COURT FILE NO.: CR-20-0335-00 DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Vanden Broek for the Crown
- and –
MOHAMMED ALTAP ISMAIL
K. Grewal for the Applicant
HEARD: September 8, 2020 by audio conference
PUBLICATION IS BANNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
JUDGMENT ON SECTION 525 BAIL REVIEW
D.E HARRIS J.
1Mr. Ismail’s recent bail history is a hard luck story. He has twice been ordered released by the judiciary but has been unable to obtain a surety as required by his bail releases. He remains in custody.
2This is a defence bail review under Section 525 of the Criminal Code against the decision of Justice of the Peace D’Sousa dated May 5, 2020. His Worship released Mr. Ismail on a $1000 surety bail, no deposit, with conditions. Mr. Ismail has been unsuccessful in securing a surety to pledge value for him. “Bail was set but not met.” On this review, I am asked to fashion a bail for Mr. Ismail that he can meet, a bail which does not include the surety requirement.
3The May 5, 2020 bail release was the second time in just a few months that Mr. Ismail was ordered released from custody. On February 20, 2020, Mr. Mr. Ismail was released on a similar bail by Justice of the Peace Duggal. At that time he had a surety, his sister. Unfortunately, just a few days after release, on February 25, 2020, his sister advised that she had to leave the country for a family emergency and could no longer act as surety. The accused was rendered under Section 766(1) of the Criminal Code and an arrest warrant under subsection (2) was issued. Mr. Ismail was arrested on April 19, 2020 when found intoxicated in a public place. The bail hearing under review took place three weeks later, on May 5, 2020.
4This bail review squarely raises this issue: Is surety supervision a necessity in the present circumstances to alleviate the primary and secondary ground concerns raised by the Crown? I have no doubt that in the circumstances, surety supervision is preferable. But is it necessary such that the absence of supervision ought to lead to a detention order? I conclude as I did in somewhat similar circumstances in R v. Michel, 2020 ONSC 1505 at paras. 7-12, that between pre-trial detention and release with no surety, the latter is the fair and just alternative. The prospect of lengthy detention before trial would be an unacceptable incursion into Mr. Ismail’s presumption of innocence and the cardinal rule of pre-trial release: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at para. 70.
THE OFFENCES
5The bail hearing below was a reverse onus by reason of indictable offences charged after being initially released in October 2019 on the offence of aggravated assault. The aggravated assault allegations stem from October 24, 2019. The victim was in front of a bar on Main Street in Brampton at 1:30 a.m. He was approached by three men, including Mr. Ismail. One of the other men hit the victim in the face and a fight broke out. The victim was hit several times with a bicycle and an unknown object. The victim was knocked unconscious and was continually struck while on the ground. The men fled. One was apprehended and is a co-accused. This person was ordered detained after a bail hearing on October 31, 2020. The victim suffered a large laceration to his head requiring several staples and suffered a brain hemorrhage. The incident was caught on video and Mr. Ismail was identified and arrested on the same day. On October 28, 2019, Mr. Ismail appeared for bail. He advised that he had no family in the country and no sureties present. Mr. Ismail was released on bail with John Howard Society supervision. He failed to appear for a court date in November 2019 and a bench warrant was issued. He was arrested on December 13, 2019 but a fail to appear charge was not laid against him. On January 2, 2020, Mr. Ismail was found sleeping inside of a church and was arrested. He was released again with John Howard supervision.
6The second set of charges are robbery, extortion, breach of probation and drug possession. The robbery was allegedly committed on February 8, 2020. A sex trade worker flagged down a john at 3:00 a.m. After getting in the car, she took the victim’s cell phone and bolted from the car. Two accomplices, one of them being Mr. Ismail, attacked the victim. He was kicked and hit. His credit card was stolen. He was forced to unlock the phone for them. Mr. Ismail and the co-accused took a picture of the victim’s licence plate and told him to come back to the same spot the next day with $300. When Mr. Ismail was arrested on February 13, 2020 for this crime, a small amount of crack cocaine was found on his person. He was charged with simple possession.
7At the bail hearing on February 20, 2020, the John Howard release was revoked under Section 524 of the Code. As mentioned, the applicant was released on a surety bail with the Crown’s consent. Mr. Ismail was then rendered on February 25, 2020 by his surety, his sister.
8This then set the stage for the May 5, 2020 bail hearing on both sets of charges: the aggravated assault and the robbery\extortion. At the bail hearing, Justice of the Peace D’Sousa formulated a similar bail release as had Justice Duggal back on February 20, 2020. The Justice of the Peace refused to drop the surety requirement saying he thought it was appropriate given that it was a Section 524 revocation situation.
9That is Mr. Ismail’s recent bail history. His criminal record is dated, with the exception of the recent offences against the administration of justice. The record includes no offences of violence. It is as follows: November, 2009, take auto without consent, one day custody; May, 2019, failing to appear, $200 fine; theft under, suspended sentence, one year probation. On May 4, 2020, he pled guilty to fail to comply with the John Howard recognizance--failing to report--and received a suspended sentence and probation. He also pled guilty the same day to one count of breach of probation for failing to report and received a conditional discharge with one-year probation.
DECISION
10Given the fail to appear for court, the recent fail to comply with bail and the breach of probation, the Crown raises a primary ground concern. There are also secondary ground issues arising out of the seriousness of the robbery and aggravated assault offences. While these concerns were not of such a fundamental nature as to deny bail outright, the decisions below concluded that they dictated release only with surety supervision.
11How critical in the current situation is a surety to ensure that the primary and secondary grounds have been satisfied? Justice Di Luca, in his important decision in R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221 was highly critical of the overuse of sureties on bail releases. Justice Di Luca said:
29 Underlying Canada’s broken bail system is a culture of risk aversion within the criminal justice system: see Cheryl Marie Webster, Anthony N. Doob, and Nicole M. Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009), 21 Current Issues in Criminal Justice 79, as cited in Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at. pp. 1-44.1, 6-24.2.
30 In Ontario, one component of this culture of risk aversion is an overreliance on sureties. The over-reliance on sureties has been recognized at the highest levels of court. In Canada (Minister of Justice) v. Mirza, 2009 ONCA 732 (Ont. C.A.), a five-member panel of the Court of Appeal noted:
There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in “Criminal Justice in Canada Revisited” (2004), 48 C.L.Q. 419 at 433-34:
The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one’s own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.
What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties.
12See also R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 at paragraph 65. Justice Di Luca’s conclusions were recently affirmed by Justice Martin in R. v. Zora, 2020 SCC 14 where she said:
77 Several factors contribute to the imposition of numerous and onerous bail conditions. Courts and commentators have consistently described a culture of risk aversion that contributes to courts applying excessive conditions (Tunney, at para. 29; see also pp. 223-24 (Comment by T. Quigley); Schab, at para. 15; Friedland (2017); B. L. Berger and J. Stribopoulos, “Risk and the Role of the Judge: Lessons from Bail”, in B. L. Berger, E. Cunliffe and J. Stribopolous, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (2017), at pp. 308 and 323-24). In Tunney, Di Luca J. emphasized that this culture continues despite the directions of Antic. He rightly noted, in my view, that “the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable bail” (para. 29).
13Our system of bail places heavy reliance on surety supervision. The surety system of bail is a good concept but one with inherent limitations. The “pull of bail” is the mechanism at the heart of the concept. As said in R. v. Uxbridge Justices, ex parte Heward-Mills, [1983] 1 All E.R. 530, at p. 532, quoted by Justice Rosenberg in Canada (Minister of Justice) v. Mirza, 2009 ONCA 732 at para. 40,
The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort.
14The surety supervision concept is not perfect. The pull of bail is a somewhat unusual idea; it operates as an indirect means of control over the accused. It is premised on assumptions which may not always rest on solid ground. First, it is assumed that there is a strong bond between the accused and the surety and that the accused is sufficiently concerned with the surety’s economic welfare so as not to jeopardize the pledge of value made. This may not always be true.
15From the surety’s point of view, it is presumed that the surety’s closeness with the accused will keep the accused in line. If the accused deviates from his bail conditions, the surety will go to the authorities. But often with a family member or close friend, the very strength of the allegiance to the accused may prompt the surety to compromise his or her duty to the administration of justice. This is the paradox at the core of surety supervision: R v. Syed, 2020 ONSC 2195 at paras. 44-45.
16Surety supervision is almost certainly better than no supervision at all but it should not be seen as a cure-all. This does not in itself mean that a surety was unnecessary in Mr. Ismail’s case but only that the function of a surety in these circumstances should be kept in its proper perspective.
17While the limitations of surety supervision are a factor on this bail review, the more important factor is the likely delay before the applicant’s trials can be completed on the two sets of charges. A preliminary hearing for the aggravated assault together with a co-accused is set for February 2021. The robbery which the applicant is accused with two other transient persons has not yet been set for trial. The two co-accused are out on bail, a complicating factor in obtaining a trial date. They do not have counsel. The Crown fairly recognized in her submissions that there could be a significant delay to get to trial.
18If Mr. Ismail is not released, he will likely be in custody for an extended period of time. He has already been in for almost 5 months; from his arrest on the surety warrant on April 19, 2020 to today’s date minus 15 days for sentences he has served in the interim. This is equivalent to over 7 months with normal Summers credit. The two trials could well be another year or more off in the future, what with the backlog from COVID and other factors. That would put his total time in at 17 months at the least, equivalent to over two years of post-sentence time. Mr. Ismail has never spent substantial time in custody before.
19The Supreme Court judgment in R. v. Myers, 2019 SCC 18 (S.C.C.) is of signal importance on the issue of bail release. Myers reads in a judicial discretion to the three bail grounds which does not appear in the text of the Criminal Code provision itself. Myers requires a bail judge to balance the pre-trial custody against the case for detention posed by the primary, secondary and tertiary grounds in Section 515(10) of the Criminal Code. If the length of detention is disproportionate to the sentence likely to be imposed, pre-trial custody must yield. The Chief Justice made this clear in these passages from Myers,
46 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)?
50 In determining whether the detention remains justified under s. 515(10), the judge should also consider whether the time that has already elapsed has had — or the anticipated passage of time will have — an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice: see, e.g., McCormack, at para. 29.
51 This is ultimately a question of proportionality. … it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see, e.g., Sawrenko, at para. 43… As was noted in R. v. White, 2010 ONSC 3164 (Ont. S.C.J.), “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted”: para. 10.
53 … In St-Cloud, the Court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71. In this sense, the analysis is not only retrospective, but also forward-looking. For example, let us consider a scenario in which an individual is detained on the basis of s. 515(10)(c), and at the time of the first detention order his trial is only two months away. If the trial date is then rescheduled for a date two years later and remains many months away at the time of s. 525 hearing, the continued detention of the accused may no longer be proportionate, or necessary, for the purposes of this third ground: see also R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305 (Ont. C.A.), at paras. 39-43; Piazza, at paras. 71-81. In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.
(Bold Emphasis Added, Italics Emphasis in Original)
20This situation is exemplified by Mr. Ismail’s case. There are concerns, although not overly strong, on the primary and secondary grounds. Balanced against these concerns however is the anticipated delay in getting this man to trial. In my view, to paraphrase the Chief Justice in Myers, the hypothetical risk posed by the primary and secondary ground concerns are “simply outweighed by the certain cost” to the accused’s liberty.
21Release of Mr. Ismail without a surety given the seriousness of the aggravated assault and robbery allegations against him is not an easy or comfortable decision. But as Justice Di Luca said in Tunney, words that were affirmed in Zora at para. 77, “the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable bail.”
22Sadly, Mr. Ismail does not have community support, even to the extent of having a surety willing to supervise him. At age 37, he is transient and does not have a regular place to live. Ms. Grewal is the first lawyer he has had since his recent criminal troubles began almost a year ago. It is proposed he live with a friend in Toronto although it is not clear who will put him up or where. While those circumstances may increase residual concerns on the primary and secondary grounds, he should not be unduly prejudiced by them. Again, Zora speaks to this issue,
79 A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations (CCLA Report at pp. 72-79). Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide (see, e.g., Schab, at paras. 24-5; Omeasoo, at paras. 33 and 37; R. v. Coombs, 2004 ABQB 621, 369 A.R. 215 (Alta. Q.B.), at para. 8; M. B. Rankin, “Using Court Orders to Manage, Supervise and Control Mentally Disordered Offenders: A Rights-Based Approach” (2018), 65 C.L.Q. 280).
(Emphasis Added)
23As was recognized by the Justice of the Peace on the May 5, 2020 hearing. Mr. Ismail is living in poverty and with addictions. In my view, the new Section 493.2 of the Criminal Code S.C. 2019, c. 25, s. 210 applies to him:
Aboriginal accused or vulnerable populations
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
(Emphasis Added)
Also see Zora, at para. 26
24Section 493.2(b) bares some resemblance to Section 718.2(e) of the Code. Section 718.2(e) is a sentencing provision which codifies the principle of restraint in imposing the sanction of imprisonment, particularly in relation to aboriginal offenders. Both provisions, in their respective contexts, require consideration of socioeconomic and systemic factors. This is what the Supreme Court said with respect to Section 718.2(e) and it is pertinent and applies to Section 493.2(b) as well:
Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment.
R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 67, quoting with approval from Professor. Quigley, "Some Issues in Sentencing of Aboriginal Offenders", in R. Gosse, J. Y. Henderson and R. Carter, eds., Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 269, at pp. 275-76); also see R. v. E.B., 2020 ONSC 4383 at para. 40
25The police have showed some sensitivity to Mr. Ismail’s ongoing problems by not charging him with fail to appear in court over the three dates he was absent: November 28, 2019, January 16th, 2020, and March 11, 2020.
26It would be unfair if Mr. Ismail were required to spend a lengthy time in pre-trial custody for the charged offences simply because he is “down and out” and does not have the wherewithal or the network to support him. There must be a measure of equality and fairness in our bail system. Besides the consequent loss of liberty, cognizance must also be taken of the detriment to his fair trial interests from pre-trial custody: the reduced access to counsel and the pressure to plead guilty: Myers at paras. 22, 51. These have been further accentuated during the COVID crisis.
27Ultimately, in Mr. Ismail’s case, the presumption of innocence must prevail over the factors militating towards detention. It outweighs them. We must not permit a situation in which, as Professor Friedland has said, a pioneer in the field of bail, quoting from an American commentator: “We first administer the major part of the punishment and then enquire whether he is guilty.” (”Criminal Justice in Canada Revisited” (2004) 48 C.L.Q. 419). In this case, the presumption of innocence, entrenched in the bail system and in the Section 11(e) Charter right not to be denied reasonable bail without just cause, cannot countenance serving a lengthy term of jail before Mr. Ismail is found guilty: Zora, at para. 20; R. c. Pearson, [1992] 3 S.C.R. 665 (S.C.C.), at p. 689; R. c. Morales, [1992] 3 S.C.R. 711 (S.C.C.), at p. 735; Antic, at paras. 36-41.
28Lastly, as a general principle, the restraint required in the formulation of bail supports Mr. Ismail’s release. Justice Martin said in Zora,
100 All persons involved in the bail system are required to act with restraint and to carefully review what bail conditions they either propose or impose. Restraint is required by law, is at the core of the ladder principle, and is reinforced by the requirement that any bail condition must be necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the specific statutory risk factors under s. 515(10) of risk of failing to attend a court date, risk to public protection and safety, or risk of loss of confidence in the administration of justice (Trotter, at p. 1-59; Antic, at para. 67(j); see also s. 493.1 of the Code as of December 18, 2019).
29In the end, the primary and secondary ground concerns are partially diminished by available substitutes for surety supervision that can mitigate the risk posed. Mr. Ismail should be required to report personally to the police once a week. He has substance abuse and addiction issues and the bail release must require him to take action to work on them.
30The release will be on his own recognizance in the amount of $1000, no deposit, with the same conditions as the May 5, 2020 recognizance with the following exceptions:
i. Deleting conditions 6,7, 8 which relate to supervision by the John Howard Society since they are no longer willing to supervise him,
ii. Reside at an address to be determined and advise the officer-in-charge or his or her designate of the address within 72 hours of release,
iii. Advise the officer-in-charge or his or her designate of any change of address within 24 hours,
iv. Seek out addictions counselling and psychological counselling and provide proof of your efforts to the officer-in-charge or his or her designate within three weeks of release.
v. Report to a police division or reporting centre to be determined by your counsel and the Crown within 72 hours of release and every week thereafter.
31If counsel have any further submissions with respect to the conditions to be imposed, those can be conveyed to me by email through the trial co-ordinator.
D.E HARRIS J.
Released: September 14, 2020
COURT FILE NO.: CR-20-0335-00 DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MOHAMMED ALTAP ISMAIL
Applicant
BAIL RULING
D.E HARRIS J.
Released: September 14, 2020