COURT FILE NO.: CR-20-0000021-00BR

DATE: 20200214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ABDULLAHI OSMAN

E. Jackson, for the Crown

L. Russomanno, for Mr. Osman

HEARD: 5 February 2020

s.a.Q. akhtar j.

1Abdullah Osman is charged with accessory after the fact to murder contrary to section 240 of the Criminal Code. He brings an application for bail pursuant to the provisions in s. 522 of the Code.

The Allegations

2The allegations that give rise to Mr. Osman’s predicament occurred on 1 July 2018 when Mr. Osman and his then girlfriend, Hani Ismail, attended a bar on Augusta Road in Toronto. There they met up and spent time with Ibrahim Khiar, leaving the bar at approximately 10 p.m.

3Shortly after leaving the bar, they were approached by the 19-year-old victim, Marcel Teme, who became involved in an altercation with the group which resulted in Mr. Teme punching Mr. Osman in the face. Mr. Osman responded by pushing Mr. Teme to the ground. At that point, Mr. Khiar produced a gun and fired eight times, three of the bullets entering Mr. Teme as he lay on the ground. Mr. Osman, Mr. Khiar and Ms. Ismail ran from the scene.

4The victim was transported to St. Michael’s hospital where, despite surgery, he failed to survive the injuries he had sustained and died on 4 July 2018. Three other men were also injured in the shooting although none suffered life-threatening injuries, all being grazed by bullets.

5The Crown alleges that Mr. Osman and Mr. Khiar fled the shooting and left the scene in a black Chevrolet Cruze which was later involved in a collision with another car stopped at a red light five blocks away from the scene of the shooting. Both Mr. Khiar and Mr. Osman abandoned the car and fled the scene on foot.

6The essence of the offence with which Mr. Osman is charged is being the getaway driver who assisted Mr. Khiar – the suspected shooter – to flee the scene and escape liability.

7When police investigated, they found Mr. Khiar’s fingerprint located on the outside of the car above the front passenger door. Using video surveillance footage in association with the fingerprint evidence, police determined that Mr. Khiar was the suspected shooter. Police also found Mr. Osman’s prints and DNA inside the car. This evidence, along with video footage of the events before, during and after the shooting, as well as eyewitness evidence, forms the basis of the Crown’s case against Mr. Osman.

8Mr. Osman was arrested over a year later and is in custody. The Crown intends to directly indict him so that he can stand trial with Mr. Khiar at the Superior Court of Justice.

The Application

9As Mr. Osman is charged with accessory after the fact to murder, an offence which falls within the purview of s. 469 of the Criminal Code, he bears the onus, under s. 522(2) of the Code, of showing cause why his detention is not justified within the meaning of s. 515(10).

10Mr. Russomanno, on behalf of Mr. Osman, argues that he is a suitable candidate for release. Mr. Russomanno proposes a release plan relying on two supervising sureties, Mr. Osman’s father and sister, in the amount of $77,000 with an accompanying electronic monitoring bracelet to ensure compliance with any bail conditions. Mr. Osman seeks a release in the form of house arrest residing at his home with his wife and father, who is prepared to live with him during his entire tenure of bail.

11Ms. Jackson, on behalf of the Crown, objects to Mr. Osman’s release on both the secondary and tertiary grounds. Ms. Jackson argues that if released, Mr. Osman, a previous bail breacher, would almost certainly ignore any bail conditions and reoffend. Moreover, the Crown submits that Mr. Osman’s detention is necessary to maintain confidence in the administration of justice.

The Sureties

12Two sureties testified at the bail hearing: the applicant’s father, Abdihakim Egal, and Mr. Osman’s sister, Sahra Osman.

13Mr. Egal provided a sworn affidavit to the court stating that even though he lives in Ottawa, he is willing to move to Mr. Osman’s address in Stittsville, Ontario so that he could directly supervise him, if released. Mr. Egal is employed as a bus operator in Ottawa and works during day time hours four days a week. His proposed supervisory role would commence in the evenings after he has finished work.

14Mr. Egal indicated that if Mr. Osman was allowed out during the day he would contact Recovery Science Corporation (RSC), the electronic monitoring firm, to inform them of that fact and provide details as to where Mr. Osman was going. Mr. Egal also confirmed that he would have no hesitation in calling the police if he became aware of any breaches. Mr. Egal was willing to pledge $75,000 as a surety.

15Sahra Osman is Mr. Osman’s younger sister and is 19 years of age. She resides with Mr. Osman and his wife who is due to give birth to a daughter sometime in May 2020. Ms. Osman is a university student attending the University of Ottawa. She is also employed, part-time, at the Adidas store in Kanata, working approximately 16 hours a week, mainly on weekends. Like her father, Ms. Osman’s proposed supervision would begin in the evenings. Ms. Osman confirmed that she was willing to stand as a surety in the sum of $2,000.

16Mr. Russomanno added that Mr. Osman was willing to utilise the services of RSC to track his whereabouts during his bail period. The court was provided with documentary materials outlining RSC’s duties and capabilities in providing electronic monitoring for detainees released by the court.

The Secondary Ground

17As noted, the Crown objects to Mr. Osman’s release on both the secondary and tertiary grounds.

Mr. Osman’s Prior Antecedents

18I note Mr. Osman’s criminal record does not contain any convictions for firearms offences.

19However, he was convicted in November 2012 for failing to comply with a probation order and failing to comply with a recognizance for which he received a suspended sentence after serving 30 days pre-sentence custody. In June 2016, Mr. Osman was convicted of an assault and received a suspended sentence after having served 12 months pre-sentence custody. I am informed by the Crown that this charge was the result of Mr. Osman stabbing the victim during the course of an argument. Finally, Mr. Osman was again convicted of assault in April 2017, receiving a suspended sentence and probation having spent 56 days in custody prior to sentence.

Strength of the Crown’s Case

20The strength of the Crown’s case applies as a factor in relation to both the secondary and tertiary grounds. If the Crown’s case is weak and unlikely to end in conviction, there can be very little desire in depriving an accused of their liberty prior to trial. On the other hand, a strong case, alongside an accused’s prior antecedents and bail history, can assist in determining whether there is a substantial likelihood that an accused person will reoffend if released.

21Here, Mr. Russomanno claims that the Crown’s case is weak and unlikely to succeed as it has no evidence that Mr. Osman was the driver of the Chevrolet Cruze that fled from the scene of the shooting.

22I disagree with that characterisation.

23The Crown has evidence that the Chevrolet Cruze was driven to the scene by a person wearing all white with what appeared to be a female in the passenger seat. Shortly afterwards, both Mr. Osman and his then girlfriend, Ms. Ismail, can be seen walking on the same street in the opposite direction to which the Cruze was being driven. Mr. Osman can be seen wearing a white top with blue markings similar to the one seen worn by the driver in the car. Mr. Khiar is not in their company, giving rise to the strong inference that Mr. Osman and Ms. Ismail came on their own in the car.

24At the scene of the shooting, Mr. Teme is seen punching Mr. Osman – wearing all white – who retaliates by pushing or throwing Mr. Teme to the ground. Eight muzzle flashes follow, after which Mr. Osman, Mr. Khiar – wearing dark clothing – and Ms. Ismail flee the scene, running down the same street that Mr. Osman and Ms. Ismail were earlier seen on but in the opposite direction. The clear inference is that they are running towards the Chevrolet Cruze.

25When the car crashes at the red light shortly afterwards, an eyewitness says that a person wearing a white top emerged from the driver’s side of the car but could not say whether it was the front or the rear. Fingerprints and DNA found under one of the seats and on a bottle inside the car are found to belong to Mr. Osman. Another set of prints matched to Mr. Khiar are found on the top of the passenger side of the car providing an inference that Mr. Khiar entered the car from the passenger side. After the crash both occupants were seen to flee.

26More footage capturing events very shortly after the crash shows Mr. Osman and Mr. Khiar running from the scene near where the crash occurred.

27There can be little dispute about identity: Ms. Ismail identified both herself and Mr. Osman when shown the video footage at Mr. Khiar’s preliminary inquiry. Moreover, there is evidence that on 29 June 2018, Ms. Ismail’s phone was linked to the car’s Bluetooth infotainment system.

28The evidence forms the basis for a strong circumstantial case that Mr. Osman was using the car on 1 July 2018, drove there with Ms. Ismail, fled the scene with Mr. Khiar and drove him away from it before crashing the car and leaving on foot.

29Mr. Russomanno submits that a house arrest plan with electronic monitoring and surety supervision is sufficient to ensure that Mr. Osman would comply with his bail conditions and alleviates the substantial likelihood of reoffending. Mr. Russomanno points out that if RSC received an alert that Mr. Osman had left the premises without permission they could contact police to inform them of that breach.

30Electronic monitoring has its uses. However, the courts have recognised its limitations in the context of bail: see, for example, R. v. Palijan, [2012] O.J. No. 6549 (S.C.); R. v. Sotomayor, 2014 ONSC 500, at paras. 40-41; R. v. Ma, 2015 ONSC 7709, at para. 56.

31Electronic monitoring is a tool that reports non-compliance of bail conditions but does not prevent reoffending. It places an accused in a particular location but does not identify what they are doing at that time. Mr. Russomanno is correct in stating that electronic monitoring would be able to identify situations where Mr. Osman left his residence thereby disclosing a breach of the house arrest condition. However, in my view, it would not be able to report an offence that was being committed by Mr. Osman much less prevent it.

32The weaknesses in the system are acknowledged by RSC itself. For example, at para. 16 of its program summary, RSC makes clear that even though they may receive a violation alert “quickly, typically in 1-10 minutes” they do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused. In their words, this is for two reasons: “firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that still may not be sufficient to prevent an accused from fleeing or committing an offence.”

33At para. 17 of the same document, RSC concedes that electronic monitoring is a risk management tool rather than a prevention tool.

34I would add that even though the plan proposed by Mr. Russomanno amounts to strict house arrest, it would be very unusual for a court to make such an order with no exceptions. In any house arrest bail, an accused would be permitted to leave their residence for medical appointments, shopping, religious reasons and seeking employment. These absences would require out of the house supervision by third parties.

35For these reasons, electronic monitoring is only useful if it supplements what is already a strong supervisory surety plan.

Is the Surety Plan Sufficient?

36The need for strong sureties is even greater in this case by virtue of the fact that Mr. Osman was on bail for other unrelated charges when these allegations occurred. Those charges – ultimately stayed in Gatineau – required Mr. Osman to (a) reside in Ottawa, (b) not possess any weapons and (c) not to be on any premises licensed to serve alcohol.

37The evidence referred to previously in these reasons gives rise to the unmistakable inference that Mr. Osman drove to Toronto to meet up with Mr. Khiar and possibly other friends to go drinking. Video recordings adduced by the Crown depict Mr. Osman with Ms. Ismail on the patio of a bar – a detail confirmed by Ms. Ismail at Mr. Khiar’s preliminary inquiry.

38Mr. Osman clearly and deliberately breached bail conditions set by the court in Gatineau. As I have already indicated, the Crown has a strong case demonstrating that Mr. Osman knowingly assisted Mr. Khiar to flee a potential murder scene. These actions occurred whilst Mr. Osman knew he was subject to a recognizance on other serious matters.

39Against this backdrop, and Mr. Osman’s prior history of failing to observe court orders, it is imperative that, if released, Mr. Osman has a surety that will provide an effective form of supervision and control.

40Regrettably, Mr. Egal is not that person. When Mr. Osman was convicted in 2012 of failing to comply with a recognizance, it was Mr. Egal who acted as surety. When cross-examined at this hearing by Ms. Jackson, Mr. Egal could not remember the date or details of his prior status as Mr. Osman’s surety. On further questioning, Mr. Egal insisted that Mr. Osman had observed his bail conditions without misconduct. When it was pointed out to him by Ms. Jackson that Mr. Osman had actually been convicted of breaching those conditions, Mr. Egal testified that he had only become aware of that fact when listening to Ms. Jackson outline the Crown’s objections to Mr. Osman’s release.

41It is somewhat surprising that Mr. Egal cannot remember the date or details of his son’s prior bail. It is even more difficult to understand that Mr. Egal did not know on how many other occasions he stood as his son’s surety. Mr. Russomanno suggested that this was a consequence of Mr. Egal’s lack of familiarity with the court system. In my view, someone who lacked experience with the court system would be far more likely to remember the instances in which they had done so: being asked to stand as a surety and potentially forfeit sums of money is an unusual occurrence which would not be easily forgotten.

42Mr. Egal’s absence of memory as a surety, his lack of knowledge of Mr. Osman’s prior breach and the evident failure to adequately supervise his son in 2012 makes him unfit to be a surety in this case. I make those comments with the acknowledgment that Mr. Egal is completely sincere in his intentions, but I conclude that he lacks the ability to carry them out.

43As I have previously observed, a house arrest condition would have to be subject to some exceptions where Mr. Osman would be permitted to leave the residence with Mr. Egal’s permission with notice being given to RSC. Given Mr. Egal’s (and Ms. Osman’s) unavailability during the day, it is highly unlikely that he could adequately supervise routine excursions, such as the ones mentioned above, that occur during business hours. Even if Mr. Egal was available, I have no confidence that he would be able to adequately supervise Mr. Osman when he was out of the residence even if he accompanied Mr. Osman.

44I take the same view of Ms. Osman who despite her best intentions would, like Mr. Egal, only see her brother in the evenings and when she was not at work or at university. It is clear that Ms. Osman has very little sway or influence on her brother – a fact illustrated by her testimony that even though she expressed disapproval and dismay about his criminal activities, Mr. Osman continued to commit offences.

45For these reasons, Mr. Osman has not met his onus on the secondary ground. I find that, if released, there is a substantial likelihood that he will commit further offences.

The Tertiary Ground

46I would also conclude that Mr. Osman has failed to meet his burden in justifying his release under the tertiary ground.

47Section 515(10)(c) sets out the statutory four factors that must be evaluated when determining whether a detention is necessary to maintain confidence in the administration of justice. They are as follows:

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

48In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground was not an appendage to the secondary ground but had to be considered in its own right. The question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

49The four factors in s. 515(1)(c) are not exhaustive. Other factors may also play a part in deciding whether the tertiary ground requires detention. It is also worth remembering that the four factors must be analysed together and not separately: R. v. E.W.M. (2006), 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (C.A.), at para. 31. However, where all four factors have “maximum force” detention is “entirely to be expected”: E.W.M., at para. 32.

50In this case, I have already set out my view that the Crown has a strong circumstantial case against Mr. Osman. The apparent strength of the Crown’s case is a factor that “ought to enjoy some prominence” in a balancing exercise of the four factors: R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85, at para. 55.

51There is no dispute that the offence is serious: Mr. Osman is charged with assisting an alleged murderer flee from the scene of a crime and escape justice. The circumstances of the offence involve the gunning down of a defenceless victim after he had been shoved to the floor. Finally, there can be little doubt that, if convicted, Mr. Osman is looking at a lengthy sentence.

52Balancing these factors, all of which have significant weight, I conclude that detention is necessary to maintain confidence in the administration of justice.

53I would add that I agree with the comments made by Trotter J. (as he then was) in Dang, at para. 58, that a proposed release plan is relevant when assessing whether confidence in the administration of justice would be impacted by release or detention of an accused person.

54For the reasons set out previously, I find that the release plan falls far short of what is required to adequately supervise Mr. Osman and does not affect the tertiary ground analysis in any significant way.

55For these reasons, I dismiss Mr. Osman’s application and order him detained.

S.A.Q. Akhtar J.