COURT FILE NO.: DR(P)361/20
DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Nadler for the Crown
- and –
SAFEER AHMAD
G.D. Butler for the Applicant
HEARD: September 11, 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 522 BAIL APPLICATION
D.E HARRIS J.
[1] Safeer Ahmad, charged with conspiracy to commit murder, applies under Section 522 of the Criminal Code for release pending trial. The Crown opposes based on the secondary and tertiary grounds.
[2] There is an ongoing feud between the Suh Sick Gang based out of Middleway and the Ave Boys out of Malton and Darcel Avenue. It is this feud which is allegedly behind the alleged offence in this case. During the late afternoon of September 14, 2019, a gang-related shooting occurred at 7230 Darcel Avenue in Mississauga. A 17 year old boy, a bystander, was shot dead and five others were wounded by gunfire. Two of the wounded were inside their apartments at the time. The allegation is that the applicant and Jahvon Valdez planned the shooting as a retaliatory response to Valdez’ house being shot up two weeks before.
[3] On the day of the shooting, approximately 15-20 youths and young adults had begun to congregate in the rear parking lot of the complex to show their support for a rap video being filmed for a local youth. The applicant Safeer Ahmad was present. Seven armed men arrived at the complex in two separate vehicles: a Nissan Sentra and a Hyundai Sante Fe. The two vehicles pulled behind the building, stopping a considerable distance from the group filming the video. The seven men ran directly towards the group, firing numerous rounds from various calibre firearms. The rap video group, including the applicant, ran for safety towards the building. The assailants, after almost a full minute of shooting, returned to their vehicles and fled the area.
[4] The Hyundai was found burned out in Caledon that night. The Nissan was suspected of being involved in another murder about one month later and was found burned out in the aftermath of that crime.
[5] The case against Mr. Ahmad is primarily based on two witnesses who were present in Valdez’ basement about one week before the shooting. One of these witnesses claims that Valdez and Ahmad, whom he identified from a photograph, engaged in a conversation about Valdez’s house being shot up by Nayshawn “Nay Nay” Oakley. It was discussed that Oakley was going to shoot a music video. Ahmad specifically talked about going after Oakley. In fact, Oakley was present inside a vehicle during the September 14, 2019 attack but was not injured.
[6] According to this first witness, a tall black man was present during the conversation in the basement. This man suggested going to Oakley’s house right away but Valdez said not to because there was a newborn baby at the house. This witness remembers Ahmad saying that they would be going “two cars deep” which is street slang for two cars full of people. The tall black man said that he would be a driver of one of the vehicles used in the shooting. Valdez said that he himself wouldn’t be there; he would stay home and relax while everything was happening.
[7] The second witness present for this basement meeting has said that there was a discussion about a video shoot and that one of the people in the basement was invited to the video shoot. There were three men and two women present in the basement for this discussion. The men did not like the person who was hosting the video shoot, a guy named Nayshawn [i.e. Oakley]. They talked about going and shooting those attending the video session.
[8] This is the main evidence against the applicant. Conspiracy is an agreement to affect an unlawful purpose: R. v. Cotroni; R. v. Papalia 1979 38 (SCC), [1979] 2 S.C.R. 256. The evidence of the two basement witnesses if believed makes out the offence of a conspiracy to murder.
[9] There is some evidence which shows association between Mr. Ahmad and Mr. Valdez. Production orders executed on their cellphone records show telephone contact between the two accused the day before the shooting and then two conversations within an hour or two after the shooting. There are also statements to the police from Mr. Ahmad and Mr. Valdez which could be useful to the Crown in this prosecution.
[10] Mr. Ahmad was 18 years old at the time of the shooting. He has a conditional discharge for attempted robbery from May of 2018 but no additional criminal involvement.
DISCUSSION
[11] In view of the shocking seriousness of the alleged offence, the issue of bail in this case boils down mainly to the strength of the Crown’s case. If the case is strong, detention ought likely to follow. If not, release may be the correct outcome.
[12] On this preliminary question of seriousness, Mr. Butler, essentially conceded the issue. There was no other position he could reasonably take. I was shown a brief video of the shooting taken from an apartment window. The shooting took place over a period of almost one minute. The footage and the “rat at tat tat” of the guns being fired could easily have been mistaken for a scene out of a war torn part of the world; Iraq or Syria, for example. Apparently, 140 rounds were fired in total. The shooting was totally indiscriminate. One young man was senselessly, tragically killed in front of his family; five others were wounded. It could have been far worse. This could have been a mass killing.
[13] In this context of very serious allegations, the satisfaction of the tertiary and secondary grounds depend on the strength of the Crown’s case. The strength of the case is well-established as a lynchpin on the tertiary ground, the focus of which is maintaining public confidence in the administration of justice: Justice G. Trotter, “The Law of Bail in Canada” (3rd ed, 2017) at 3.4(f)(i). If the prosecution case is not strong, the three other statutory conditions in Section 515(10)(c) pertaining to public confidence will tend to evaporate.
[14] The secondary ground requires detention if necessary for the protection or safety of the public. This ground operates largely along propensity lines. If the accused has been shown to have committed very serious offences in the past, it will often be a reasonable inference that he or she may well commit very serious offences in the future. If the case on the charged offence or offences is weak, so too is the propensity inference which seeks to predict future behaviour.
[15] Mr. Butler, in his submissions, focussed on weaknesses in the Crown’s case. He was wise to do so. The case is certainly not overwhelming at this stage. There is a lot we do not know. The full statements or context of the two key witnesses from the basement discussion were not presented by the Crown at this hearing. Moreover, it is somewhat puzzling that Mr. Ahmad was present at the time of the shooting but was not one of the shooters. This is an unusual circumstance which could tilt the evidence in his favour at trial. Having said this, although not of the utmost strength, the case against Mr. Ahmad is not weak either.
[16] The plan put forward on this hearing by Mr. Ahmad was for house arrest with supervision by his father and his older sister. I was impressed with both family members, particularly the sister. Ms. Nadler agreed that she would be a good surety although because she both works and goes to school, the father would assume the primary role. Electronic monitoring was also offered.
[17] There were some concerns. The father may have to go back to work as a truck driver at some point. The applicant’s mother was not offered as a surety although she is home most of the time. The applicant’s relationship with his sister can be volatile and he does not always listen to her. In other words, the plan was not airtight. Perhaps no plan is. It did help to alleviate some of the weight of the Crown’s argument on the secondary ground. Although a good bail plan can also be of some comfort on the tertiary ground, even a strong plan cannot fully address the need to maintain the public’s confidence in the administration of justice.
[18] It is important to remember that the seven men who were responsible for firing 140 bullets during the September 14, 2019 rampage on the apartment complex are still at large. Their guns are presumably still in their possession or accessible to them. The danger to the public posed by these men and their weapons is self-evident. If they are capable of such a brazen, lethal attack en masse, who knows what else they are capable of and what else they might attempt to enlist the applicant to do? The evidence is that the applicant is associated with these men.
[19] Gun and crime statistics from Peel Region were adduced on this hearing. They show that the problem is getting substantially worse. On the tertiary ground, this is of pressing importance and is highly pertinent to maintaining the confidence of the public. While the prevalence of a particular crime is a proper consideration on sentence (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 153, 161), in some extreme examples like this case, it may also factor into examination of the tertiary ground. The seriousness of firearm offences is beyond dispute: R. v. Chizanga and Meredith, 2020 ONSC 4647 at paras. 5-20
[20] Although bail release for an offence as serious as this ought not to be precluded out of hand, the onus resting on the defendant is exceedingly high. It is not met in this instance. The application is dismissed. Detention is ordered on the secondary and tertiary grounds.
D.E HARRIS J.
Released: September 14, 2020
COURT FILE NO.: DR(P)361/20
DATE: 2020 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
SAFEER AHMAD
Applicant
BAIL RULING
D.E HARRIS J.
Released: September 14, 2020