Court File and Parties
COURT FILE NO.: CR-00000-235-00BR DATE: 20200720 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen – and – Ajmain Rahman, Applicant
COUNSEL: Elizabeth Jackson, for the Crown Brian Irvine, for the Applicant
HEARD: July 9, 2020
ALLEN J.
Reasons for Decision on a Bail Review Application
Temporary Suspension of the Court
[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 tele-conference or video-conference.
[2] The parties agreed that this bail review proceed by way of tele-conference. A registrar and court monitor were present in a courtroom to maintain the court record. An order excluding witnesses and a publication ban were made.
[3] The applicant filed affidavits of three proposed sureties and his own affidavit. The parties provided written materials electronically by email and made oral submissions. Viva voce evidence was given by three proposed sureties. The witnesses were cross-examined and examined-in-chief.
The Charges
[4] Ajmain Rahman, age 22, is charged with co-accused John Okoro, Rodrigues Sendia and Dorshon Kevine Glasgow on charges of: attempt murder of Brandon Bernard-Ricketts; attempt murder of Nima Robati; discharge firearm at Brandon Bernard-Ricketts with intent to endanger life; discharge firearm at Nima Robati with intent to endanger life; driving a motor vehicle knowing it contained a firearm that was a prohibited, restricted or non-restricted firearm; possession of a loaded revolver without being the holder of a license or certificate of registration; and possession of a firearm while prohibited by a Criminal Code, s. 110.
[5] The attempt murder and firearms charges make this is a defence onus case.
The Incident
[6] For the current judicial review, the Crown adduced still photos and a DVD recording from surveillance cameras that shows the movements of Mr. Rahman and his co-accused before, during and after the shooting incident.
[7] The offences took place on January 6, 2020 in broad daylight in a busy intersection at Eglinton Avenue East and Woodbine Avenue in Toronto. Mr. Rahman is alleged to have been in, and possibly driving, a black Mercedes in company with John Okoro, Rodrigues Sendia and Dorshon Kevine Glasgow. The Mercedes was later determined to be registered to Mr. Rahman.
[8] Before the shooting incident, Mr. Rahman and the victims, Mr. Ricketts and his girlfriend, Ms. Robati, were in a flea market at a jewellry counter. Mr. Rahman commented to Mr. Ricketts that he liked his music. The three of them left the flea market.
[9] Mr. Rahman, Mr. Okoro, Mr. Sendia and Mr. Glasgow were occupants in the black Mercedes that, for some distance, followed a Honda occupied by Mr. Ricketts and Ms. Robati. The Mercedes pulled up behind the Honda. Mr. Okoro departed the Mercedes and fired seven rounds into the Honda injuring Mr. Ricketts and Ms. Robati who was in the front seats.
[10] The Mercedes next drove around the corner and eventually picked up Mr. Okoro. As the Mercedes sped away it got into an accident. The four occupants fled dropping two handguns as they ran. One firearm was fully loaded and the other, thought to be the one that was fired, was empty. A third fully-loaded firearm was recovered from the floor beneath the driver’s seat of the black Mercedes. Four handguns in all were recovered in relation to the incident.
[11] Moments later, Mr. Rahman returned to the Mercedes. He then approached a wine store on Queen Street East where Ms. Robati was seeking assistance and shelter. Mr. Rahman was taken by a police officer to the window of the wine store where Ms. Robati identified Mr. Rahman as the man who had approached her and Mr. Ricketts at the flea market. Mr. Rahman and Mr. Okoro were arrested and a few days later, Mr. Sendia was arrested. Mr. Glasgow was arrested subsequently.
[12] For the current bail review, the defence asked the court to consider a still photo from street surveillance recordings from cameras situated near the scene of the shooting that show a person driving the Mercedes. The defence submits this evidence suggests Mr. Rahman was not the driver of the Mercedes. Mr. Rahman has a brown complexion. The defence submits the photo shows a black man wearing a baseball cap driving the Mercedes.
[13] I agree with the Crown’s submission that the photo is not clear enough to offer confidence that the driver is a black man and not a brown man. The colours of objects in the photo do not seem to be true in relation to the Mercedes and objects in the surrounding area. The edges of the images of the driver and other objects in the photo are not sharply enough defined to allow recognition of the person who is driving.
[14] The defence points out that the man driving the Mercedes is wearing a baseball hat and that none of the other depictions of Mr. Rahman show him wearing a baseball hat. However, as the Crown points out, none of the other assailants are depicted wearing a baseball hat in any photos.
[15] All this is to say, it is not persuasive evidence from which to decide whether or not the driver is Mr. Rahman.
Original Bail Hearing and Previous Bail Review
[16] Mr. Rahman had a bail hearing on March 5, 2019 before Justice Dan Moore of the Ontario Court of Justice in Toronto. The plan of supervision included house arrest, his parents, Fatima Zohara and Firojur Rahman, as sureties, a $5,000.00 pledge by the parents and electronic monitoring and house arrest. The parents had acted as sureties for their son on previous occasions. The Justice detained him on both secondary and tertiary grounds.
[17] Justice Moore noted that Mr. Rahman had six convictions for failing to comply with a recognizance and observed:
Most of those are occasions in which either of the proposed sureties here were supervising him and on none of those occasions did they ever call the police or revoke their sureties by coming to court.
[18] Looking at the seriousness of the crimes Justice Moore also observed there was a “very, very strong case for the Crown” and went on to conclude:
I’m not satisfied on the secondary ground. I’m not satisfied on the tertiary ground. Had there been absolutely stellar sureties with electronic monitoring and with a much better plan, and a much higher amount, I might have considered releasing him. But it is the accused’s onus and I find that he has not met it.
[19] At the first bail review held on June 21, 2019, before Justice Gillian Roberts of this court, Mr. Rahman sought review on the basis of material changes in circumstance, being: an increase in the parents’ surety pledge from $5,000.00 to $400,000.00 which represents equity in their home; an undertaking by Mr. Rahman’s uncle, Ahmed Muniruddin, to be a non-residential surety offering a $5,000.00 pledge; and the parents having retained Recovery Science Corporation (“RSC”) for electronic monitoring.
[20] The Crown proffered further evidence on the tertiary ground for consideration if Justice Roberts were to find a material change of circumstances. There were additional details on Mr. Rahman’s breach of recognizance charges, DNA results from the grip of the handgun located on the floor of the driver’s seat of the black Mercedes showing that Mr. Rahman cannot be excluded as a contributor. DNA results from a swab taken from the grip of the gun indicating a likelihood of greater than one trillion times that it originates from Mr. Rahman and two unknown people unrelated to him.
[21] Justice Roberts observed that because Justice Moore was of the view that a more robust plan of supervision would be required, she found that a more substantial plan of supervision could represent a material change in circumstance in this case. That was the main question before Justice Roberts.
[22] Justice Roberts considered the greatly increased pledge by the parents, the parents’ ability to give 24/7 supervision, the $5,000.00 pledge by the uncle and his offer to be a non-residential surety.
[23] In finding the plan of supervision insufficient, Justice Roberts considered: that the parents were sureties on two occasions when Mr. Rahman had previously breached; that the uncle, who lives in a separate residence, could not be a strong surety since he works from 7:00 a.m. to 3:00 p.m. every day and that the parents had paid the retainer for GPS monitoring. Looking at the increased pledge, Justice Roberts concluded that it more represented the parents’ belief that their son has changed while in custody rather than an indication of their ability to supervise him.
[24] The mother blamed her son for his violations, without knowledge of the nature of the violations, instead of her inability to supervise him. Justice Roberts noted that the parents did not call the police to report their son had left the home without them. Nor did they ask to have their pledges revoked.
[25] Justice Roberts found no material change in circumstance as she saw no difference in the parents’ abilities to supervise their son.
I agree with the Crown that the main thing that has changed is Mr. Rahman’s parents’ belief in him, such that they are now prepared to pledge their life savings. But almost nothing has changed about their ability to supervise. Their record of supervising in the past is dismal. They did not even know the circumstances of his prior breaches, notwithstanding that they were supervising him during some of the occasions.
[Transcript of Bail Review, June 21, 2019, at p. 82]
[26] Justice Roberts went on to conclude that even were she to have found a material change in circumstance, her conclusion would be that he did not meet his onus to satisfy the secondary and tertiary grounds. Justice Roberts observed:
With respect to the secondary grounds, Mr. Rahman has a long history of non-compliance with bail and of not listening to his parents. The most recent offence strongly suggests he was in possession of a fully loaded handgun and associating with others in possession of loaded handguns. I am not satisfied that he has discharged his onus of showing that his detention is not necessary in the public interest.
Turning to the tertiary ground, all four of the circumstances enumerated in s. 515(10)(c) of the Criminal Code are fully engaged in this case. The original justice characterized the Crown’s case as “very, very strong”. The fact that Mr. Rahman’s DNA has now been found on the grip of the prohibited handgun found on the floor of the driver’s seat of his car, the car used in the shooting, means that the Crown’s case against him now appears even stronger.
[Transcript of Bail Review, June 21, 2019, at p. 83]
The Current Bail Review
[27] A court on a bail review can vary an order on three bases: (a) where the justice has erred in law; (b) 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; (c) where there is a material change in circumstances: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121.
[28] 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.
[29] The defence seeks a de novo hearing. It submits there is a material change in circumstance capable of bolstering the shortcomings in the plan of supervision and sufficient to mitigate concerns about the serious nature of the crimes. As I discuss below, by reason of the COVID-19 virus, I find there is a change of circumstance and a de novo hearing is appropriate.
The Secondary Ground
[30] The defence offers the same sureties, the parents and the uncle. The parents have, however, increased their total pledge to $440,000.00. The uncle offers a pledge of $20,000.00. The sureties contend that the amounts offered reflect the risk they are willing to take on trust that Mr. Rahman will not re-offend under their supervision. I do not find the sureties present a material change in circumstance from the situations before Justices Moore and Roberts even considering the increase in pledges.
[31] Like Justice Roberts, even were I to accept there is a material change in circumstance in relation to the plan of supervision, and for reasons that follow, I do not accept that the defence met its onus on the secondary and tertiary grounds.
[32] In relation to the secondary ground, I am sure the parents are aware of the seriousness of the charges against their son since they have attended two previous bail proceedings and heard the charges discussed. I am sure they understand, at least in theory, their obligations, although in testimony at the first bail review, they did not appear to sufficiently appreciate this. Their belief in their son outweighed their ability to supervise him. Factored into my review, I cannot ignore that the parents were sureties on two occasions when their son breached. They were not aware of the nature of the breaches. And they did not call the police and pull their bail.
[33] On the current bail review, the defence must convince the court there is an objective basis beyond their subjective feelings that there is not a substantial likelihood Mr. Rahman will re-offend or interfere with the administration of justice if released.
[34] The parents’ additional monetary pledge, which I acknowledge makes the total pledge very substantial, is not in my view, sufficient to tip the balance that weighs heavily on the parents’ belief in their son, particularly in view of his past non-compliance and their past poor supervision.
[35] The defence argues that GPS ankle monitoring bolsters the plan making it, in the defence’s view, nearly impossible for Mr. Rahman to breach. However, I am of the view expressed by myself and other judges in other cases that GPS monitoring is only maximally effective when there is confidence that the sureties can supervise and control the accused: R. v. Itwaroo, 2020 ONSC 4116, at para. 52; R. v. Mohamed, 2020 ONSC 4257, at para. 42.
[36] In the end, I see nothing added to the plan of supervision that satisfies the defence’s burden to show the plan is sufficiently robust as to foster public confidence in the administration of justice given the grave nature of the crime and the poor showing on the plan of supervision.
[37] On the secondary ground, the defence also raised the COVID-19 virus as a change in circumstance that arose since the previous bail proceedings. The pandemic was declared in March 2020.
[38] As other courts have done, I find the COVID-19 pandemic must be considered a relevant factor in looking at the question of material change of circumstance for Mr. Rahman.
[39] Dr. Aaron Orkin, an epidemiologist with expertise in congregant settings has provided expert evidence for many bail hearings in relation to the pandemic. Dr. Orkin opines on the jeopardy to persons living in congregant settings particularly those who have certain underlying conditions. Mr. Rahman is detained at the Toronto South Detention Centre (“the TSDC”). Dr. Orkin draws from, and the court can take judicial notice of, the well-known information available from government officials, government websites and publications and the media.
[40] The fortunate picture for Ontario detention centres is that the incidence of the virus has not proliferated in most facilities. There has been no breakout of the virus at the TSDC. In April, there were infected inmates transferred from the Ontario Correctional Institute to TSDC who were detained in a separate medical unit. There is no evidence that there was any spread of the virus as a result of the transfer.
[41] In her affidavit sworn on May 4th, the mother stated that her son has asthma. She annexed to her affidavit a short note from a doctor, Dr. Mohamed Asmal, that indicates Mr. Rahman has moderate asthma. Mr. Rahman did not present himself before a doctor. Mr. Zohara attended and asked for a note. There is no mention of prescribed medications. Neither Mr. Rahman in his affidavit sworn on May 2nd, nor the father in his affidavit sworn on May 4th, mention him suffering from asthma.
[42] The evidence of his condition is not the best. But I am prepared to accept it in view of the fact that evidentiary proof at a bail hearing need not be as rigorous as at trial. I will accept it is a material change in circumstance. However, I adopt the view of other courts that have found the COVID-19 virus not to be determinative, that it is one factor to consider in the context of all the evidence: R. v. D.D., 2020 ONSC 2791, at para. 31; R. v. Mohamed, at para. 47; and R. v. Ibrahim, 2020 ONSC 2241, at para. 29.
[43] The questions that face the court are whether the potential risk posed to Mr. Rahman by the virus slants the scales in favour of release; whether the deficiencies in the plan of supervision are outweighed by the virus such that the public’s confidence in the administration of justice will not be adversely affected if Mr. Rahman is released. I find on the totality of the evidence that Mr. Rahman did not satisfy his onus and must be detained on the secondary ground.
[44] In the event I have erred, I will go on to determine the tertiary ground.
The Tertiary Ground
[45] On the tertiary ground the court considers the factors under s. 515(10)(c) of the Criminal Code where the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the offence and the possibility of a lengthy sentence are considered: R. v. St-Cloud, at paras. 72-87.
[46] I find that Justice Roberts’ assessment of the Crown’s case at the first bail review applies with equal strength on the evidence before me. All four of the factors enumerated in s. 515(10)(c) are fully at play.
[47] The facts on the nature of the offence do not favour Mr. Rahman. There seems to have been an element of planning before the shooting. Mr. Rahman approached Mr. Ricketts and Ms. Robati at the flea market and spoke to him. Shortly afterwards they all left the flea market. Mr. Rahman’s Mercedes ended up in a lengthy pursuit of Mr. Ricketts’ Honda just before the Mercedes disgorged Mr. Okoro to shoot at Mr. Ricketts’ vehicle. It is arguable, as the Crown maintains, that it was a planned event more than a coincidence or a crime of opportunity.
[48] The police recovered four firearms. The shooting happened in broad daylight at a busy intersection in Toronto where many pedestrians, including children, and many vehicles move about. Mr. Ricketts’ vehicle was riddled with seven bullets. This was a brazen act of cold-hearted violence. Fortunately, the shooting victims, while injured, did survive.
[49] On the strength of the Crown’s case, Justice Moore at the original bail hearing concluded the Crown’s case was “very, very strong”. The Crown’s case has evolved over time.
[50] Justice Moore arrived at his conclusion before the disclosure of new forensic evidence which was before Justice Roberts and is before this court; that is, the presence of Mr. Rahman’s DNA on the grip of the handgun found on the floor of the driver’s seat of his Mercedes. This has the obvious implication of making the Crown’s case against Mr. Rahman stronger.
[51] There is a triable issue as to who was driving the Mercedes during the incident. The vehicle was owned by Mr. Rahman but obviously that is not proof that he was the driver. The firearm containing Mr. Rahman’s DNA, the fact of where it was recovered, could suggest he was the driver and a more principal actor in executing the plan to pursue Mr. Ricketts and facilitate Mr. Okoro’s shooting Mr. Ricketts.
[52] The defence raised the issue about Mr. Sendia’s left pinky finger print being found on the rearview mirror of the Mercedes. The defence says this raises a triable issue as to the possibility that Mr. Sendia was driving the vehicle which would of course change the nature of Mr. Rahman’s liability. The fingerprint could point to the defence’s suggestion. But it could equally suggest that Mr. Sendia drove the Mercedes on an earlier occasion. Even were Mr. Rahman found not to be the driver, the issue of shared liability remains.
[53] There is the still photo of the driver in the Mercedes. As I mentioned earlier, I do not find the photo clear enough to identify the person driving the Mercedes. We are not looking at an R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R. 1197 situation where video evidence is so clear that it can present clear and convincing evidence that can be relied upon as the sole basis for identification of the driver. I am not sure the still photo alone would even be capable on the heavier burden at trial of raising a reasonable doubt.
[54] On the issue of a potential sentence, there is no question that attempt murder and firearm charges are very serious and will attract a stiff sentence if Mr. Rahman is convicted.
[55] I must also consider the circumstances surrounding the offences. R. v. St-Cloud posits some examples of possible circumstances surrounding the commission of the offence that relate to the victim and the nature of the crime:
… 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.
[56] 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.
[57] Mr. Rahman is a young man at age 22. He has not completed secondary school. He has completed some credits while in custody. But the courses were stopped due to the virus. If released he intends to continue his courses online from home. Mr. Rahman has a limited history of employment.
[58] Mr. Rahman is accused of some very serious offences and has a substantial history of disrespect for the law. Some of his bail violations found him in serious breach, being in the presence of forbidden people and in forbidden places. During one such violation, Mr. Rahman was in a residence where a female occupant was stabbed and left bloodied.
[59] Defence counsel points out, and it is true, that to date Mr. Rahman’s criminal history does not involve index crimes. His crimes are less serious crimes of non-compliance. While this may be true, non-compliance offences especially multiple ones, take on a special importance in the context of assessing whether an accused can be trusted to respect and obey the terms of bail release.
[60] In addressing the secondary ground, I decided that the evidence about his medical condition did establish a material change in circumstance. However, balancing the potential effects of the virus against the deficient release plan, the serious nature of the offence and Mr. Rahman’s non-compliant history, I do not relegate much weight to the virus on the tertiary ground. I have also taken other aspects of Mr. Rahman’s personal circumstances into account.
[61] Balancing all four s. 515(10) factors in the totality of the evidence, I find Mr. Rahman did not satisfy his onus on the tertiary ground. He must also be detained on the tertiary ground.
Conclusion
[62] In the result, I am not satisfied that release would be well advised in the circumstances in view of my concerns on the secondary and tertiary grounds. I am more persuaded that were he released there is a substantial likelihood he will re-offend or interfere with the administration of justice and that, in view of the serious nature of his crimes and non-compliant history, release would dim the public’s confidence in the administration of justice.
[63] This is not to say that the sureties are not well-intentioned good citizens. I find they are loving parents and an uncle whom I can appreciate only want the best for Mr. Rahman. The parents put forward all their worldly assets on faith in their son. The risk is just too great.
[64] For reasons I have cited, GPS monitoring would not ease my concerns in this situation. I have accepted that Mr. Rahman is vulnerable to COVID-19 and that in some circumstances this could weigh on the side of release. I do not find this to be the case with Mr. Rahman.
Disposition
[65] I dismiss the application. Ajmain Rahman shall remain detained at Toronto South Detention Centre.
B.A. Allen J. Released: July 20, 2020