COURT FILE NO.: 129/19

DATE: 20191004

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMUD AHMED

J. Spangenberg, for the Crown

C. Uwagboe, for the Defendant

HEARD: September 23 and 30, 2019

grace J. (Orally)

A. Introduction

[1] Mohamud Ahmed faces five charges: sexual interference, sexual assault, assault, procuring a person under the age of eighteen for the purposes of providing sexual services for consideration and failure to comply with an undertaking given to a peace officer.

[2] Mr. Ahmed was arrested on July 7, 2017 and released on September 16, 2017 following a contested bail hearing. On July 7, 2018 he was arrested and charged with breaching the curfew contained in the judicial interim release order that had been granted.

[3] A show-cause hearing was conducted by Justice of the Peace Diaz on October 31, 2018. The presiding justice ordered that Mr. Ahmed continue to be detained. There he has remained. By his counsel’s calculation, the defendant had been in custody in respect of the current charges for five hundred and thirty (530) days as of September 30, 2019.

[4] The defendant applies under s. 520 of the Criminal Code for a review of the justice’s decision to detain him. He maintains that errors were made and further that there has been a material change in circumstances.

B. The Release Plan and Decision Below

[5] The release plan developed on Mr. Ahmed’s behalf in the Ontario Court of Justice recognized the nature and extent of the defendant’s criminal record.

[6] The defence proposed two sureties: Mr. Ahmed’s mother Zainab Mohamud and brother Ali Dahir. Both testified. The witnesses confirmed their willingness to pledge security and, at all times, reside with and supervise Mr. Ahmed.

[7] As noted, detention was ordered. After general comments concerning onus, the presumption of innocence, the right of all accused persons not to be denied reasonable bail without just cause and the outstanding charges, the justice of the peace turned to Mr. Ahmed’s criminal record. She noted that nine of the eighteen convictions it contained resulted from a breach of the terms of a recognizance. A tenth arose from the failure to attend court when required to do so.

[8] The reasons then turned to the testimony of the proposed sureties. The justice of the peace found them to be “less than forthcoming”. She concluded they were “not suitable” because they would “do anything and say anything” to obtain Mr. Ahmed’s release.

[9] Reliance was placed on the secondary and tertiary grounds set forth in ss. 515(10)(b) and (c) of the Criminal Code. In finding that detention was necessary for the protection of the public, the justice noted that the current charges arose soon after Mr. Ahmed had been released from prison on parole. The history of breaches, despite the presence of sureties and restrictive conditions, was of significant concern. The plan failed to adequately mitigate the public protection and safety risks that would arise if the defendant was allowed out in the community.

[10] The analysis of the tertiary ground was particularly brief. Justice of the Peace Diaz did not attempt to make any assessment of the strength of the Crown’s case. She simply noted there were triable issues. No comment was made with respect to the circumstances surrounding the alleged offences. The justice of the peace did observe that Mr. Ahmed had been charged with serious offences and that a significant period of incarceration was likely to follow a finding of guilt. She concluded that detention was necessary to maintain confidence in the administration of justice having regard to the circumstances.

C. The Applicable Principles

i. General principles applicable to bail

[11] I start with general principles applicable to the release of all persons charged with criminal offences in Canada.

[12] Bail is an important and fundamental right. A person’s entitlement not to be denied reasonable bail without just cause is guaranteed by s. 11 (e) of the Charter of Rights and Freedoms. That right exists regardless of the nature or number of charges a defendant faces.

[13] The rationale for the principle was well explained in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (“St-Cloud”) at para. 70:

…it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception…This entitlement rests…on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter…These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]

[14] Detention is the exception, not the rule. As the Supreme Court of Canada has recently said in R. v. Myers, 2019 SCC 18, [2019] S.C.J. 18 at para. 67 “pre-trial detention is a measure of last resort.”

[15] Pre-trial custody takes a toll on any accused person. Wagner J. (as he then was) explained in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 at para. 66:

Pre-trial custody “affects the mental, social and physical life of the accused and his family” and may also have a “substantial impact on the result of the trial itself” [Citations omitted]

[16] Nonetheless, pre-trial detention is sometimes necessary and appropriate. Entitlement to interim release is not absolute. If just cause exists, reasonable bail may be denied. However, the concept of just cause has been narrowly circumscribed. Detention is only justified in the three circumstances set forth in s. 515(10) of the Criminal Code.

ii. The Nature of a s. 520 review

[17] Section 520 (1) of the Criminal Code allows an accused to apply to a judge of the Superior Court of Justice for a review of an order of detention at any time before trial. Section 520 applications arise after a defendant’s unsuccessful attempt to obtain their release. For that reason, the accused bears the onus of showing cause why the order below should be vacated: s. 520(7)(e). If that onus is not met, the application must be dismissed.

[18] A bail review does not involve an automatic hearing de novo. The operative statutory provision does not give “reviewing judges an open-ended discretion to substitute his or her decision for that of the bail judge”: R. v. Dang, 2015 ONSC 4254 (S.C.J.) at para. 29.

[19] As Wagner J. explained in R. v. St-Cloud, 2015 SCC 27, (“St-Cloud”) at para. 118:

…the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary. In addition, the reviewing judge has, in relation to the justice, no special expertise with respect to release.

[20] Intervention is only warranted if: (i) the justice of the peace erred in law; (ii) the decision under review is clearly inappropriate because excessive weight was given to one factor or insufficient weight given to another; or (iii) if new evidence is submitted that shows a material and relevant change in the circumstances before the court: R. v. St. Cloud, 2015 SCC 27 at para. 121.

[21] The defendant alleges that the justice of the peace fell into error in her approach to the secondary and tertiary grounds. In addition, Mr. Ahmed alleges there has been a material change in circumstances. I will deal with those arguments in turn.

iii. Did the Justice of the Peace err in law?

[22] Many cases have addressed the sufficiency of reasons given following a bail hearing. The required standard was well explained by Hill J. in R. v. Brooks (2001), 2001 CanLII 28401 (ON SC), 153 C.C.C. (3d) 533 (Ont. S.C.J.) at para. 45:

…the judicial official presiding in a busy bail court…need not deliver breathless prose or slavishly track the wording of one or more of the paragraphs of s. 515(10) of the Code. However, the text of the reasons must, in some meaningful and coherent fashion, expose analysis related to the primary, secondary or tertiary grounds described in that statutory provision.

[23] The failure to do so is an error in principle: R. v. Wong 2008 CanLII 67420 (Ont. S.C.J.) at para. 10.

[24] In this case, the justice of the peace addressed the secondary ground. Section 515(10) (b) provides that detention is justified:

where the detention is necessary for the protection or safety of the public…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…

[25] In finding that the subsection was engaged, the justice of the peace relied on: (i) Mr. Ahmed’s lengthy criminal record; (ii) the inclusion within it of numerous convictions for failing to comply with terms governing his release; and (iii) the fact the current charges arose from events that occurred less than two weeks after the defendant was released on parole. Justice of the Peace Diaz noted that some of the breaches occurred despite the presence of sureties and restrictive conditions. She concluded that those arrangements had not worked. Furthermore, the proposed sureties were not, in her view, suitable.

[26] In my view the line of reasoning leading to the conclusion is clear, albeit shortly stated and supported by the evidence introduced during the show-cause hearing.

[27] Justice of the Peace Diaz also relied on the third – or tertiary – ground justifying detention. It operates independently from the secondary ground and provides a distinct basis for ordering the pre-trial detention of an accused.

[28] That ground applies “if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances” including four that are specifically delineated. In the order listed in s. 515(10)(c) they are:

i. The apparent strength of the prosecution’s case;

ii. The gravity of the offence;

iii. The circumstances surrounding the commission of the offence; and

iv. The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[29] If this was the only ground relied on by the justice of the peace, I would agree with the submissions made by Mr. Ahmed’s counsel. Only two of four enumerated and non-exhaustive factors were mentioned at all. Other relevant circumstances were not identified, let alone balanced. The finding with respect to that aspect of s. 515(10) was largely conclusory. However, I agree with the Crown that the error, though unfortunate, was of no consequence. The three subparagraphs of s. 515(10) operate independently. While detention may be ordered based on multiple grounds, only one of the three is required.

iv. Has there been a material change in circumstances?

[30] In R. v Dyce, 2016 ONCA 397 at para. 2, the Court of Appeal explained what is needed to engage the alternative ground for a fresh hearing. At para. 2, the court said:

A material change in circumstances requires information that could alter the assessment of one or more of the statutory factors governing release…

[31] Similarly, in R. v. Whyte, 2014 ONCA 268 at para. 26, Tulloch J.A. wrote:

…the assessment of whether a material change in circumstances exists in a particular case depends on the actual consideration that underpinned the first bail judge's refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.

[32] The plan presented to this court for its consideration includes the same terms that were presented on the bail review plus two additional elements:

a. first, Mr. Ahmed’s sister Amal Ahmed would also act as surety and pledge $10,000 without deposit or security; and

b. second, Mr. Ahmed would be subject to electronic monitoring through Recovery Science Corporation.

[33] I agree with the Crown that on the facts of this case the addition of a third surety is not a material change of circumstances. As a practical matter Ms. Ahmed adds little, if anything, to the equation. She lives and works in Ottawa. She has no ability to supervise her brother and acknowledged that the source of information concerning Mr. Ahmed’s activities and whereabouts would come from daily telephone conversations with her mother.

[34] That leaves electronic monitoring. Does the extra term constitute a material change in circumstances? At first blush the decided cases appear to provide no definitive answer. An affirmative response was provided in R. v. Doucette, (unreported, Ont. S.C.J., released January 4, 2016) and R. v. Karbalaei-Heydari, 2019 ONSC 5212. In the first mentioned case, Nordheimer J. (as he then was) said:

…electronic monitoring does change the calculus…While there are weaknesses in electronic monitoring when it comes to other issues relating to…bail, electronic monitoring does significantly reduce the likelihood that an accused person will commit an offence if…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.

[35] However, the question was answered in the negative in R. v. Ma, 2015 ONSC 7709, 2015 O.J. 6684 (S.C.J.), R. v. Hammoe, 2016 ONSC 1790, [2016] O.J. No. 1475 (S.C.J.) and R. v. Fyfe, [2019] O.J. No. 395 (S.C.J.). A 2007 decision caught the attention of the reviewing judge in R. v. Hammoe, supra. In R. v. Bahman, 2007 CanLII 56479 (Ont. S.C.J.), Nordheimer J. had written:

[E]lectronic monitoring, at best, only establishes where a person is. It does not establish what that person is doing. Electronic monitoring does not, therefore, address the secondary grounds where the subject may be able to engage in criminal activity but remain within the geographic area that is the focus of the electronic monitoring. Electronic monitoring does not, therefore, displace the need to have capable sureties who will monitor the activities of the accused person and report any breaches of the conditions of release without hesitation to the authorities.

[36] The quoted passages demonstrate that the significance of electronic monitoring to the analysis is very much fact based. In R. v. Karbalaei-Heydari, supra, for example, Allen J. found that the proposed sureties had “proven track records…being able to successfully undertake the responsibilities of…jailers in the community.”[^1] Similarly, in R. v. Papasotiriou, 2018 ONCA 719 at para. 30 Trotter J.A. noted that electronic monitoring “can be a useful enhancement to an otherwise credible release plan.”

[37] The opposite conclusion in R. v. Hammoe, supra was a product of the fact the judge conducting the s. 520 review said that he did “not believe the [defendant] is trustworthy, credible or that he will keep his promise to keep the peace and not re-offend.”[^2] Furthermore, the court had no confidence the proposed surety would effectively monitor the accused.[^3] At para. 70, Smith J. wrote:

The proposal of GPS monitoring, when taken with the other evidence before the Court, would not have affected the decision to detain the accused at the bail hearing, because it does not adequately control the accused’s behaviour and high risk of re-offending.

[38] Concerns with Mr. Ahmed’s past conduct explain the release plan the defendant advances. He was born on July 6, 1989. He is thirty years old. The first entries in his criminal record were made in October 2009. He was then twenty. Additional convictions were recorded in 2012, 2013, 2015 and 2018.

[39] The printout includes two convictions for obstructing a peace officer,[^4] escaping lawful custody[^5] and without lawful excuse, failing to attend court when required to do so.[^6]

[40] Notably, a failure to comply with a recognizance appears most frequently: four times in 2009 and five times in 2012. On October 29, 2018 he was convicted of breaching the terms of the judicial interim release executed by Justice of the Peace Shortt.[^7]

[41] Counsel for Mr. Ahmed suggested the most recent conviction arose from an isolated and relatively innocuous incident. I disagree.

[42] When most recently arrested Mr. Ahmed was only permitted to leave his residence if accompanied by his mother. At the show-cause hearing Detective-Constable Dana Kenney explained the circumstances leading up to Mr. Ahmed’s arrest on July 10, 2018. These important details emerged:

i. Earlier bail checks had been conducted from time to time. D-C Kenney said that the defendant’s mother, Zainab Mohamud, answered the door. She was polite and had the defendant attend at the entrance, even if asleep at the time the officer arrived;

ii. A further bail check was conducted on July 7, 2018 because D-C Kenney had received information that Mr. Ahmed was not residing where required. Visits to bars and strip clubs had been alleged;

iii. Although movement was heard inside, no one answered the door to Mr. Ahmed’s residence for the fifteen to twenty minutes officers waited outside;

iv. Surveillance camera footage taken over a period of two days was viewed by D-C Kenney. Two young females were seen leaving the unit within about an hour of the departure of the two officers;

v. Mr. Ahmed was observed exiting the elevators to the floor his residence occupied very early one morning. He was alone;

vi. On at least two or three other occasions over a two day period, Mr. Ahmed was seen leaving and entering his residence alone or with someone other than his mother.[^8]

[43] The evidence clearly established that the history of disregard for court orders was repeated. The fact it occurred while Mr. Ahmed was subject to house arrest unless in the company of his mother is concerning. Particularly troubling is the totality of the circumstances: several breaches in a short timeframe (although only resulting in one charge) and their occurrence despite the fact D-C Kenney had previously attended the premises periodically to confirm Mr. Ahmed’s presence. All confidence in his commitment to do what was ordered was understandably shattered.

[44] Under the current plan, subject to very limited exceptions, Mr. Ahmed is given the ability to move about freely and at all hours provided he is in the company of at least one surety. As a practical matter, Ms. Mohamed occupies a central and integral role. She is on Ontario Works and therefore, the person with the greatest opportunity to supervise the defendant. In fact, she is the only one available to do so while the other London based surety – Ali Dahir – is at work.

[45] The evidence introduced during the show-cause hearing did not cast Ms. Mohamed in a positive light. The Crown suggests complicity. While possible, that conclusion is not a necessary one. At a minimum, that surety did not perform her responsibilities very well. The justice of the peace’s finding that Mr. Ahmed’s mother was not suitable to perform the role assigned to her in the release plan is clearly grounded in the evidence introduced during the show-cause hearing.

[46] Concerns with respect to Mr. Dahir were understandable too. He conceded that his brother had breached the terms of recognizances while living with him. He also acknowledged that Mr. Ahmed’s behaviour had not improved despite lectures he delivered.

[47] Having read the transcript of the show-cause hearing, the justice of the peace cannot be criticized for concluding that the proposed sureties did not grasp the seriousness of Mr. Ahmed’s past conduct or inspire confidence that they would safeguard the public.

[48] Electronic monitoring does not cure a deficient plan. That form of surveillance will only work if (i) Mr. Ahmed’s whereabouts are reported in a timely and accurate manner; and (ii) the defendant’s sureties supervise him actively, closely and faithfully. The lack of confidence in the ability of the sureties to perform their supervisory role with unfailing dedication and effectiveness caused the proposal to founder in the court below. There was a solid foundation for that finding.

[49] On the particular facts of this case, the addition of electronic monitoring to the release plan is not a material change in circumstances. The result in the court below would not have been any different.

[50] Since none of the prerequisites to a de novo hearing have been established, the application must be dismissed.

[51] I have not lost sight of the fact that Mr. Ahmed was in custody for more than two months before his initial release and that almost sixteen months have passed since his most recent arrest. This is not a case, however, where it is virtually certain pre-trial custody will exceed any sentence imposed if a conviction is registered. Nonetheless, the passage of time is a concern and is one of the reasons why the court was anxious that the s. 276 Criminal Code application proceed as arranged.

[52] I am confident that counsel will do their best to coordinate schedules so that any delay resulting from the September 26, 2019 adjournment can be minimized.

“Justice A.D. Grace”

Justice A.D. Grace

Delivered: October 4, 2019

[^1]: At para. 18. [^2]: At para. 64. [^3]: At para. 46. [^4]: The first on October 21, 2009 and the second on December 17, 2012. [^5]: On November 9, 2012. [^6]: On January 27, 2012. [^7]: The order was signed September 26, 2017. [^8]: These facts are drawn from the transcript of the show-cause hearing conducted on October 31, 2018 at pp. 13-17. That evidence was not challenged in cross-examination: see pp. 31-32.