COURT FILE NO.: 8235/20 DATE: 2020-07-29 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Trent Wilson, Provincial Crown Lindsay Marshall, Federal Crown
- and -
JIHAAD AL-KISADI Bella Petrouchina, Counsel for the Accused Accused
HEARD: July 22, 2020
VARPIO J.
REASONS ON DETENTION REVIEW
[1] The accused, Mr. Jihaad Al-Kisadi, brings this application pursuant to s. 525, seeking his release from custody. He was detained on March 20, 2020 by Justice of the Peace Bryant on serious drug and firearm charges. He has presented a new plan and COVID-related medical evidence as the basis for this application.
[2] Upon review of the foregoing, I am of the belief that the accused’s detention remains necessary when I consider the mandates of R. v. Myers, 2019 SCC 18, [2019] S.C.J. No. 18. For the reasons given below, the application will be dismissed.
EVIDENCE
[3] The accused comes before the court with a short criminal record that includes a 2014 conviction for illegal possession of a firearm conviction and a more recent entry for break and enter.
[4] The accused was arrested on April 18, 2019 regarding drug and firearm offences. In this set of charges, the accused was in a car with a woman named Ms. Autumn Johnny. Ms. Johnny has a lengthy criminal record for drug and other offences. On that date, the pair were allegedly driving in Brantford, Ontario without taillights and other appropriate vehicle lighting. The police pulled the vehicle over whereupon an altercation with police ensued. While no physical confrontation took place, the accused (who was driving) attempted to drive away after being stopped and, at one point, the police notes suggest that the accused passed a satchel to Ms. Johnny. Mr. Al-Kisadi was seen by police attempting to grab an item concealed in his pants. Upon arrest, Mr. Al-Kisadi was found to be in possession of a loaded handgun in his pants. A subsequent search of the vehicle and the satchel revealed more than $10,000 worth of Fentanyl and cocaine. Counsel for Mr. Al-Kisadi filed a copy of the accused’s s. 8 Charter application as regards these offences.
[5] On April 18, 2019, a Justice of the Peace released the accused on a house arrest plan with Mr. Ali-Kisadi’s sister as surety. His sister testified that she would watch the accused and ensure that he would not commit further offences while in her care. The accused was also subject to a condition not to be in the presence of Ms. Johnny.
[6] On February 26, 2020, the Sault Ste. Marie Police Service (“SSMPS”) was called to a local motel to investigate an occurrence. Four individuals were located and investigated. Two individuals were arrested on scene and charged with a variety of firearms and drug offences. A female was released at scene. That female was ultimately identified as Ms. Johnny. Another male was permitted to leave the scene without identifying himself. SSMPS subsequently reviewed police photos and used other technology to determine that the male suspect was Mr. Al-Kisadi. Mr. Al-Kisadi was ultimately charged with breaching his recognizance by failing to reside with his surety and for communicating with Ms. Johnny.
[7] On February 28, 2020, the SSMPS were again called to a local motel. The SSMPS found Ms. Johnny and Mr. Al-Kisadi at the hotel and the pair were ultimately arrested. They were in possession of a motor vehicle. A search of the motor vehicle revealed a considerable quantum of drugs and a loaded firearm. Mr. Al-Kisadi was charged with a variety of offences including narcotic and firearm allegations.
[8] Mr. Al-Kisadi had a reverse onus bail hearing before Justice of the Peace Bryant on March 20, 2020. A s. 524 arrest was not effectuated at that time and the justice of the peace thus dealt with the Sault Ste. Marie charges. The accused called his ex-wife as a proposed surety. His ex-wife hoped to supervise the accused with the assistance of an ankle monitoring system. Despite same, the justice of the peace detained the accused on the secondary and tertiary grounds.
[9] In the s. 525 detention review before me, I can only deal with the Sault Ste. Marie charges in so far as a s. 524 arrest was never effectuated by the police. By agreement of counsel, if I am to release Mr. Al-Kisadi, the Crown will undertake to vary the terms of the Brantford release such that all terms of release will be identical. Equally, it was agreed by all counsel that I was to consider the Brantford charges as though they were properly before me. This agreement amongst counsel effectively ensured that I could hear the fulsome nature of the matters facing Mr. Al-Kisadi while recognizing that I do not have jurisdiction to deal with the Brantford matters. I thank all counsel for working together in this fashion.
[10] In the hearing before me, the accused’s ex-wife testified, as did the accused’s father and his long-time friend. These people presented themselves as sureties. The ex-wife was willing to allow the accused to live with her. She indicated that she had several children with the accused and was quite busy. She did indicate, however, that she had a video/mobile app security system in her house whereby she would be notified when doors opened, etc. She was also willing to work with a Toronto-area company to have the accused wear an ankle bracelet as part of an electronic monitoring regime that is often considered by the courts. She was an impressive witness whose honesty and intentions I do not question.
[11] The father and the friend also impressed me as good people who would do their best to ensure that the accused would not breach his recognizance if released to their care. The father and the friend would not be residential sureties. All three sureties pledged considerable sums of money.
[12] The accused filed medical evidence, which I accept, that shows that he suffers from hypertension. The medical evidence filed also indicates that individuals suffering from hypertension could well suffer serious health complications should they contract COVID-19.
[13] I also have evidence that there have not been any reported cases of COVID-19 in the local custodial facility. I can take judicial notice of the fact that there are currently no reported cases of COVID-19 in Sault Ste. Marie.
ANALYSIS
[14] Defence counsel rightly conceded that Mr. Al-Kisadi was appropriately detained by Justice of the Peace Bryant based upon the evidence before her. The Crown concedes that the new sureties and an improved plan brought forward by Mr. Al-Kisadi constitute more than a “reshuffling of the deck” as per R. v. Ferguson. I agree.
[15] There is a considerable amount of caselaw that has developed around the COVID-19 crisis. Counsel agree that my previous decision in R. v. Cunningham, 2020 ONSC 2724 provides the framework for analyzing the instant case, specifically paragraph 22:
A balanced, nuanced approach to ss. 520/1 and s. 525 reviews thus requires the presiding justice to engage in the normal detention review analysis described in St-Coud and Myers while factoring in the possibility of heightened COVID-19 infection rates among inmates in custodial facilities (without overstating the issue by using an aggressive approach to judicial notice) while being mindful about the release of dangerous individuals who, but for COVID-19, would be incarcerated pending trial.
[16] Looking at the evidence before me, therefore, the accused is a 29-year-old man suffering from hypertension. I am comfortable that, were he to contract COVID-19, he is at a heightened risk of serious medical ramifications such that his incarceration must be viewed with more caution that would incarcerating a healthy young individual.
[17] I am also satisfied that the local custodial facility is engaging in reasonable social distancing measures in an attempt to minimize the risk of contracting COVID-19 while in custody. That is not to say that the risk is non-existent, however it must be stated that the evidence before me from the Crown, coupled with what I believe to be unanimous findings of this court in other similar cases, demonstrates that the prison authorities are engaging in reasonable efforts to minimize said risk.
[18] I am also comfortable that it may take some time to get the accused’s matters to trial. Counsel advised me that the Brantford charges were scheduled for trial this month but that the trial date had to be adjourned by the accused as a result of issues not directly related to the COVID-19 court shut down. The Brantford adjournment does not affect the Sault Ste. Marie charges which have yet to have a preliminary hearing. The fact that the Sault Ste. Marie charges may not be heard for some time weighs in favour of the accused’s release.
[19] The sureties presented as good and strong people bound together by culture and a shared Islamic faith. The plan is buttressed by the presence of electronic monitoring and the ex-wife’s home security system. I am comfortable that the sureties would do their level best to ensure compliance.
[20] Despite the foregoing, the accused’s detention remains necessary as per paras 45 to 47 of R. v. Myers which state that:
(4) Overarching Question at the Hearing
The overarching question at the s. 525 hearing is clear from the words of the provision. Section 525(1) explicitly states that the judge's role is "to determine whether or not the accused should be released from custody". Section 525(3) provides that the judge may, "in deciding whether or not the accused should be released from custody", take any unreasonable delay into consideration. Section 525(4) instructs the judge to order the accused person's release if the judge "is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10)".
The question that the judge must answer at a s. 525 hearing is therefore as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.
(5) Nature of the Detention Review
The question in the s. 525 review - whether the continued detention of the accused is justified - is somewhat different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. While ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself. Yet there is no indication that Parliament intended the judge presiding a s. 525 detention review hearing to reconduct the original bail hearing in its entirety simply because 90 days have elapsed. Mr. Myers himself concedes as much: he argues only that a s. 525 hearing requires a "multi-factorial analysis": A.F., at para. 89. This means that the judge at the s. 525 hearing should in his or her analysis show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them. Similarly, any balancing exercise or weighing of factors conducted by the initial bail judge must be reviewed in light of the time that has already elapsed and any other relevant considerations, as will be discussed below.
[21] The matter was not argued on the primary grounds and I have no basis to detain the accused on those grounds. I will examine the tertiary grounds prior to examining the secondary grounds.
[22] The tertiary grounds are fully explained in s. 515(10)(c) of the Criminal Code and R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 and require no further explanation save and except to state that the accused’s detention must be necessary to maintain confidence in the administration of justice having regard to all of the relevant factors, including those described in subsection 515(10)(c). With respect to the Sault Ste. Marie charges, I am not satisfied that the accused’s detention remains necessary given the aforementioned factors. Specifically, the case as against the accused is reasonably strong but does not possess the kind of strength that would demand that the accused remain in custody on the tertiary grounds, given the accused’s health issues. I do not wish this decision to be taken as a judicial indication that the Crown’s case is weak. It appears from the evidence before me that the Crown has a reasonable case, although there may yet be triable defences. I believe, however, that tertiary ground detention requires something beyond such strength in order to detain an accused when I consider the accused’s medical condition. The administration of justice would not be brought into disrepute were he to be released into the community on the Sault Ste. Marie charges with an appropriate plan. [^1]
[23] The Brantford charges are another matter. These charges appear to be very strong in so far as the police indicate that they were investigating a Highway Traffic Act violation when they came upon the accused and Ms. Johnny. They then began investigating the pair for a previous criminal incident. Defence counsel indicates that the pair were not read their rights to counsel which ostensibly supports a Charter application under R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. While this may be true, the law regarding the interplay between criminal and HTA investigations is nuanced and a Charter breach (which I am not suggesting occurred in this instance) at the roadside does not necessarily lead to exclusion of evidence. Obviously, these matters will need to be fleshed out at trial but the Crown appears to have a strong prima facie case.
[24] Therefore, it is relatively certain that the accused was in possession of a loaded pistol in Brantford with a considerable quantum of serious narcotics close by. As such, the seriousness of the crime, the strength of the case, the likelihood of lengthy incarceration and the fact that a loaded handgun was found on the accused person all demand that the accused be detained on the tertiary ground on the Brantford charges even when I consider the accused’s health condition. Had the Brantford charges been before me, I would have detained Mr. Al-Kisadi upon this ground.
[25] With respect to the secondary grounds, s. 515(10)(b) of the Criminal Code and R. v. Morales, [1992] 3 S.C.R. 711 demand that the accused not be detained unless there is a substantial likelihood that he will commit further offences if released from custody.
[26] In R. v. J.A., 2020 ONSC 2312, [2020] O.J. No. 1659 at paras 116 and 117, Goodman J. described the court’s ability to use index charges as a predictor for re-offence as per R. v. Rondeau (1996), 108 C.C.C. (3d) 474:
However, the judgment of the Quebec Court of Appeal in R. v. Rondeau (1996), 108 C.C.C. (3d) 474, is instructive for the way in which index offence features are factored into the assessment of risk on the secondary ground. Writing for the Court, Proulx J.A. addressed the factors involved in dangerousness assessments. At p. 478, Proulx J.A. said:
In my view, several factors must be taken into account in deciding this question, including (1) the nature of the offence, (2) the relevant circumstances of the offence, which may put in issue events prior to and subsequent to the offence, (3) the likelihood of a conviction, (4) the degree of participation of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused, i.e., his occupation, his lifestyle, his criminal record, his family situation, his mental state, (7) his conduct prior to the commission of the alleged offence, (8) the danger which the interim release of the accused represents for the community specifically affected by the matter.
Rondeau links the nature of the offence and the strength of the prosecution's case to the secondary ground. The allegations respecting the index offence(s) are relevant to the accused person's future dangerousness. The strength of the Crown's case determines the weight that may be attributed to the index offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.
[27] In the case before me, the evidence makes plain that the accused is in the drug trade in a meaningful fashion. The evidence in the Brantford charges support a finding that the accused is a drug dealer of some sort: There appears to be little question that the accused was in possession of a loaded handgun with a considerable quantum of hard drugs in the automobile he was driving. There is no reasonable explanation for why Mr. Al-Kisadi found himself in such a predicament other than the likely fact that he is a drug dealer.
[28] When I look at the plan put forward by Mr. Al-Kisadi, had he only been facing the Brantford charges (and had they been properly before me), I might have considered releasing him on the secondary grounds given the strength of the plan, Mr. Al-Kisadi’s short criminal record, the forthright nature of the sureties and Mr. Al-Kisadi’s health. [^2] This would have been a close call.
[29] The Sault Ste. Marie charges, however, make clear that Mr. Al-Kisadi will not obey his community jailers’ instructions. Mr. Al-Kisadi was not supposed to be out of his surety’s presence and was not to be in the presence of Ms. Johnny. On February 26, 2020, Mr. Al-Kisadi allegedly violated these terms by being approximately 750 kilometers away from his surety’s residence. He is alleged to have been in a Sault Ste. Marie hotel room with Ms. Johnny. On February 28, 2020, Mr. Al-Kisadi was certainly located by police at a Sault Ste. Marie hotel, in Ms. Johnny’s presence, in close proximity to a considerable quantum of hard drugs and a loaded handgun. [^3] When the February 28, 2020 Sault Ste. Marie evidence is viewed in light of the clear-cut Brantford case where the accused is in possession of a loaded handgun, it is highly likely that Mr. Al-Kisadi’s involvement in the drug trade was not curbed by the fact that he was on a recognizance. I find, therefore, that Mr. Al-Kisadi will likely continue to engage in the drug trade were he to be released by me despite his proposed sureties’ best efforts.
[30] Put another way, a surety’s ability to function as a community jailer is only as good as the accused’s willingness to abide by conditions. Given the obvious strength of the Brantford charges and the clear inferences to be drawn from the known facts of the February 28, 2020 Sault Ste. Marie charges, it is clear to me that the accused is highly unlikely to make this kind of concerted effort. I am therefore satisfied that there is a substantial likelihood that the accused will commit further offences if he is released even with a strong plan. Accordingly, he is detained on the secondary ground despite my concerns regarding his health.
CONCLUSION
[31] The accused’s application is dismissed.
Varpio J.
Released: July 29, 2020