Court File and Parties

Court File No.: DR(P) 244/20 Date: 2020-06-03 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant Counsel: Y. Brar, for the Crown/Applicant

- and -

Zarrin Tasnim, Respondent Counsel: B. Molloy, for the Defendant/Respondent

Heard: May 27, 2020, by teleconference

Before: André J.

Reasons for Judgment – Crown’s Bail Review Application

[1] On December 27, 2019, the Peel Regional Police Force (“PRPF”) charged Ms. Tasnim with the offences of failing to comply with a recognizance, discharge of a firearm, uttering a threat to damage property and break and enter of a residence.

[2] The Crown seeks a review of the May 13, 2020 decision of Justice of the Peace Al Gunness to release Ms. Tasnim on a recognizance in the amount of $2,500 without deposit. The Crown submits that the Justice of the Peace erred in law and in principle in releasing Ms. Tasnim.

Allegations

[3] The Crown alleges that on December 25, 2019, at 6:59 p.m., Ms. Tasnim recorded a video of the outside of her ex-boyfriend Mr. Niyo Hill’s residence at 69 Palmolive Street. She then stated: “Watch what I do to your crib”. Ms. Tasnim uploaded the video online at 11:00 p.m. and made it viewable to the public.

[4] Later that night, at 12:22 a.m., a Lexus SUV is seen on surveillance leaving the street next to Ms. Tasnim’s address. At 12:58 a.m., a Lexus SUV is then seen on surveillance parked in front of 69 Palmolive Street. At 1:00 a.m., a witness heard six to nine shots and saw a 6-foot-tall male run towards a moving car, dressed in all black. He also observed a light-coloured SUV parked in front of the address. The police then attended and observed four to five bullet holes in the building, including one that pierced the upstairs master bedroom window and lodged in the ceiling. They located seven casings in the driveway.

[5] At 1:08 a.m., two cars returned to Ms. Tasnim’s residence, which is roughly a ten-minute drive away. At some time after 1:00 a.m., a neighbour of Ms. Tasnim saw Ms. Tasnim in the company of a black man and an Indian woman. Her boyfriend of the time also observed Ms. Tasnim in the company of the same people at 2:00 a.m. He further observed that the black man drove a black car and the Indian woman drove a silver SUV.

[6] On December 27, 2019, at 1:25 p.m., Mr. Hill’s girlfriend, Sabrina Ieraci, notified the police that Ms. Tasnim had just FaceTimed her from inside Mr. Hill’s home at 69 Palmolive Street. The police arrested Ms. Tasnim at that residence at 1:32 p.m.

[7] The court was provided with an information note detailing the efforts in place to protect the health and safety of people in custody and firearm statistics demonstrating the increase in firearm offences in Peel Region in recent years.

Criminal Record

[8] Ms. Tasnim has the following findings of guilt on her record:

1. 2015 (YOA record) A court found Ms. Tasnim guilty of three counts of assault and uttering threats. The court placed her on probation.

2. February 2016 One count of uttering threats and one year’s probation.

3. September 16, 2019 (Adult Record) Robbery. Sentence was suspended after Ms. Tasnim received credit for 167 days of pre-trial custody.

Outstanding Charges

[9] On February 2, 2019, the Toronto Police Service (“TPS”) charged Ms. Tasnim with two counts of uttering threats. She was released on a recognizance with several conditions.

[10] On May 18, 2019, the PRPF charged Ms. Tasnim with two counts of assault with a weapon and weapons dangerous following an allegation that she brandished a switchblade and pointed it at a female with whom she had a conflict and cut another female while running from the scene. The police held Ms. Tasnim for a bail hearing and later discovered that at the time of these allegations, Ms. Tasnim was on a recognizance with a condition that prohibited her from being in possession of a weapon. They then charged her with the additional offence of breach of recognizance.

[11] The court released Ms. Tasnim on May 27, 2019, on a recognizance in the amount of $500 without deposit, subject to a number of conditions including a prohibition against possessing any weapons.

Justice of the Peace’s Decision

[12] Justice of the Peace Gunness found, at p. 70 of his decision, that there were no concerns on the primary ground. Regarding the secondary ground, he noted at p. 70 that:

Dealing with the secondary grounds, then the Court has to take into consideration whether detention is necessary for the protection and the safety of the public, having regard to the circumstances, and that includes any substantial likelihood that you will reoffend and whether the plan presented by the surety will mitigate these circumstances to justify your release.

[13] With respect to the tertiary ground, Justice of the Peace Gunness noted at p. 71:

So taking all the facts into consideration the Court has to take into account when it comes to the tertiary grounds the apparent strength of the Crown’s case. The Crown submits there is a strong case against you for the simple fact that the complainants or the people who were involved in this matter are known to you. And considering the penalty or the length of time that is provided for custody, and as your defence counsel agree that this carries a substantial period of incarceration.

So the Court has to consider the fourth (sic) factors with regard to the tertiary ground, and the Court recognizes at this stage you are presumed to be innocent until proven guilty because you have the benefit of the Charter of Rights and the fundamental tenets of the law is that the Constitution reigns supreme.

[14] Justice of the Peace Gunness then concluded on p. 73 that:

Have I indicated or the Crown indicates that the case is very strong and this sentence carries significant jail time before you, so the Court has to strike a proper balance between your release and the protection of the public without affecting the administration of justice in this country. I have to balance these factors as well as the case law that is presented to me regarding the outbreak of this pandemic.

The Court finds, notwithstanding the gravity of the offences before the court, the Court has to see if this plan is a workable plan, and it is workable to satisfy both the secondary and the tertiary grounds.

Having taken all these factors into consideration the Court finds that this plan is workable and having found that this plan is workable, because of the extraordinary times that have been in effect because of the Coronavirus pandemic, the Court is going to release you.

Crown’s Submissions

[15] The Crown submits that Justice of the Peace Gunness made the following errors:

1. The Justice of the Peace failed to provide any analysis of the secondary ground and to give it any weight in his analysis. He merely stated the test, proceeded to address the tertiary ground, and then ultimately concluded that the plan was “workable”. In so doing, he failed to give any weight to the secondary ground, rendering his decision unreasonable. He also failed to consider the factors which are relevant to this ground of detention or provide any discernible analysis of how the plan addresses these concerns.

2. The Justice of the Peace spoke at greater length about the tertiary ground. Although he identified two of the considerations, he failed to itemize the others. As in the case of R. v. Abdel-Gadir, 2013 ONSC 6142, at para. 30, he failed to “provide any analysis of the considerations under that section in the context of the evidence before him.”

3. The Justice of the Peace went on at length in his reasons about the COVID-19 pandemic. The pandemic wholly overwhelmed the analysis of the tertiary ground and appeared to be the only element he placed any weight on. He gave little weight to the strength of the Crown’s case, incorrectly stating that the “Crown submits there is a strong case against you for the simple fact that the complainants or the people who were involved in this matter are known to you.” In fact, the strength of the Crown’s case lies in the video surveillance and eye-witness accounts corroborating the Respondent’s movements, the video that Ms. Tasnim allegedly posted, and, most notably, the fact that Ms. Tasnim was ultimately arrested inside Mr. Hill’s house. He then dismissed this consideration by stating that the accused is entitled to the presumption of innocence.

Governing Principles

[16] Section 11(d) of the Canadian Charter of Rights and Freedoms provides that everyone is presumed to be innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[17] Section 11(e) provides that any person charged with an offence has the right not to be denied reasonable bail without just cause.

[18] Section 515(10)(b) of the Criminal Code, R.S.C. 1985, c. C-46, provides that detention of an accused is justified under the tertiary ground where it is necessary for the safety or security of the public, having regard to the substantial likelihood that the accused, if released, will interfere with the administration of justice or commit a further offence.

[19] The following factors are relevant to a determination of whether an accused should be released on the secondary ground:

a. The nature of the offence(s); b. The circumstances of the offence(s); c. The likelihood of conviction; d. The degree of participation of the accused; e. The relationship between the accused and the victim; f. The character and profile of the accused, including their occupation, lifestyle, criminal record, family situation, and mental state; g. The danger the interim release of the accused poses to society; h. The nature of the proposed release and degree of supervision; i. The surety/sureties and their ability to supervise, including their criminal record, employment, the money or property that can be pledged to the court, their ability or willingness to monitor the accused, whether they are in a position that attracts the respect of the accused, and their familiarity with the accused, with the accused’s criminal record, and with the current accusations.

See Abdel-Gadir, at para. 35; R. v. Sharma, 2014 ONSC 273, at paras. 13, 17.

Analysis

[20] This application raises the following issues:

1. What is the appropriate test for a review of Justice of the Peace Gunness’s decision?
2. Did the Justice of the Peace err in law or principle by releasing Ms. Tasnim on the secondary ground?
3. Did the Justice of the Peace err in law or in principle by releasing Ms. Tasnim on the tertiary ground?

What is the appropriate test for a review of Justice of the Peace Gunness’s decision?

[21] The Crown bears the burden of establishing a basis for interfering with the decision of the Justice of the Peace. If a basis for interfering with the decision is established, the Crown also bears the onus to show cause as to why Ms. Tasnim should be detained in custody: see Abdel-Gadir, at paras. 26, 34.

Did the Justice of the Peace err in law or in principle by releasing Ms. Tasnim on the secondary ground?

[22] The obligation to determine whether or not there is a substantial likelihood that an accused will reoffend if released or interfere with the administration of justice is not fulfilled by a mere recitation of the test set out in s. 515(10)(b) of the Code nor by a statement that the proposed plan of supervision is “workable”. In my respectful view, it was incumbent upon the learned Justice of the Peace to assess those factors that are relevant to determining whether or not there was a substantial likelihood that Ms. Tasnim would reoffend if released. To that extent, His Worship was required to analyze the factors enumerated in Sharma and Abdel-Gadir, and particularly any allegations of breaches of court orders, Ms. Tasnim’s criminal record, the nature of the offences for which she has been convicted, the seriousness of the allegations and the proposed supervision plan. It may well have been the case that the proposed plan of release assuaged any concerns the court may have had on the secondary ground. However, a conclusory statement that the plan proffered in the bail hearing was “workable”, does not, in my respectful view, meet the standard of showing why the court concluded that Ms. Tasnim’s release was justified on the secondary ground.

Supervision Plan

[23] I am also concerned that the proposed supervision plan was inadequate to assuage the court’s justifiable concerns on the secondary ground. The allegations indicate that Ms. Tasnim allegedly breached a number of court orders. The allegations are very serious in that they involve a) a threat to shoot at the residence of an ex-boyfriend, b) the discharge of a firearm at the residence; and c) an allegation that Ms. Tasnim broke into the residence on the day following the shooting. Ms. Tasnim’s record, while brief, indicates that she has a propensity for violence which has significantly escalated since she was first found guilty of multiple counts of assault in 2015.

[24] Justice of the Peace Gunness found the following plan, in the circumstances of the case, to be workable.

[25] The proposed surety, Aliesha Noganosh, was born on February 1, 2001, and is Ms. Tasnim’s “foster sister”. She lives in a basement apartment with her two children, aged 2 and 3. She therefore assumed the responsibilities of motherhood at an early age. She testified that she understood that Ms. Tasnim would be required to comply with the rules set out by the court and by herself if the court released her. She works as a part-time model but now works at home because of COVID-19. She receives approximately $4,500 per month as a ward of the Crown. She was willing to pledge $2,500 to secure Ms. Tasnim’s release. She does not own a car, but she can rely on a vehicle owned by a close friend who lives four houses from her residence.

[26] In my view, there are some concerns with the supervision plan that render it inadequate in the circumstances of this case. Ms. Noganosh is a single mother who is caring for her two young children. She does not own a car and will be responsible for ensuring Ms. Tasnim’s attendance at court if she is released. While Ms. Noganosh may be able to rely on a friend for transportation, how will she be able to fulfil this condition of a release if she has her two young children to take care of? She testified that she could take Ms. Tasnim with her when she goes to a photoshoot. She would also have to take her children with her. Additionally, Ms. Noganosh would require Ms. Tasnim to have a cellphone. Even if Ms. Noganosh limited Ms. Tasnim’s use of a cellphone, how would she monitor who Ms. Tasnim interacts with on the phone? This is important given the allegations that Ms. Tasnim used the phone to issue a threat and to FaceTime Mr. Hill’s new girlfriend.

[27] In my view, the proposed plan is inadequate to properly supervise Ms. Tasnim given her alleged breach of court orders and the nature and seriousness of the charges. While Ms. Noganosh is sincere and well-intentioned, the responsibilities of motherhood, lack of a vehicle and her plan to resume working at some point in the future would severely limit her ability to supervise Ms. Tasnim. She has not allayed the court’s concerns on the secondary ground.

[28] The degree of violence in the allegations is relevant to determining the potential risk to the public if an accused is released: see R. v. H.(R.), 2006 ONCJ 116, 38 C.R. (6th) 291; R. v. Heang, 2011 ONSC 2037; R. v. Croteau, 2016 ONSC 1515; R. v. Rajendram, 2020 ONSC 3176.

[29] For the above reasons, I conclude that Justice of the Peace Gunness erred in law and in principle by concluding that given the proposed plan of supervision, Ms. Tasnim should be released on the secondary ground.

Did the Justice of the Peace err in law or in principle by releasing Ms. Tasnim on the tertiary ground?

[30] Section 515(10)(c) of the Code sets out the following factors to determine whether an applicant’s detention is necessary to maintain confidence in the administration of justice:

1. The strength of the Crown’s case;
2. The seriousness of the offence;
3. Whether the applicant faces a significant jail sentence, if convicted; and
4. The circumstances of the case including whether the firearm was discharged in a public place.

[31] The presence of these factors does not result in the automatic detention of an applicant for bail: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 68-71.

[32] To consider whether Ms. Tasnim should be detained on the tertiary ground, I must ascertain whether a reasonable and well-informed member of the public who is conversant with the rule of law, the presumption of innocence, the right under s. 11(e) of the Charter not to be denied reasonable bail without just cause and the circumstances surrounding the allegations, would conclude that Ms. Tasnim’s detention is necessary to maintain confidence in the administration of justice.

[33] Justice of the Peace Gunness did not consider the second and fourth factors set out in St-Cloud in his analysis of the tertiary ground. That failure, in my view, constitutes an error of law.

Strength of the Crown’s Case

[34] Justice of the Peace Gunness noted at p. 71 of his ruling that the Crown suggested that it had a strong case against Ms. Tasnim because the persons involved were known to her. However, the allegations against Ms. Tasnim are based on surveillance evidence, Instagram messages and FaceTime images. Additionally, the police arrested Ms. Tasnim inside Mr. Hill’s residence. The fact that Ms. Tasnim is presumed to be innocent does not alter the fact that the Crown appears to have a strong case against Ms. Tasnim.

Gravity of the Offence

[35] The alleged offences are very serious. The discharge of a firearm into a residence could quite easily have resulted in serious bodily harm or even death.

Sentence

[36] Ms. Tasnim faces a minimum sentence of four years imprisonment if convicted of the weapons charge.

Circumstances of the Case

[37] The allegations involve an act of great violence against a former boyfriend of Ms. Tasnim. The shooting was preceded by a threat allegedly uttered by Ms. Tasnim to Mr. Hill that his “crib” would be targeted. Additionally, Ms. Tasnim is alleged to have broken into Mr. Hill’s house following the shooting.

[38] These four factors, in my view, all favour detention of Ms. Tasnim. However, other factors must be considered, including the COVID-19 pandemic, to decide whether Ms. Tasnim should be released.

The COVID-19 Pandemic

[39] I am prepared, as a number of courts have done before me, to find that COVID-19 requires an analysis, under s. 515(10)(c), of whether Ms. Tasnim should be released: see R. v. J.A., 2020 ONSC 2312; R. v. Dawson, 2020 ONSC 2481; R. v. P.K., 2020 ONSC 2694, at paras. 37-39.

[40] I am also prepared, given the considerable body of information about the pandemic and the jurisprudence on the intersection of COVID-19 and bail, to take judicial notice of the following facts:

a) The pandemic has wreaked untold death and destruction worldwide; b) COVID-19 is extremely infectious and can spread rapidly in any location; c) The main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protection equipment, and iii) regular testing of the population; d) Persons in confined spaces, such as long-term care facilities, shelters and prisons, are particularly vulnerable to the disease given their inability to take mitigatory measures such as social distancing; e) Persons who have pre-existing medical problems such as diabetes, high blood pressure and respiratory problems are particularly susceptible to being infected by the virus.

[41] In assessing the significance of COVID-19 on the tertiary ground, His Worship concluded at p. 72 that:

The Court also recognizes that a person in a custodial settings (sic) are more at risk and vulnerable to pandemic than the general public due to their confined conditions for prolonged periods of time. Therefore, the Court must take all these factors into consideration and whether the plan that was presented by the surety is a workable plan.

[42] The grave risk posed by the pandemic and the proposed supervision plan are not the only considerations to be analyzed in deciding whether an accused should be released on bail. The four factors set out in s. 515(10)(c) must be considered as well. Furthermore, the fact that Ms. Tasnim was charged with a serious offence does not automatically result in a detention order. Indeed, as Ms. Tasnim’s counsel has pointed out, in R. v. J.R., 2020 ONSC 1938; R. v. S.A., 2020 ONSC 2946; and R. v. A.F., 2020 ONSC 2880, the applicants were ordered released despite facing serious charges such as attempted murder (as in S.A.) or discharging a firearm (as in J.R. or A.F.). In those cases, however, the rationale for release revolved around factors the most important of which were a) the existence of pre-existing medical problems that made the applicant susceptible to being infected by the virus and b) a strong supervision plan which, in the case of J.R. and A.F., involved electronic monitoring.

[43] In this case, the proposed supervision plan can best be described as weak rather than workable. This is not on account of the youthful age of Ms. Noganosh. Rather, it is because her personal responsibilities of having to care for two young children on her own and her lack of transportation raise serious concerns about the extent to which she can properly supervise Ms. Tasnim. She plans to have Ms. Tasnim accompany her to her photoshoot sessions but it is unknown where her children will be during these sessions. It is also unknown how she will supervise Ms. Tasnim’s use of either a cellphone or laptop when much of her attention will be focused on her two children. In my view, a reasonably well-informed person, who is cognizant of the presumption of innocence, the right to be granted reasonable bail, the seriousness and circumstances surrounding the allegations, the plan of supervision and Ms. Tasnim’s criminal antecedents would conclude that Ms. Tasnim’s release would seriously undermine the public’s confidence in the administration of justice.

Conclusion

[44] For the above reasons, I conclude that the Crown has met its onus to prove that Justice of the Peace Gunness erred in law and in principle in releasing Ms. Tasnim. Her bail is therefore vacated, and Ms. Tasnim is ordered detained.

[45] I order Ms. Tasnim to appear at the Vanier Detention Centre for Women, at 655 Martin Street in Milton, within twenty-four (24) hours of this order.

André J. Released: June 3, 2020