SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)
COURT FILE NO.: BR 10078
DATE: 2020-12-08
ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
MOHAMAD ALZARZOUR Applicant
COUNSEL:
Brendan Gould, Counsel for the Respondent Crown
Meagan Stuckey, and Phillip Dinis, Counsel for the accused, Applicant
HEARD: December 4, 2020.
The HonouRABLe Mr. Justice C. S. glithero
PUBLICATION BAN UNDER S.517 AND S. 522 (5) DIRECTING THAT THE EVIDENCE TAKEN, THE INFORMATIoN GIVEN OR the REPRESENTATIONS MADE AND THE REASONS GIVEN BY THE JUSTICE SHALL NOT BE PUblished IN A DOCUMENT OR broadcast OR TRANSMITTEDD IN ANY WAY BEORE SUCH TIME AS (a) IF A PRELIMINAARY INQUIRY IS HELD, THE ACCUSED SI DISCHARGED, OR (B) if the accused is ordered to stand trial , the trial is ended
Reasons FOR DECISION
[1] This is an application for judicial interim release made pursuant to s.522. One of the charges facing the applicant is that of accessory after the fact to murder, an offence contained under s.469, and accordingly the issue of bail is to be dealt with in this court pursuant to s.522. The applicant is also charged with arson, contrary to s.434 of the Criminal Code. Pursuant to s.522(6), I am permitted to deal with the issue of bail on that charge as well.
Circumstances of the Offences
[2] The applicant’s materials indicate that it is alleged that on November 26, 2019 he left his residence and drove with Sabir Haredo and Abdullah Haredo, in the applicant’s vehicle, and met with the victim. The applicant then witnessed the assault and kidnapping of the victim, following which the Haredo brothers took the victim away in the victim’s vehicle. The victim was later murdered in that vehicle. The applicant was not present at that time.
[3] The applicant returned home and left again shortly thereafter. A vehicle similar in make and colour to the one owned by the applicant was caught on video in the area of 444 Connaught Street at 3:08 a.m. and 4:01 a.m. and at 4:02 a.m. a resident reported a flaming vehicle identified as the victim’s vehicle. It is alleged that the applicant played a part in that arson and that he then picked up Sabir Haredo, drove him back to 37 Vanier Drive, where both of them reside, but in separate units. Surveillance video captures Haredo entering the building wearing a hoodie similar to the one seen being worn by the applicant earlier that morning.
[4] The applicant was arrested September 2, 2020 and has been in custody since.
[5] The synopsis provided by the Crown at the opening of the hearing, Ex. 1, is much more detailed as to the applicant’s involvement.
[6] The Crown alleges that the applicant drove the Haredo brothers, in his vehicle, to meet with the victim in a pre-arranged area of a shopping plaza and that the applicant engaged the victim in conversation as between their vehicles, while one of the Haredo brothers got in the backseat of the victim’s car and started striking him with the butt of a handgun making him dizzy, following which the Haredo brothers threw the victim into the backseat of the victim’s car, restrained him, and left that area. Ten minutes later the Haredo brothers, with the victim, entered an onramp from Courtland Avenue onto the Highway 7/8 expressway, and that when the victim attempted to open the car door, he was shot by Sabir Haredo inside the vehicle.
[7] A citizen reported having seen the driver of the victim’s car get out of the vehicle, go to the back-passenger side door and to have heard three shots fired in close succession and then a fourth. Another citizen reported hearing three or four pops and then four more again at approximately 2:10 a.m.
[8] The reports of shots was responded to by the OPP officer, who found the deceased victim lying on the shoulder of the road at the location, with bullet casings lying nearby. The victim had been beaten about the head and shot six times, with shots to the chest, stomach, groin, leg and had been left to die at the side of the road.
[9] The victim’s vehicle was observed leaving the onramp area and travelling eastbound on Courtland Avenue. The applicant’s vehicle passed the same intersection 55 seconds later.
[10] Eight minutes later, the applicant was captured on video returning to his Vanier Drive address and made efforts to conceal himself from the building cameras.
[11] Ten minutes later, cell phone records show a call from the Haredo brothers to the applicant from the area of the Fairview Park Mall. Three minutes after that, the applicant left his address and according to phone records was in regular contact with the Haredo brothers by cell phone.
[12] At 4:01 a.m., the applicant’s vehicle was observed on video driving past 444 Connaught Street, Kitchener, and one minute later a resident of that address awoke to the sound of a big “pop” of metal hitting metal, looked outside and saw what turned out to be the victim’s vehicle fully engulfed in fire.
[13] A witness advised police that she knew the victim and that the victim had been killed and that two males came to her house pounding on the door that day at about 4:00 a.m. The witness described the first of the two males, who is believed to be Abdullah Haredo and described the second male, believed to be the other Haredo brother.
[14] After entering the apartment, the two males went into a washroom and the occupants later saw blood on the toilet paper roll.
[15] The phone records for the occupants of this apartment show calls with two other phone numbers, both of which are either subscribed to by the applicant or connected to him through police investigation.
[16] Between 4:24 a.m. and 4:34 a.m., phone records show the applicant to have made five phone calls to a phone at the aforementioned apartment where the two men had entered.
[17] Video showed the applicant and Sabir Haredo returning to the apartment building where they both lived at 4:44 a.m., with Haredo now wearing different pants and a hoodie similar to that seen to have been worn by the applicant when he left the apartment at 2:30 a.m., and further shows that when the applicant returned at 4:44 a.m. he was not wearing that hoodie. Haredo made efforts to conceal his face from the surveillance camera.
[18] Intercepted communications on the applicant’s two phones, or by means of a listening probe placed in his vehicle show that the applicant was present at the initial meeting with the victim at the plaza, that he witnessed the assault and kidnapping, that thereafter he returned to his own home and while there received a telephone call and left again. The intercepted calls also demonstrate that the applicant picked up Sabir Haredo, that Haredo had blood on him and was trying to wash the blood off and that he changed his clothes which he borrowed from the applicant, and that the applicant then returned with Haredo to the Vanier Drive address where they both lived in separate units.
[19] Video footage obtained from different locations demonstrates a vehicle of the same make, model and colour of the applicants vehicle, and bearing the same distinctive fog lights and chrome side running boards, in the areas of, and around the times of, both the murder and the car fire.
Other Criminal Activtity
[20] Police investigation indicates that Irshad Sabriye, the victim of the murder, was a drug trafficker who used various aliases and advised various witnesses that he owed people money.
[21] Police investigation also indicates that the two Haredo brothers were involved in drug dealing, with Abdullah known to sell cocaine and fentanyl and to be armed. Sabri Haredo also was known to be a drug dearer.
[22] Witnesses also advised the police that the applicant is known to be a drug dealer who sells cocaine using various aliases. Intercepted telephone conversations of the applicant revealed him to have been involved in 20 cocaine transactions between June 14 and August 16, 2020, and to have been involved in 55 fentanyl transactions between June 14, 2020 and August 16, 2020.
[23] During submissions I was advised that drug charges had been laid against the applicant with respect to the aforementioned transactions, but that he was released on bail on those charges.
Evidence Relating to Flight
[24] In an intercepted conversation on July 15, 2020 the applicant appears to tell another individual that the investigation is not calming down and that “we should all disappear”. On July 21, 2020 the applicant is heard on an intercept telling another individual that when the police come he’s going to have his family say they speak only Arabic, that others had been arrested and that “best way to just get out of the city”. On July 21, 2020 the applicant is heard speaking to the same individual, asking what the police asked him and after the other individual indicates that others involved should have left, the accused indicates “when wintertime I’m going to Turkey for a year”.
Circumstances of the Applicant
[25] There was no affidavit from the applicant in the original application materials. One was filed at the opening of the hearing. It indicates that he has the outstanding drug trafficking offences and that he has been held since his arrest on September 2, 2020 at Maplehurst.
[26] He was born in Syria and came to Canada in 2018 and lives here as a permanent resident. Prior to his arrest he lived with his mother and two siblings at 705-37 Vanier Drive in Kitchener for nearly two years.
[27] He was unemployed at the time of his arrest and was receiving employment insurance. He worked in two different restaurants, but in July of 2020 was laid off because of the impact of the COVID pandemic on those restaurants.
[28] He proposes to be released on terms that he would live with his two sureties, Bashar AlZarzour, his brother, Shaefaa Alnassan, his sister-in-law and wife of Bashar, at 102-37 Vanier Drive, and that he would be under house arrest such as to be only permitted out of the house in the presence of one of those two sureties. In his affidavit, he offers to forfeit two travel documents in his possession.
[29] In his evidence in-chief he indicated that he did two hours a week volunteer work for the YMCA in Kitchener on a newcomers’ program.
[30] He also testified that while at Maplehurst since September 2, 2020, he has had 57 days in lockdown.
[31] He also testified that if released he would intend to be employed and to attend school. He did not explain how that would be feasible given his proposed requirement to be in the house other than out in the company of one of his two sureties.
[32] In cross-examination he admitted this his restaurant employment was part-time, being restricted to Fridays, Saturdays and Sundays, sometimes full-time hours on those days and other times part-time. He estimates his earnings were approximately $500 every two weeks. He claims to have approximately $2,000 in savings. He also claims to have been going to school for three or four months, here in Kitchener and that his brother knew this. He has part of his Grade 12 education.
[33] He testified that his brother has visited him at Maplehurst four or five times, with his mother, and sometimes with his younger brother.
[34] The applicant affirms that when his brother, Bashar, has visited him they have not discussed the rules that would apply if he goes to live with his brother.
[35] The applicant testified that prior to his arrest he would see his brother approximately once a week, he would not go to his brother for advice. He testified that his brother knew the applicant’s Arab friends, but not his English-speaking friends.
[36] His evidence is that his brother, Bashar, only moved to this apartment, 102-37 Vanier Drive recently so that he could be the surety for the applicant. Bashar’s prior address, in a different building, but nearby and also on Vanier, had only one bedroom.
[37] He agreed that the Haredo brothers live at 37 Vanier, or at least used to.
[38] The applicant testified that his family no longer wishes to live at 37 Vanier because of a bedbug problem and that his brother, Bashar, is aware of that, although he moved there.
[39] His only travel documents are an expired Visa and a permanent residence card.
[40] The applicant testified that he has siblings in Lebanon, Syria and Turkey.
[41] His belief is that the Haredo brothers live on the 8th floor at 37 Vanier, whereas if released, he would be proposing to live on the 1st floor.
[42] The applicant testified that he is 20 years of age and has no criminal record either in Canada or elsewhere.
Proposed Surety, Bashar Mostafa AlZarzour
[43] He is 25 years of age and is the brother of the applicant and proposes the applicant would live with him at 37 Vanier, apartment 102 in Kitchener. Bashar has only lived there since November 16, 2020.
[44] He was born in Syria and in 2014 went to Lebanon and then came to Canada in September of 2018. He has a Grade 8 or 9 education and is studying English in Kitchener at the YMCA.
[45] Bashar is not employed, but also worked in a restaurant in Waterloo, part-time earning approximately $300 every two weeks, until the restaurant closed for COVID. Since then, he has received EI in the amount of $1,583.00 per month and child tax credit in the amount of $1,373.00 per month, and the rent on his apartment is $1,528.00.
[46] He has savings of $3,030.00 in a joint account with his wife, the other proposed surety. He has no criminal record.
[47] When asked about rules of his home to which the applicant would be obligated to obey, he indicates that such rules relate to the time that they had meals and the time they go to sleep and the time they wake up.
[48] He testifies that he understands that the applicant would have to be in the house at all times, unless out of the house in the company of either Bashar or his wife.
[49] When asked about the relationship between he and his brother, Bashar testified that he would see his brother every week or so before the arrest and would see him during family meals. He could not remember the last time he was with his brother before the arrest.
[50] In-chief he agreed that he would pledge $10,000.00 by way of penal sum, or even more.
[51] In-chief he also claimed that he did not intend to remain in Unit 102 at 37 Vanier.
[52] While he owns a 2012 Nissan Altima, he also owes approximately $2,500.00 on a bank loan.
[53] In cross-examination he admitted his brother rarely came to Bashar’s previous apartment, although it was on the same street. He initially testified he did not know any of the applicant’s friends, none of them, but later changed this to indicate he knew the applicant’s Arab speaking friends only. He advised he knew that his brother worked for a restaurant but didn’t know whether he had any other sources of income and when asked how his brother could afford to own a vehicle, Bashar indicated it was because the brother had a bank loan and it was only in respect of whether the taking of the bank loan was a good idea that Bashar ever gave his brother any advice.
[54] When shown Ex. 1, a photograph alleged to be the vehicle of his brother, he testified that in fact it was.
[55] His evidence is that he did not know the Haredo brothers, but when it was pointed out that photographs of them were contained in the Crown synopsis that Bashar claims to have reviewed, he indicated that he couldn’t recognize them as having seen them in the building where he now lives. He knew before moving to the 37 Vanier address that the Haredo brothers lived there, or used to, but claims he would have his brother stay away from the Haredo brothers if they are there.
[56] His evidence is that his family does not have sufficient funds to permit them to move anywhere else.
[57] He testified that he and his brother did not discuss in detail any of the household rules the applicant would be required to abide by if released.
[58] In cross-examination he professed no knowledge that his brother had been involved in the drug trade, although he understands the police so allege. He claims not to know what drugs were involved or the extent of the applicant’s alleged trafficking.
[59] When asked, he indicated it did not bother him that the applicant was seen with the Haredo brothers on February 21, 2020, nor did it bother him that the evidence shows his brother to have been in regular cell phone contact with the Haredo brothers.
[60] He also admitted that his lease at apartment 102, 37 Vanier Drive, has almost a full year left on the lease.
Circumstances of the Proposed Surety, Shefaa Alnassan
[61] She is the wife of Bashar and the sister-in-law of the applicant and is 21 years of age. She was born in Syria.
[62] She agrees they have only lived at apartment 102 at 37 Vanier Drive since mid-November 2020. She first met the applicant when she married his brother in Lebanon and only has had contact with the applicant at family gatherings.
[63] She does not work and does not take English classes or other educational classes. She has never worked in Canada. Her children are age 2 and 1.
[64] She has no criminal record. She understands the proposed role she would occupy as a surety. When asked about the rules of the house that the applicant would be required to obey, she said it would relate to the time they eat breakfast, lunch and dinner.
[65] She has no income and no assets other than her share of a joint bank account with her husband containing $3,050.00.
[66] She agreed that she knows none of the applicant’s friends and did not know whether or not the applicant worked since he has been in Canada.
[67] She was evasive as to whether or not she would make sure that the applicant attended court if her husband was unavailable to do so.
[68] She too claimed to not know what the Haredo brothers looked like and to have never seen their photographs despite the fact that she testified that the Crown synopsis was reviewed with her. Her evidence is that she did not know that the Haredo brothers lived in the same building as that to which she and her husband had just moved. Her evidence is they hoped to keep living in that building, unlike that of her husband who claimed they wanted to move.
[69] She testified she knew nothing of the applicant’s alleged drug trafficking activities and when advised of what the allegations were, and asked how that made her feel, her answer was that she didn’t know how that made her feel.
[70] She agreed the applicant never came to her for advice. She has not seen the applicant since his arrest three months ago.
[71] She agreed there has never been an occasion where she gave any advice or direction to the applicant.
[72] She too indicated a willingness to make a monetary pledge to the court but was unable to indicate anything about amount or any ability on her part to make good on any amount.
Position of the Applicant
[73] On his behalf, it is submitted that he has met his onus under all three grounds, and that while the tertiary ground under s.515(10) may be the strongest, as pointed out in R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, a detention order is not automatic even if the four circumstances listed in the tertiary grounds are supported.
[74] The applicant submits that the two sureties are strong and are adequate to enforce the proposed plan of release.
[75] The applicant further points out that Abdullah Haredo is only charged so far with manslaughter, rather than with murder, it is further pointed out that his brother, Sabir Haredo is as of yet not charged with anything as he is yet to be arrested and his whereabouts are unknown.
Position of the Crown
[76] The Crown alleges that the applicant has not met his onus with respect to any of the three grounds contained in s.515(10). The Crown’s position is that there is no evidence before me that the sureties have ever exercised any control over the applicant, nor have they ever had such a close relationship with the applicant that the court could have confidence in relying upon them.
[77] The Crown points out that the applicant has spoken in intercepted conversations of an intent to flee, and points to the allegations of serious drug trafficking in two serious drugs, which evidence arises out of the accused’s own mouth in the intercepted conversations.
Discussion
[78] Pursuant to s.522(2) I am required to order that the applicant be detained in custody unless he shows cause why his detention is not justified within the meaning of ss.515(10).
[79] I remind myself that s.11(e) of the Canadian Charter of Rights and Freedoms guarantees the right not to be denied reasonable bail without just cause.
[80] I also remind myself that in R. v. St.-Cloud, the Supreme Court of Canada emphasized the importance of an accused receiving bail and that detention is the exception rather than the cardinal rule, and I note the same sort of sentiment to have been repeated by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 and in R. v. Myers, 2019 SCC 18, 2019 S.C.C. 18, although the latter being a s.525 detention review case rather than a bail application such as before me.
[81] In my opinion, the plan for release here is not very strong. The proposed sureties in my assessment did not demonstrate any of the type of concern for the seriousness of the charges as one would expect given that they both say they had been fully apprised of the evidentiary circumstances. Neither inspired confidence that they had ever had any meaningful impact on the lifestyle of the applicant.
[82] His sister-in-law really doesn’t know much about the applicant at all and there is no reason from their history to accept that the applicant would feel bound to obey anything she told him to do. Her responsibility is towards her toddler children. In my estimation, she did not appreciate the seriousness of either these charges or the drug allegations to the extent one would expect. There has obviously been no discussion in any detail whatsoever of the rules the applicant would be required to obey if he lived in the home. She’s never even discussed it with the applicant. Willingness to take this applicant to live into her home with these infant children without having discussed the matter at all with him, and in the absence of any history between the two that gives rise to confidence in her ability to control the applicant is nothing more than a demonstration of blind faith arising from familial obligation.
[83] Similarly, in my opinion, the applicant’s brother, Bashar, is not a surety who fosters faith in his ability to control the actions of the applicant. To his credit he has no record. I have concerns arising from the fact that he saw fit to move he and his family into the same building where the Haredo brothers may, for all he knows, still reside. I am concerned about his absence of concern that the applicant was seen with the Haredo brothers earlier this year and has been found to be in regular telephone contact with them. I am concerned that he professes a desire to obtain work and to further his education, which would take him out of the house, leaving the applicant under the control of his wife, who is also responsible for two very young children and has demonstrated no ability or attempt to control the actions of the applicant.
[84] There has been no effort to delineate any meaningful conditions over the actions of the accused if he lives there, no plan for what would happen if Bashar did find employment or did obtain further opportunities of an educational nature.
[85] At one time Bashar indicated he plans to move to a new address as his family doesn’t like the Vanier Street address and yet he makes that statement under affirmation at a time when he is only two weeks into a new one-year lease.
[86] In my opinion, his offer to act as a surety is again little more than just an expression of blind trust or faith that everything will work out.
[87] As to the primary ground, I am not satisfied on a balance of probabilities that the applicant would attend court as required if released. While he has no criminal record for breaches of court orders, he spoke of flight from the jurisdiction on three occasions when he did not know his words were being overheard. And while he had not left the area by the time of his arrest in September, his intercepted indication was that he intended to do so in the winter. At the time he spoke of flight he was not aware of the extent of the case against him. He now does and has greater reason to flee.
[88] As to the secondary ground under s.515(10) I remind myself that the section requires a “substantial likelihood” of committing an offence, which cases such as R. v. Manasseri, 2017 ONCA 226 at para. 87 defines as being a probability of certain conduct and not simply a possibility. There must be a substantial likelihood.
[89] Of course, in the context of a s.522(2) application, the onus is on the applicant to show on a balance of probabilities that there is no substantial likelihood.
[90] I am not satisfied on a balance of probabilities that there is not a substantial likelihood of further offence if he is released. Following the allegations that bring him before me, it appears there to be strong evidence that he engaged in trafficking in serious drugs on a repeated basis and hence demonstrated little regard or concern for his jeopardy on the offences before me. As well, it appears that he indicated in intercepted conversations that others should flee, and that he would encourage his family to say nothing to the police by relying on an inability to speak any English, a matter of concern under ss.515(10)(b) as that would amount to an interference with the administration of justice.
[91] As to the tertiary ground under s.515(10)(c) the Supreme Court of Canada in St.-Cloud at para. 87 summarized the essential principles. The tertiary ground is a stand alone ground and is not to be interpreted narrowly nor only applied in rare cases or those of exceptional circumstances, and the court is to consider the four named circumstances within the section, but as well, all the circumstances of the case.
[92] Importantly, the court made clear that the balancing that is required is to be addressed from the perspective of the public, that is from the perspective of a reasonable person who is properly informed about the philosophy of legislative provisions concerning bail, Charter values and the actual circumstances of the case. But such person is not to be contemplated to be a legal expert or to be able to appreciate the subtleties of various defences available to the accused.
[93] Where grounds for concern exist under the tertiary ground, a release plan may be sufficient to overcome such concerns, if sufficiently strict and if the sureties are worthy: R. v. Dang, 2015 ONSC 4254, [2015] O.J. No. 3552 at paras. 57 and 58; R. v. J.S., 2020 ONSC 1710 at paras. 9 and 10. For reasons expressed above the plan of release here is not strong.
[94] Within the four enumerated factors in the tertiary ground, in my opinion the prosecution’s case has been shown to be strong.
[95] Obviously, the offences are of a serious nature. In my opinion the circumstances are grave in that it appears the applicant observed at first hand a pistol whipping and a kidnapping, and according to the intercepts knew of the killing and yet it appears was still willing to assist the others who acted in such violent fashion.
[96] The prospect of a lengthy sentence if convicted is made out.
[97] In my opinion, the applicant has not shown that his detention is unnecessary to maintain confidence in the administration of justice.
[98] I am not unmindful of the concerns arising from the covid pandemic and its potential danger to those housed in close quarters. It appears that correctional officials have taken meaningful precautionary steps which have been largely successful. I have no evidence of any particular susceptibility on the part of this applicant. As has been previously noted, covid is not a get out of jail card, but can tip the scales in a close case. This is not such a case.
[99] I conclude that the applicant has failed to discharge his onus on each of the three grounds outlined in s.515(10).
[100] Accordingly, the application is dismissed.
C.S. Glithero J.
Date: December 8, 2020