Court File and Parties
Court File No.: CR-20-00000094-00BR Date: 2020-04-20 Superior Court of Justice – Ontario
Re: Her Majesty the Queen, Respondent And: Muhammad Amaar Hassan, Applicant
Before: S.F. Dunphy J.
Counsel: Sonya Andersen and Maeve Mungovan, for the Respondent/Crown Kim Schofield and Catherine Szpulak, for the Accused/Applicant
Heard at Toronto: April 9 and 14, 2020
Reasons for Decision
[1] This was an application for bail review pursuant to s. 520(1) of the Criminal Code for bail review brought by the Applicant Mr. Hassan seeking to vacate the order of J. Moore J. and a release from custody under the revised release terms proposed. At the conclusion of the hearing on April 14, 2020, I indicated that the application was being dismissed with reasons to follow. These are those reasons.
[2] These reasons describe charges pending against an individual that have yet to be proved in court. Mr. Hassan has requested a jury hear at least some of those charges. This is an appropriate case to order a publication ban pursuant to s. 517 of the Criminal Code. The ban applies to any discussion in these reasons of the particulars of the factual allegations underlying the charges faced by Mr. Hassan but does not apply to the decision itself.
(a) Background to the application
[3] The applicant Muhammad Amaar Hassan has been detained since his arrest on August 10, 2019. He was originally detained at Toronto South Detention Centre but was transferred to Central East Detention Centre in Lindsay on March 14, 2020 prior to his trial on another matter originally scheduled to be held in Newmarket on March 16, 2020 (now adjourned due to the current emergency).
[4] The applicant is 22 years of age. Prior to his arrest, he lived with his parents in their rented Markham Ontario home. Other occupants of the home include his older brother (also named Muhammad but with a different middle name: Amir) and his two sisters the elder of whom, Maham, is married and lives with her husband and young baby in a basement apartment within the same house.
[5] Mr. Hassan does not currently have a criminal record. He faces charges arising from three separate incidents. If convicted on all of these charges, he faces the prospect of receiving a significant penitentiary sentence. The charges and the nature of the allegations are summarized below. Of course, none of the allegations have yet been proved in court and Mr. Hassan is presumed innocent of all of them unless and until the contrary is proved beyond a reasonable doubt.
[6] Until the evening before the hearing of this application, Mr. Hassan’s older brother Amir also lived at the same Markham address. Amir was arrested on trafficking charges in Hamilton in addition to probation violations. I am advised that any application for bail on his part will not involve a proposal that he resume living in the Markham house of his parents.
(i) November 9, 2018 charges
[7] On November 9, 2018, Mr. Hassan was arrested and charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000.
[8] According to the synopsis of these charges, police were investigating Mr. Hassan by reason of information from a Confidential Informant to the effect that he possessed a handgun in a satchel that he carried about with him. In the course of investigating this tip, Mr. Hassan was observed to pick up a male who was then dropped off a short distance later. Police reported that a hand-to-hand drug transaction had taken place and the decision was made to effect an arrest. No firearm was found in the satchel when it was searched incidental to that arrest. Whether the alleged hand-to-hand transfer was the result of a surmise based on the context of what was seen by police or whether a transfer was actually seen is a matter of some dispute that I am in no position to resolve here. However, 176.9 g of cocaine, 4 telephones, a digital scale among other things were found therein.
[9] Mr. Hassan was released on a recognizance of bail with his mother and his younger sister Rabia as sureties for a total amount of $5,000. The terms of his release required him to reside at his parents’ Markham address and to abide by an 11 p.m. to 6 a.m. curfew. He was also prohibited from possessing narcotics or any weapons. The trial in that matter is currently scheduled for October 5, 2020 in Superior Court.
[10] The defence indicated to me that it intends to challenge the legality of the detention and arrest of Mr. Hassan pursuant to the Charter and, if successful, would seek to exclude the evidence of the search of Mr. Hassan’s satchel. The defence intends to argue that police lacked reasonable grounds to detain and arrest Mr. Hassan at the time.
[11] I cannot comment on the strength of that proposed defence application. The burden would, of course, be upon the defence and the question of reasonable grounds would require a careful examination of the information possessed by police at the time and the conclusions they might reasonably have drawn based upon it. The exclusion of evidence would require a full Grant analysis. From the limited record before me, I cannot conclude that the application is bound to succeed nor can I conclude that it is bound to fail. That will be for the trial judge to examine. However, I do concur with J. Moore J. that the Crown’s overall case on this matter – subject as it may be to Charter considerations – appears quite strong.
(ii) March 21, 2019 charges
[12] Mr. Hassan was arrested again on March 21, 2019 after being pulled over in Markham on a traffic stop for running a red light at high rate of speed. He was stopped at one minute to 11 p.m. which police soon discovered was his curfew time. He did not have his licence with him. He claimed to be hurrying to pick up his younger sister (his surety) before his curfew but police noted that he had already passed the building where his sister Rabia worked without appearing to slow down and could not at all events have made it home prior to curfew in one minute. A digital scale was visible on the floor of the car between his feet and what appeared to be cannabis residue was visible on the centre console. A subsequent search of the car revealed two more scales in the centre console, four telephones, a bottle with some TEC pills and a small amount of cannabis.
[13] In addition to various Highway Traffic Act charges, Mr. Hassan was arrested and charged with breach of his recognizance conditions of release. He was subjected to a preliminary pat-down search and transported to the police station. After he was removed from the patrol car at the station, 11 g of cocaine was found wrapped in plastic under the rear seat of the cruiser where he had been sitting. Charges of possession and possession for purposes of trafficking were added to the list of charges he faces.
[14] Mr. Hassan was again released the next day, this time under stricter conditions. His father was named surety for $5,000. He was once again prohibited from possessing narcotics or weapons but was placed under house arrest. He was not permitted to leave the house except in the company of his father, his mother or his younger sister Rabia Fatima.
[15] The trial of this second matter was originally scheduled to have commenced on March 16, 2020. Indeed, Mr. Hassan was transferred from Toronto South Detention Centre to Central East Detention Centre in Lindsay for this purpose. However, the trial was adjourned by reason of the current pandemic emergency. While it is scheduled to be spoken to on May 25, 2020, it is likely that a resumption of this trial is many months away.
[16] The defence advises that a Charter application will be heard at the outset of this trial at which the defence intends to seek a stay of proceedings or an order excluding from evidence all of the items found in the search of the car as a result of alleged Charter breaches. These claimed breaches concern alleged delays in providing Mr. Hassan with his rights to legal counsel following his detention.
[17] Once again, I cannot make any informed comment upon the strength of the Charter application the defence intends to bring. That will be a matter for the trial judge. I cannot say that it is bound to succeed nor can I say that it is bound to fail. Subject to the Charter issues to be raised, I do concur with J. Moore J.’s assessment of the Crown’s case in respect of this set of charges as being a strong one.
(iii) August 10, 2019 charges
[18] Mr. Hassan was arrested for a third time in under one year just before midnight on August 10, 2020. He had been observed earlier in the evening exiting a mall in the Thorncliffe Park area and driving away in a rented Volkswagen. Several hours later, a group of young men was observed gathering in a park in the same area with a bottle of liquor. A number of cars in the area were found to have various connections with certain crimes. Police approached from the south end of the park. Mr. Hassan and his co-accused (on these charges) moved swiftly in the opposite direction from the approaching police. However, two other officers were waiting for them at the north end of the park. When police emerged and identified themselves, Mr. Hassan discarded a satchel he was carrying and both of them began to run away. His co-accused was apprehended after a brief chase while Mr. Hassan obeyed a police command to stop. Mr. Hassan was detained and the satchel he discarded was retrieved and searched. It was found to contain a 9 mm Smith and Wesson handgun. The gun had a chambered round of ammunition in addition to 10 rounds in the attached magazine. Two spare magazines each containing a further ten rounds each of ammunition were also found in the satchel. Mr. Hassan was wearing a fanny pack that was searched and found to contain 6 telephones. A subsequent search of the area found a second handgun (a Taurus 40 calibre containing ten rounds of ammunition). Keys to a rented Toyota vehicle parked nearby were found on Mr. Hassan’s person when he was searched incidental to arrest. That car was subsequently searched under the authority of a warrant and rental papers in Mr. Hassan’s name as well as 130.6 g of cocaine and 10 g of marijuana were found therein.
[19] Mr. Hassan was charged with possession of cocaine for the purpose of trafficking, a number of weapons charges relating to both of the seized handguns (the one in the satchel plus the one found in the park) as well as the ammunition, possession of proceeds under $5,000 and failure to comply with a recognizance. The weapons charges include possession of a prohibited or restricted firearm and carrying a concealed weapon.
[20] The defence submits that the Crowns case is conspicuously weak as regards the second of the two handguns Mr. Hassan is alleged to have possessed. Whether the Crown’s case for possession of the second gun is a weak one I cannot say. I do concur that it does not appear to be as strong as the Crown case for possession of the contents of the discarded satchel (including the 9 mm Smith & Wesson handgun) on the limited record before me. Mr. Hassan was allegedly seen in possession of the satchel, he was not seen to have physically possessed or discarded the second handgun. Whatever the strength of the Crowns case on the second handgun, the Crown’s case to attribute possession of the discarded satchel and its contents to Mr. Hassan appears on the limited record available to me to be a strong one. The same applies to the contents of the rental car parked nearby whose key fob was found in Mr. Hassan’s possession and which contained rental documents in his name.
[21] Following this third arrest, Mr. Hassan was held pending a hearing convened before J. Moore J. that was heard on August 15 and August 16, 2019. At this hearing, it was proposed that Mr. Hassan’s elder sister Maham would be his surety under still more strict house arrest conditions. His mother and younger sister would also act as additional sureties. Maham was then living at home with a one-month old daughter and would be in a position, it was suggested, to keep an eye on Mr. Hassan at all times, ensuring that he remained locked inside her basement apartment within her parents’ rented home except when she allowed him out.
[22] J. Moore J. was not impressed with any of the proposed sureties. He found that it was highly likely based on past performance that Mr. Hassan would continue to commit criminal offences if released. He also expressed concerns on the primary and tertiary grounds. In the result, Mr. Hassan was denied bail on these latest charges and bail was revoked on the prior charges.
(b) Proposed release plan
[23] The release plan proposed by the applicant contains the following elements:
a. Mr. Hassan would live under house arrest conditions in the same basement apartment of his sister Maham and brother-in-law Umair Khan at the Markham residence of his parents; b. He would be subject to electronic monitoring with a bracelet monitored by Recovery Science Corporation at his family’s expense; c. He would not be allowed outside of the residence except in the presence of one of his sureties and with prior voice confirmation by the surety to Recovery Science Corporation and subject to a hard curfew at all events; d. Recovery Science would be under instructions to notify police should he leave the residence without confirmed prior notice or should the bracelet be tampered with or removed; e. His brother-in-law Umair Khan and a friend Humaira Said would serve as sureties, the former being able to provide 24/7 supervision in the apartment where he now works from home almost all the time, supplemented as needed by Humaira Said who would come over on occasions where Mr. Khan needs to leave the residence.
[24] Mr. Khan testified that he had savings of approximately $80,000 and he was prepared to stand as surety for as much of this sum as the court might direct. He also indicated that he did not intend to allow Mr. Hassan to leave the house for anything but the narrowest of reasons – medical care, haircuts, court appointments or legal appointments. He was prepared to have such conditions incorporated into any release plan. He also testified that his family business had evolved to the point where he was able to work from home almost all of the time and would propose to do so in the same basement apartment where his wife and baby were living. He described the apartment as containing a combined living room, dining room and kitchen with two bedrooms. Mr. Hassan would occupy the spare bedroom.
[25] Ms. Saad testified that she works flexible hours and would be able to come over to the Hassan residence and take Mr. Khan’s place on any occasions where work needed to take him away from the residence such that Mr. Hassan would be supervised at all times. She too has savings – in her case in the amount of approximately $10,000 – and she said that she was prepared to stand as surety for such portion of this as the court may direct.
(c) Issues to be decided
[26] The following issues were raised on this application:
a. Has there been a change of circumstances sufficient to warrant a hearing de novo of the bail review application? b. Has the accused discharged his burden of establishing that his detention is not justified by any of the criteria enumerated in s. 515(10) of the Criminal Code in light of the release plan proposed?
(d) Analysis and discussion
(i) Change of circumstances
[27] This hearing took place in the context of a declared pandemic emergency and the closure of our courts to all but certain urgent applications. In my view, the exceptional circumstances of this pandemic clearly satisfy the requirements for a material change in circumstances as described by the Supreme Court in R. v. St-Cloud, 2015 SCC 27, a finding that has also been made by a number of my fellow judges including Molloy J. in R. v. T.L., 2020 ONSC 1885 and M. Edwards J. in R. v. Nelson, 2020 ONSC 1728.
[28] At a minimum, these emergency conditions have introduced potentially material delays in the time to trial for all pending matters including those affecting the applicant and have also raised the potential of additional risks associated with Mr. Hassan’s continued incarceration neither of which factors could reasonably have been anticipated or considered in pre-emergency bail hearings. Accordingly, the matter proceeded as a hearing de novo on the record before J. Moore J. as supplemented by the parties on this application.
(ii) Has the accused discharged his onus of showing that detention is not justified in light of the release plan proposed?
[29] This matter is a reverse onus case pursuant to s. 515(6)(a)(viii), s. 515(6(c) and s. 515(6)(d) of the Criminal Code. Accordingly, the onus was upon Mr. Hassan to demonstrate that his continued detention is not justified pursuant to any of the three grounds listed in s 515(10) of the Criminal Code.
[30] While the onus devolves upon the accused, that onus is never assessed in the abstract. The contest is not between liberation without conditions and incarceration until trial of an individual whom the justice system must never fail to recall is presumed innocent. The justification for the continued detention of the accused must be considered in the light of the release plan as proposed or as it may reasonably be amended.
Primary Ground
[31] J. Moore J. expressed concerns on the primary ground. Are there grounds to conclude that Mr. Hassan might disappear and fail to appear at his trial if released?
[32] Each trafficking offence carries a potential life sentence. Each of the firearms offences carries a lengthy potential sentence as well. Of course, it would be an error to consider the primary ground having regard only to the maximum sentences that might be imposed. However, even regarding the likely range of sentences commonly applied to youthful offenders in Mr. Hassan’s situation, a fairly substantial penitentiary sentence is at least a reasonably foreseeable outcome of a guilty verdict on many of the charges he faces.
[33] When considering the risk that Mr. Hassan might fail to appear at one or more of his trials, it is relevant to note that he did in fact continue to reside at the Markham residence of his parents after each of the first two arrests, despite the serious trafficking charges he faced. There is no suggestion that he made an effort to go underground after being released on either of the first two sets of charges. He has, of course, not been put to the test since his third arrest which includes a number of serious firearms-related charges in addition to another serious trafficking charge.
[34] Also mitigating against the risk of flight is the fact that the accused has retained able counsel and has demonstrated an intent to contest the charges in court. The Charter application brought in connection with the first of his scheduled trials (in respect of the March 2019 charges) is detailed and serious – a conclusion I reach without expressing any views as to its chances of success.
[35] There is no evidence that Mr. Hassan possesses a passport. Any release order could certainly be fashioned to include terms requiring the surrender of any existing passports and precluding him from making application for any new passports or travel documents.
[36] The proposed addition of electronic GPS monitoring does not eliminate primary ground concerns. A bracelet can be removed and even a swift response to the alarm given would not necessarily preclude flight. However, it must nevertheless be concluded that such monitoring does mitigate the concerns on the primary ground to a degree.
[37] It must also be recalled that the onus upon the accused does not extend to the point of eliminating all risk on either of three grounds. A release of Mr. Hassan on substantially the terms proposed by him would obviously introduce the possibility of his future failure to appear at trial. That risk can always be eliminated by detention but that is not the test. In this case the mere possibility of flight does not rise to the level of a probability of sufficient gravity to warrant his continued detention.
[38] On balance, I cannot conclude that the limited primary ground concern that exists here would be sufficient to preclude the release of Mr. Hassan substantially on the proposed release terms.
Secondary Ground
[39] What then of the secondary ground? Viewing the evidence as a whole, can I be satisfied that the continued detention of Mr. Hassan is not necessary for the safety or protection of the public in all of the circumstances?
[40] In my view, the combination of Mr. Hassan`s history of serious non-compliance and the failure of either of the two sureties to persuade me that they have a reasonable prospect of supervising him successfully is fatal to this application on the secondary ground.
[41] Mr. Hassan’s history demonstrates a remarkable degree of indifference both to undertakings given by him to secure his release or the guarantees given by family members. He has shown dogged persistence in pursuing criminal activities related to the trade of trafficking in narcotics and there is no reason to expect that this would change.
[42] A partial summary of the items found in his possession in the course of three arrests between November 2018 and August 2019 makes this point rather eloquently:
a. 307.586 g of cocaine; b. A bottle containing 13 TEC pills; c. Various quantities of marijuana; d. Fourteen cell phones; e. Four digital scales; f. $265 cash g. A 9 mm semi-automatic handgun; and h. 31 rounds of 9 mm ammunition.
[43] The foregoing list includes only the items found on Mr. Hassan’s person, that police witnesses saw him discard or that were found in the automobiles he was either driving or for which he carried the key on his person. It excludes the 11 g of cocaine found in the police cruiser after he was transported to the police station and the second handgun found in the park after his August 10, 2019 arrest. I do not by any means assume the Crown will fail to prove possession of those items as well but merely focus on the items where the case for possession is unquestionably strong subject to any Charter applications to exclude evidence. He was also found driving or in possession of the keys to two different rental cars.
[44] It must be noted that all of these items were acquired by a young man who was apparently unemployed and without any known source of income at the time. The latter two arrests were made while Mr. Hassan was precluded by his release terms from possessing narcotics or weapons of any kind.
[45] The quantities of cocaine seized during each of the three arrests, while not at the kilo level, are certainly well within the range that have been associated with trafficking, particularly when found in association with four digital scales and fourteen cell phones. Needless to say, possession of any narcotics was also prohibited by his release terms.
[46] The latter two items listed – the handgun and ammunition – were found in his possession in a public park far away from the home where he was supposed to be held in house-arrest conditions. There is no need to catalogue here the considerable risks Mr. Hassan was prepared to expose the public to by carrying a deadly loaded handgun with a large amount of ammunition in a public area nor the degree that such behaviour in relation to firearms has become a matter of pressing concern in this community.
[47] Neither curfew nor house arrest has managed to keep Mr. Hassan from doing as he pleases and associating with or acquiring guns, narcotics and the trappings of the business of trafficking.
[48] The applicant offered two arguments to persuade me that “this time it’s different” and that the risks of his prior behaviour repeating are manageably low.
[49] First, it was said that eight months in custody has finally succeeded in bringing home to Mr. Hassan that his actions have consequences. Both proposed sureties testified that they have had frequent contact with Mr. Hassan since he has been in custody and that he appears to them to be a changed person. Mr. Hassan’s affidavit contains no such assurance but repeats the same promises to abide by any release terms as he gave on the two prior occasions.
[50] While I don’t doubt the sincerity of the proposed sureties in describing the changes observed in Mr. Hassan, I am not as prepared as they to leap to the conclusion that he has had an epiphany and learned the errors of his past ways. Other less noble explanations for his expressed sorrow spring to mind. Mr. Hassan’s history gives me no basis to believe that this time it will be different. Mr. Hassan’s actions have demonstrated that he cannot be trusted to keep any promises of good behaviour he may offer to the court or to his sureties.
[51] Second, it was submitted that the two sureties bolstered by a robust electronic monitoring program can raise the level of confidence in Mr. Hassan’s compliance to the necessary level (remembering always that certainty as to future behaviour can never be demonstrated and is not the onus that the applicant bears).
[52] There are two aspects to the surety relationship with the applicant that I must consider. The first is the ability of the proposed surety to have influence upon the actions of the applicant. Will the surety be in a position to establish rules and will they be respected by the accused? The second is the willingness of the surety to take decisive action when the rules are broken. If the rules are breached, will the surety pick up the phone and call police knowing that in consequence the applicant will in all likelihood be picked up and sent back to detention? I am not persuaded that either surety can be relied upon from either perspective.
[53] When considering the degree of influence the two proposed sureties might exert, I start with the observation that both are in the same general age bracket as the applicant. Mr. Khan is four years the applicant’s senior.
[54] Neither has a history of successfully influencing Mr. Hassan’s behaviour in the past for better or for worse. Both testified that they had come to know Mr. Hassan in the past few years and knew that he was involved in drug trafficking. Both said that they attempted to turn him away from the path he was on. Both also agreed that Mr. Hassan had ignored their advice on those prior occasions just as he routinely ignored the advice of his parents. There is no history of positive influence from either proposed surety to draw upon.
[55] To be fair, Mr. Hassan has shown no hesitation in disregarding his parents both of whom have acted as his surety in prior release plans. Mr. Khan observed that Mr. Hassan’s parents have lost the ability to control him. The demonstrated lack of influence of parents or siblings upon Mr. Hassan’s behaviour does not persuade me that contemporaries with relationships that are even further removed will succeed where family has so totally failed.
[56] In addition, neither of the proposed sureties appeared to have more than a general understanding of the activities of Mr. Hassan that have landed him in hot water. This suggests that their knowledge and understanding of the person they were proposing to supervise was subject to some very considerable gaps. Neither had any material level of knowledge or understanding of his friends and contacts outside of the family. They knew of his activities in relation narcotics in only a very general way. Indeed, without approving of these activities, they appeared quite untroubled by them. Mr. Khan was not concerned with Mr. Hassan’s association with guns and narcotics posing a possible risk to his family because he said that he does not believe that Mr. Hassan is “a psycho” or that his associations pose a threat to his family.
[57] Both proposed sureties have come to know Mr. Hassan through their connections with his older sister Maham – the same surety found unsuitable by J. Moore J. Mr. Khan is intended to bear the primary burden of supervising Mr. Hassan. He is married to Maham and lives in the basement apartment within the Hassan family residence in Markham while Ms. Saad is one of her close friends. That same sister Maham stood as surety for Mr. Hassan’s older brother on a different occasion when the latter was found to have breached his own release conditions.
[58] Mr. Khan was living in the Markham house when Mr. Hassan was breaching his house arrest conditions in August 2019 but did not take any steps either to stop Mr. Khan or to persuade his sureties to notify police. If offered the choice between covering up for breaches of release conditions by his brother-in-law and hoping no one will be the wiser and calling police to have him returned to detention, I have no confidence he would reliably choose to do the latter.
[59] I am mindful that the presence of electronic monitoring provides an added layer of compulsion to the equation. Mr. Hassan was not supposed to be out of the house on August 10, 2019 without a surety and yet he managed to get to the airport to rent a car ten days beforehand and to keep it somewhere for almost two weeks without any action from his surety. He also managed to acquire numerous cell phones and other tools of the narcotics trade none of which would be detected by electronic monitoring. His father had a material (to him) financial stake in seeing that Mr. Hassan complied with the rules. None of this availed to dissuade Mr. Hassan from doing what he did nor to cause his father, mother or sister to lift a finger to advise authorities.
[60] I have strong doubts that Mr. Hassan will adhere to any rules his sureties or I may set and I have no confidence whatsoever that either would take the step of turning Mr. Hassan into authorities should push come to shove. Both are strongly connected to Mr. Hassan’s family and that family has shown itself incapable of intervening to call authorities when he has violated his agreed release terms.
[61] In summary, I am not at all persuaded that the release plan proposed – even if tightened by me – would be sufficient to reduce the very serious risk of Mr. Hassan committing further crimes or jeopardizing public safety if returned to the community under the proposed release plan.
[62] In my view, the applicant has failed to discharge his onus of demonstrating that the proposed release plan adequately addresses the risks identified under the secondary ground. In my view, the risk that Mr. Hassan would find a way to continue to break the law and any rules that might be set for him is considerable. This conclusion alone warrants his continued detention. However, I shall continue in my analysis by considering the tertiary ground.
Tertiary Ground
[63] Section 515(10)(c) of the Criminal Code directs me to examine all of the circumstances bearing upon the question of whether the continued detention of the accused is necessary to maintain confidence in the administration of justice. The four listed criteria are not exhaustive. On the other hand, those criteria are clearly highly material criteria that must be examined.
[64] The four criteria justifying detention listed in s. 515(10) 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, 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.
[65] In my view, each of the four listed criteria strongly favours the continued detention of Mr. Hassan notwithstanding the terms of the release plan proposed:
(1) The prosecution’s case is a strong one on most of the charges even if subject to Charter applications that may potentially exclude some of the inculpatory evidence against Mr. Hassan; (2) The charges he faces are grave ones – each of the trafficking offences and the firearms offences carries the risk of a very significant prison sentence alone or in combination; (3) The multiple breaches of release conditions evident on the record before me unfortunately paints an unflattering portrait of Mr. Hassan. He is an individual who has forfeited the benefit of the doubt as regards his willingness to abide by any rules that might be set. The risk he poses to the community has been significantly amplified by his involvement with firearms. The community has not been granted a reprieve from gun violence by the current pandemic; (4) The range of sentences faced by Mr. Hassan on each of the three sets of charges is certainly lengthy even when viewed in the context of potentially delayed trials or enhanced pre-sentence credit as a result of the pandemic.
[66] While I would hesitate to elevate one of these four criteria above the others, the flagrant and material breaches of his release conditions on two separate occasions places Mr. Hassan in a difficult position when it comes to an assessment of the tertiary ground. He has already had his second chance and third chances must be expected to be rare indeed given the serious charges arising from the third arrest.
[67] It is suggested that the pandemic offers an additional circumstance that must be added to the mix when assessing the tertiary ground. I agree with that suggestion. It is consistent with the rapidly evolving jurisprudence of my fellow judges in this area and is quite consistent with the “all the circumstances” assessment required to be undertaken by s. 515(10)(c) of the Criminal Code.
[68] In my view, and in the particular circumstances of Mr. Hassan, the current pandemic circumstances do not tilt the balance away from detention on the tertiary ground (and do not appear to have any particular relevance to the secondary ground at all events).
[69] The applicant’s affidavit understandably expresses a degree of fear about the risks he faces of becoming infected with COVID-19 while incarcerated. His affidavit states that the telephones and common areas on his range are only cleaned once per day and that he is not given access to gloves, masks or hand sanitizer to protect himself with. He concluded by remarking that “everyone … believes it is only a matter of time before Covid-19 is confirmed at our institution.”
[70] While Mr. Hassan’s apprehensions are understandable, they are not based on any facts or risks particular to him. There is no evidence of the presence of factors individual to him that might elevate his personal health risk to a particularly acute level when compared to the risk common to all detainees (and, to a degree, all residents of Ontario) from a virus that is still spreading. Whether in detention or at home, Mr. Hassan will continue to be under some risk of contracting this virus. While I am prepared to assume that Mr. Hassan’s home environment would likely present a lower overall level of risk, that is merely an assumption without actual evidence of the degree of vigilance maintained in that household.
[71] The fact of the matter is Mr. Hassan is young and in apparently good health. There are no identified co-morbidities that would place him at acute risk. There has been no outbreak at the Central East Detention Centre to this point at least and the institution is taking reasonable measures to mitigate the on-going risk. Of all the people remaining detained in Ontario’s remand and detention centres, Mr. Hassan is at the lower end of the risk profile.
[72] The Ministry’s witness, Mr. Walker, outlined the measures being taken to date to mitigate the risk:
a. The population of all of Ontario`s provincially run detention centres – which house both “remand” detainees (those awaiting trial) and sentenced detainees – has been considerably thinned out by proactive measures taken by the Ministry. The inmate population on Ontario’s 25 institutions was reduced by 26.9% between March 16, 2020 and April 7, 2020; b. The Ministry continues to explore active ways to reduce the institutionalized population through temporary absence passes, early release of intermittent inmates and other similar measures; c. Family and personal visits have been suspended; d. New arrivals are subjected to a health screening and isolated where appropriate upon arrival and a moratorium on non-essential transfers has been put in place; e. Personal Protective Equipment is worn during the screening process; f. Staff are screened for health issues including foreign travel or close contact with someone diagnosed with COVID-19 or displaying consistent symptoms and daily temperature screenings are being applied across all institutions; g. Protocols are in place to isolate and treat anyone displaying symptoms; h. Inmates are under lock-down conditions limiting contact between them; i. Additional cleaning supplies have been acquired and cleaning personnel (including inmates) have been instructed on enhanced cleaning protocols; and j. Detainees have been issued additional toilet paper and cleaning supplies.
[73] In my view, these measures are responsible and reasonable based on current conditions and information. Perfection is not the required standard. There is some indication that there has been miscommunications and uneven application of protocols. For example, Mr. Walker said that telephones are supposed to be disinfected after each use whereas Mr. Hassan’s affidavit indicates that this is happening only once per day. It is to be assumed that the Ministry will continue to take steps to ensure that its protocols and directives are being applied, including at Central East Detention Centre where Mr. Hassan is being held.
[74] It must be recalled that to this point there is no vaccine for the Sars-CoV-2 virus even if hopes are high that an effective vaccine will be available in the next twelve to eighteen months. There is also no known cure even if a number of promising therapies are currently in clinical testing. The virus continues to spread despite all of the social distancing and other measures being applied in the broader community. In other words, there is risk and that risk is, for the time being, widespread. There is risk within an institution and there is risk without. The degree of risk may be higher in one setting than another, but there is no escaping from the risk itself. Whether inside a detention centre or at home, the level of risk is material as evidenced by the continued lock-down of significant portions of the broader economy.
[75] Confidence in the administration of justice would be seriously eroded by releasing into the general population prisoners who present a serious risk of continuing to commit crimes or otherwise endangering the public. Mr. Hassan is not a borderline candidate. But for the pandemic circumstances, the case for his continued detention is an overwhelming one. The mitigation steps being applied by the Ministry in the prison system have – to date at least – prevented an out-of-control situation from evolving. I find that public confidence in the administration of justice requires Mr. Hassan’s continued detention having regard to all of the circumstances.
(e) Disposition
[76] In the result, I found that Mr. Hassan has failed to demonstrate that his continued detention is not necessary on both the secondary and tertiary grounds and dismissed the application.
S.F. Dunphy J.
Date: April 20, 2020