douse’s home in Keswick. The purpose of the meeting was for Douse to purchase from “L” $8,000 worth of “Lean”, the street name for a mixture of pop and codeine cough syrup. Douse explained that he and “L” had done business before, and that “L” did not drive and would attend their meetings in different vehicles with different drivers. On this occasion “L” arrived in a silver car driven by a man who Douse identified as the Applicant.
[4] Douse explained further that after he gave “L” the purchase money “L” pulled a handgun. A struggle ensued during which “L” struck Douse on the head with the gun and the gun went off. Douse believed he heard other gunshots and thought that some other people had emerged from somewhere and had fired shots in their direction. Douse eventually ran away and escaped.
[5] The police subsequently gathered a substantial body of evidence that “L” is a man named Liban Ali, who lives in the same Toronto apartment building complex as the Applicant and his family. Text message exchanges between Ali and the Applicant indicate that on the day in question Ali had arranged for the Applicant to pick him up and drive him somewhere.
[6] The Applicant and Ali were both arrested on December 11, 2018 and are co-defendants on multiple charges arising out of the September 17, 2018 incident. [1] Ali is charged separately on some additional counts, and the Applicant also faces a number of additional gun charges based on videos the police found on his cell phone that show him holding what appear to be firearms on different dates several months before the September 17, 2018 shooting incident. [2]
b) The December 2018 bail hearing
[7] The Applicant was arrested in the early morning hours of Tuesday, December 11, 2018 and was brought to court for a bail hearing on Wednesday morning. However, his case was apparently not reached either that day or the following day. When he returned to bail court on Friday, December 14, 2018 his counsel indicated that he intended to propose the Applicant’s mother Fatuma Mohamed as a surety. However, there were concerns about whether she could testify without assistance from a Somali interpreter, which led the presiding Justice of the Peace to conduct an inquiry and determine that an interpreter was required. She instructed the clerk to “call upstairs and ask the earliest that they can order a Somalian interpreter”. Defence counsel (not Mr. Agbakwa) then informed the court that he had spoken to the Applicant and was prepared to proceed with the bail hearing immediately on the basis of a modified bail plan in which the Applicant’s sister would be the only proposed surety. He explained:
I’m going to propose his sister, Sagal as surety, which I was going to do in any case. … And your mom is going to be there to help you, right? I mean whether she is in the bail or not, she is at home all the time. She is going to be there supervising.
[8] The bail hearing then commenced with the Crown calling one of the investigating officers, whose evidence took the rest of the court day. Before the proceedings were adjourned to the next Monday, defence counsel asked whether a Somali interpreter could be ordered for the return date. This led to the following exchange with the Court:
The Court: Yes, we can order a Somalian interpreter for Monday, but my – is this – this is also for the mother as you were requesting before? Counsel: Yes. The Court: The fact is, is that a Somalian interpreter was to be here so that she could understand everything that was said, and she hasn’t heard that. Counsel: Understood. The Court: So even though you bring a Somalian interpreter for her to be on the stand to be a surety would not be appropriate. Counsel: I understand. The Court: Okay. Counsel: That’s fine, Your Worship.
[9] When the bail hearing resumed on Monday, December 18, defence counsel advised the Court that he would be calling the Applicant’s two sisters as witnesses, including the one who was the proposed surety. Both spoke English fluently. When the Justice of the Peace asked if an interpreter was present, defence counsel explained that they had “decided not to order an interpreter”. This led to the following exchange:
The Court: But that is not what the Court ordered. The Court ordered that if she was to be proposed as a surety, I requested – I requested the interpreter. Counsel: No, sorry, Your Worship. I’m not proposing the mother as a surety; I’m proposing the sister as a surety. The Court: Okay, fair enough. Counsel: She was born in Canada and English is her first language.
The bail hearing then continued and the Justice of the Peace heard testimony from the Applicant’s two sisters – the proposed surety Sagdal Aden, who was 21 years old, and her younger sister Edman Ibrahim, age 20 – followed by submissions from counsel. The Applicant’s mother did not testify.
c) The Justice of the Peace’s detention decision
[10] The Justice of the Peace concluded that the Applicant had not met his onus of justifying his release. As she explained in oral reasons addressed to the Applicant, her main concern was with whether his two younger sisters [3] would be able to assert effective control over him. She noted that “both [are] very young”, and observed:
[A] surety has to be a good and sufficient surety, but it has to be an effective surety, which means that the surety must be able to have an impact on the person that is accused being released to them.
The Justice of the Peace questioned how well the Applicant’s sisters really knew about their brother’s activities and whether they would be able to exercise control over him. She concluded:
And that to me is a bit troubling. Her being your surety, being a younger sister, a younger person to you. Releasing you to a surety on such serious, serious charges, I think I said 22 counts altogether between the two of you, you and the co-accused, would take a very strong, positive surety; not just positive, but determined, because a surety’s obligation is not to you. The surety’s obligation is to the Court because the Court is appointing her to look after the accused person, being you, and to supervise you according to any conditions that the Court may issue, and to make sure that you are not a threat to society, and that releasing you on a plan that is a strong plan will not undermine the administration of justice and the public would not be enraged.
And it takes a very serious person to do that. I appreciate both of your sisters that were on the stand. I appreciate the fact that they were well mannered, very docile girls, and I can see that they are good sisters to you. But I just did not see the strength and the impact that Ms. Aden would have on you, to stop you, and to supervise you according to any conditions. Even though I do not have a pattern of you breaching court orders, even though I do not have that, but the offences that are before this Court are extremely serious. And I appreciate the fact that you were struck by one of those bullets that was flying that night, but you are also charged with these serious offences.
The plan that has been put together would basically be that you would be supervised by a much younger sister, and by your mother that I have not heard from. And having ties to the co-accused that lives in the next building to where you are is just not a good enough plan for me to be satisfied on, that if you are released, you would not re-offend.
And releasing you on the plan that has been presented to the Court, in my mind, it would definitely undermine the administration of justice. So therefore not being able to release you to your sister on the plan that has been presented, this Court finds that you have not been able to reverse your onus, and therefore this Court is ordering your detention.
2) Analysis
a) The threshold issue: has there been a material change in circumstance?
[11] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada held that a judge conducting a bail review “may vary the initial decision” when there has been “a material and relevant change in the circumstances of the case”. [4] Wagner J., as he then was, explained that the admissibility of new evidence establishing a material change should be determined by applying a modified version of the traditional Palmer test [5] for admitting fresh evidence on appeal, but cautioned that the modified Palmer criteria “must not be applied in a manner that delays or needlessly complicates the release process”, which “by its very nature, generally requires an expeditious and flexible procedure.” [6] He noted (at para. 138):
The criteria therefore serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straightjacket that would interfere with the administration of justice.
[12] Wagner J. explained (at para. 132):
[A] reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion from Palmer must be understood in the context of the review provided for in ss. 520 and 521 Cr. C. The nature of the release system and the risks associated with it demand no less.
[13] He explained further (at para. 134):
This requirement to show a reason that was legitimate and reasonable means that it will be open to the reviewing judge to refuse to admit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping. In this way, the conception of new evidence in the context of ss. 520 and 521 Cr. C. reflects both the need to ensure the integrity of our criminal justice system and the need to protect the rights of accused persons in proceedings that are generally expeditious.
[14] In the case at bar, the Applicant seeks review of his detention by presenting a substantially modified bail plan in which his mother and his aunt would join his sister as his sureties and serve as the Applicant’s main supervisors. It is undisputed that the defence could have presented this bail plan at his original bail hearing. However, it is also clear that doing so would very likely have prevented the bail hearing from proceeding when it did because no Somali interpreter was available. The critical question under St-Cloud is whether the defence’s decision to present a different and less robust release plan in order to be able to proceed with the hearing immediately can be explained as a “legitimate and reasonable” choice in the circumstances.
[15] In my view, this question must be considered contextually. It is clear from the record that defence counsel had originally planned to present the Applicant’s mother as a surety, and only changed his mind when it emerged that she required an interpreter and that none was immediately available. At this point the Applicant had already been in custody for three days without having a bail hearing. It would have been obvious to everyone that if his case were held down to wait for an interpreter to arrive the hearing would almost certainly have to be adjourned until the following week, which would mean that the Applicant would spend at least three more days in custody. In these circumstances, the defence’s decision to proceed immediately with a weaker release plan, while perhaps unwise in hindsight, was understandable.
[16] Moreover, when the bail hearing did not finish on Friday defence counsel specifically asked if an interpreter could be ordered for the return date on Monday. The Justice of the Peace’s immediate response was to tell counsel that it “would not be appropriate” for him to now propose the Applicant’s mother as a surety. While it might have been better if counsel had pressed the point more forcefully or sought clarification about whether the Justice of the Peace meant to rule that he could not now put the Applicant’s mother forward as surety, his apparent interpretation of her comments as a definitive ruling that he could not do so was also understandable in the circumstances.
[17] Finally, there is no suggestion in this case that the Applicant or his counsel made a deliberate tactical choice not to propose the Applicant’s mother as a surety at the initial bail hearing “to drag out the application for release” or in order to “engage in judge shopping” (St-Cloud, supra at para. 134). To the contrary, I am satisfied that his counsel was acting in good faith. He was faced with a difficult situation in which his client’s bail hearing had already been delayed for several days and where waiting for an interpreter would almost certainly result in further delay. In these circumstances, it would in my view be contrary to the spirit of St-Cloud for me to bar the Applicant from putting forward an improved release plan on his bail review application, particularly since – as discussed further below – the improvements in the plan are directly responsive to the specific concerns that led the Justice of the Peace to order the Applicant’s detention.
b) Should bail be granted?
[18] Because the Applicant is charged with various firearm offences he bears the onus of establishing that his detention in custody is not justified (Criminal Code, s. 515(6)(a)(viii)). In the case at bar, the Crown opposes the Applicant’s release on both the secondary and tertiary grounds (s. 515(10)(b) and (c)).
i) The secondary ground
[19] Section 515(10)(b) provides that pre-trial detention will be justified when it 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;
Since this is a reverse onus situation under s. 515(6), it is the Applicant’s burden to show that his detention is not necessary on this basis.
[20] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. explained (at paras. 86-88):
First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct (“commit a criminal offence”) or an interference with the administration of justice.
Second, in connection with the specified circumstances encompassed by the clause “including any substantial likelihood that the accused will, if released from custody, commit…”, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.
Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.
[21] In any case where the accused is charged with serious offences, particularly offences involving firearms, there will be obvious concerns about public safety and the protection of the public if he or she is released. However, the relevant question is not whether these concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors.
[22] In the case at bar, the Applicant has no prior criminal record and has never been on bail before. The fact that he has no affirmative past history of complying with bail orders weighs against him to some extent in the secondary ground analysis. However, his lack of any previous criminal record also tends to reduce the likelihood of his committing further offences if he is released under a suitable bail plan. Moreover, the fact that the Applicant suffered grievous injuries during the September 17, 2018 shooting that require ongoing medical treatment gives him a powerful incentive to comply with any bail terms that are ordered in order to avoid being reincarcerated, particularly now that he has spent several months in custody and has experienced first-hand what it is like. On balance, in my view, these factors weigh in the Applicant’s favour.
[23] The Crown plans to adduce evidence at the Applicant’s trial of videos found on his phone that show him handling what appear to be handguns, apparently in the context of homemade rap videos. Other videos apparently show him involved in mixing “Lean” and possibly cooking crack cocaine. This evidence suggests that the Applicant may have a more extensive history of involvement in criminal activity in the months leading up to the September 17, 2018 shooting incident than his non-existent prior criminal record would indicate. At the same time, there appears to be some real question as to whether the Crown will be able to prove that the guns seen in the videos are real weapons rather than replicas. It also appears that Shawn Douse’s evidence will be that he had extensive prior drug-related dealings with the Applicant’s co-accused Liban Ali but that he had not seen the Applicant before September 17, 2017. The strength of all of these factors must be assessed with proper regard to the presumption of innocence. Nevertheless, I accept that they tend to weigh to some extent in favour of the Applicant’s detention.
[24] The critical question, in my view, is whether the Applicant’s proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by the Applicant’s release on bail. As the Justice of the Peace noted in the decision under review, a bail plan capable of addressing these concerns in the context of this case “would take a very strong, positive surety”. In my view, the Applicant’s two new proposed sureties – his mother Fatuma Mohamed and her cousin Sirad Halane (the Applicant’s aunt) – meet this requirement in a way that his younger sister Sagal Aden did not when she was proposed as the Applicant’s sole surety at the original bail hearing. Both are substantially older than the Applicant and impressed me as responsible adults who will take their role as sureties seriously, and who both have the force of personality to assert control over the Applicant. Ms. Mohamed has previously acted as a surety for her other son, the Applicant’s younger brother, and there is no evidence that she failed in her duties on this occasion.
[25] Crown counsel argues that I should have concerns about both sureties arising from the fact that the Applicant and his brother’s charges are both linked to their association with their neighbour Liban Ali. Crown counsel argues that the evidence implicating the Applicant in drug dealing and linking him to firearms, both on September 17, 2018 and in previous months, suggests that his proposed sureties – his mother in particular – were insufficiently aware of or interested in his activities to now be trusted with responsibility over him. In my view, it is unfair to judge a parent’s suitability as a surety by pointing to the fact that their child now stands charged with criminal offences and arguing that this demonstrates that the parent cannot exercise control over his or her child. Before September 2018 the Applicant had never been charged with a criminal offence and his mother had no apparent reason to be concerned about his behaviour. Moreover, as his surety she will have new tools to control her son’s conduct that she did not have before. I accept Ms. Mohamed’s evidence that she is genuinely shocked by what happened to her son on September 17, 2018 and that she will take her role as surety seriously, both because her personal savings will now be at stake – which, while small, are significant to her – but even more so because her trust in her son has been seriously compromised and because she is very concerned about his future well-being. I also accept that the Applicant’s aunt Ms. Halane is a responsible person who will also take her duties as surety seriously, and who will be capable of carrying out the supervision duties that will fall to her under the proposed release plan, which are secondary to those assigned to Ms. Mohamed but are nevertheless important to the plan’s success.
[26] For all of these reasons, I am satisfied that the proposed new release plan is sufficiently strong to allow the Applicant to meet his onus under the secondary ground.
ii) The tertiary ground
[27] Section 515(10)(c) of the Criminal Code provides that an accused may be detained prior to trial when doing so:
… 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.
In a reverse onus situation, the defendant bears the burden of establishing that his or her detention is not necessary on this basis.
[28] In any case involving firearm charges at least three of these four listed factors will inevitably weigh in favour of detention: firearm offences are by their nature serious, they by definition involve the use of a firearm, and they generally attract substantial terms of imprisonment on conviction even when there is no longer an operational mandatory minimum sentence. Firearms charges also reverse the onus at a bail hearing (see s. 515(6)(a)(viii)). However, as Wagner J. explained at paras. 68-71 of St-Cloud, s. 515 does not create a legal regime in which everyone charged with a gun offence is automatically detained under the tertiary ground unless he or she can show that the Crown’s case is weak. Rather, courts must consider all the relevant circumstances that bear on the question of whether the public’s confidence in the administration of justice require the accused’s pre-trial detention.
[29] As Trotter J. (as he then was) explained in R. v Dang, 2015 ONSC 4254 at para. 58, one of the relevant factors that must be considered in the tertiary ground analysis is the strength of the proposed release plan:
A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to 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 it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).
[30] In the case at bar, the Crown appears to have a very strong circumstantial case that the Applicant drove Liban Ali to Keswick to meet with Shawn Douse for the purpose of conducting at least a drug deal, and possibly a robbery. It is also undisputed that this meeting ended with gunfire that left the Applicant shot and seriously injured. However, there appear to be triable issues in relation to the questions of exactly what happened during the altercation and what role the Applicant played in it. As defence counsel points out, there appears to be at least some evidence circumstantially supporting the alternate theory that it was actually Douse and his friends who tried to rob Liban Ali and his associates, rather than the other way around, as Douse maintains. Moreover, even if Douse’s account of the attempted robbery is accepted as true, it appears that the questions of whether the Applicant knew what Ali was going to do and whether he had possession of the gun found in his car will both be live issues at trial.
[31] Likewise, while the Crown has very strong evidence in the form of videos showing the Applicant on several earlier dates holding what appear to be handguns, the Crown may have difficulty proving on the criminal standard that the guns seen in these videos are not replica firearms.
[32] Accordingly, while the Crown’s case against the Applicant can fairly be characterized as strong insofar as it implicates him in at least some form of criminal activity, his conviction on the offences with which he is actually charged does not appear to be inevitable. (In this regard, it is worth noting that the Applicant is not currently charged with any CDSA offences, but only faces robbery and weapons charges.)
[33] In these circumstances, the strength of the Applicant’s proposed bail plan is in my view a significant factor. As discussed above, I was impressed by his proposed sureties, and believe that a reasonable and knowledgeable member of the community would take into account that if the Applicant is released on bail he will not be unsupervised but will be on a form of house arrest with his mother and his aunt as his main sureties, assisted by his sister. Moreover, I believe such a member of the community would also take into account that the Applicant was shot and seriously injured during the September 17, 2018 altercation. It seems likely that the Applicant’s injuries would make the experience of pre-trial detention more difficult for him than it would be for most inmates, and he appears to have legitimate concerns that he may suffer deleterious long-term medical consequences if his detention continues.
[34] For all of these reasons, I am satisfied that the Applicant has also met his burden of establishing that his detention is not necessary under the tertiary ground.
c) The terms of the Applicant’s release
[35] The Applicant is proposing that he be released on house arrest bail with terms that require that he only leave his residence in the company of one of his sureties. However, he also requests an exception that would permit him to be outside the immediate supervision of his sureties while at work. Before the Applicant was shot he apparently worked at the Avis car rental depot at Pearson Airport. However, since the shooting he has been away from this job on medical leave and his affidavit indicates that he is not yet ready to return to work. It is not clear when he will be able to return to work, or for how long his previous job will be held open for him.
[36] In view of this uncertainty I am not satisfied that the work exception the Applicant requests is necessary or justifiable at this time. Once he has been declared medically fit to return to work he can seek a variation of the terms of his release, by which time he may have established a track record of compliance with his bail conditions that will help him meet his burden of justification, this being a reverse onus situation in which the ordinary “bail ladder” is inverted.
[37] However, I am satisfied that the Applicant has met his burden in relation of justifying his release on house arrest bail with his mother, aunt and sister as sureties in the amounts they indicate in their affidavits that they are able to pledge, with no deposit. While these amounts may not be very large in absolute terms, I am satisfied that they are significant to the three sureties and that their pledging these amounts will create a meaningful “pull of bail”.
[38] I would ask counsel to craft the release conditions based on the record and these reasons. A draft should be forwarded for my approval. If there are terms that cannot be agreed upon, I will resolve the differences.
Dawe J. Released: April 1, 2019
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MOHAMED ADEN Applicant/Defendant REASONS FOR JUDGMENT Dawe J.
Released: April 1, 2019
[1] Specifically, the Applicant is charged with robbery (Count 1) and various weapon offences (Counts 6, 7, 8, 9 and 11). [2] Counts 12-17. [3] The Applicant was 23 years old at the time of the bail hearing, and is now 24 years old. [4] St-Cloud, supra at para. 121. [5] Palmer v. The Queen, [1980] 1 S.C.R. 759. [6] St-Cloud, supra at para. 138.