COURT FILE NO.: CR-20-90000107-00MO

DATE: 20201020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

– and –

RIAZ SHAHID

Heather Graham, for the Attorney General of Canada

Rob Christie, for Riaz Shahid

HEARD: October 9 and 14, 2020

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON BAIL APPLICATION

[1] From 2016 to 2019 Riaz Shahid allegedly operated a money-laundering scheme. He allegedly operated the scheme in the United States while he lived in Canada. He currently faces charges of money laundering and operating an un-licenced money transfer business in the Southern District of New York. In December 2019 the U.S. issued an arrest warrant for him.

[2] On September 8, 2020 I signed a provisional arrest warrant for Mr. Shahid. He was subsequently arrested. He was also detained on immigration violations. He now seeks bail on the extradition request. His proposed a plan of release involves him continuing to work at his business while supervised by his brother and three family friends.

[3] This is the second time Mr. Shahid has had trouble with the authorities in the United States. In 2003 he was convicted of money laundering. In 2008 he was deported to Pakistan, where he is a citizen. In 2016 he came to Canada as a permanent resident. When he applied for status, he apparently failed to disclose his American conviction and subsequent deportation. He also provided a false date of birth.

[4] Mr. Shahid bears the onus at this hearing by reason of the nature of the charges. The Attorney General seeks his detention on the primary and secondary grounds. I find that Mr. Shahid has failed to meet his onus and for the reasons that follow, his application for bail is dismissed.

BACKGROUND

(a) The Allegations

[5] In 2019 a confidential informant (who I will refer to as a “C.I.”) told the Federal Bureau of Investigation, or FBI, about a “hawala” system in New York. Hawala is an informal money transfer system. A network of brokers, or “hawaladars”, essentially use an honour system to credit funds to each other on behalf of customers, for a small fee. Hawala is not necessarily nefarious and is often used for innocent remittance purposes, but it can also be used for laundering the proceeds of crime, tax evasion, and terrorist financing.

[6] The C.I. had contact with a cooperating witness named T.C. T.C. worked for a hawaladar named Riaz. Riaz lived in Canada. T.C. would collect large sums of cash, usually over $10,000, and deposit the sums in various accounts at Riaz’s instruction. He would collect a fee of 20% for himself and Riaz. In 2019 the FBI, using the C.I., engaged in several undercover operations with T.C. and Riaz. The C.I. provided funds to T.C., who laundered the money minus a fee. FBI surveillance teams observed T.C. deposit the funds. Consent wiretaps intercepted conversations between C.I. and T.C. Banking information verified where the funds were deposited. Riaz controlled these accounts.

[7] T.C. provided a number for Riaz to the C.I. The C.I. and Riaz had conversations and exchanged messages on WhatsApp. In June and July the C.I. arranged for Riaz to launder funds without T.C.’s involvement. The C.I. asked that Riaz send a different person to pick up cash. Riaz did so. The C.I. provided the new person with U.S. government funds, and then reported to Riaz via WhatsApp that he had provided the funds to Riaz’s launderer.

[8] Riaz and the C.I. also discussed whether the C.I. could obtain a fraudulent U.S. visa for Riaz. Riaz revealed that he had been arrested in the United States. He provided a social security number and date of birth. The social security number and date of birth belong to Riaz Shahid, who had previously been convicted of money laundering in the United States.

[9] American and Canadian law enforcement authorities maintain that the Riaz is Riaz Shahid, based on photographs, fingerprints, Mr. Shahid’s U.S. social security number, and a telephone number associated with Mr. Shahid’s Facebook page. American and Canadian law enforcement authorities coordinated the arrest of Mr. Shahid’s co-conspirators in the United States with the arrest of Mr. Shahid in Canada.

(b) Mr. Shahid’s Background

[10] Mr. Shahid is a citizen of Pakistan. He currently lives in Canada with his wife and children. His wife is also a citizen of Pakistan. His children were born in the United States and have American citizenship. Mr. Shahid has siblings and other relatives in both Pakistan and the United States.

[11] In 1998 Mr. Shahid applied for permanent residence in Canada. He provided his real birth date of November 13, 1965. At the time he was living in the United States illegally. Canadian authorities refused his application for permanent residence.

[12] In 2004 Mr. Shahid was convicted of money laundering in the United States. In 2008 the United States deported him to Pakistan. His wife and his children moved to Pakistan when he was deported.

[13] Between 2008 and 2016 Mr. Shahid and his wife lived in Pakistan. He applied for permanent residence status in Canada again, but this time under his wife’s application. He provided Canadian immigration and border authorities with a date of birth of March 20, 1965. That was not his real birth date. He also failed to disclose his criminal conviction in the United States. On the application Mr. Shahid’s wife indicated that she would be working as a hairdresser in British Columbia. Mr. Shahid acknowledged in cross-examination that his wife has never worked outside the home and they have never resided in British Columbia. When Mr. Shahid arrived in Canada in 2016, he either purchased or started an auto repair business. Canadian immigration authorities have detained Mr. Shahid.

(c) The Proposed Plan Of Release

[14] Mr. Shahid proposes to live with his wife and children at his current address in Mississauga. He proposes to wear a GPS ankle bracelet that is monitored by Recovery Science Corporation. His sureties can supposedly sign for more than $2 million. Mr. Shahid set out the proposed plan in his affidavit:

If released, I'm prepared to follow strict bail conditions. I will live at 4539 Kimbermount Avenue in Mississauga with my wife and three children. I will be kept under strict house arrest, subject to the following exceptions:

a. to travel directly to and from Dinga Auto located at 3239 Wolfedale Road, Mississauga;

b. to work at Dinga Auto;

c. to attend my Court dates in the presence of one of my sureties;

d. medical appointments in the presence of one of my sureties;

e. in the presence of one my sureties; and,

f. medical emergencies directly to the hospital.

[15] Four potential sureties came forward on Mr. Shahid’s behalf: Mr. Shahid’s brother, and three family friends.

ANALYSIS

[16] The key issue in this case is whether Mr. Shahid’s proposed plan of release is sufficient for him to meet his onus on the primary and secondary grounds. I find that it does not.

[17] I start with the onus. Mr. Christie, on Mr. Shahid’s behalf, properly conceded that Mr. Shahid bears the onus due to the nature of the charges. Mr. Shahid is sought for the offence of money laundering. The bail provisions of the Criminal Code apply to bail under the Extradition Act: see s. 19. Under s. 515(6)(ii) a person charged with an offence contrary to s. 467.11, 467.111, 467.12 or 467.13 of the Criminal Code, or “a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization” bears the onus at bail hearing. The offences under s. 515(6)(ii) of the Criminal Code deal with the commission of offences on behalf of, at the request of, or for the benefit of a criminal organization. A criminal organization is a group of 3 or more people, inside or outside Canada, that have as a purpose committing criminal offences for the material or financial benefit of the group or the individuals in the group: Criminal Code, s. 467.1(1).

(a) Has Mr. Shahid met his onus on the primary ground?

[18] Mr. Christie argues that the plan is sufficient for Mr. Shahid to meet his onus on the primary ground. Several reputable sureties have come forward. They are all responsible people, he argues. They have combined assets such that over $2 million can be pledged to ensure Mr. Shahid’s attendance in court. As well, the GPS ankle monitoring bracelet will provide a measure of deterrence and compliance.

[19] Respectfully, I disagree. I find that Mr. Shahid has not met his onus on the primary ground.

[20] There must be a more cautious risk analysis on the primary ground in the extradition context than might otherwise be the case in a domestic bail hearing: United States v. Mordi, 2010 ONSC 6666 at para. 5. That is because extradition is founded upon the international law principles of reciprocity, comity, and respect for differences in other jurisdictions: M.(M.) v. United States of America, 2015 SCC 62 at para. 15. The prosecution authorities in the United States submitted a letter setting out the concern that Mr. Shahid represents a considerable flight risk. I may take this letter into account: Mordi at para. 8.

[21] I see several flaws in the plan. The biggest flaw is Mr. Shahid himself. I have no confidence that Mr. Shahid will not attempt to flee. He faces a potential 25-year sentence in the United States. In the event Mr. Shahid is not extradited to the United States, he will almost surely be deported from this country. He is clearly criminally inadmissible to Canada and he knew it because he provided a false date of birth to obtain admission. It is difficult to see any circumstances where he is able to remain here, even with an application to stay on humanitarian and compassionate grounds. There are no incentives for him to stay other than the risk to his sureties, and many incentives for him to leave.

[22] The plan itself is flawed. It is simply Mr. Shahid’s regular life. The plan appears to be structured so that Mr. Shahid himself and his wife bear little or no exposure. Mr. Mr. Shahid rents a house and has put a $60,000 deposit on a house in Georgetown but otherwise appears to have no real property. I note that he does not propose his wife as a surety – likely because she appears to have no assets in her name, but also because of an awareness that no judge or justice is likely to approve her. Mr. Shahid’s wife was the main applicant when the family applied for Canadian permanent residence. That application contained Mr. Shahid’s false date of birth. That suggests that she was party to his misleading of Canadian immigration authorities. It is difficult to conceive that she does not know her husband’s real date of birth, or that on her application she was unaware that his date of birth was false. Thus, Mr. Shahid proposes to continue living his regular life with a person who could not pass muster as a surety.

[23] Shahid testified that his business is worth about $600,000 but his answers in cross-examination left me puzzled. Mr. Shahid swore in his affidavit that he was prepared to pledge up to $1 million to secure his release; he agreed, however, in cross-examination that he does not have $1 million in assets. Other than the $60,000 deposit he may not have any assets. He swore in his affidavit that he started his auto repair business from scratch in 2016; however, in cross-examination he indicated that he sold property in Pakistan to buy a business. He also stated in his examination that his business rented space and that most of his assets were tied up in equipment and goodwill. It is not clear to me how much of his business can really be pledged as security, if any. There is no evidence about whether the equipment is leased or whether there are business loans; and it is also not clear to me how, exactly, the Attorney General could enforce a no-deposit pledge on the goodwill of a business. Moreover, Mr. Shahid has not filed any documents that might give a clue as to the value of the business. He has not filed a tax return, or a bank statement, or even a simple balance sheet. I do not accept his estimate.

[24] Mr. Shahid has demonstrated a willingness and ability obtain and travel on false documents. He has also demonstrated an ability to use false documents to circumvent immigration systems. It is an obvious inference that he entered Canada using a passport with a false date of birth. Troublingly, it is not clear to me where that document is now. Mr. Shahid also discussed with the C.I. in this case the prospect of obtaining a fraudulent visa to re-enter the United States. I have no confidence that Mr. Shahid would not try to obtain another false document in order to flee the country.

[25] I turn next to the proposed sureties. There are difficulties with all of them. None (other than Mr. Shahid’s brother) seem especially familiar with Mr. Shahid outside the business relationship. With the exception of Mr. Shahid’s brother, the sureties appear to simply be people who bring their cars in to Mr. Shahid’s auto repair business. They appear to be more than acquaintances, but less than friends. More importantly, none propose to be around to supervise Mr. Shahid during the day other than to drop in from time to time to the business to check on him or give him a call. Given the risks in this case, that is totally inadequate.

[26] As well, the financial risk to Mr. Shahid’s sureties is more apparent than real. They all provided definitive statements indicating that they can each sign for hundreds of thousands of dollars. That is – at best – an exaggeration by each of them.

[27] Imtiaz Ahmed is Mr. Shahid’s brother. He is a lawyer and a real estate broker. He practices immigration law. He testified that he did not assist Mr. Shahid with his immigration application, as he was not yet called to the bar when his brother applied. He testified that although he lives in Mississauga, and his office is on the Danforth, he is flexible enough that he can assist in supervising Mr. Shahid. He has a family home he is prepared to sign for.

[28] Mr. Ahmed indicated that he can sign for $1 million. Respectfully, I do not accept that assertion. He indicated that he owns a property at 1174 Mississauga Road where he is building a house. He testified that the property has a fair market value of $1.85 million. There are two items registered on the property: a mortgage of $985,000 and a secured line of credit of $180,000. Mr. Ahmed testified that some of the mortgage has been paid down and that there is approximately $1.1 million in equity. He also testified that he is the beneficial owner of the property. That may be so, but he is co-owner on title with his sister. As well, assuming it is a matrimonial home, Mr. Ahmed’s wife has rights. Mr. Ahmed testified that his wife knows that he is pledging as a surety and does not object. There is no evidence that either his sister or his wife has received independent legal advice or understand the nature of the commitment. There is also no evidence as to whether his beneficial ownership extends to the whole property, or just a small portion. I am not suggesting any chicanery on his part but based on simple math I am not satisfied with what he says he can pledge.

[29] Saad Goher is a family friend of Mr. Shahid. He is a 26-year old financial analyst. He knows Mr. Shahid through his father-in-law. He also testified that he and his family take their cars to Mr. Shahid’s business to be serviced. He lives with his parents but he and his sister co-own the family home 15258 Danby Road in Mississauga. He deposed that the house is worth about $1.25 million and there is about $400,000 in owner’s equity. He deposed that he has $100,000 in savings.

[30] Saad Goher deposed that he can pledge $500,000. That is not correct, based on his own evidence. The $400,000 in equity is divided with his sister (the shares are unknown). A part of his own share would likely be considered a matrimonial home. Saad Goher did not mention a spouse in his affidavit. He did mention in cross-examination that he knows Mr. Shahid through his father-in-law. There is no evidence that his spouse is even aware that Saad Goher is signing bail for someone on a house where he or she may have an interest. As well there are two mortgages on the property. Saad Goher agreed in cross-examination that the registered vaule of the mortgages are higher than the value of the property. No mortgage statements were filed indicating how much, if any, of these mortgages have been paid off. As well, the second mortgage is from a private lender. That mortgage includes a clause that no further charges can be placed on the property. Saad Goher would be in violation of the terms of his second mortgage if he were to pledge it. He is not a suitable surety. There is no evidence that either his sister or his spouse have obtained independent legal advice as to how the pledge would affect their rights.

[31] I turn to Aziz Goher. Aziz Goher is Saad Goher’s uncle. He is also a family friend of Mr. Shahid and a customer of Mr. Shahid’s business. He is a real estate broker and director of a charitable food bank. He deposed in his affidavit that he owns two properties. One is the family home on Trilogy Trail in Mississauga that has an $800,000 mortgage but, according to Aziz Goher, is worth $1.6 million. The other is a residential property at 5224 Danby Avenue in Mississauga that he deposed is worth $1.45 million with $650,000 in homeowner’s equity. He and his wife are the co-owners of that property. His home is about a five minute drive from Mr. Shahid’s home.

[32] The legal owner of Aziz Goher’s home on Trilogy Trail is his wife. As well, Aziz Goher’s property on Danby Road (which is currently occupied by a tenant) is also co-owned with his wife. Mr. Goher is the beneficial owner of his share of the family home with his wife, and part legal owner of the investment property. It is not clear to me how he can pledge his share in the matrimonial home in a real way when he is not on title. As well, there is no evidence that Mr. Goher’s wife has received independent legal advice about the risk to the family home and the investment property, or even that she has informally consented, other than Mr. Goher’s statement in his affidavit that he has advised his wife that he is signing bail. As well, it is not clear to me just how much equity exists in the investment property. Aziz Goher deposed that he can sign for $700,000. He may have that much in equity between his residence and his investment property, but given that his wife is the legal owner of the matrimonial home, it is not accessible.

[33] Mohammed Mumtaz-Khan is an accountant. He lives at 6945 Lisgar Drive in Mississauga with his family. The Lisgar Drive home is in his wife’s name but is the matrimonial home. Mr. Khan’s name was removed from title in 2016. He deposed that the house has a fair market value of about $1.4 million with $500,000 in owner’s equity. Mr. Khan also owns a condominium in downtown Toronto. That condominium, he deposed, is worth $600,000 but has $300,000 in equity. His home is about a ten-minute drive from Mr. Shahid’s home.

[34] Mr. Khan deposed that he can sign for $500,000. That may be so, but as with Aziz Goher, Mr. Khan’s wife has legal ownership of the family home and the same problems arise with enforcing against Mr. Khan’s share. I accept that Mr. Khan has some equity in the family home. I am also aware that his wife has sworn an affidavit that she understands that Mr. Khan is signing bail. I also accept that there is some equity in the downtown condominium, but there is no indication in the affidavit that his pledging this property would affect her net family property rights – which, surely, she has. There is also no evidence that she has received independent legal advice.

[35] Where – as here – there is a high risk of flight it is critical that the court have a clear understanding of is being pledged, who is pledging it, how other beneficial owners might be affected, and the actual, as opposed to speculative value of the property. The comments of Dunnet J. in Republic of Italy v. Commisso, [2005] O.J. No. 6319 at para. 51 apply here:

In my view, there is no trustworthy proof of the amounts proffered by the sureties. There is no credible or documentary evidence to support the estimated value of the properties. Of concern is the fact that the properties are apparently jointly held and, other than a statement by each witness that his wife would support his decision, there was no evidence from any of the spouses regarding their consent to the potential encumbrance of the total equity in their homes or any evidence that they have received independent legal advice.

[36] None of these sureties has real property with straightforward ownership and obvious equity that can be pledged and charged. There is no evidence that any of the other people who have interests in the properties has received independent legal advice. There may well be a way for the Attorney General to enforce against all of these properties, despite the problems of legal versus beneficial ownership. To do so, however, would be costly, complicated, and undoubtedly require protracted litigation. An illustration is found in Bank of Montreal v. Juroviesky, 2014 ONSC 1560 as an example of protracted litigation where a debtor attempts to make himself “judgment proof”. I do not see how it is in the public interest to make it difficult for the Attorney General to enforce its rights in a bail situation where the risk of flight is high. I do, however, see how it is very much in Mr. Shahid’s interest to do so.

[37] Moreover, when I add up all of the real equity of the proposed sureties after subtracting all of the mortgages and the beneficial ownership of their spouses and/or siblings I find the $2 million figure grossly exaggerated.

[38] Finally, when someone is pledging hundreds of thousands of dollars of equity on a significant asset like a home, I would expect that they would go about it in a serious way. None of these proposed sureties did so. Each of them has a spouse and each of them appear not to have given any serious thought as to the legal impact on their spouse’s rights. Two of them exaggerated how much they could actually pledge. No documents were filed such as an agreement of purchase and sale or a mortgage statement. None of this indicates to the court that they take the business of being a surety seriously.

[39] I do not wish to be taken as saying that a potential surety who co-owns real property with a spouse or family member on title and a mortgage can never be use that property as a pledge. That obviously describes many potential sureties. What I am saying is that when such a person comes forward – especially in a high-risk bail situation – the Court requires more than just a simple assertion of value in an affidavit. The Court also requires a real estimation of how the rights of co-owners affect the pledge of real property.

[40] I turn now to GPS monitoring. GPS monitoring can be a useful part of a plan of release under the right circumstances and with the right sureties and the right accused person: R. v. Pannell, 2005 CanLII 22 (ON CA), [2004] O.J. 5715 (Sup.Ct.) at para. 42. As Recovery Sciences Corporation states in its material:

The question of whether the inclusion of a monitoring requirement is sufficient for a proposed plan to meet the court’s requirements and objectives will be a case by case decision made by the court. In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress. Monitoring’s value as a risk management tool derives from:

a. the deterrence effect resulting from the accused knowing that he or she is being monitored and that breaches of monitored conditions will be detected and reported; and

b. the fact that, if the deterrence effect doesn’t work on a particular accused, non-compliant behaviour will be detected, reported and consequenced much earlier than would be the case with an accused who is not monitored.

[41] In Pannell, Nordheimer J. (as he then was) made the following observations at para. 40:

The simple fact is that electronic monitoring does not ensure the attendance of an accused person in court. To the contrary, all it does is alert JEMTEC, and thereafter the authorities, that the subject has possibly fled or otherwise disappeared. If that occurs, electronic monitoring does not assist in locating the subject nor does it reveal his or her plans. In other words, if there are concerns under the primary ground, electronic monitoring does not alleviate those concerns…

[42] As Trotter J. (as he then was) stated perhaps more pithily in R. v. Dang, 2015 ONSC 4254 at para. 42: “Electronic monitoring is not an infallible prophylactic against bail violations.” Other judges have taken a more forgiving view of the efficacy of electronic monitoring. For example, see R. v. Rajan, 2020 ONSC 2118 at para. 31 (at least in the secondary ground context).

[43] I agree with the observations of Molloy J. in R. v. T.L., 2020 ONSC 1885 at para. 22:

It is, of course, obvious that an ankle bracelet cannot prevent an accused from breaching his bail conditions and committing an offence. The function of the bracelet is to alert the authorities immediately if there is a breach. The accused could simply leave the home even though wearing the bracelet, which would make him easier to track. Or, theoretically, he could cut off the bracelet (although not an easy task), in which case the alarms will go off and the breach will be immediately known. In either event, Mr. L. could reoffend. However, just because it would be possible to commit a crime while on bail, notwithstanding an ankle bracelet, does not mean that an ankle bracelet is not a useful supervision tool in many bail situations. It has, at the very least, a psychological deterrent effect. Mr. L. will know that any breach, no matter how minor, will be detected and reported. He will have no illusions about his sureties not betraying him. The electronic bracelet will not be swayed by emotion. I believe the ankle bracelet also reinforces for the sureties and other people in the home the importance of strict compliance with the terms of the bail.

[44] GPS monitoring can suitable in the right case. This isn’t the right case. GPS monitoring cannot prevent Mr. Shahid from making arrangements to obtain false documents and using them to board an airplane using a different date of birth. As I understand it, when Mr. Shahid is to leave the house, he must inform Recovery Sciences Corporation with a voice or video call, by way of an app on his phone. Recovery Science first checks with a surety in the event of a violation. Since no surety actually lives with Mr. Shahid, it will take time for one of them to drive to Mr. Shahid’s home or business to check on him in the event of a violation. Even if Recovery Science were to immediately inform the police of a violation – such as Mr. Shahid cutting the ankle bracelet – as Recovery Science points out an immediate police response is hardly guaranteed, and, indeed, may be ineffective if Mr. Shahid has already disappeared. In any event, the whole point of a surety bail is that the sureties are the jailers by proxy. The police are not to be the first line of defence in the event of a violation, they are to be the last line of defence. While the police can and should do bail compliance checks, the administration of justice relies primarily on reasonable sureties who are prepared to enforce the conditions of bail. For the reasons I have already set out, I do not find the sureties adequate under the circumstances.

(b) Has Mr. Shahid met his onus on the secondary grounds?

[45] Even if Mr. Shahid could meet his onus on the primary ground, he has not met the onus on the secondary grounds.

[46] An assessment of the risk on the secondary ground requires consideration of all the circumstances, including the likelihood of recidivist conduct. There must also be a probability of criminal conduct, not a mere possibility. Mr. Shahid must show that his detention is not necessary for the protection of the public, as well as the safety of the public: R. v. Manasseri, 2017 ONCA at paras. 85-88. In my view, the words “protection” and “safety” as used in s. 515(10)(b) are not limited to the physical protection and safety of the public, otherwise Parliament would have specifically excluded non-violent offences. In any event money laundering is ancillary to other crimes such as drug trafficking and human trafficking. It surely engages issues of protection and safety.

[47] Mr. Shahid has been convicted of one money laundering once before and is accused, again, of the same thing. The current plan is no deterrent or check if he decides to continue to make money the same way. Money laundering is an offence that is difficult to detect. It is not like, say, robbing a bank, which is a dramatic public act. Money laundering depends for its success on the existence of like-minded criminals who have a mutual interest in doing everything possible to avoid regulatory and police detection. There are, of course, agencies that monitor financial transactions in real time in order to detect money laundering, such as FINTRAC, the Canadian agency, and FINCEN, which is a branch of the U.S. Treasury Department. In this case it was serendipity in the form of a C.I. that put the FBI onto Mr. Shahid.

[48] I see no mechanism at all whereby Mr. Shahid will be deterred or prevented from doing it again. Each surety deposes that he is prepared to visit Mr. Shahid in person as well as call him by telephone or on social media. The plan only requires that Mr. Shahid contact one of his sureties when he leaves to go to work, or when he returns from work. That is no supervision at all. Mr. Shahid is not a person who has, until now, lived an unblemished life and faces a charge for the first time. There is every reason to be concerned.

[49] Mr. Ahmed, Mr. Shahid’s brother, seems to me to be a responsible and successful person. I do not doubt his good intentions. I have my doubts, however, that he will be in a position to provide the necessary supervision given the nature of the alleged crime, and the access that Mr. Shahid will have to computers and phones (not to mention bank accounts). As I have emphasized, Mr. Shahid needs very close supervision throughout the day to prevent the commission of further offences. I don’t see how Mr. Ahmed can do that.

[50] Here, the plan is that Mr. Shahid will be living with a person who is not a surety and who could not be approved of as a surety. He will be going to work every day at a business where there is no surety to monitor him. His business no doubt has telephone lines and computers hooked up to the internet. It would be easy enough for Mr. Shahid to pick up laundering money where he left off when he was arrested. No doubt I could impose conditions preventing him from using computers or cell phones while at his business, but those devices are surely central to communicating with customers and suppliers, ordering spare parts, or preparing invoices and forms. It would be easy enough to use a phone or computer belonging to someone else in his home. The lack of a surety to monitor him while he is at work or at home is an invitation to conduct further criminal activity. I would also note that Mr. Shahid appeared to have been quite prepared to enter Canada using a false document and to obtain false documents to enter the United States. Those are serious violations, and don’t see why he would take a court order without a realistic enforcement mechanism any more seriously. It would amount to the classic plaintive cry of “Stop! Or I’ll be forced to yell ‘stop’ again!”

(c) What is the impact Mr. Shahid’s medical condition?

[51] Mr. Shahid deposed that he suffers from medical problems:

I have been diagnosed with chronic Coronary Artery Disease, Class II Angina, hypertension and diabetes mellitus. I have had coronary artery disease since my early 30's and had a heart attack at 33 years old. I am able to manage my medical conditions with frequent and regular visits to my family physician and cardiologist as well as taking twelve types of prescription medication.

[52] There is no specific evidence that Mr. Shahid is at greater risk if he contracts Covid because of his medical condition. The defence provided a letter from Dr. Tariq Vakani, Mr. Shahid’s cardiologist. The letter states:

He is a 55-year-old gentleman who came to my attention on referral from his family doctor in October 19, 2016. I have provided him care ever since. He has significant coronary artery disease since age 32 and had previous myocardial infarction at a very young age. He also has multiple cardiac risk factors and that puts him at a higher cardiovascular risk which means risk of Myocardial infarction and death. He has strong family history of coronary artery disease.

[53] The defence also provided a letter from Dr. Saba Hussain, Mr. Shahid’s family physician. That letter states:

The above diagnoses for Mr. Shahid have been chronic and stable. His prognosis for overall health is good as his conditions are well- managed and in control.

[54] Those letters were prepared by doctors and given to immigration counsel in June of this year. I surmise that counsel obtained them in an effort to obtain bail on his immigration detention. I would have expected a cardiologist and family doctor to mention it if Mr. Shahid were at higher risk of morbidity if he were infected. They did not.

[55] The defence relies on two cases where the risk of the spread of Covid in Canadian custodial institutions was highlighted: R. v. J.R., 2020 ONSC 1938; and R. v. J.A., 2020 ONSC 2312. The judges in those cases accepted that the pandemic constituted a material change in circumstances, opening the door to a review. I accepted that argument as well: R. v. Osman, 2020 ONSC 3472 at para. 16. Those cases also highlighted the prospect that in a custodial situation there was heightened risk of transmission. At the time not all judges of this Court and the Ontario Court of Justice agreed: see, for example, R. v. Nelson, 2020 ONSC 1728; R. v. Jeyakanthan, 2020 ONSC 1984.

[56] J.R. and J.A. were decided on April 15 and 16, 2020, respectively. That was at an early stage in the pandemic. Since that time there have been incidences of Covid in Ontario’s custodial institutions, but fears of large numbers of inmates becoming infected have simply not been borne out. The measures taken by the custodial authorities – including releasing many low-risk prisoners and using isolation measures – appear to have significantly limited the pandemic’s impact. According to the latest Information Note from the Ministry of the Solicitor General, as of October 2, 2020 there were no cases of Covid among inmates and staff at Maplehurst. There had been 6 cases among the inmates and 1 case among the staff. These cases were resolved using isolation measures.

[57] In other words, I am not satisfied that Mr. Shahid is at extra risk of contracting the infection while he is in custody. Further, there is no evidence that Mr. Shahid’s medical conditions place at greater risk of morbidity if he contracts Covid 19. The correctional authorities have the responsibility to make sure that Mr. Shahid’s medical conditions are attended to and there is no evidence that they have not done so. I agree with Quigley J. in R. v. Bell, 2020 ONSC 3962 at para. 83:

Persons who present a substantial likelihood of endangering the public by committing offences or interfering with the administration of justice will likely remain in detention. Accused persons who were previously un-releasable will likely remain un-releasable.

DISPOSITION

[58] Given my findings on the primary and secondary ground, there is no need to consider the tertiary ground.

[59] The application for bail is dismissed.

Released: October 20, 2020

COURT FILE NO.: CR-20-90000107-00MO

DATE: 20201020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA

– and –

RIAZ SHAHID

REASONS FOR JUDGMENT ON BAIL APPLICATION

R.F. Goldstein J.