COURT FILE NO.: CR-20-00000341-00BR

DATE: 20201123

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMAD KHAL Applicant

COUNSEL: Caolan Moore, for the Crown Ian McCuaig, for the Applicant

HEARD: November 10, 2020

REASONS FOR DECISION ON BAIL REVIEW

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made pursuant to section 517(1) and section 486.4 of the Criminal Code. These Reasons for Decision shall not therefore be published in any document or broadcast or transmitted in any way before either: (i) the accused is discharged following a preliminary inquiry; or (ii) the end of the accused’s trial. And by order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

TEMPORARY SUSPENSION OF THE COURT

[1] This application was heard and decided during 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 that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or video-conference.

[2] The parties in this bail review agreed that this bail review proceed by way of teleconference. A registrar and court monitor were present in a courtroom to maintain the court record. There was also an observer in attendance. An order excluding witnesses and publication bans on the bail review proceeding and the identity of the complainant were made.

[3] The applicant filed his own affidavit and affidavits of two proposed sureties. The parties provided written materials electronically by email and made oral submissions. A Dari interpreter interpreted for the accused and one of the sureties.

FACTUAL BACKGROUND

[4] Mohammad Khal is charged with eight charges that arose from acts he committed against the complainant in April, May and June 2018, common assaults, assault with a weapon, assault causing bodily harm, sexual assault, kidnapping and unlawful confinement. The show cause hearing was held on January 4, 2019. He has been in detention since November 2, 2018.

[5] Mr. Khal is 39 years of age. He was born in Afghanistan and is a permanent resident in Canada. He has no criminal record. At the time of the arrest, he was residing in Toronto and working full-time for a construction company. Mr. Khal was a friend of the complainant and was familiar with her family. He and the complainant’s father were employed by the same construction company. Mr. Khal drove the father to work every day.

[6] On May 31, 2018, at approximately 11:00 p.m., the complainant received several text messages from Mr. Khal, pretending to be her brother, asking her to open the door of her residence. When she opened the door, Mr. Khal was there. He grabbed the complainant and held a knife to her neck. He drove her to a vacant parking lot in the area of Kennedy Road and Ellesmere Avenue and held a knife to her throat and forced her into his car.

[7] Mr. Khal climbed on top of her in the car and again held a knife to her throat. He choked her, punched and slapped her about the head and body. He used the knife to cut off her jean shorts and underwear. Mr. Khal attempted intercourse with her while wearing a condom but was unsuccessful. The complainant resisted and pushed him away. He then digitally penetrated her vagina at least twice. She attempted to fight back but he continued to choke, punch and slap her. He also bit her face and neck. The assault and confinement in the car continued over several hours. The complainant implored him to stop and she eventually was able to make him stop.

[8] Mr. Khal drove the complainant to his house and ordered her to remain in the car while he entered his home to get a pair of pants for her to wear. He then drove her home and told her to fabricate a story of being robbed by a group of people which would provide an explanation for her injuries. Mr. Khal repeatedly told her he had a firearm and she believed him. He threatened to kill her and her family if she reported the assaults. But she told her family anyway and the police were called.

[9] The complainant gave a statement to the police at 42 Division with the assistance of a Hungarian interpreter. She attended the hospital to have a sex assault evidence examination. She sustained multiple bruises and abrasions to her face, neck, shoulders, arms and chest and small scratches and lacerations. These injuries were photographed by the police.

[10] Mr. Khal was arrested on June 1, 2018, at his work site without incident. His vehicle was seized. Subject to a search warrant the police searched his car and located a condom without a wrapper on the floor of the car under a seat and a small Swiss army knife. Those items were photographed. At the time of the bail hearing under review the knife and the condom had not been tested.

[11] Mr. Khal was released on June 13, 2018 on a recognizance bail with a surety and an ankle bracelet, among other conditions, that he not have any contact or communication in any way directly or indirectly with the complainant or any member of the complainant’s family. On June 15th, two days after release, the accused sent a private Facebook message to a cousin of the complainant.

[12] Mr. Khal was arrested again and charged with breaching that term of the recognizance. On July 17th he was released on a global bail apparently without an ankle bracelet. There was an exception to allow him to work. Mr. Khal was ultimately tried and acquitted of that bail violation. On November 1, 2018, Mr. Khal’s surety cancelled his surety for reasons unknown and a warrant for Mr. Khal’s arrest was executed on November 2, 2018. He has been in custody since that arrest.

[13] Subsequent to the bail hearing forensic evidence was obtained.

[14] Forensic examination found a male DNA profile on her vagina from semen, and DNA on her neck, hands and left cheek. After the preliminary inquiry, a warrant was granted to obtain a sample of Mr. Khal’s DNA. He could not be excluded as a contributor to the DNA on the complainant’s left neck swab. The analysis results are estimated to be greater than one trillion times more likely if they originate from the complainant, and the complainant and Mr. Khal, than if they originate from the complainant and an unknown person unrelated Mr. Khal.

[15] Mr. Khal could also not be excluded as a contributor to the DNA mixture from the complainant’s vaginal swab. The results are estimated to be 4.4 million times more likely if they originate from the complainant and Mr. Khal than if they originate from the complainant and an unknown person unrelated to Mr. Khal.

[16] At the preliminary inquiry, the complainant was shown a photograph of underwear and she identified them as hers. The complainant denied the knife found in the car was the knife Mr. Khal used to threaten her. The knife Mr. Khal is alleged to have used has not been recovered.

[17] At the preliminary inquiry, the complainant made added claims of physical abuse by Mr. Khal. She explained that Mr. Khal wanted to be more than friends with her, but she only wanted to remain friends. She said Mr. Khal would get angry and strike her because he was angry about this. She spoke about three additional assaults in April and May 2018. In April, Mr. Khal punched her while parked in his car and then on another occasion, he punched her in the thighs while parked in his car when Mr. Khal was looking to buy a car. In May, Mr. Khal put a knife to her throat while parked in his car near her home.

THE LAW

[18] Under s. 515(10) of the Criminal Code, there are three grounds for detaining an accused prior to sentence: the primary ground, secondary ground and tertiary ground. The primary ground refers to whether detention is necessary to ensure the accused’s attendance in court. The secondary ground refers to whether detention is necessary for the protection or safety of the public, whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice. The tertiary ground refers to whether detention is necessary to maintain confidence in the administration of justice.

[19] 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 another justice would have weighed the factors differently or; (c) where there is a material change in circumstances: [Subsections 515(10)(a), (b), and (c) of the Criminal Code; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121, (S.C.C.)].

[20] 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 a material change 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]. The defence asserts that Mr. Khal’s two-year stay in pre-trial detention is a new situation that did not face him at the bail hearing.

[21] Bail can be denied on the tertiary ground in order to maintain confidence in the administration of justice having regard to all the circumstances. Bail can only be denied if the court is satisfied that in view of the factors enumerated under s. 515(10)(c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: [R v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.)].

[22] On a determination of whether detention of the accused “is necessary to maintain confidence in the administration of justice” the following factors set out under s. 515(10)(c) must be considered:

(a) the apparent strength of the prosecution’s case;

(b) the objective gravity of the offence in comparison with other offences in the Criminal Code;

(d) whether the accused is potentially liable for a lengthy term of imprisonment.

[R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.)]

THE SHOW CAUSE HEARING

[23] The Justice denied bail on the secondary ground. He found the plan of supervision inadequate. He concluded that Mr. Khal’s uncle did not appreciate the seriousness of the allegations. The uncle made disparaging and sexist remarks about women and the complainant that minimized the crimes against the complainant. This did not offer confidence that the uncle would offer strong enough supervision. The Justice also considered Mr. Khal’s past non-compliance with bail orders and concluded overall that there was a substantial likelihood he would re-offend.

BAIL REVIEW

Material Change in Circumstance

[24] This is a Crown onus case. The defence seeks a de novo hearing based on a change in circumstance.

[25] The defence points to the fact that at the time of the bail review, Mr. Khal has been in detention for 2 years since his arrest in November 2018 for which he would be entitled to some credit for the general conditions and pandemic conditions while in custody at this time: [R. v. Hearns, 2020 ONSC 2365 and R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163].

[26] The trial is set for January 2021. Accounting for credits, Mr. Khal will have served the equivalent of a penitentiary term before trial, which presents, in the defence’s view, a powerful deterrent to re-offending. The defence submits that there is a likelihood that Mr. Khal would be sentenced to time served. The defence submits this should be factored into the secondary ground risk assessment and tertiary ground considerations: [R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305, at para. 42, (Ont. C.A.)]

[27] At the time of the bail hearing on January 4, 2019, Mr. Khal had been detained for two months, from November 2, 2018. I accept that Mr. Khal’s prolonged period in pre-trial custody and its potential effect on sentencing present a material change in circumstances.

[28] The Crown challenges detention on secondary and tertiary grounds.

Secondary Ground

[29] The plan of supervision is as follows. Mr. Khal, his sureties, who were his cousin, Farishta Barez, and his aunt, Shabika Barez, provided affidavits. Farishta is 27 years of age. The plan is for 24/7 supervision on house arrest, Mr. Khal only being allowed to leave the residence in the presence of a surety and to be at work, if an exception is granted for him to work during bail. He is not to possess a firearm or be in contact with the complainant or her family.

[30] The sureties live in a home in Ajax, Ontario and are prepared to have Mr. Khal live with them during the period of his bail. Mr. Khal will have his own bedroom. The cousin is prepared to pledge $5,000.00. She earns $75,000.00 per year and has a sizeable student loan to repay. The aunt is unemployed and is prepared to pledge $2,000.00. The amounts pledged appear to be substantial in relation to their financial means which suggests a commitment to their obligations.

[31] Farishta spoke in strong terms about not tolerating any breaches of the bail terms. She said her experience with Mr. Khal is that he would respect her and obey the conditions of bail. She said she was very prepared to call the police and have him arrested if he violated. She indicated he would have no access to a cellphone or computer to contact the complainant or her family. Shabika also affirmed that she would ensure obedience to bail conditions and that Mr. Khal would not leave her home without being in the presence of a surety and would not have access to any electronic devices.

[32] Both sureties indicated they took their obligations seriously. They indicated they were aware of the seriousness of the charges. Both indicated they however did not believe Mr. Khal would commit such acts. I accept the view of the Ontario Court of Appeal. I see no connection between the sureties’ belief in Mr. Khal’s innocence and their abilities to properly perform their obligations as sureties: [R. v. Jaser, 2020 ONCA 606, at para. 73, (Ont. C.A.)].

[33] Both sureties mentioned the name of a stand-in person for an urgent situation, Nazeem Ishmail, an elderly woman whom they know and respect to supervise Mr. Khal if neither of them are available. Their evidence was that reliance on Ms. Ishmail will not be likely required as Farishta is working from home and Shabika is constantly at home taking care of a young baby.

[34] The plan of supervision is not perfect. Nor does it need to be. It need be sufficient to obviate a substantial likelihood of re-offence. As the Ontario Court of Appeal observed citing R. v. Morales, 1992 53 (SCC),

Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for the public safety.

R. v. Jaser, at para. [57]

[35] I find Mr. Khal is releasable on the secondary ground. He has 24/7 supervision under house arrest to reside with his two sureties. They indicate they have known Mr. Khal his entire life and that he would respect and obey them and the bail conditions. In looking at the previous plan and the current proposed plan, I note that the previous plan involved only one surety, an uncle who was deemed unsuitable for minimizing the seriousness of the offence and engaging in sexist victim-blaming. He was unable to control Mr. Khal. I find the two proposed sureties to be better placed to supervise him on house arrest.

Tertiary Ground

[36] Considering the factors to be considered under s. 515(10)(c), Mr. Khal admitted to the police the common assault on the complainant and beyond this, the Crown’s case has grown rather stronger in other areas since the bail hearing.

[37] As noted earlier, the forensic examination done shortly after the alleged incident found male DNA, from which Mr. Khal could not be excluded, on the complainant’s vagina, her neck, hands and left cheek. The pair of underwear cut apart on the left side, identified by the complainant as hers, correspond with her evidence about Mr. Khal cutting them off.

[38] That evidence corroborates the complainant’s evidence about Mr. Khal’s physical connection with her neck, arms, cheek and her vagina in relation to the attempt at rape. This evidence, however, does not in any clear sense corroborate the other serious charges of forcible confinement and kidnapping.

[39] On the gravity of the offence, sexual assault, assault causing bodily harm, assault with a weapon, threaten death and the other assaults are serious crimes which would warrant a lengthy prison sentence. Regarding the circumstances surrounding the crime, although a firearm was not used, a knife was placed at her neck to force the complainant into a vulnerable situation in a vehicle.

[40] There are credibility issues around the complainant’s evidence that Mr. Khal held a knife to her neck for three hours. It seems somewhat hard to believe that he did this for such a prolonged period. There are also credibility issues around the forcible confinement charge. When asked why she did not escape Mr. Khal’s car when he left the car, the complainant’s response was that the car was locked. Common sense says occupants can leave most cars by unlocking a door themselves and exiting. There is no evidence that Mr. Khal had special locks on his car.

[41] 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.

[42] The offences were violent and protracted. There was the use of a knife during the offence in an isolated parking lot late at night. There was a difference in the ages of Mr. Khal and the complainant. He was 37 years of age at the time of the offences and the complainant was age 18. The complainant’s vulnerability is an aggravating factor.

[43] 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.

R. v. St–Cloud, at paras. [61 and 71]

[44] Mr. Khal is not a youth. He is currently age 39. To his favour, he has been working in the construction industry for the two years before his arrest. He was arrested on a worksite. Also, to his benefit, he has no criminal record, no bail violations and has a close and loving relationship with his family in Canada.

CONCLUSION

[45] In determining the effect of the factors under s. 515(10)(c), I must keep in mind the question whether the accused’s continued detention is necessary to maintain confidence in the administration of justice, this to be adjudged through the eyes of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law.

[46] I must consider all the circumstances of the case with particular attention to the four enumerated factors, not focussing on one circumstance as determinative. The court must consider the combined effect of all the circumstances of the case to determine whether detention is justified. There must be a balancing of all the relevant circumstances.

[47] The critical question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice.

[48] While I recognize the seriousness and gravity of the offences, I balance this against the strength of the secondary ground factors. Not only must there be a substantial likelihood of committing an offence, that substantial likelihood must endanger the protection or safety of the public. I recognize the strength of the sureties’ convictions to enforce the 24/7 plan and their ability to be at the home with Mr. Khal all day, every day. In addition, I balance the absence of a criminal record, the possible deterrent effect of Mr. Khal’s 2-year pre-trial detention, its possible impact on sentencing, and the fact that his trial commences only about two months after release, against the likelihood of re-offence, and I find there is a substantial likelihood he will not re-offend.

[49] It is not necessary for Mr. Khal to remain in custody to maintain confidence in the administration of justice. The Crown has failed to satisfy me that release on very strict terms will not adequately address the legitimate public safety and public confidence concerns.

ORDER

[50] Mohammad Khal shall be released from the Toronto East Detention Centre on the following terms:

a. Mohammad Khal shall reside at the home of his sureties, Shabika Barez and Farishta Barez, at # 20 Graydardine Lanet, Ajax, Ontario;

b. He shall be under 24-hour, 7-day per week house arrest only being allowed outside the residence if accompanied by one of his sureties;

c. A third surety shall be Nazeem Ishmail who will assist with supervising Mohammad Khal if the other two sureties are not available;

e. Shabika Barez shall post security for bail in the amount of $2,000.00;

f. Farishta Barez shall post security for bail in the amount of $5,000.00;

d. Mohammad Khal shall not be within 200 metres of any residence, place of employment or school V.H. attends;

e. He shall not have access to or possession of any electronic device such as a computer, landline, cellphone, iPad or any other device;

f. He is prohibited from contacting, directly or indirectly by any means, V.H. or any member of her family, and also including Nikolette Kuru, Mate Kuru and Monika Kiss;

g. A weapon prohibition is imposed prohibiting Mr. Khal from having possession of a weapon as defined in the Criminal Code which includes a knife, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

B.A. Allen J.

Released: November 23, 2020