Court File and Parties
COURT FILE NO.: CR-20-00000126-00BR DATE: 20200505 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Zaaman Yusuf Applicant
Counsel: Meghan Scott and Alexander Merenda, for the Crown Anthony Marchetti, for the Applicant
HEARD: April 30, 2020
ALLEN J.
REASONS FOR DECISION ON BAIL REVIEW APPLICATION
Temporary Suspension of Court and Procedure on the Hearing
[1] This application was heard and decided in the midst of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or video conference.
[2] The parties agreed that this bail review could proceed by way of teleconference. A registrar and court monitor were present in a courtroom to maintain the court record. The parties agreed that the bail review could be heard in the accused’s absence. Signatures on affidavits were waived by the defence. An order excluding witnesses and a publication ban were made. The parties provided written materials electronically by email and made oral submissions. Exhibits were filed electronically. Viva voce evidence was heard from the two proposed sureties who were conferenced in by defence counsel, administered an affirmation to tell the truth and questioned in-chief and on cross-examination. The Crown conferenced in the officer-in-charge, Officer Belligero.
[3] The applicant filed affidavits of the two proposed sureties and his own affidavit. The Crown did not seek to cross-examine the applicant.
BACKGROUND
Facts Related to Charges
[4] This case involves serious charges. It is alleged that the complainant, Jean Paul Castano, was kidnapped, forcibly confined, extorted, assaulted, assault with a handgun, robbed and threatened with death to himself and his family. These crimes are alleged to have been committed by the applicant, Zaaman Yusuf, his girlfriend Danna Millan, and their friend, Patrick Celaj. Mr. Castano was acquainted with all three of his assailants.
[5] Mr. Yusuf faces charges under the Criminal Code including: kidnapping, forcible confinement, aggravated assault, assault with a weapon, robbery with a firearm, use of firearm in commission of an indictable offence, unauthorized possession of a firearm, possession of a firearm knowing its possession is unauthorized, careless storage of a firearm, unauthorized possession of a firearm in a motor vehicle, threaten death and point a firearm and extortion.
[6] The police executed a search warrant on Ms. Millan’s home, where Mr. Yusuf and Ms. Millan were present and where they seized quantities of crack cocaine and fentanyl. Mr. Yusuf also faces charges under the Controlled Drugs and Substances Act of possession of cocaine and fentanyl for the purpose of trafficking.
[7] The following are the background facts to the offences:
[8] On February 1, 2020, Mr. Yusuf, with Ms. Millan and Mr. Celaj, plotted together to entice Mr. Castano to go with Ms. Millan to a party. Their true intent was to kidnap, confine, rob and extort him for money. The way the plan was to work was for Ms. Millan to call Mr. Castano and ask him to join her to go to a party and to a downtown nightclub. She offered to pick him up at his family home. He agreed. At about 9:00 p.m., on Saturday, February 1, 2020, Mr. Yusuf arrived with Ms. Millan at Mr. Castano’s home to pick him up in his white Hyundai Elantra. Mr. Castano’s father observed his son leave with whom he believed were Mr. Yusuf and Ms. Millan in a white Elantra.
[9] Mr. Yusuf and Ms. Millan drove Mr. Castano to a location on Bedford Ave. (“the Bedford apartment”) and took him through the back door. They placed a white plastic bag over his head and beat him. It is alleged that once inside the house Mr. Castano was forced to sit in a chair and he was bound with a black auxiliary USB cord and duct tape. An attempt to handcuff him failed because the left cuff would not close.
[10] Mr. Celaj was at the apartment when the two other assailants arrived. He also joined in the assault with two other unknown males. Mr. Castano says he recalls that Mr. Yusuf struck him several times with a black handgun which he thought resembled a police-issued Glock. He also said one of the unknown males was also wielding a handgun. Mr. Castano also stated that he was assaulted with plyers when they were used to attempt to pull out a nail on one of his index fingers.
[11] The assailants demanded $10,000.00 from Mr. Castano. When he said he did not have the money, they demanded that he get the money from his parents. In addition, during the attack, the suspects removed two gold rings with diamonds, two gold hoop earrings, a bracelet, a sweater and an iPhone, with a total value of over $6,500.00. Only his phone was recovered of all the items stolen.
[12] When Mr. Castano attempted to flee, he was struck in the head with a blunt object that he thought was a handgun. He lost consciousness and when he awoke his hands were still bound. He was forced into the back seat of the Elantra with Mr. Celaj. Mr. Yusuf drove and Ms. Millan sat in the front passenger’s seat. Mr. Castano alleges that at that point Mr. Yusuf still had a handgun. He stated that a firearm was concealed in a white plastic bag.
[13] Mr. Castano stated that while Mr. Yusuf was driving, the three assailants talked about whether to kill him. They continued to demand Mr. Castano call someone to obtain the $10,000.00. They reached a marina in Oakville. Mr. Castano alleges that Mr. Yusuf still had the handgun and threatened to kill him and members of his family, including his little brother, if he did not do what they told him to do. They told Mr. Castano they knew where his little brother went to school. Ms. Millan ordered him to call his father and tell his father he had been robbed. Mr. Castano then called his father.
[14] Mr. Castano was untied and escorted out of the car by Mr. Yusuf and Mr. Celaj. They walked him away from the car shirtless and told him to keep walking and not to look back. They told him not to tell anyone what happened. Ms. Millan got into the driver’s seat and picked up the other two assailants. They left Mr. Castano on the side of the road.
Surveillance and Evidence Located at the Marina
[15] Police recovered video surveillance from the Oakville marina covering the relevant time period after about 1:00 a.m. on February 2, 2020. A four-minute clip of the surveillance was filed in evidence. The video shows a white Hyundai Elantra clearly displayed. The vehicle is the same make, model and colour as the one owned by Mr. Yusuf’s mother which Mr. Yusuf frequently drove. The licence plate is not clear on the video footage.
[16] There is a question whether a male seen to be getting out of the driver’s side of the car is carrying a firearm in his right hand. It appears that male, whom the Crown alleges is Mr. Yusuf, goes to the trunk holding what appears to be a white plastic bag. Who the Crown alleges is Ms. Millan is seen taking items out of the trunk of the car and tossing them into bushes at the side of the road. The two male assailants and female assailant, who were described by Mr. Castano, are visible on the footage. The males’ clothing, as described by Mr. Castano, is visible on the footage.
[17] The police looked in the area where Ms. Millan disposed of the items. The police located duct tape, a black USB auxiliary cable and a white bloodied plastic bag. All three items were submitted to Forensic Identification Services for further investigation.
Mr. Castano’s Identification Evidence
[18] Mr. Castano provided a statement to the police. However, at first, he did not want to identify the suspects to the police because he took the threats to himself and his family seriously.
[19] As noted above, Mr. Castano was familiar with the three assailants. He was able to provide detailed descriptions of Ms. Millan, Mr. Yusuf and Mr. Celaj. Mr. Celaj is a family friend to Ms. Millan and knows Mr. Yusuf through her. He furnished Ms. Millan’s first name and address as he had been to her home previously. Mr. Castano described Ms. Millan’s shoes, worn during the incident, as being bright green Nike Vapor Max running shoes and he described Mr. Yusuf’s, also worn during the incident, as yellow and black Nike Air Max running shoes. Mr. Castano had also been to Mr. Celaj’s residence a number of times. He was able to describe Mr. Celaj’s jacket and low-cut Nike Air Force running shoes, worn during the incident.
Seizures Under Search Warrants
[20] When the police searched the homes of the assailants, they located items that matched Mr. Castano’s information, that tended to link the assailants to the incident.
[21] Amounts of crack cocaine and fentanyl were located at Ms. Millan’s home. Mr. Yusuf was with Ms. Millan at her house when her apartment was searched on February 6th. The fentanyl (14.76 gr.) was located in her makeup drawer and the crack cocaine (17.16 gr.) was located in a jacket in that residence. Both Ms. Millan and Mr. Yusuf were arrested. Also, two cellphones were seized.
[22] At Mr. Celaj’s residence, the police located black Air Force One low cut running shoes, a black leather jacket with side zippers which appear to be what he was wearing on the marina surveillance. They also seized a cellphone. At Mr. Yusuf’s address the police located the yellow and black Nike Air Max shoes which he appears to be wearing on the surveillance.
[23] At the Bedford apartment, where Ms. Millan and Mr. Yusuf held Mr. Castano captive on the evening of February 1st, the police found a pair of broken handcuffs, pieces of duct tape and a nearly empty roll of duct tape. There was blood splatter by the front door where Mr. Castano said he was assaulted.
[24] No firearms were recovered during the investigation.
Statement of Tenant at Bedford Apartment
[25] The tenant stated that he had exchanged text messages with whom he said was his crack cocaine dealer whom he knew as “C”. From the fact Mr. Castano knows the assailants and from the description he gave of the person, the Crown takes the position that C is actually Mr. Yusuf. From that perspective it was Mr. Yusuf who told him he was coming by with a few people.
[26] Mr. Castano stated that when Mr. Yusuf and the others arrived, they beat up a male while they were there. In a text message from the tenant to Mr. Yusuf, the tenant complained about his property being destroyed during the assault. Mr. Yusuf responded that he would pay for the damage and said his girlfriend had left her cellphone at his apartment and that he would pick it up. Mr. Yusuf returned to the apartment sometime after 1:00 a.m. on February 2nd. The tenant provided his cellphone to the police which contained text messages that support the tenant’s statement.
THE SHOW CAUSE HEARING
[27] The show cause hearing, which took place on February 14 and 20, 2020, was conducted by Justice of the Peace M. Callahan. The Crown sought Mr. Yusuf’s detention on secondary and tertiary grounds. It was a reverse-onus situation given the firearm and drug charges.
[28] The defence proposed a singular surety, Mr. Yusuf’s mother, Arshia Tabassum, on a house arrest plan. The plan involved an undertaking by Ms. Tabassum to pledge security of $50,000.00 to $100,000.00. At the time, Ms. Tabassum worked Mondays, Wednesdays and at times Fridays from about 7:30 a.m. to 8:00 p.m. She worked from home on Tuesdays and Fridays were flexible. There was also proposed additional supervision by Mr. Yusuf’s grandparents who were expected to arrive from India to visit for six months. Ms. Tabassum also proposed to install a security system inside the home to monitor Mr. Yusuf.
[29] The Justice denied bail on both secondary and tertiary grounds.
[30] On the secondary ground, the Justice concluded that Ms. Tabassum’s work schedule kept her away from home such that Mr. Yusuf would be unsupervised for excessive periods. The Justice also concluded that Ms. Tabassum appeared to be willfully blind to her son’s activities, displayed gaps in her knowledge about him and made excuses for him that gave her reservations about the mother’s ability to effectively supervise her son. The Justice was not satisfied that the plan proposed lessened the likelihood of Mr. Yusuf committing a criminal offence or interfering with the administration of justice.
[31] On the tertiary ground, the Justice found there were sources of corroboration for Mr. Castano’s allegations especially in the video surveillance. She considered the Crown’s position that Mr. Yusuf appeared to be holding something in his right hand that could be a firearm.
[32] The Justice recognized the strength of the Crown’s case, the gravity of the offences, the circumstances surrounding the commission of the offence (including whether a firearm was used or not) and the possibility of a lengthy sentence if convicted. In the result, the Court found that the proposed plan of release would cause a reasonable member of the public to lose confidence in the administration of justice if the Applicant were released.
THE LAW
General
[33] Subsections 515(10)(a), (b), and (c) of the Criminal Code provide that bail may be denied on three grounds:
- On the primary ground bail can be denied where the detention is necessary to ensure the accused’s attendance in court. The concern is whether the accused is a flight risk.
- On the secondary ground, bail can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk”, a standard below proof beyond a reasonable doubt: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.
- On the tertiary ground bail can be denied 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(10)(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.
[34] There are no primary ground considerations. The Crown seeks detention on secondary and tertiary grounds.
[35] On the secondary ground consideration is given to such matters as the nature of the offence, whether the accused has a criminal record, the nature of any criminal record, whether he has any outstanding charges and whether he has a history of non-compliance with recognizances.
[36] On the tertiary ground the court must consider whether the detention of the accused “is necessary to maintain confidence in the administration of justice”. The four factors under s. 515(10)(c) are well-known and are as follows: (i) the apparent strength of the prosecution’s case; (ii) the objective gravity of the offence in comparison with other offences in the Criminal Code; (iii) the circumstances surrounding the commission of the offence, whether a firearm was used; and (iv) whether the accused is potentially liable for a lengthy term of imprisonment. R. v. St-Cloud, at para. 12
[37] The four enumerated factors must be considered together. No one factor is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. The court must balance all of the relevant circumstances and after the balancing must consider the critical question of whether detention is necessary to maintain confidence in the administration of justice: R. v. St-Cloud, at para. 69.
[38] On the application of the criteria under s. 515(10)(c), the Supreme Court of Canada observed: Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. St-Cloud, at para. 61
[39] There are three bases upon which a court on a bail review can 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, at para. 121
[40] Being a firearm and drug case there is a reverse onus on the defence to prove on a balance of probabilities why detention is not justified. The defence does not claim an error in law or that the Justice’s decision was clearly inappropriate. The defence seeks a de novo proceeding based on material changes in circumstance. A de novo hearing is not appropriate unless there is new evidence adduced at the bail review: R. v. St-Cloud, at para. 118.
[41] The defence takes the position there are two material changes in circumstance the court may consider. The submission is that the change in the plan of supervision in terms of adding Dr. Badsha Alam as a surety constitutes a material change in circumstance. The other material change in circumstance, and perhaps the most critical one, is the COVID-19 virus which emerged as a pandemic after the show cause hearing on February 14th and 20th. The Crown does not dispute the pandemic presents a material change in circumstance.
[42] Other courts have found that the pandemic presents a material change of circumstance: For example: R. v. Osman, 2020 ONSC 2490, at para. 19; R. v. J.S., 2020 ONSC 1710, at para. 18, (March 20, 2020); R. v. Jeyakanathan, 2020 ONSC 1984, at para. 27, (March 31, 2020); R. v. Nelson, 2020 ONSC 1728 (March 23, 2020); R. v. Cain, 2020 ONSC 2018, at para. 13 (April 1, 2020) and R. v. Phuntsok, 2020 ONSC 2158 (April 8, 2020)]. I agree the pandemic satisfies that criterion.
[43] The Crown takes the position that the addition of a second surety does not present a material change in circumstance. The Crown cites a case of this court which involved the addition of a second surety where the court questioned on the secondary ground the value in some circumstances of adding additional sureties: “Simply reshuffling the deck of sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances”: R. v. Ferguson, at para. 17. For reasons I set out below, I find the addition of Dr. Alam does not present a material change in circumstance.
[44] Dr. Alam did not know about the first bail hearing or the possibility of Mr. Yusuf requiring sureties. There is no evidence of Dr. Alam’s unavailability to offer himself as a surety for the bail hearing. Ms. Tabassum did not ask Dr. Alam to be a proposed surety. She only asked him after bail was denied in first instance. I find the observation in R. v. Ferguson is apt in this case. I find there was not a material change of circumstance in adding Dr. Alam as a surety.
EVIDENCE ON SECONDARY GROUND
Mr. Yusuf’s Affidavit
[45] Mr. Yusuf is 23 years of age. He was born in India and is a Canadian citizen. He does not have a criminal record. He is not married and has no children. He completed high school and was enrolled for a short period at George Brown College in a business administration program but did not graduate. He was last employed in 2018 with a parcel delivery service. Since he was arrested on February 6, 2020, he has been detained at Toronto South Detention Centre (“TSDC”). He lives with his mother who is currently supporting him.
[46] Mr. Yusuf had an earlier brush with the criminal justice system. In July 2019, he was charged with possession of crack cocaine under circumstances where the drugs were found inside his mother’s home. This happened while he was living with his mother. Those charges were stayed by the Crown.
[47] Mr. Yusuf spoke about his relationship with Dr. Alam. Several years ago, he attended a private school owned by Dr. Alam. He described the plan of supervision which involves Dr. Alam taking him to work with him to supervise him when his mother is unavailable. He indicated he also expects that Dr. Alam will employ him at the school.
[48] Mr. Yusuf stated that he has breathing problems related to asthma for which he says he has a prescription for two inhalers, Flovent and Ventolin. He attested to being highly concerned about contracting COVID-19. He provided no details about the history or severity of the problem or how it has affected him while in detention.
[49] Mr. Yusuf indicated he is aware of the proposed strict conditions involving 24/7 supervision by two sureties. He is also aware of the money his sureties have pledged and stated that he would not do anything to jeopardize their pledges.
Arshia Tabassum’s Evidence
[50] Ms. Tabassum is 49 years of age. She was born in India and is a Canadian citizen. She resided in the United States for several years studying at Georgetown University and obtained a Ph.D. in biochemistry. She is currently employed at a medical device laboratory earning $96,000.00 annually. Due to COVID-19, Ms. Tabassum is working from home. She will return to normal working hours when the virus lifts.
[51] Ms. Tabassum indicated that she met Dr. Alam in 2010 when her son attended his private school. He has become a family friend. She indicated she is confident they will be able to well work together as sureties to supervise Mr. Yusuf.
[52] Ms. Tabassum indicated her awareness of the charges her son faces. She stated she is willing to supervise him under house arrest at her home 24/7 and will rely on Dr. Alam to step in to supervise him at his school when she is not available. She stated that when the conditions of the pandemic lift Dr. Alam will continue to supervise when she returns to work.
[53] Ms. Tabassum provided further evidence at the bail review hearing. Her regular work hours before the pandemic were from about 7:00 a.m. to 4:00 p.m. to 4:30 p.m., arriving home at 5:00 to 5:30 p.m. She worked Mondays, Wednesdays and Thursdays. She worked from home on Tuesdays, and Friday’s were flexible as to whether she worked at home. Since the pandemic, Ms. Tabassum works at home every day.
[54] The plan, when Ms. Tabassum is not available, is for Dr. Alam to pick up Mr. Yusuf in the mornings and take him to the school to supervise him for the day and return him home at the end of the day. Alternatively, when Ms. Tabassum is not available, she could drop her son at the school and pick him up and take him home at the end of the day. When she resumes regular work hours, this will be the arrangement in place.
[55] Ms. Tabassum indicated that since the show cause hearing she has had a security surveillance system installed in her home that can monitor Mr. Yusuf’s movements in the home which the mother can access from anywhere from any device. There are two exterior cameras and one interior one along with motion sensors on each door and window.
[56] Ms. Tabassum owns her home and indicated she is prepared to pledge $25,000.00 as security, aware that if her son breaches bail, she could lose the money. She stated she is aware of her obligations as a surety and the requirement to call the police if she finds Mr. Yusuf in breach.
[57] When questioned about her son’s criminal activities in July 2019 and February 2020, she appeared naïve about what her son was involved in outside the home. She insisted that Mr. Yusuf confided everything in her and that they often talked about positive future schooling and career plans.
[58] Ms. Tabassum continued to insist this in spite of defence counsel pointing out that her son had drugs in her home in July 2019 that she was not aware of. Crown counsel also questioned her about her believing her son when he told her the drugs were not his, that he was holding them for a friend. Her answer to that inquiry wavered.
[59] About her son’s social activities, Ms. Tabassum indicated she believes that what her son did in the evenings was to go out with friends to the mall or for dinner. This is what she understood on the evening of February 1st, the evening Mr. Yusuf committed the terrible acts against Mr. Castano. The mother said she was shocked about the crimes her son had committed.
[60] In spite of attending the show cause hearing and hearing the charges and the facts of the case and seeing video surveillance alleged to capture her son in the process of committing the offences, Ms. Tabassum appeared reluctant to consider that her son might be capable of committing such terrifying acts.
[61] Ms. Tabassum did not mention her son’s asthma condition in her affidavit. However, in testimony at the bail review she spoke of the condition. She testified that her son has had the condition since childhood which has affected him off and on causing him to have some difficulty breathing.
[62] Ms. Tabassum stated that she spoke to Mr. Yusuf during his detention at TSDC. She said he described a circumstance where he was having an asthma attack and he called for help from the facility authorities. According to what Mr. Yusuf told his mother, it took the facility about a half-hour to come to his assistance which he said frightened him because he had difficulty breathing. He told his mother he nearly had a panic attack. Mr. Tabassum stated that she feared for her son’s health if he were not released.
Dr. Badsha Alam’s Evidence
[63] Dr. Alam is 52 years of age, was born in Bangladesh and is a Canadian citizen. He holds a degree in biomedical engineering. He is married with two adult children. He owns a private school which is certified by the Ontario government. And on an annual basis, as a person who works with vulnerable children, he is required to be re-certified to work in such an environment. The school is closed due to COVID-19 but continues to operate online. Dr. Alam is a certified teacher and is also licensed as a real estate agent in Ontario. His regular work hours are between 9:00 a.m. and 9:00 p.m.
[64] Dr. Alam confirmed the evidence that he has known Mr. Yusuf’s family for several years and that Mr. Yusuf was a student at his school in 2010 and has volunteered at the school from time to time. He stated that he is aware of the serious charges Mr. Yusuf faces. He indicated he understands his obligations as a surety to call the police if he breaches.
[65] In testimony, Dr. Alam gave details about the plan of supervision and his ability to contribute to the 24/7 supervision plan. He stated that he has a great deal of flexibility during his workdays. He confirmed that on days when Ms. Tabassum is not available, he can pick Mr. Yusuf up in the morning, take him to his office for the day and then drop him home in the evening. He added to the plan that he can also supervise Mr. Yusuf at Ms. Tabassum’s home since he can do work related to his businesses on his laptop computer. He stated he is familiar with and has tested Ms. Tabassum’s security system.
[66] Dr. Alam detailed how the plan would work when supervising at his office. Dr. Alam explained that he is the owner of the school which teaches elementary and high school students. He employs about 17 staff. He does not teach any classes himself. The principal and vice-principal administer the school and, with the teachers, manage the students and classrooms.
[67] Dr. Alam has a separate office on the same floor as the classrooms and other offices. His responsibility is to operate the business of the school. Dr. Alam stated that occasionally he meets his real estate partners at his office. He indicated he was not involved in showing properties. His partners show the properties. Dr. Alam is responsible for preparing real estate documentation which he does from his office.
[68] Dr. Alam explained that Mr. Yusuf would be constantly under his supervision in his office. Mr. Yusuf would help him with computer work always under his watchful eye. Dr. Alam says he would not allow Mr. Yusuf to have a cellphone and he would only allow him to use the office phone under his supervision. Dr. Alam stated that the school has a security system with seven cameras, two in his office. From the computer monitor on his desk, he can view the entire school through the cameras.
[69] The only time Mr. Yusuf would be allowed to leave his office would be to go to the washroom which is next door to his office. Dr. Alam said he would accompany him there. If they left the office for a coffee Mr. Yusuf would always be under Dr. Alam’s supervision.
[70] In answer to concerns about a person charged with such violent crimes being on a premises with vulnerable children, Dr. Alam explained that there would be no opportunity for Mr. Yusuf to be in contact with children since students rarely ever have a need go to his office. Dr. Alam stated that the teachers and the principal and vice-principal, as administrators, deal with students at the school.
[71] Dr. Alam too was questioned about his knowledge of Mr. Yusuf’s activities. He testified he did not talk to Mr.Yusuf about the details of his social activities. He indicated he does not know Mr. Yusuf’s friends. He described his role as being more of a mentor where he discusses with Mr. Yusuf plans about his schooling and career. Dr. Alam said he gives Mr. Yusuf positive advice on being cautious about whom he associates with. He too expressed shocked about Mr. Yusuf’s charges.
[72] Dr. Alam indicated it was only recently that Ms. Tabassum told him about the July 2019 charges. He too appeared naïve about what Mr. Yusuf was capable of and what he did and who he associated with in his social life. He described him a good and respectful boy.
[73] Dr. Alam owns two houses and has savings in a bank account. He is also the owner of two businesses. He is prepared to pledge $10,000.00 fully aware that the money could be forfeited if Mr. Yusuf breaches bail conditions.
Conclusion on Secondary Ground
[74] I find that the current plan of supervision is an improvement over the previous one. It fills the gaps of the lengthy periods of time Mr. Yusuf would have been alone when his mother was the sole surety. There is a security system in place. However, I have little confidence that the plan will decrease the substantial likelihood that Mr. Yusuf will re-offend.
[75] I find Ms. Tabassum and Dr. Alam are well-meaning people. They are respectable and intelligent professional members of the community. However, I am troubled by the fact that both sureties, particularly the mother, have no idea of the social activities of Mr. Yusuf outside the home. It is understandable that young people do not share everything they do with their parents and elders. But even in a circumstance where Mr. Yusuf was found to have been in possession of a dangerous drug in her home, the mother seemed reluctant to accept what her son was up to. She believes his excuse that the drug was not his, that he was holding it for a friend. Dr. Alam did not know about the drug charge before recently.
[76] Ms. Tabassum attended the show cause hearing. She saw and heard the evidence presented by the Crown. Dr. Alam indicated he was aware of the charges. But both sureties insisted Mr. Yusuf was a good boy who respected them and would comply with the rules under house arrest. For both sureties, the focus of their conversations with Mr. Yusuf was about his plans for his education and career. This is of course good stewardship. Both sureties have superior educations and professional acumen and have much to offer Mr. Yusuf. But only if he accepts their advice. He obviously has not done so.
[77] Neither surety entertained the possibility that, like most young people, Mr. Yusuf did not tell them what he was up to with his friends. Young people often tell their elders what they want to hear and then go on about their business. In this case, Mr. Yusuf’s business with his friends on the evening of February 1st was setting in play a formidable plan to kidnap, frighten with a firearm, assault, rob and threaten the lives of Mr. Castano and his family. Ms. Tabassum said she believed her son when he told her he was going out with his friend for dinner that night.
[78] My concern is the sureties’ apparent lax appreciation for the danger of the crimes and for the practical reality that there is evidence that Mr. Yusuf might be capable of those crimes. Mr. Yusuf does not have to leave the house or Dr. Alam’s office to commit some of the crimes he is charged with. He can use a cellphone, iPad, or computer to contact Mr. Castano and his family members to continue with the threat against their lives. He could contact Ms. Millan and Mr. Celaj in the same way and concoct another plan, particularly given the fact that they threatened Mr. Castano’s life if he told anyone. The stakes are higher for retaliation now since Mr. Castano has turned them over to the police. Mr. Yusuf was not daunted by his previous drug charges. There is a real chance he will not be daunted again.
[79] I am not confident that the mother and Dr. Alam will be vigilant enough to watch Mr. Yusuf’s every move to constantly search him and his property for electronic devices given their tendency to accept his word. I fear their naiveté might dampen their resolve to scrutinize him. It takes mere seconds to send a threatening text or social media message. Security systems in the house and office cannot prevent Mr. Yusuf from doing this. I am troubled by the fact that the sureties did not place any emphasis in their evidence on the importance of regularly conducting searches of Mr. Yusuf and his property.
[80] I do not find the plan proposed will lessen the likelihood of Mr. Yusuf committing a criminal offence or interfering with the administration of justice. I find that danger to public safety will not be prevented or reduced to an acceptable level by the plan of supervision as it stands. I find there is a realistic chance Mr. Yusuf could re-offend. For all those reasons, I find detention is necessary for the protection and safety of the public and to protect the integrity of the administration of justice.
THE TERTIARY GROUND
The Apparent Strength of the Crown’s Case
[81] I find the Crown’s case to be very strong on most of the charges Mr. Yusuf faces.
[82] Mr. Castano’s evidence is powerful in that he was very familiar with Mr. Yusuf, Ms. Millan and Mr. Celaj from past associations. This makes his identification evidence especially strong. He spoke of Mr. Yusuf driving him and the other two assailants in a white Hyundai Elantra and a white Elantra appears on the marina video.
[83] There are three males and a female depicted in the surveillance footage. It is clearly arguable that the male who exited the driver’s door and goes to the trunk is Mr. Yusuf. It is also arguable that Mr. Yusuf appears to have a white plastic bag and firearm in his right hand. This could tend to confirm Mr. Castano’s evidence that Mr. Yusuf wielded a firearm that he placed in a white plastic bag. The Crown alleges that evidence tends to support Mr. Castano’s allegation that Mr. Yusuf had a firearm. Accepting that evidence would put Mr. Yusuf in possession of a firearm for the purpose of the many firearm charges.
[84] The video also shows the female, whom Mr. Castano says is Ms. Millan, get out of the car and throw some items into the bushes next to where the car was parked. What the police found when searching the site of the marina were duct tape and a black USB auxiliary cable corresponding with what Mr. Castano said the assailants used to bind him, and a bloodied white plastic bag, in line with what Mr. Castano says the assailants put over his head when they assaulted him at the Bedford apartment.
[85] Also depicted is a man without a shirt being taken out of the car and walked behind the car. This accords with Mr. Castano’s evidence that he was left shirtless on the road after the assailants drove away.
[86] Mr. Castano was not only able to identify the assailants, but he also described some of their clothing, particularly their running shoes. On the searches of Ms. Millan’s, Mr. Celaj’s and Mr. Yusuf’s homes, shoes that met the descriptions Mr. Castano gave of their shoes were recovered. The shoes worn by the three suspects on the surveillance are arguably the shoes Mr. Castano describes his assailants to have worn.
[87] There is also the issue of Mr. Castano’s injuries. Mr. Castano claims the injuries on the SOCO photos taken by the police were caused by Mr. Yusuf and the others. The injuries include a broken jaw, swelling on the left side of his face, several cuts including a cut behind his ear that required seven stitches, cuts to his right index finger, arguably from the plyers, and various lacerations on his head, back and legs. The Crown takes the position, and it is arguable, that a bruise on the left side of his face is an imprint of a pistol barrel and muzzle and that the bruising to his mouth is the result of being pistol whipped.
[88] There is also Mr. Castano’s father’s evidence that he was acquainted with Ms. Millan and Mr. Yusuf and was present at his home at 9:00 p.m. on February 1st when they arrived to pick up his son in the white Elantra. This also corroborates Mr. Castano’s timeline evidence and his statement about being with Ms. Millan and Mr. Yusuf that evening.
[89] There is also the evidence of the tenant at the Bedford apartment. In a statement to the police the tenant indicated he received a message from his crack cocaine dealer, “C”, whom the Crown submits is Mr. Yusuf, saying he was coming to the tenant’s place with some people. As noted earlier, it is arguable, due to Mr. Castano’s acquaintance with Mr. Yusuf and his description of him, that C is Mr. Yusuf. The tenant indicated C arrived with some people and beat someone up at the apartment. Text messages between the tenant and C tend to support other evidence on the time of the alleged offence.
[90] Also, according to the tenant, C informed him that his girlfriend had forgotten her cellphone at his place. Sometime after 1:00 a.m., it is the Crown’s contention, it was Mr. Yusuf who picked up the cellphone. The timeline again corresponds with Mr. Castano’s evidence. I find in the context of other evidence it is arguable that C is Mr. Yusuf.
[91] Both Ms. Millan and Mr. Yusuf were in her apartment when the police searched. Regarding the drugs seized at Ms. Millan’s apartment, the Crown’s case in relation to the fentanyl is not so persuasive. The fentanyl was located behind a partition in the apartment in Ms. Millan’s makeup drawer. The case on the crack cocaine is somewhat stronger. The crack cocaine was found in Mr. Yusuf’s jacket pocket, a jacket the Crown submits he was wearing on the marina video recording, and according to the police, at the bail hearing.
[92] With the exception of the fentanyl charge the Crown’s case, if not overwhelming, appears close to that.
[93] Somewhat detracting from the Crown’s case is that no firearms were found during the police searches.
The Gravity of the Offence
[94] There is no question that the offences are towards the far end of the seriousness spectrum. Kidnapping, forcible confinement, extortion, death threats, aggravated assault, assault with a firearm, pointing a firearm and robbery, if there are degrees of heinousness, those crimes meet that standard. The fact that the crimes involved a premeditated attack on a defenceless young man, who was actually known to Mr. Yusuf and the others, and whom they induced into a trap, adds to the unconscionability of the crimes.
[95] Another concern about the offences are the threats on the lives of Mr. Castano’s family and the suspects’ threat related to knowing the school the brother attended. This type of crime requires a strong plan of supervision which will reliably prevent the possibility of Mr. Yusuf continuing his threats by contacting Mr. Castano or his family. The stakes are even higher now that Mr. Castano has reported Mr. Yusuf and his accomplices to the police and Mr. Yusuf has been charged and detained. Retaliation is a real worry in these circumstances.
Circumstances Surrounding Commission of the Offence (whether firearm involved)
Basic Principle
[96] The court must enter into an inquiry as to whether the accused’s continued detention is necessary to maintain confidence in the administration of justice to be looked from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty and the rights guaranteed by the Charter: St-Cloud, at paras. 72-87.
[97] The list of circumstances that might be considered under s. 515(10)(c) is not finite. R. v. St-Cloud offers some examples of possible circumstances surrounding the commission of the offence which require consideration of the victim and the nature of the crime. As cited above: … the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. R. v. St-Cloud, at para. 61
[98] There is a clear victim in this case. Mr. Castano was a friend and acquaintance of his three attackers. Ms. Millan invited him to a Friday night out on the town and he unwittingly trusted her and Mr. Yusuf enough to go with them, unaware he would become the victim of violence by them and other unknown males. A plastic bag was placed over his head and his hands were bound. Mr. Castano was a vulnerable person that evening. The situation is aggravated by the fact that Mr. Yusuf did not act alone. He plotted the scheme in advance together with his girlfriend and a friend before they committed the offences. This was not a crime of opportunity.
[99] The personal circumstances of the accused may also be considered: Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. R. v. St-Cloud, at para. 71
[100] The COVID-19 virus has become in the last few months a novel factor that must figure into a plan of release. I will deal with that issue after I address other aspects of Mr. Yusuf’s personal circumstances.
Mr. Yusuf
[101] Mr. Yusuf is a young man, 23 years of age. He has no criminal record and no outstanding charges. He had some involvement with the criminal justice system some seven months before the current charges which resolved by a Crown request for a stay of drug charges. Mr. Yusuf seems not to have been deterred by his earlier encounter with law enforcement. Within months he went on to even more serious and dangerous crime.
[102] Mr. Yusuf does not have much of an employment history. At the time of the offences, he was living with his mother and being supported by her. There is evidence that he finished high school and attended some courses at George Brown College but did not graduate.
[103] Mr. Yusuf states in his affidavit that he suffers from asthma and has been prescribed Ventolin and Flovent puffers. He provided no details of the effect on him of this condition, how he is impacted by being in detention. He seemed only to mention this in passing.
[104] In her affidavit, the mother did not mention Mr. Yusuf’s asthma condition at all. It was not until she testified at the teleconference that she spoke of her son suffering from intermittent asthma since he was a child. As noted earlier, the mother went on to describe an incident that her son told her about while in detention at TSDC. She testified that Mr. Yusuf told her he had an asthma attack and asked for medical assistance and that it took about one-half hour before he received assistance. He said he nearly had a panic attack waiting for help.
[105] I have some reservations in accepting the evidence about the asthma condition and the attack Mr. Yusuf described. This is critical evidence even more so given the risk posed by the pandemic to persons with underlying conditions such as asthma. The potential impact in congregant settings like correctional facilities has been a subject of much media coverage and public concern.
[106] I am concerned that Mr. Yusuf offered no details in his affidavit and his mother did not mention the condition at all. I am most troubled by the fact that neither, particularly Mr. Yusuf, mentioned such a frightening asthma attack in their affidavits in spite of the fact that the attack happened, at most, less than three months ago, and the affidavits were prepared only days before the hearing. I would think such an experience would be top of mind and not easily forgotten by mother or son given the fear generated by the pandemic.
[107] I do not easily come to this conclusion, but I have to say I have considerable doubt based on the information available before the court that Mr. Yusuf has an asthmatic condition that currently affects him, although he might well have had this condition as a child as many children do.
Documentary Evidence on COVID-19
[108] During the hearing, the defence filed an affidavit sworn by Dr. Aaron Orkin, dated April 7, 2020. Dr. Orkin is a specialist in epidemiology and in the impact of COVID-19 in congregant and vulnerable populations. Defence counsel did not refer at length to Dr. Orkin’s affidavit but asked the court to accept his general opinions on the spread and control of COVID-19 in congregant populations and on the risks in those settings of contracting the virus as I had accepted his opinions in R. v. Osman, 2020 ONSC 2490, at paragraphs 95 and 96.
[109] Defence counsel requested the court take judicial notice of the commonly accepted information reported in government publications about the impact of the pandemic. This includes the fact that persons with respiratory conditions such as asthma can be vulnerable.
[110] The Crown filed the Ministry of the Solicitor General, Response to COVID-19 Information Note: Institutional Services Division April 21, 2020 (SOLGEN, Government of Ontario).
[111] As I decided in R. v. Osman, I take judicial notice of the commonly recognized information in government publications, on the government websites and in the media on the COVID-19 virus and its medical and social impacts. I accept Dr. Orkin’s opinions to the extent I did in the Osman decision.
[112] The April 21, 2020 Information Note is to date the most current information on the pandemic and Ontario’s correctional facilities from the Ministry of the Solicitor General (“the Ministry”). I will summarize the pertinent portions of the Information Note.
Quick Facts:
- There were 5,707 inmates registered in custody across all 25 institutions on April 21, 2020 when data was extracted.
- This is a 32% reduction since March 16, 2020.
- All institutional capacity data is extracted from the Offender Tracking Information System (OTIS). OTIS is a correctional services database holding information submitted by correctional staff regarding individuals supervised by the Ministry in the community or in one of Ontario’s provincial institutions.
Inmates – Total (as of April 20, 2020)
Tested: 392 Negative: 176 Pending: 92 Positive: 67 Results unavailable: 57
Inmates – Positive by Institution (as of April 20, 2020)
Institution: Toronto South Detention Centre: 5 Maplehurst Correctional Complex: 1 Monteith Correctional Complex: 1 Ontario Correctional Institute: 60
Staff – Positive by Institution (as of April 20, 2020)
Positive: Toronto South Detention Centre: 1 Hamilton-Wentworth Detention Centre: 1 Ontario Correctional Institute: 8
Third Party – Positive by Institution (as of April 20, 2020)
Positive: Southwest Detention Centre: 1
[113] There was an outbreak of COVID-19 at the Ontario Correctional Institute (“the OCI”) on April 17, 2020. The facility was temporarily closed on April 21, 2020 after transferring all inmates to the TSDC. The following summarizes the protocols adopted in relation to the transfer of the OCI inmates:
- All inmates who have been transferred from OCI have been placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates.
- OCI inmates have been placed in a separate part of TSDC and will not be placed with existing TSDC inmates to reduce any potential spread of COVID-19.
- The Ministry has detailed protocols for health care and institutional staff in circumstances like these, including droplet/contact protocols and guidelines for managing units where inmates are in medical isolation. Enhanced cleaning of high touch points is being conducted at a minimum twice per day.
- Comprehensive Personal Protective Equipment (“PPE”) guidelines exist for both standard and high-risk circumstances.
- Transferring inmates to TSDC will allow the Ministry to accommodate those who need to be isolated. TSDC has a health care unit with resources that will be used to manage and support any inmate’s medical needs.
- The reduction in inmate population has provided space within TSDC that can be used for medical isolation.
- The Ministry will continue to work with Peel Public Health to identify staff and inmates who may be impacted.
- All staff from OCI will be quarantined for 14 days before returning to work.
[114] The Information Note describes the medical care available to inmates. It also describes admission protocols. Every inmate and other person entering a facility are subject to an active screening protocol upon entry into the facility. With inmates, the facility seeks to identify chronic illnesses, infectious diseases, addictions and mental and emotional health issues.
[115] Staff are questioned as to whether they have any symptoms related to COVID-19; whether they have travelled outside Canada; and whether they have been in contact with anyone diagnosed with COVID-19. Thermometers have been provided to all correctional facilities.
[116] Professional visitors who attend a facility are screened similarly to staff. Personal visitations for inmates have been suspended until further notice. Professional visitations from lawyers and spiritual advisors are continued.
[117] Facilities are inspected and thoroughly cleaned regularly. Outside vendors are used to deep clean where there has been a confirmed case of COVID-19. Inmates are provided cleaning supplies to clean their own cells. Staff and inmates have access to PPE including face masks, eye protection, gloves and gowns to be used according to Ministry of Health instructions.
[118] Efforts are being made to reduce capacity. Intermittent inmates are issued Temporary Absence Permits (“TAPs”) that were effective until May 1, 2020. Non-custodial options are considered for non-violent offenders and those at low risk to offend. Virtual courts, video and teleconferences are being used in collaboration with the Ministry of the Attorney General, the police and courts to reduce the need to transport inmates to courts.
Potential Lengthy Term of Imprisonment
[119] There is no question that Mr. Yusuf, if found guilty, will face a lengthy sentence. Each of the charges on their own would result in lengthy imprisonment.
CONCLUSION ON THE TERTIARY GROUND
[120] For reasons I set out above, the factors under s. 515(10)(c)(i), the seriousness of the offence, s. 515(10)(b)(ii), the strength of the Crown’s case and s. 515(10)(c)(iv), the prospect of a lengthy sentence all favour the Crown’s case.
[121] On the factor under s. 515(10)(c)(iii), the circumstances of the commission of the offence (whether a firearm was used), in spite of the fact a firearm was never retrieved, I find that factor also favours the Crown if Mr. Castano’s evidence is accepted and the video recording is given some weight. There appears to be substantial evidence that corroborates many areas of Mr. Castano’s allegations.
[122] The nature of the offences in terms of the involvement of a vulnerable victim also favours the Crown’s case. While Mr. Castano was not vulnerable in the sense of being a child, elderly or disabled, his captors rendered him vulnerable by outnumbering and overpowering him, putting a plastic bag over his head, binding his hands, pulling a firearm, assaulting him and beating him unconscious. The fact that the crimes were very violent, pre-planned and involved more than one person adds to their odious nature. I find the threats to Mr. Castano’s life and his family constitute a crime that could continue its reach into the future.
[123] On the personal circumstances of Mr. Yusuf, the factors that favour him are his youth and the fact that he does not have a criminal record or outstanding charges.
[124] Mr. Yusuf’s health can be considered in looking at his personal circumstances. It is his claim to suffering from asthma that is at play here since that type of condition is a factor to look at in the context of the COVID-19 virus in correctional facility settings. Dr. Orkin’s affidavit cites congregant settings like correctional facilities as environments that are conducive to the spread of the virus. He also opines that respiratory ailments are a risk factor for contracting the virus.
[125] But for reasons set out earlier, I do not accept from the information currently before the court that Mr. Yusuf has that condition such that his health is at increased risk for contracting the virus. Medical evidence from a treating physician, while not always necessary, might have assisted. What this means is that there is no particular factor in evidence that makes Mr. Yusuf particularly vulnerable to the virus beyond the vulnerability of the inmates in the general population.
[126] I have taken into account the protective and containment measures cited in the April 21st government Information Note. The cleaning, screening of staff and inmates and the capacity to segregate and treat inmates who have been exposed to the virus appear to be in accord with what is expected by the medical experts.
[127] The population in correctional facilities in Ontario has decreased by 32% since March 16, 2020 which would allow for greater ability to enforce social distancing. As of April 20th, there was an increase in the infection of inmates at TSDC of two inmates since the previous April 14th Information Note. There was no increase in staff infection at TSDC.
[128] I had some concerns about the transfer of the 60 infected inmates and 8 infected staff from OCI to TSDC on April 21st. My concerns are quelled by the information contained in the Information Note that all inmates who were transferred from OCI were placed in medical isolation and appropriate protocols are being followed to ensure protection of staff and inmates. Those inmates were placed in a separate part of TSDC and will not be placed with the existing TSDC inmates. Further, the regular protocols are being implemented to clean, screen and identify and contain the spread of the virus.
[129] I find on the whole that the tertiary ground strongly supports the Crown’s case.
CONCLUSION
[130] I have made this decision with an accused, who although he is youthful and without a criminal record, is charged with terrifying crimes. He seeks release on a plan of supervision I find seriously lacking. Given the faults in the plan of supervision, balanced with the seriousness of the offences and the particular nature of the offences, I find the confidence of a reasonable member of the public in the administration of justice would surely be eroded were Mr. Yusuf released. In the circumstances, I do not find the existence of a pandemic alone without more can justify Mr. Yusuf’s release or an indiscriminate release of inmates from correctional facilities.
ORDER
[131] The application is denied. Zaaman Yusuf shall not be released from the Toronto South Detention Centre.
[132] Zaaman Yusuf shall abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, in particular, Jean Paul Castano, Danna Millan and Patrick Celaj.
B.A. Allen J. Released: May 5, 2020