COURT FILE NO.: 20-11290
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MUSSE ABDULLE
Applicant
Moiz Karimjee, for the Crown
Vanessa Carew, for the Applicant
HEARD: November 26, 2020
REASONS ON DETENTION REVIEW APPLICATION (s. 520 criminal code)
Aitken J.
Nature of Proceedings
[1] Musse Abdulle seeks an order under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 granting his release from custody pending trial. Due to the COVID-19 pandemic, and with the consent of Crown counsel, Defence counsel, and Musse Abdulle, the application was heard by way of Zoom, with Mr. Abdulle attending via telephone from the Central East Correctional Centre.
Section 524 Hearing before Kehoe J.
[2] On October 9, 2020, Mr. Abdulle appeared before Kehoe J. of the Ontario Court of Justice for a hearing under s. 524 of the Code. At the time, Mr. Abdulle was facing eight sets of charges. For the sake of expediency, I will simply reproduce that portion of the transcript of the bail hearing where Kehoe J. summarizes the charges:
[The] first Information is January 19, 2020, he’s charged with a breach of probation in that he attended at Loblaws, 363 Rideau Street; that on May 21st, he attended the LCBO at 50 Rideau Street and stole alcohol; and on the 26th of May, he attended the LCBO located at 111 Albert Street and stole alcohol; and on June 11th, he attended the LCBO at 111 Albert and stole alcohol.
On May 15th, it’s alleged that he assaulted Tanya Lyons with a bottle of vodka so it’s an assault with a weapon, and on May 15th, 2020, that he wilfully, without reasonable cause, made a fire alarm go off at 171 George Street.
On May 22nd, he’s charged with a breach of probation, failing to keep the peace and [be] of good behaviour. Also, on May 22nd, 2020, that he attended the LCBO at 50 Rideau Street and stole alcohol.
And on May 25th, 2020, he attended the Loblaws at 100 McArthur and stole items from the store. Also, on May 25th, 2020, that he breached his probation order by failing to keep the peace and [be] of good behaviour.
On May 30th, 2020, that he breached his probation order by attending at 363 Rideau Street, which is Loblaws. And on May 30th, he’s also charged that he carried a weapon, namely, a serrated steak knife, for a purpose dangerous to the public peace. Also, on May 30th, 2020, that he wilfully interfered with … Chris Galinsky and Jarred Finlay’s use of and enjoyment of a property, and those two are the security officers at Loblaws at 363 Rideau.
On June 12th, 2020, that he interfered with Christopher Pollard’s lawful use and enjoyment of property that’s at 171 George Street. He’s also charged with breaching his probation by failing to keep the peace and [be] of good behaviour on June 12th. He’s also charged with breaching his release conditions not to attend to the Salvation Army at 171 George Street, the Loblaws at 100 McArthur and the Loblaws at 353 Rideau Street. And he’s charged also with breaching a condition of another release order that he’s not to go – he must not go to 171 or 175 George Street.
On the 12th of July, 2020, he’s charged with stealing from Loblaws located at 100 McArthur Avenue in Ottawa. He’s charged with breaching his probation by failing to keep the peace and [be] of good behaviour. He’s also charged with failing to keep the conditions of his release order by attending 100 McArthur.
And on 17th of August 2020, he’s charged with assaulting a peace officer while carrying a weapon, namely, a four-inch kitchen steak knife. Also, on the 17th of August, he’s charged with possession of a weapon, namely, the kitchen steak knife, for a purpose dangerous to the public peace. He’s also charged with carrying a concealed weapon … On August 17, 2020, he’s charged with causing a disturbance in or near a public place, namely, the War Memorial situated at 26 Sparks Street, by being drunk. On the 17th of August, he’s also charged that he breached his release order by being in possession of a weapon.
[3] Justice Kehoe revoked all earlier release orders relating to Mr. Abdulle and conducted a bail hearing under s. 524(4) of the Code. Justice Kehoe noted that it was a reverse onus situation. Mr. Abdulle had to show cause why his detention in custody was not justified under s. 515(10) of the Code. Justice Kehoe heard evidence from Mr. Abdulle and considered his submissions as well as those of Crown counsel. She concluded that Mr. Abdulle had not met his onus and she ordered him detained.
[4] At the hearing, Mr. Abdulle offered the following release plan. Mr. Abdulle’s sister in Mississauga was going to be his surety and post a $500 bond. Mr. Abdulle was going to live with his sister and her family – a vast improvement from living on the street or staying at shelters in Ottawa. With his sister’s support, Mr. Abdulle was going to stop drinking, get employment, and lead a law-abiding life.
[5] Justice Kehoe reviewed Mr. Abdulle’s criminal record which contained an astonishing 135 convictions. There had been no break in Mr. Abdulle’s criminal activities from 2004 to the present time. The criminal record was replete with convictions for failure to comply with probation orders, undertakings, and recognizances; for failure to appear in court when required to do so; for shop lifting and thefts under $5,000; for various fraudulent activities; for obstructing peace officers; and for some assaults. Justice Kehoe was concerned that, with the latest charges, the seriousness of Mr. Abdulle’s criminal behaviour was escalating. She pointed out that Mr. Abdulle had known for years that he had a serious alcohol problem and that, when he is intoxicated, his behaviour is out of control. Despite knowing this, Mr. Abdulle has not taken any steps to obtain treatment for his addiction. Justice Kehoe concluded that there was a substantial likelihood that, given Mr. Abdulle’s record, if he were released into the community, he would commit further offences. She was also concerned that he would not show up for the numerous court appearances associated with all the outstanding charges against him.
Guilty Plea to Some Offences
[6] On October 15, 2020, Mr. Abdulle pled guilty to several counts in the various informations referred to above, and the Crown withdrew other counts. Mr. Abdulle received a sentence of time served. This was calculated at 60 days based on 40 days of real time for which he received credit at 1.5 to 1. This left outstanding the two most serious sets of charges, both involving assaults with a weapon. Had Mr. Abdulle pled guilty to these two sets of offences, in addition to the others dealt with on October 15, 2020, the Crown would have sought a four-month sentence (or roughly 120 days). What is significant is that Mr. Abdulle advised Kehoe J. of this offer from the Crown when he gave evidence during the bail hearing.
[7] The allegations set out in the synopsis in regard to the two sets of outstanding charges in regard to which Mr. Abdulle would not plead guilty are as follows:
- It is alleged that on May 15, 2020, at approximately 9:26 p.m., Mr. Abdulle, contrary to an existing probation order, attended at the Salvation Army homeless shelter at 171 George Street where he threw a vodka bottle at a staff member who was helping another client take out the garbage. Thankfully, the bottle missed the staff member and she was uninjured; however, she was concerned for her safety. Security was called. By this time, Mr. Abdulle had entered the front vestibule where the doors had been locked to prevent him from entering the shelter. Mr. Abdulle was observed pulling the fire alarm before exiting the shelter.
- It is alleged that on August 17, 2020, Mr. Abdulle attended the War Memorial in a highly intoxicated state. He caused a disturbance by yelling, swearing, and being drunk. Mr. Abdulle approached the military police officer who was on duty at the time. The police officer asked Mr. Abdulle to move along on two occasions and Mr. Abdulle refused to do so. Mr. Abdulle proceeded to take a 4-inch knife from his pocket and brandish it in front of the officer. Mr. Abdulle was asked to drop the knife but, instead of listening, moved the knife left and right in a cutting motion through the air. Mr. Abdulle then placed the knife down on the raised garden bed, but picked it up immediately thereafter. Mr. Abdulle resumed swinging the knife side to side in a cutting motion until he put it down for a second and final time. An unidentified male moved the knife from Mr. Abdulle’s reach and passed it to the officer. Police were called and Mr. Abdulle was arrested.
[8] One of these sets of charges will be tried on December 8, 2020, by which time Mr. Abdulle will have accumulated 54 days of pre-sentence custody since October 16, 2020. The other set of charges will be tried on December 10, 2020, by which time Mr. Abdulle will have accumulated 56 days of pre-sentence custody since October 16, 2020. Assuming Mr. Abdulle received credit at a rate of 1.5 days to 1 for his real time in jail, Mr. Abdulle would receive credit for 81days as of December 8, 2020 and 84 days as of December 10, 2020. Defence counsel argues that a sentence of this approximate length is within the appropriate range in all the circumstances were Mr. Abdulle to plead guilty to the two remaining sets of charges that he faces and, as a result, he should be released from custody now.
Legal Framework
Test Under s. 520 of the Code
[9] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 120-121, the Supreme Court of Canada instructed that s. 520 of the Code does not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning judicial interim release. It does not call for a de novo hearing, but a hybrid remedy. The judge must determine whether it is appropriate to exercise her power of review. It will be appropriate for her to do so in only three situations: (1) where there is admissible new evidence, if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. The only ground upon which Mr. Abdulle is relying is a material change in circumstances.
Reverse Onus
[10] Under s. 520(7)(e) of the Code, the onus is on the accused to show cause why his detention in custody is not justified under s. 515(10) of the Code. The ladder principle set out in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 is not applicable in reverse onus situations (R. v. Ishmael, 2019 ONSC 596, at para. 30; R. v. Sakhiyar, 2018 ONSC 5767, at para. 7; and R. v. Anderson, 2018 ONSC 5720, at para. 51).
Has There Been a Material Change in Circumstances?
[11] The only basis upon which Mr. Abdulle is seeking this bail review is that there has been a material change in circumstances. The change in circumstances relied on by Mr. Abdulle from October 9, 2020 to the present is the following:
- Six of the eight sets of charges that Mr. Abdulle was facing at the time of the earlier bail hearing before Kehoe J. were resolved on October 15, 2020 through guilty pleas or withdrawals resulting in Mr. Abdulle receiving a sentence of time served; and
- The passage of time from October 16, 2020 to the anticipated trials on December 8 and 10, 2020 would, according to the defence, leave Mr. Abdulle with credit for pre-sentence custody of approximately the same length as the global sentence he is likely to get if convicted of the two sets of offences.
[12] This evidence must be considered together with the factors that underpinned the refusal of Kehoe J. to grant bail to Mr. Abdulle to determine whether the alleged change in circumstances is both material and relevant to the case at hand. If the alleged change in circumstances is one that could reasonably be expected to have affected the result in this case, then I am authorized to conduct a new hearing and conduct a fresh analysis of Mr. Abdulle’s request for release (R. v. J.A., 2020 ONCA 660, at paras. 21, 25, and 26).
[13] The role of the reviewing judge is to consider the new evidence being advanced having regard to the first bail judge’s findings on the factors relevant to the ground of detention in question. In this case, Kehoe J. determined that Mr. Abdulle’s detention was necessary due to the substantial likelihood that, if released from custody, he would reoffend and thereby put the safety of the public at risk (the secondary ground). Justice Kehoe highlighted Mr. Abdulle’s extensive criminal record, the spate of charges laid during 2020, and the increased threats of violence associated with some of the most recent charges. Justice Kehoe saw no positive indicators that Mr. Abdulle would take a fresh path if released into the community. She did not have faith that Mr. Abdulle’s sister, acting as his surety, would be able to keep Mr. Abdulle on the straight and narrow. It is clear from the transcript that Kehoe J. considered Mr. Abdulle’s reoffending to be a virtual certainty. Could the new evidence have affected the balancing exercise engaged in by Kehoe J. under s. 515(10) of the Code?
[14] Crown counsel takes the position that the new circumstances advanced by Mr. Abdulle to justify a reconsideration of his detention are not “relevantly material” in Mr. Abdulle’s case when considered in the context of all the evidence (see J.A., at paras. 55). As well, Crown counsel argues that the new circumstances are not “significant” because, when considered along with the other evidence at the bail hearing, the new circumstances, had they been known by Kehoe J. at the time, could not reasonably be expected to have affected her decision (St-Cloud, at para. 137; J.A., at paras. 55 and 58). I accept Crown counsel’s submission in this regard.
[15] First, Mr. Abdulle advised Kehoe J. that he had had some resolution discussions with Crown counsel and that the Crown was prepared to make a joint submission for a global sentence of four months. This was based on Mr. Abdulle pleading guilty to the two – most serious – sets of charges that currently remain outstanding as well as the charges to which Mr. Abdulle eventually pled on October 15, 2020. In fact, Crown counsel took the time to list for Kehoe J. the various charges for which a guilty plea was being sought. Counsel advised that the Crown was prepared to withdraw the remaining charges. This was discussed at great length before Kehoe J. Mr. Abdulle advised that he was prepared to plead guilty to the charges listed by Crown counsel aside from the two most serious sets of charges. Despite the urgency expressed by Mr. Abdulle to enter these pleas, Kehoe J. put the matter over to the following week but with the anticipation that pleas – at least in regard to the bulk of the charges – would likely be entered. The fact that this actually happened was well within the judge’s contemplation when she made her bail decision.
[16] Second, the defence argues that Kehoe J. would have considered a sentence of 81 to 84 days (in other words, a sentence of less than three months) to be within the appropriate range of sentence following Mr. Abdulle’s trials for the two outstanding sets of charges. Consequently, Kehoe J. would have been obliged to consider the issue of proportionality, an overarching consideration that can affect all grounds for detention by virtue of s. 11(e) of the Charter. In R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at paras. 50-53, Wagner, C.J. explained the importance of the concept of proportionality:
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.…
This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, 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…. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system.…
Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St-Cloud, at para. 65.
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.
[17] In arguing that a sentence of 81 to 84 days for the outstanding charges is within the range of reasonable outcomes, the defence is relying in part on Mr. Abdulle’s affidavit evidence to the effect that the Crown is seeking a custodial sentence of 90 days less pre-sentence custody followed by 12 months probation in regard to the two outstanding sets of charges. Several points need to be made about this evidence.
- Confidential discussions regarding resolution that occur at judicial pre-trials are not to be the subject-matter of affidavits at subsequent bail hearings. This evidence was improperly put before the court.
- It is standard practice for the Crown, in order to resolve a matter, to offer a sentence that is lower than the sentence the Crown would be seeking after a trial. Sentences resulting from resolution are usually at the very low end of the range for an appropriate sentence and may even be below the usual range in some circumstances. What Crown counsel offers to settle a case may be quite different from what a judge would consider fit and just following conviction at trial.
- During this age of COVID-19, in many cases, the Crown may be prepared to consider a significantly lower sentence for the purpose of resolution than that which the Crown would be seeking in normal times.
[18] In any event, I am not convinced that had Kehoe J. been actually aware of (1) the pleas entered by Mr. Abdulle on October 15, 2020 with a sentence of time served, and (2) the scheduling of the upcoming trials for the remaining sets of charges on December 8 and 10, 2020, this information could reasonably be expected to have affected the balancing exercise engaged in by Kehoe J. under s. 515(10)(c) of the Code.
[19] First, Kehoe J. was most concerned with the near certainty that, if released from detention, Mr. Abdulle would become intoxicated and would reoffend in short order. Second, Kehoe J. was concerned that Mr. Abdulle was accused of displaying escalating levels of threatening and violent behaviour that was putting others at significant risk. The “new” circumstances relied on by Mr. Abdulle to justify a bail review did not speak to either of these concerns. Third, considering Mr. Abdulle’s extensive criminal record and the revolving door nature of his involvement with the criminal justice system, Kehoe J. would have pegged Mr. Abdulle’s jeopardy upon conviction for the two most serious sets of charges as being significantly higher than 80 to 85 days. As well, in all likelihood, she would have anticipated that strict probationary terms would be imposed, particularly when more lenient sentences in the past have done little to deter Mr. Abdulle’s criminal behaviour. Fourth, a further changed circumstance must also be considered, namely, that Mr. Abdulle no longer has a surety as part of his release plan. That plan consists of his going to live at the Shepherds of Good Hope shelter and posting cash bail in the amount of $500. There is no longer evidence that Mr. Abdulle will have the support of his family. Finally, had Kehoe J. been aware of the changed circumstances, she would also have known that there was a relatively short delay (60 days) between the date of the bail hearing and the trial dates for the two outstanding sets of charges. The shorter the delay, the more proportionate pre-trial custody may be considered (Myers, at para. 53; St-Cloud, at para. 71).
[20] In conclusion, the new evidence does not rise to the level that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by Kehoe J. under s. 515(10)(c) of the Code. Consequently, a review of the grounds for Mr. Abdulle’s detention is not justified under s. 520 of the Code.
Disposition
[21] The detention review application under s. 520 of the Code is dismissed.
Aitken J.
Date: November 27, 2020
COURT FILE NO.: 20-11290
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MUSSE ABDULLE
Applicant
_____________________________________________
REASONS ON DETENTION REVIEW APPLICATION (s. 520 criminal code)
Aitken J.
Released: November 27, 2020