Court File and Parties

Court File No.: 18-13696BR Date: 2019-05-24 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Yasin Ibrahim, Defendant

Counsel: J. Ramsay, for the Crown J. Addelman, for the Defendant

Heard: May 2, 2019 (at Ottawa)

Reasons for May 6, 2019 dismissal of s. 520 Application

Kane J.

[1] The defendant seeks release from custody pursuant to section 520 of the Criminal Code of Canada pending his upcoming trial scheduled to proceed in the Ontario Court of Justice on December 5, 2019 for the following reasons:

(a) there has been a material change in circumstances since bail pursuant to section 524 was denied in the Ontario Court of Justice on February 6, 2019; (b) the evidence against the accused on the robbery charges is not strong with the strong likelihood that he will be found not guilty; and (c) accordingly, the defendant should not continue to be incarcerated while awaiting his trial in December 2019.

[2] It is agreed that Mr. Ibrahim has the reverse onus on this s. 520 bail application.

Charges

[3] The accused is twenty-seven years old.

[4] The charges are that the defendant:

(1) robbed money and cigarettes from a Quickie Store on November 11, 2018; (2) disguised his face with intent to commit an indictable offense in the above November 11, 2018 robbery; (3) thereby breached a probation order to keep the peace; (4) committed a robbery by stealing money at a Payless store on November 12, 2018; (5) disguised his face with intent to commit an indictable offense in the above November 12, 2018 robbery; (6) committed a robbery by stealing money at a Circle K store on November 12, 2018; (7) conspired on November 12, 2018 with Linda Drosi to commit the above robbery at the Circle K store; (8) disguised his face with intent to commit an indictable offense on November 12, 2018; (9) committed a robbery on November 13, 2018 by stealing money at a Circle K store; (10) disguised his face with intent to commit an indictable offense in the above November 13, 2018 robbery; (11) committed a robbery on November 15, 2018 in stealing money at a Petro – Can station; (12) conspired on November 15, 2018 with Linda Drosie to commit the robbery on that date at the Petro – Can station; (13) disguised his face with intent to commit an indictable offense in the above November 15, 2018 robbery; (14) committed a robbery by stealing money and cigarettes at a Shell station on November 18, 2018; (15) disguised his face with intent to commit an indictable offense as to the above November 18, 2018 Shell Station robbery; (16) committed a robbery by stealing money on November 19, 2018 had a Bank of Montréal; (17) conspired on November 19, 2018 with Linda Rosie as to the above Bank of Montréal robbery on that date; and (18) disguised his face with intent to commit an indictable offense as to the above November 19, 2018 Bank of Montréal robbery.

[5] Mr. Ibrahim turned himself into police upon learning about the above charges.

[6] The defendant was granted bail on December 6, 2018 as to the above November 11 to 19, 2018 charges.

[7] The defendant while on bail was then charged on December 25, 2018 on a separate indictment with break and entry and theft at a Boone Plumbing store together with three counts of breach of recognizance for:

(a) failing to remain in his residence; (b) failing to abide by a curfew on a different recognizance issued in Québec; and (c) failing to keep the peace and be of good behaviour.

Change of Circumstances

[8] The change of circumstances relied upon are:

(a) the defendant’s plea of guilty on February 20, 2019 to the December 25, 2018 charges of breaking and entering, theft and the associated charges for breach of recognizance. In response to those guilty pleas, Mr. Ibrahim was sentenced to six months incarceration, less time served. That custodial sentence will end shortly; (b) the addition of a second surety; and (c) the increased bail bond by the defendant’s mother.

February 6, 2019 Denial of Bail

[9] The defendant had a reverse onus at his February 6, 2019 bail hearing because of the breach of bail charges as to the December 25, 2018 break and enter, theft and breach charges. The Crown relied upon the secondary ground at that bail hearing.

[10] The Ontario Court of Justice denied bail on February 6, 2019 and held that:

1. the test was whether it was satisfied on a balance of probabilities that detention was not necessary for the protection or safety of the public, including victims or witnesses;
2. the defendant proposed he be released to reside with his mother, one of his sisters and a brother at their family home. His mother was to be his surety. There were to be strict conditions, essentially the same conditions of recognizance upon which he was released on December 6, 2018 as to the November 11 to 19, 2018 charges. That December 6, 2018 bail hearing did not involve a reverse onus on the defendant;
3. the conditions were that he, unless accompanied by his surety, remain in his mother’s residence except for medical emergencies, applications for employment or to attend employment, his lawyer or court;
4. the bail plan proposed on February 6, 2019 duplicates the previous bail plan upon which he obtained bail on December 6, 2018, but the defendant was then charged on December 25, 2018 with robbery and three charges of breach of recognizance;
5. the court had concern because of the new charges and as to the mother as the proposed surety as she had been the surety on a previous occasion for the defendant in 2014 when she was found guilty and received a discharge for obstruction of a police officer who tried to check whether the defendant was complying with his bail conditions. The court further found the mother had not responded in testifying to clear questions to either counsel which had to concern whether she understands the role of and the process as to being a surety;
6. the defendant had not on a balance of probabilities satisfied the court that his detention was not necessary to avoid a substantial likelihood that he will, if released, commit a criminal offence.

Criminal Record

[11] The defendant has a criminal record which includes:

1. conviction in 2011 of three counts of robbery and one account of attempted robbery;
2. conviction in 2014 for a breach of probation, a breach of recognizance and possession of Schedule 2 drugs;
3. conviction in 2015 for breaching his recognizance;
4. conviction on August 22, 2018 regarding February 16 and 18, 2018 charges of possession of a Schedule 1 drug, dangerous driving and breach of recognizance; and
5. his recent conviction on February 20, 2019, of break and entering and theft of a plumbing store, as well as the three charges for breach of recognizance.

Analysis

[12] Subsections 520 (1) and (7) permits Mr. Ibrahim before trial to seek a review of the February 6, 2019, decision denying him bail. The court may either dismiss such review application or, if the defendant shows cause, grant the application by vacating the previous order denying bail and make any appropriate bail order pursuant to S. 515. The defendant under s. 520(7) has the onus to show cause.

[13] The “cause” relied upon by Mr. Ibrahim in this bail review application is new evidence as to a material change in circumstance, namely his guilty plea to the December 25, 2018 charges.

[14] Mr. Ibrahim does not allege that February 9, 2019 bail decision contains an error of law or was clearly inappropriate.

[15] The Supreme Court in R. v. St. Cloud 2015 SCC 27, [2015] 2 S.C.R. 328, cites several underlying principles regarding bail and detention pending trial which include the following:

(a) S. 11(e) of the Canadian Charter of Rights and Freedoms provides that anyone charged with an offense has the right not to be denied reasonable bail without just cause. That includes the right to reasonable bail in terms of quantum of any monetary component or other conditions that might be imposed, and the right not to be denied bail without just cause: para 27; and (b) detention may be justified only in rare cases: para 50.

[16] The Supreme Court in St. Cloud ruled upon the scope and nature of the s. 520 review of a prior bail decision pending trial and held:

(a) the s. 520 review of the prior decision involves a delicate balancing of all relevant circumstances, is not open-ended and that the power to vacate the prior bail order is only appropriate in the following three circumstances: i. where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; ii. where the prior bail decision contains an error of law; or iii. where that prior bail decision is clearly inappropriate, however a reviewing judge cannot simply substitute their assessment of the evidence for that made by the judge in the bail decision under review, unless that judge gave excessive or insufficient weight to a relevant factor, in which case the reviewing judge may intervene: paras 6 and 121; (b) the power to review under s.520 is not an open ended discretion to vary the prior bail decision and its exercise in favor of the applicant is expressly limited. The s. 520 review power has greater scope than an appeal for varying the prior order and therefore is a hybrid remedy: para 92, 95, 120 and 121. (c) the s. 520 review is not a de novo hearing. It is to be conducted on the basis of the transcripts and the exhibits from the initial bail proceeding pursuant to ss. 520(7), however some new evidence may be admissible: Para 94; (d) the admissibility and consideration of “new evidence” is contingent upon it meeting four criteria namely: i. it being new evidence or evidence that existed at the time of the prior bail hearing but was not tendered for a reason that was legitimate and reasonable; ii. it being relevant, which requirement is generally quite broad; iii. the court may receive and base its decision on new evidence which, on the more relaxed rules of evidence on a bail hearing, is considered credible and trustworthy within the circumstances of each case; and iv. the new evidence must be significant as in it must be reasonable to conclude that such evidence could have affected the analysis and balancing exercise of relevant circumstances resulting in that prior bail decision: paras 128, 132, 135 to 138; and (e) if the new evidence meets the above four criteria, which are guidelines and not a straitjacket, the reviewing judge is then authorized to repeat the analysis under s. 515(10) as to whether release or detention is to be ordered: para 138.

[17] The conviction of Mr. Ibrahim on February 2, 2019 for the December 25, 2018 break and enter, theft and the three charges of breach of condition do not meet the s. 520(7)(c) criteria of “new evidence” constituting a material change of circumstances for two reasons.

[18] Although the February 20, 2019 plea of guilty and resulting conviction as to the December 25, 2018 break and enter, theft and three breaches of conditions was subsequent to the February 6, 2019 denial of bail, and to that extent is “new evidence” and certainly is credible, it is not relevant even under the broad definition thereof, nor is it significant.

[19] The charges as to December 25, 2018, together with the accompanying presumption of innocence under s. 11(e) of the Charter, were before that court and considered in the denial of bail on February 6, 2019.

[20] Despite that presumption of innocence, the court denied bail on February 6, 2019. It is not reasonable pursuant to the above fourth criteria that such new evidence constituted a material change in circumstances, namely that those convictions of the December 25, 2018 charges could have persuaded that court to grant bail rather than detention as ordered.

[21] Such subsequent convictions accordingly do not constitute new relevant evidence under the second factor.

[22] The decision of Laliberte J. in R. v. Turnbull, November 2, 2018, unreported, reinforces the above conclusion. That case involved whether there had been a change of circumstances where the accused, after the initial denial of bail, pled guilty to assaulting the complainant and for a breach of recognizance for which he received a sentence of 1 year probation. There were other serious outstanding charges involving the same complainant he was in a relationship with.

[23] That court in Turnbull identified the issue was whether the defendant had shown cause why the detention order should be vacated under s. 520(7)(e) and held that:

the defendant’s plea of guilty to the assault and breach of recognizance, the Crown’s withdrawal of the unlawfully being in the complainant’s house and the threat were relevant considerations but did not detract from the serious nature of the assault on the victim. In fact, the admission through the guilty plea serves to elevate the concerns for the victim’s safety; what were allegations before the two judges denying bail are now facts before me. (emphasis added)

[24] The charges against Mr. Ibrahim do not involve his relationship with a single complainant. If true, these November 2018 charges involve multiple complainants in seven robberies, with the accused having or pretending to have a weapon and the resulting risk to members of the public. The convictions on February 20, 2019 accentuate the risk to the public.

[25] Based upon the above analysis and authority, the February 20, 2019 guilty pleas and convictions of the five December 25, 2018 charges do not meet the requirements as to new evidence demonstrating a material relevant change in circumstances as required pursuant to s. 520. This application accordingly is dismissed on that basis.

[26] Mr. Ibrahim’s February 20, 2019 plea of guilty as to the December 25, 2018 charges and the resulting absence of those charges is the basis cited in the Notice of Application as constituting a material change in circumstances warranting a review of his detention. I will nonetheless review and comment upon the present bail plan and whether it constitutes a material change in circumstances, as the court did in Turnbull.

Plan Proposed

[27] The defendant proposes he be released to live with his mother, two sisters and his brother. He proposes that his mother be his primary surety and that she:

(a) would monitor him when she is at home and will call him if she is not, to ensure his compliance with his conditions; (b) will be able to enforce a curfew and to monitor and make sure he follows all conditions; (c) will sign a $500 bond to ensure her role as surety; and (d) understands she must call the police and report a breach or suspected breach if she becomes aware of one.

[28] The mother did not testify at this hearing but offered through counsel to increase the amount of her surety bond to $3,000.

[29] The court does not doubt the mother’s dedication and her inevitable hopes for this son. The court is left with the February 6, 2019 review of her circumstances and her then testimony which are not the strongest for the reasons stated in that decision denying bail. That is relevant as it is proposed the defendant will continue to live with and primarily be under the mother’s supervision.

[30] One of the defendant’s sisters is proposed as a second surety and agrees to post a $5,000 surety bond. I found this sister’s testimony credible and sincere in her undertaking to perform her responsibility as surety, including the requirement to contact police in the event of a breach of conditions.

[31] This sister currently is on maternity leave until September 2019 with her 6 month old child and resides with her husband a short distance from her mother’s home where the defendant would reside. Her employment which beings again in September 2019, combined with a still very young child to care for will limit her availability as to the conditions requiring the defendant stay at the mother’s home other than attending his work during the night delivering papers or emergencies.

[32] The addition of a second surety and the increase of the mother’s bond are changes to the bail plan presented on February 6, 2019. Despite these changes, the court is of the opinion that a stronger bail plan is required in the circumstances of this case due to:

(a) the number of prior convictions for robbery, including the conviction for the December 25, 2018 robbery; (b) the multiple prior convictions for breach of probation and recognizance, namely in 2014, 2015, 2018 and again on February 20, 2019. The court understands that the defendant lived with his mother at the time of some or all of these breaches; (c) no evidence has been presented altering the concerns expressed by the court on February 6, 2019 as to the mother’s ability to be an effective surety; (d) Mr. Ibrahim’s prior use of illegal drugs and the nature of his employment which involves him working on his own late in the night and early morning combined with the mother’s employment and the sister’s upcoming employment in September 2019, which would leave the defendant alone for considerable periods during the day; (e) The defendant has a history of drug use dating back to 2014. The defendant has had periods of unemployment in the past but was recently employed delivering new papers door to door late at night which he hopes to resume. Drugs purchases require payment. Although off drugs while incarcerated since December 2018, the proposed terms of bail do not address this long drug dependency.

[33] The court is not clear why the defence believes the Crown’s case regarding the November, 2018 charges are very weak. This subject was referred to in passing by the defence but not otherwise dealt with, by either counsel. There was no determination of that issue if argued in the February 6, 2019 decision. There is insufficient information as to this issue.

[34] The limitations within the proposed bail plan as considered by a reasonable and informed member of the public make it insufficient on these facts to avoid the risk of further offence, with the associated risk to the public.

[35] Had the court held that there had been a material change in circumstances under s. 520, thereby leading to a s. 515 reconsideration of those factors, the proposed bail plan is insufficient upon which to now release this defendant given the risk of further offences and the risk thereby to the public.

Mr. Justice Paul Kane Released: May 24, 2019