COURT FILE NO.: CR-19-15005586-00
DATE: 20190911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TIRDAD KARBALAEI-HEYDARI
Accused
Simon Heeney, for the Crown
R. Chartier for the Accused
HEARD: September 5, 2019
b.a. allen j.
REASONS FOR DECISION ON BAIL REVIEW
BACKGROUND
Current Charges
[1] Tirdad Karbalaei-Heydari, now age 29 years, stands currently charged with dangerous operation of a motor vehicle and eight firearm-related offences.
[2] The charges arise from an incident that occurred on August 5, 2019 when police officers in an unmarked police vehicle were seeking to arrest a male, Peter Mitsakis, in relation to a shooting. The police were observing Mr. Mitsakis outside a hotel in downtown Toronto. Mr. Karbalaei-Heydari and another male were present nearby. Mr. Karbalaei-Heydari was sitting in the driver’s seat of a Ferrari and when the police approached to arrest Mr. Mitsakis, Mr. Karbalaei-Heydari drove the vehicle and collided with the unmarked police vehicle damaging the Ferrari and doing little if any damage to the police vehicle.
[3] The police arrested Mr. Karbalaei-Heydari on a dangerous driving charge. In conducting a search incident to the arrest, the police located in a satchel he was carrying a loaded, 9 mm mini-Glock handgun containing an over-capacity magazine capable of holding 15 rounds, with one bullet in the chamber. Also, in the satchel was another over-capacity magazine containing 26 bullets capable of holding 30 bullets. Mr. Karbalaei-Heydari was then arrested on the firearm-related charges.
CRIMINAL BACKGROUND
[4] Mr. Karbalaei-Heydari has a singular criminal conviction from 2012 for a charge of assault causing bodily harm. He was also charged in April 2016 with firearm offences arising from the police finding a firearm under the mattress in his bedroom in a home where he resided with his mother and sister. Those charges were eventually stayed.
[5] Mr. Karbalaei-Heydari has no outstanding charges. He has no breaches of court orders on his record.
THE LAW
[6] 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.
[7] Subsections 515(10)(a), (b), and (c) of the Criminal Code provide the three grounds on which bail may be denied. The primary ground concerns whether the accused is a flight risk; the secondary ground involves an inquiry into whether there is a substantial likelihood of re-offence or interference with the administration of justice and the tertiary ground concerns confidence in the administration of justice.
[8] Being a firearm case, the onus is on the accused to show cause. The Crown seeks denial of bail on both secondary and tertiary grounds. There are no primary ground issues. On show cause the justice of the peace denied release on both grounds.
VARYING A BAIL ORDER
There are three bases upon which a court on a bail review can consider a show cause determination and 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, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121, (S.C.C.)]
[9] The defence seeks release based on two grounds, that the justice has erred in law and on the basis of a material change in circumstances. The error in law, according to the defence, lies in his view that the justice misapprehended the facts. The defence argues that the justice incorrectly found that the two sureties were not sufficiently aware of Mr. Karbalaei-Heydari’s daily activities and did not have much knowledge about his friends and associates. The material change in circumstances in the defence’s view lies in the proposal for Mr. Karbalaei-Heydari to wear a GPS monitor.
[10] I do not find that the justice committed an error of law. I accept the Crown’s view that when the sureties’ evidence is looked at in total the evidence can support the findings of the justice. The sureties did not know the names of the persons Mr. Karbalaei-Heydari currently associates with. The mother knew the names of some of his high school friends. They did not seem to have much information about the details of his employment. They were not familiar with the persons who were with him when he was arrested on the current charges. The sureties had never seen or heard about the Jaguar he was driving when he was arrested.
[11] The fact is that Mr. Karbalaei-Heydari is 29 years of age and it is reasonable that the mother and sister might not know the details of his life. But it was not a misapprehension of the facts that is reflected in the justice’s findings.
[12] I do however, find that the GPS ankle monitor presents with a material change in circumstances. As Nordheimer, J., as he then was a judge of this court, stated in R. v. Doucette, January 4, 2016, (unreported):
The electronic monitoring does change the calculus, however. While there are weaknesses in electronic monitoring when it comes to other issues relating to the issue of bail, electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area.
THE SECONDARY GROUND
[13] The plan before the justice involved the same two sureties as are being presented at this hearing, Mr. Karbalaei-Heydari’s mother, Nahid Lahidji, and his sister, Maryam Alaei Khanehshir. The additional feature of the current plan not included in the plan before the justice is requiring Mr. Karbalaei-Heydari to wear a GPS ankle monitor while on bail.
[14] Both sureties have had experience with the obligations of a surety. The mother was the sole surety for Mr. Karbalaei-Heydari on two previous occasions, on the 2012 charge for 6 – 7 months and on the 2016 charge for several months. In neither case was there any violations. The sister was the sole surety for one of Mr. Karbalaei-Heydari’s other siblings for a period of three years without a violation.
[15] The plan of supervision is for 24-hour, 7-day supervision by the mother and sister. It is proposed that Mr. Karbalaei-Heydari live with his sister in her two-bedroom apartment. The sister works as a director of operations at a logistics firm where she works Monday – Friday from 8:00 a.m. to 4:00 p.m. She earns approximately $100.000.00 per year. Her job has some flexibility where she can work at home at times.
[16] The mother is self-employed as an aesthetician. Her income is approximately $1,500.00 per month depending on the number of clients she services. She works at a salon and can also work from home. Her apartment is within close proximity to the sister’s home. The mother will supervise Mr. Karbalaei-Heydari during the day on weekdays while the sister is at work. Mr. Karbalaei-Heydari will submit to a GPS ankle monitor provided by Recovery Science Corporation and the sister will pay the $700.00 per month fee for the monitor.
[17] The sureties are prepared to pledge all their assets which are comprised of their entire bank account savings amounting to approximately $13,000.00 in total.
[18] The sureties have proven track records with being able to successfully undertake the responsibilities of being jailers in the community. Further, Mr. Karbalaei-Heydari has no history of breaches of court orders while he was under the supervison of his mother for two extended periods of time related to past charges. There will be 24/7 supervision where the sureties have a plan to support each other to watch over him. It appears that Mr. Karbalaei-Heydari respects the authority of the sureties. Moreover, the sureties have pledged a substantial amount of money which I find shows the seriousness with which they take their responsibilities.
[19] I find that the plan of supervison satisfies me that there is not a substantial likelihood that Mr. Karbalaei-Heydari would re-offend. I have considered the seriousness particularly of the firearm charges and his criminal record and the context in which the offence was committed. Taking those factors into account in view of the factors that favour of release, I find that the proposed conditions assuage any likelihood that Mr. Karbalaei-Heydari will commit further crimes while on bail.
[20] I do not deny bail on the secondary ground.
THE TERTIARY GROUND
[21] Bail can be denied on the tertiary ground 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.)].
[22] When considering whether detention of the accused “is necessary to maintain confidence in the administration of justice” the following factors set out under 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.
[R. v. St.-Cloud]
[23] The court must make a determination on the four enumerated factors in all the circumstances of each case. That is, no single factor is determinative in that 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 after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice: R. v. St.-Cloud, at para. [55].
[24] The Supreme Court of Canada in R. v. Antic cites two aspects of the right to reasonable bail that must be considered.
[25] 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 the judicial system.
[26] The second aspect is the right to reasonable bail. This relates to the terms of bail, including the quantum of any monetary component and other restrictions 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, at paras. 40 and 41, (S.C.C.)]. As Trotter, J., as he then was, held in a post-St.-Cloud case: “[a]n accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released.”: [R. v. Dang, 2015 ONSC 4254, at para. 58, (Ont. S.C.J.)].
[27] It appears on the face of things that the Crown’s case is strong on the driving charge. A dangerous driving offence is serious especially where there is a suggestion that the accused was fleeing the police. However, as the justice pointed out, the evidence is rather sparse on the facts surrounding the arrest of Mr. Karbalaei-Heydari on that charge. The police were in plain clothes. There is no evidence of whether or when the police identified themselves as police officers, whether or when they properly advised him of his rights. There is little detail on the dynamics of the collision, such as whether the vehicle was moving quickly or not. It is a reality that at times as the evidence evolves the Crown’s case can fade as the process moves along.
[28] On the firearm charges it is clear that the offences are very serious. Possession on an accused’s person in a public area of a loaded firearm with an over-extended magazine and a bullet in the chamber together with an additional over-extended magazine portends danger. There is danger even when the firearm is 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.
[29] The four factors on the firearm offences appear to favour detention. But I must be guided by the instruction which directs that the fact 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]
[30] On the firearm charge, as defence counsel pointed out, there may be sections 8 and 9 Charter applications brought in relation to the police’s search of Mr. Karbalaei-Heydari and his satchel that could change the complexion of the Crown’s case.
[31] The age of the accused and their criminal record are contextual considerations: R. v. St.-Cloud, at para. [71]. Mr. Karbalaei-Heydari is a young man of age 29 with a minimal criminal record involving fairly old criminal charges. Also to be considered is that Mr. Karbalaei-Heydari has previously been on bail and has committed no violations of the conditions. There are other contextual factors to be considered. Mr. Karbalaei-Heydari has a supportive and caring family. He has completed a college education and, up until his father’s death last year, held down a responsible administrative position at a physiotherapy clinic for some 6 years.
[32] As noted above, the public safety concern addressed by the secondary grounds is also a relevant consideration in assessing public confidence in the administration of justice: [See also R. v. Mordue (2006), 2006 CanLII 31720 (ON CA), 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: R. v. Antic, at para. [67]. House arrest under the supervision of sureties who will be available all day, every day, together with electronic monitoring and a sizeable pledge are also 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].
[33] 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. There is no road map or calculus to assist with this difficult exercise.
[34] I must keep in mind St.-Cloud’s instruction that 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. As well, R. v. Antic reminds us that fundamental fairness dictates that the principles of the presumption of innocence and the right to reasonable bail must be honoured when applying the bail provisions in a contested hearing: R. v. Antic, at para. [67].
[35] 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.
[36] I find in all the circumstances that the defence has satisfied the tertiary ground.
DISPOSITION
[37] I allow the application for interim judicial release. I grant release on the following conditions:
• Tirdad Karbalaei-Heydari shall be under house arrest at the surety Maryam Alaei Khanehshir’s residence at 99 The Donway West, Unit 228, Toronto, Ontario and be under the supervision of his sureties Maryam Alaei Khanehshir and Nahid Lahidji seven days a week, 24 hours a day;
• Mr. Karbalaei-Heydari shall not be outside the surety’s residence without being accompanied by one of his sureties;
• Mr. Karbalaei-Heydari shall at all times wear a GPS ankle monitor provided by Recovery Science Corporation and comply with the terms of the monitoring service;
• The ankle monitor shall be fitted to Mr. Karbalaei-Heydari within 24 hours of release at the residence of his surety;
• Mr. Karbalaei-Heydari shall not be in possession of any weapons, ammunition or incendiary devices;
• Mr. Karbalaei-Heydari shall not be in possession of any illegal substances;
• Mr. Karbalaei-Heydari shall not be within 100 metres of any place where Dominic Wright or Peter Mitsakis reside, attend school, or work;
• Maryam Alaei Khanehshir shall pledge $8,000.00; and
• Nahid Lahidji shall pledge $4,000.00.
B.A. ALLEN J.
Released: September 11, 2019
COURT FILE NO.: CR-19-15005586-00
DATE: 20190911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TIRDAD KARBALAEI-HEYDARI
Accused
REASONS FOR decision ON BAIL REVIEW
B.A. ALLEN J.
Released: September 11, 2019