Court File and Parties

Court File No.: CR-20-361-00BR Date: 2021 02 08

Ontario Superior Court of Justice

Between: Her Majesty The Queen Cindy Nadler for the Crown

- and –

Safeer Ahmad David Butler for the Applicant

Heard: February 4, 2021 by Zoom video conference

Judgment on Section 522 Bail Application

D.E HARRIS J.

[1] Safeer Ahmad, charged with conspiracy to commit murder, applies for the second time under Section 522 of the Criminal Code for release pending trial. I refused the original application back on September 14, 2020: R v. Ahmad, 2020 ONSC 5525, 166 W.C.B. (2d) 457 (Ont.S.C.J.).

[2] After an unsuccessful 522 application, a subsequent application for release can be brought if there is a change of circumstances: R. v. Whyte, 2014 ONCA 268, 10 C.R. (7th) 88 (C.A.) at para. 21. That should now be read in light of the Supreme Court exploration of what constitutes a material change in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.) at paras. 122-138. On this second application, the Applicant advanced his mother and a cousin as new sureties to supplement the sister and father who were proposed last time. That was the change relied upon.

[3] These reasons should be read together with the previous ruling. As stressed there, the allegations against the Applicant are exceedingly serious. It is alleged that he along with his co-accused Jahvon Valdez were behind a shooting by a handful of men September 14, 2019 at 7230 Darcel Avenue in Mississauga in which a 17 year old boy, a bystander, was shot to death in front of his family. Five other people were injured, two of whom were in their apartments at the time.

[4] The evidence is that the shooting was gang related and was retaliation for the shooting up of Valdez’s residence two weeks before. Some people connected to this prior shooting were apparently filming a video at the Darcel Avenue apartment complex. Approximately 15-20 youths and young adults had congregated in the rear parking lot to show their support for a rap video being filmed for a local youth. The Applicant Safeer Ahmad was present but was unarmed. Seven armed men arrived at the complex in two separate vehicles: a Nissan Sentra and a Hyundai Sante Fe. The two vehicles pulled behind the building, The seven men ran directly towards the group, firing numerous rounds from various firearms. The rap video group ran for safety towards the building. The assailants, after almost a full minute of shooting, returned to their vehicles and fled the area. Based on the shell casings recovered by the police afterwards, about 140 bullets were fired.

[5] The Hyundai was found burned out in Caledon that night. The Nissan was suspected of being involved in another murder about one month later and was found burned out in the aftermath of that crime.

[6] The evidence implicating the accused is from two women who were present two days before in the basement of Valdez’s home. Disclosure of their statements has now been made. I am told that neither have gang affiliations nor criminal records. Nor is there an obvious motive to fabricate. Although this does not bolster their evidence, if there was evidence of a motive to fabricate, this could have detracted from their evidence.

[7] One of these witnesses claims that Valdez and the Applicant, the latter who was identified by the witness from a photograph, engaged in a conversation about Valdez’s house being shot up by Nayshawn “Nay Nay” Oakley. It was discussed that Oakley was going to shoot a music video. The Applicant specifically talked about going after Oakley. In fact, Oakley was present inside a vehicle during the September 14, 2019 attack but was not injured.

[8] According to this first witness, a tall black man was also present during the conversation in the basement. This man suggested going to Oakley’s house right away but Valdez said not to because there was a newborn baby at the house. This witness remembers the Applicant saying that they would be going “two cars deep” which is street slang for two cars full of people. The tall black man said that he would be a driver of one of the vehicles used in the shooting. Valdez said that he himself would not be there; he would stay home and relax while everything was happening.

[9] When the shooting did take place two days later, two cars of assailants were indeed involved. The second witness present for this basement meeting said that there was a discussion about a video shoot and that one of the people in the basement was invited to it. There were three men and two women present in the basement for this discussion. The men did not like the person who was hosting the video shoot, a guy named Nayshawn [i.e. Oakley]. They talked about shooting those attending the video session.

[10] In addition to the two witnesses to this conversation, cell records show contact between Valdez and the Applicant the day before the shooting and two conversations within an hour or two after the shooting.

[11] The principal driver of the bail decision in this case was and still is the seriousness of the allegations. It is alleged that the Applicant spearheaded this rampage. In setting up the issue, it was said in the first reasons:

11 In view of the shocking seriousness of the alleged offence, the issue of bail in this case boils down mainly to the strength of the Crown’s case. If the case is strong, detention ought likely to follow. If not, release may be the correct outcome.

[12] The conclusion was then reached after briefly reviewing the evidence that the case against the Applicant was reasonably strong. If anything, the credibility and reliability of the evidence from the basement discussion has gained force based on the witness statements which have now been disclosed. The reasons then go on to discuss the proposed sureties, noting that the father and sister, particularly the sister, were good sureties. A comment was made that the mother was not proposed as a surety, a minor deficiency which has now been rectified.

[13] But the reasons, read fairly, summarize the issues with the sureties as little more than quibbles. The plan was good although not perfect. No plan is. The sureties did alleviate some concerns on the secondary ground (para. 17). The reasons then returned to the seriousness of the shooting and the fact that the assailants, together with their guns, were still at large in the community. The reasons then discussed the evil scourge illegal guns pose in the community (paras. 18-19).

[14] The ruling concluded:

Although bail release for an offence as serious as this ought not to be precluded out of hand, the onus resting on the defendant is exceedingly high. It is not met in this instance. The application is dismissed. Detention is ordered on the secondary and tertiary grounds.

[15] This central finding has not been significantly altered by the addition of two new sureties. It is true that each did add something to supervision of the Applicant. The Applicant’s cousin will not be living with the family although he lives close by. But he impressed me as responsible and conscientious. The mother strikes me as someone who might be reluctant to discipline her son and turn him in for significant breaches of bail. Overall, however, with her husband and daughter as co-sureties, her presence as a surety does slightly increase the comfort that the Applicant will be well supervised. The monetary pledge has also been increased and is at $250,000.

[16] The value added by the new sureties however, given the central problem, was marginal. On the secondary ground, the Applicant’s behaviour is shrouded in mystery. He has a conditional discharge for robbery on his record and nothing else. No one could have predicted that he was capable of the offence which he is charged with committing. This makes it difficult to predict what he might do if released on bail. He has associates—the seven armed men-- that his family does not know nor do we have any information about. Were they close friends, will they rally around him and will they take further direction from him if he is released? In light of the careful vigilance of the sureties and the suggested prohibition on computers and cell phones, the risk is small that the Applicant could communicate with his cohorts by electronic or other means. But it cannot be eliminated. And the consequences could be disastrous.

[17] There has been a marked decrease in emphasis on onus in bail hearings since the Supreme Court’s enlightened bail decisions began with St. Cloud more than five years ago. The cardinal rule of release has overshadowed the question of onus. Yet there is still a place for resort to the onus in some circumstances. This case is one example. It is difficult to gauge the risk the Applicant constitutes to public safety because we only have the subject offence and not much else to base an assessment on. But that state of uncertainty, by virtue of the onus and the shocking nature of this index offence, falls on the Applicant, not on the state.

[18] The tertiary ground, the importance of maintaining the confidence of the public, is significantly more subjective than is the secondary ground. The judiciary is experienced at examining the past and then looking into the future to make predictions of future behaviour, despite this process being notoriously difficult. However, evaluating the public attitude towards releasing an accused, albeit on a normative rather than empirical standard, can vary widely from judge to judge. Prosecutors invoke the tertiary ground, relying on the relaxation of the law initiated by St. Cloud at paras. 46-54, quite routinely. It is not unheard of to rely on the tertiary ground for offences of only moderate seriousness. But, despite this inherent subjectivity, there are some cases in which it is clear that public confidence would be shaken if the accused is released. This is one.

[19] All four statutory boxes in Section 515(10)(c) are checked in this instance. The case is moderately strong, the gravity of the offence could not be higher, and multiple firearms were used resulting in the killing a 17 year old boy and gunshots injuring 5 others. Upon conviction, the Applicant would likely be sentenced to a penitentiary sentence in the double-digits. The simultaneous use of multiple firearms in an armed, military style assault by seven men on 15-20 unarmed people in a residential area, resulting in a tragic death, is paramount. To call this extremely disconcerting is a vast understatement.

[20] The problem of firearms is growing as the statistics introduced on this hearing by the Crown makes plain. The public is becoming more and more incensed and intolerant of gun violence. In a civilized society, illegal gun use threatens to send us back to a primitive age. Armed war between rival gangs must be targeted at its social and economic roots and, at the same time, directly when it breaks into overt violence. This case graphically demonstrates the evil of firearms and the danger they pose to our society.

[21] In summary, I do not believe that the new sureties result in a material change from the first bail application. In any case, whether or not there is a material change, upon re-examination, the Applicant has failed his onus on both the secondary and tertiary grounds. Application dismissed.

D.E HARRIS J. Released: February 8, 2021