Court File and Parties
Court File No.: CR-20-112 BR Date: 2020-07-10 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent Jason Little, for the Crown Attorney
- and -
Muhammad Ameer Hassan, Applicant Kim Schofield, for Muhammad Ameer Hassan
Heard: July 8, 2020
Reasons for Ruling on Application for Bail Review - Section 520 of the Criminal Code
P. R. SWEENY J.
[1] This is an application for bail review under Section 520 of the Criminal Code of Canada. As the Supreme Court of Canada outlined in R. v. St. Cloud, 2015 SCC 27, a bail review can only succeed in three circumstances:
(1) where there is admissible new evidence showing a material and relevant change in the circumstance of the case; (2) where the decision contains an error of law; or (3) where the decision is clearly inappropriate.
[2] On this application, the applicant asserts there is admissible new evidence which represents a material change in circumstances in that the applicant is now proposing two new different sureties and electronic monitoring together with stricter conditions than the prior plan.
Brief Overview of the Facts
[3] On April 8, 2020, members of the Toronto Police Service Emergency Task Force executed a search warrant at 249 Cannon Street East in Hamilton, Ontario. The Applicant was located on the living room couch along with his co-accused, Uzman Munir. Another co-accused, Albert Munyorovi, was located in the upper level of the residence. The last co-accused, Ali Munir, had exited the residence prior to the execution of the warrant and was followed by police as he drove away in a silver Nissan sedan. He was later located at 141 Wendover Drive and was arrested on foot.
[4] Upon search incident to arrest, the police located an Oxycodone pill, several baggies containing cocaine and a cellphone in the applicant’s pants pocket.
[5] During the search of the residence at 249 Cannon Street East, the following items were found:
a) on the back kitchen counter: approximately 80 grams of cocaine; and several unused dime baggies; b) on a kitchen counter: a functioning black digital scale coated in cocaine residue; a knife coated in cocaine; a white functioning scale coated in cocaine; and a small baggie of cocaine; c) in a backpack: bundled and loose money- well over $5,000; and d) in the living room: a large sum of money in a drawer; and identification for Uzman Munir and Ali Munir on the living room table.
[6] The applicant stands charged with the following offences:
- two counts of possession for the purpose of trafficking cocaine, contrary to Section 5(2) of the Controlled Drugs and Substances Act;
- one count of possession of proceeds of property over $5,000 obtained by crime, contrary to Section 354(1) of the Criminal Code of Canada;
- one count of failing to comply with a probation order, contrary to Section 733.1(1) of the Criminal Code of Canada; and
- two counts of failing to comply with an undertaking, contrary to Section 145(4)(a) of the Criminal Code of Canada.
[7] The applicant had an initial bail hearing on April 17, 2020 before Justice of the Peace D’Ignazio. This is a reverse onus situation. He was denied bail. J.P. D’Ignazio held that the applicant had not met his onus on the secondary grounds because the proposed surety was neither credible nor trustworthy and could therefore not be suitable to adequately manage the risk posed to the public of commission of offences. As a result, the applicant was detained on the secondary grounds.
Position of the Parties
[8] The applicant says that the new sureties represent a material change in circumstances. On a hearing de novo, the applicant should be released. The proposed plan is essentially house arrest at the residence of his sureties. The applicant will be in the company of one of his two sureties. He can only to use his cell phone in the presence of his sureties and only after they dial the number and verify who is on the other end. He is not to have any visitors except close family members. There will be electronic monitoring.
[9] The Crown says that the proposed two new sureties and electronic monitoring is not properly admissible as new evidence. It does not represent a material change. The applicant could have proffered the new sureties at the prior hearing. Electronic monitoring was available at that time also.
[10] If I find there is a material change, the Crown submits that the justice at the bail hearing determined that no release was satisfactory. In this case, the Crown says no release is appropriate.
Analysis
[11] As Chief Justice Wagner has made clear in R v. St. Cloud, the Palmer criteria for the admission of fresh evidence must be applied and considered in the context of a bail review. New evidence should not be limited to that which was plainly unavailable to the accused before the initial hearing. He wrote at para 127:
I am instead of the opinion that the reason why detained persons may not always tender all possible evidence at their first hearing lies in the generally expeditious nature of the release process and in the consequences of that nature, namely the short time between arrest and hearing, a lack of representation for accused persons, and incomplete evidence at this stage. The interests of justice would therefore be undermined if courts acting under ss. 520 and 521 Cr.C. were to adopt a narrow view regarding the "new evidence" that can be admitted under those sections
[12] In R. v. Baidwan, 2020 ONSC 2349, Skarica J. succinctly summarized the Palmer criteria for the admissibility of new evidence in a bail review at paragraph 21 as follows:
- Due diligence – In criminal cases due diligence is not applied strictly. The reviewing judge must consider whether there were legitimate and reasonable reasons for not tendering the new evidence at the original bail hearing.
- The new evidence need not be decisive or potentially decisive. It is sufficient if the evidence is relevant for the purposes of s. 515(10) (that is relevant to the primary, secondary and/or tertiary grounds).
- The new evidence must be credible in the sense that it is reasonably capable of belief. The new evidence must be credible or trustworthy having regard to the relaxed rules of evidence at the bail stage as outlined in s. 518(1)(e).
- The new evidence must be significant. The new evidence must be reasonably capable of affecting the balancing exercise engaged in by the justice in s. 515(10)(c).
[13] The applicant proposes two sureties: Syed Waseem Abbas, the applicant’s uncle, is self-employed as a long-haul truck driver and works three days on and two days off. His wife, Syeda Hina Waseem, is a stay-at-home mom who has three children and would be available to supervise the applicant at all times. These sureties were not proposed at the initial hearing. At that time, they did not have suitable accommodation for the applicant. They have arranged suitable accommodation with a separate bedroom for the applicant.
[14] These sureties are aware of the applicant’s criminal record. They are aware that the accused was the victim of a shooting in December 2019. They are also aware that the accused has two prior convictions for breaching terms of his release. In addition, he was convicted of flight while pursued by police and obstruction of justice. These were related to the breaches.
[15] The sureties are prepared to put up $25,000 between them. The sureties are law abiding citizens who understand their duties and are prepared to act as sureties.
[16] The sureties are prepared to pay for electronic monitoring of the applicant. Electronic monitoring, while not a panacea, does go a long way to ensuring the applicant stays where he is supposed to be.
[17] With respect to the application of the Palmer criteria, I am satisfied that this is admissible as new evidence.
[18] With respect to the issue of due diligence, the proposed sureties were not initially considered. They were not aware the applicant had been charged until the end of April. At the time, they lived in a two-bedroom house which could not accommodate the applicant. They have now come forward. I am satisfied that there were legitimate and reasonable reasons for not proposing these two as sureties at the time of initial bail hearing.
[19] The evidence is relevant. The potential new sureties are relevant on the secondary ground. They are proposed to address the concern of the substantial likelihood that the applicant would commit a criminal offence while on bail.
[20] With respect the credibility of the evidence, this evidence is credible. Both witnesses have no criminal records. They have never been sureties before. They are the biological uncle and aunt of the applicant. I was particularly impressed with Ms. Wassem. She says she would be strict with the applicant. She explained that his mother and sister, who previously acted as sureties, were too lenient with him. This was an appropriate comment to capture the situation. She would not be so lenient.
[21] With respect to the fourth issue, the evidence must be reasonably capable of affecting the balancing exercise engaged in by the justice. In this case, it is evident that the justice was not satisfied with the proposed surety. The prior surety had credibility problems. This is an objective inquiry: would it be reasonably capable of affecting the balancing exercise engaged by the justice? In my view, clearly it would.
[22] In R. v. Ferguson Justice Hill commented at para. 17:
“Simply reshuffling the deck of perspective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances.”
[23] It is important to note that Justice Hill goes on in paragraph 17 as follows:
“Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention. For example, in Regina v. Balcovich (2000), 131 O.A.C. 29 (CA) at 33, Rosenberg J.A. considered the post-detention changes in surety availability to be significant enough to constitute a material change.”
[24] The comments of Hill J. outlined above are apposite in this case. After having reviewed the evidence at the hearing, especially the evidence of the proposed sureties, I am satisfied that new proposed sureties constitute a material change in circumstances.
Does the proposed plan satisfy the applicant’s onus on the Secondary Ground?
[25] Section 515(10)(b) of the Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”
[26] It is a reverse onus situation.
[27] The applicant’s prior criminal record is a concern: particularly the convictions related to the administration of justice. As I understand the record, there was a breach of curfew and a breach of house arrest. The flight while pursued by police and obstruct were in the context of those breaches. The applicant was less than 20 years old when those events occurred.
[28] In the present case, the breach of probation and breach of recognizance arises as a result of the accused being charged with the criminal offences for which he is presumed innocent.
The Value of Electronic Monitoring
[29] Stephen Tan, Director of Operations at Recovery Science Corporation, gave evidence. He explained that Recovery Science now has a new process to enable them to monitor the situation where the accused leaves the designated area with a surety. There is a two-step process. Firstly, the surety must call and leave a voicemail message that he or she is leaving with the accused. The surety’s voice is electronically verified. Thereafter, sometime within the next four hours, Recovery Science will contact the surety and require the surety take a live video of the accused indicating the date and time. This is an additional check to ensure the accused does not merely leave the designated area without the surety. This is a new provision implemented approximately two months ago.
[30] The concern is that the accused will breach his bail conditions. This plan proposes strong sureties and electronic monitoring. On the issue of electronic monitoring I quote Nordheimer J. in R. v. Doucette, 2016 ONSC 852 at para 5:
While there are weaknesses in electronic monitoring when it comes to other issues relating to the issue of bail, electronic monitoring does significantly reduce the likelihood that an accused person will commit an offense if he or she is released. This is because the accused has to know that in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area. As is proposed in this case, that automatic alert goes directly to the police. This greatly reduces the window of opportunity for the commission of an offence.
[31] The Crown submits that this plan is not adequate. The Crown’s submission seems to be that there is no plan which could be put forth to allow for judicial interim release. I reject that submission of the Crown. The Supreme Court of Canada has emphasized the constitutional right to be presumed innocent and not to be denied reasonable bail without just cause. In the circumstances, the plan proposed adequately addresses the secondary ground concerns. This is a comprehensive plan. The applicant will be under house arrest. I am satisfied that the concerns raised in this case can be addressed by a release with sureties and strict terms, that is, that the plan alleviates any substantial likelihood of the applicant committing criminal offences.
[32] In addition to the presence of the sureties, the prohibition against visitors aside from close family members, and the inability to use a cell phone unless in the presence of his sureties and talking to persons known to his sureties, provides a significant degree of supervision over the accused.
[33] In all the circumstances, I am satisfied that the proposed plan adequately addresses the secondary ground. Accordingly, the detention order is set-aside and the applicant is granted judicial interim release subject to the following terms:
[34] There shall be two sureties: Syed Waseem Abbas, who shall pledge $23,000 with no deposit, and Syeda Hina Waseem, who shall pledge $2,000 with no deposit.
The terms are as follows:
- You shall, in addition to the normal terms:
- Reside with your sureties at 12 Bretton Court, in Scarborough, Ontario;
- Remain in your residence at all times, Except: a. When in the presence of one of your sureties; or b. For medical emergencies involving yourself or a member of your immediate family (parent or sibling);
- Be subject to a strict curfew between 10:00 p.m. and 6:00 a.m., with no exceptions;
- Be subject to GPS monitoring by Recovery Science Corporation (“RSC”);
- Wear a GPS ankle bracelet at all times and submit to 24-hour electronic monitoring with RSC, and bear the cost of electronic monitoring;
- Install the GPS ankle bracelet within 24 hours of release;
- Comply with the RSC leave notification and battery charging requirements, and cooperate fully with RSC staff;
- Not possess any weapon(s) as defined by the Criminal Code;
- Not possess any cell phones except in the direct presence of one of your sureties and not to communicate with anyone except family or legal counsel on the cell phone after the surety has dialed the number and verified the identity of the person to whom you are speaking;
- Not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name.
- Not have visitors except family members.
- You will have no contact, directly or indirectly, by any means whatsoever, with any co-accused including Ali Munir, Uzman Munir and Albert Munyorodi
“Justice P.R. Sweeny”
Sweeny J.