Court File and Parties
COURT FILE NO.: BR 101302
DATE: 2021-05-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
AGER MOHSIN HASAN Applicant
Counsel: Brendan Thomas and Patricia Moore, for the Crown Jason J. Little, for the Applicant
HEARD: MAY 12, 14 and 19, 2021
Publication Ban
Pursuant to s. 517(1) of the Criminal Code, it is ordered that the evidence taken, the information given and the representations made at the hearing and these reasons shall not be published in any document or broadcast or transmitted in any way before such time as: the accused’s trial is completed. This restriction is subject to the exception that this Ruling may be provided to members of the legal profession and may be relied on in submissions before a court.
REASONS FOR JUDGMENT
The Honourable Justice James W. Sloan
[1] The accused is charged with second-degree murder and also fail to appear offenses.
[2] He was in an intimate partner relationship with one Melinda Vasilije for about 18 months. When she tried to end the relationship, and in breach of his recognizance, dated April 4, 2017, for breaking into her home and assaulting people inside, the accused met with the deceased and stabbed her numerous times on April 27, 2017, resulting in her death.
[3] Although the images of the deceased from the crime scene are difficult to look at, her dead body contained approximately 47 stab wounds, mostly in the region of her neck.
[4] The accused immediately fled to the United States and was finally apprehended in Texas, approximate 2½ months later, on July 11, 2017.
[5] This trial is essentially about whether or not the accused is guilty of second-degree murder or manslaughter.
[6] The accused is extremely tech savvy and resourceful. He was able to cross the border in his mother’s car, steal Pennsylvania automobile license plates, which he put on his mother’s car, and avoid arrest for 2 ½ months.
[7] In addition, it appears he was able to obtain counterfeit money somehow through the “dark web” which allowed him to live. In fact, he was arrested by the US Marshalls because of the alleged counterfeiting, not on the Canadian murder charge. In addition, he was attempting to sell his mother’s car.
[8] The trial of this matter has been scheduled twice, once in 2019, when the defence asked for an adjournment, and once in 2020 when an adjournment was necessitated because of Covid.
[9] The accused came to Canada from Iraq in 2000 and is now a Canadian citizen. Since he is 28, it appears that he arrived on Canadian shores when he was approximately 7.
The Accused’s Position
[10] Bail is the expectation and detention is the exception. Bail should not be denied without just cause, notwithstanding the parties’ relationship, images of violence and flight to the US.
[11] In his application for bail, the accused has proposed a relatively robust 19 point plan for release, which is set out at page 3 of his written submissions (Ex. A). He has strong ties to the Hamilton area and some of the main factors of his 19 point plan for the court to consider include:
a) Two sureties, being his mother and 22 year old sister.
b) Essentially house arrest at the home owned by his mother and sister, except when he is in the accompaniment of one of his sureties.
c) GPS ankle bracelet monitoring.
d) A pledge of $500,000, backed up by the equity his mother and sister have in their Hamilton home.
e) The electronic devices in the home would be protected with strong passwords and they would not allow the accused to use them.
f) His mother and sister’s house is equipped with a video security system.
g) Twice weekly reporting to the Hamilton police station.
[12] The accused does not have an official criminal record, however, at the time of these charges, he was on bail pending trial on break, enter and assault charges at the deceased’s home.
[13] Based on the robust plan for his release, the risk under all three grounds is manageable.
[14] The sister is enrolled in a Master’s course in philosophy at Queen’s, which she will be taking online. Therefore, she along with her mother, would be able to monitor the accused 24/7. Normally she would have a part-time job of up to 30 hours per week, however, currently because of Covid, she is not working. She hopes to return to her employment once the Covid restrictions are lifted.
[15] His mother is on ODSP but augments her income by translating for Kurdish and Arabic speaking clients of local Hamilton lawyers. She currently does this by Zoom from home, so she is still available to supervise most of the time.
[16] Both mother and sister testified that they knew what a surety must do, and what they would do, including calling the police for any breaches by the accused of his bail conditions.
[17] Both testified that the accused respected them and had never been violent towards them.
[18] The accused submits, that at this point in the proceedings, I am the trier of risk and not the trier of what crimes were committed.
Primary Ground - (to assure the accused’s attendance at trial)
[19] The accused has strong ties to the community, his family has resided at 194 Bastille Street in Hamilton for approximately 9 years, his father, mother and two siblings reside in Hamilton and the accused’s primary residence prior to his arrest in 2017 had been Hamilton.
[20] To highlight some of the numerous restrictions previously set out, there will be two sureties, constant supervision, no access to identification, money, his passport or a vehicle. In addition, there will be GPS monitoring and limited access to the border and flights, because of Covid 19.
Secondary Grounds – (substantial likelihood of further offenses or interference with the administration of justice)
[21] This ground requires a two-part analysis. Firstly, is there a substantial likelihood that the accused will commit further offenses or interfere with the administration of justice, and secondly, can the determined risk be mitigated by the plan of supervision being proposed.
[22] The accused concedes that the court may find that there is substantial likelihood to reoffend since he was on bail at the time of the current charges.
[23] However, the court must look at the specific relationship between the accused and the deceased, and the fact that prior to April 2017, he had had no previous involvement with the criminal justice system and no previous history of domestic violence.
[24] Therefore, the court must assess the accused’s proposed plan and determine whether it mitigates that risk to a level that is manageable within the community.
[25] In his written submissions, (Ex. A) the accused has set out 19 points of his plan, most of which restrict his movements and right to possess items such as automobiles, passports and weapons, etc. The main points have been referred to earlier in this judgment.
[26] Even if there was a risk to the public, the multifaceted plan with two sureties, a curfew, police reporting and GPS monitoring, etc. bring the risk down to a negligible level.
Tertiary Grounds – (would granting bail cause the public to lose confidence in the administration of justice)
[27] Under this ground “the public” refers to a reasonable member of the community informed about the legislative provisions, Charter values and actual circumstances of the case. R. v. St. Cloud, 2015 SCC 27 Para. 74.
[28] The accused brought the court’s attention to several cases where people charged with murder were allowed bail including, R. v. Iglesias, 2020 ONSC 169, 2020 ONSC169 and R. v. Bassi, 2018 ONSC 4091.
[29] The accused concedes that the four enumerated factors under s. 515(10)(c) of the CCC, weigh in favour of detention.
[30] Notwithstanding this, where there is a sufficiently robust plan, the court can order release even when the court is dealing with the charge of murder.
Covid 19 Pandemic
[31] While the court should engage in the normal detention review, it should also factor in the possibility of heightened Covid 19 infection rates among inmates.
[32] In addition, because of Covid 19, there is limited availability for inmate visits and access to telephones.
[33] As of May 11, 2021, Maplehurst had had over 220 Covid cases with six remaining active.
[34] Notwithstanding the tragic, shocking and serious events that led to the charges, the plan for the accused’s release pending trial is essentially at the top of the ladder and as robust as a plan can be.
The Crown’s Position
[35] In addition to the robustness of any plan, the court must have trust in the accused, not just the sureties and the plan. Here, there is virtually no evidence of why the court should have trust in the accused.
[36] The defence has not presented the court with any cases, where the court ordered bail for an accused, who was charged with murder while on a surety release and then had to be extradited back to Canadian jurisdiction.
[37] At the time of these offenses, the accused was out on bail, one of the terms of which was, not to contact the deceased and not to go to the Waterloo region. He totally disregarded these terms of his release, immediately and continually and relentlessly contacted the deceased.
Primary Ground
[38] The accused has admitted killing Melinda Vasilije. Even without that admission, the Crown has overwhelming evidence to prove that he was responsible for her death. Therefore, he will be facing a substantial penitentiary term no matter what the outcome of the murder trial is.
[39] The accused has demonstrated a cunning and resourcefulness that would contribute both to his ability to flee and his ability to stay on the LAM undetected.
[40] Although he does not have a record for criminal offenses, he has shown a complete and utter disregard for court orders. Specific examples are set out in the written submissions. (Ex. B)
[41] With respect to the accused’s mother and sister being sureties and pledging a substantial amount of money, the Crown submits:
a) The fact that his father pledged money previously, albeit $1,000, did nothing to deter the accused from breaching his prior bail conditions.
b) His 22 year old sister has never tried to take on a supervisory role for her older brother. The context of text messages between them shows that he has little respect for her and women in general. There is no evidence before the court to show that his attitudes in this regard have changed.
c) The mother is simply unreliable as a surety. Despite the serious nature of the charges against her son, Jagar, she left him alone unsupervised for a week while she went to Montréal. In addition, there appears to be strong evidence that the accused was living at his mother’s place in breach of the accused’s bail conditions, when he was supposed to live at his father’s place. The mother would have been familiar with his bail conditions
d) The accused has little or no respect for his mother or her financial wellbeing since he stole her only vehicle and was trying to sell it in the US.
e) Although electronic monitoring is of assistance, even the company that provides it, concedes that it cannot prevent flight or noncompliant behaviour.
f) Given the accused’s demonstrated ability to use technology, including the dark web, it appears that hiding the car keys and his ID would have no effect on his ability to obtain ID and transportation.
g) The accused has a demonstrated impressive technological ability to throw off an investigation by use of emails and texts, use of a VPN to hide his location and use of multiple online usernames over numerous platforms to remain anonymous.
h) In addition, he has a demonstrated record of surviving financially by using technology such as PayPal, bitcoin and counterfeit currency obtained on the dark web.
i) He has threatened suicide.
[42] In R. v. Paramsothy, [2020] O.J. No. 1696 the court stated at paragraph 89;
89 The real issue on the primary ground is not simply whether the accused has the ability or means to flee if he or she is so motivated, but whether in fact there is anything suggesting that flight is a realistic and pressing possibility, and whether conditions of release can adequately address any such flight concerns.
[43] The Crown submits that the accused already fled once when he was on bail, with a male surety, and given the very real possibility of a lengthy jail term, he has the motive to flee again.
[44] The accused is cunning and resourceful and is contemptuous of court orders as demonstrated from his past behaviour and texts as set out in Ex. 1–5.
[45] Not only did the accused breach his prior bail conditions, he did so immediately and over 100 times in short order. In addition, he likens Ontario Superior Court of Justice orders, to those made on the Judge Judy reality television show.
[46] The texts between the accused and his sister are very negative, both with respect to how he perceives women in general and also his sister. It is readily apparent that if she were to do something, that he would determine was sexually inappropriate, he would not mind if she was executed.
[47] There is no evidence whatsoever to show that this relationship has changed over the last four years. That is not surprising since there has been extremely little contact between the two.
[48] She gave no evidence as to why she thought as a young female she would have any control whatsoever over the accused, given his archaic misogynistic philosophy with respect to women.
[49] The mother is not a stranger to being a surety. When her son, Jagar, was charged with robbing an 85 year old man, she became his surety. She would have made the same promises to the court on behalf of Jagar, that she made to this court.
[50] Notwithstanding the promises she made for her role as surety in the past, she did not live up to them. She knew what she was supposed to do but did not do it. While being a surety, she simply left for Montréal for approximately a week and left Jagar home without a surety. There is no evidence before the court about why she went to Montréal.
[51] In addition, she would have known the terms of the accused‘s release, in that he was to reside with his father, but in fact he appears to have been residing at her home.
[52] The relationship between the accused and his mother, and what authority she may have over him, is very questionable. He thought nothing about stealing her car, driving to the US without her knowledge and trying to sell her car without her knowledge.
[53] The addition of an electronic ankle bracelet will do little to prevent the accused from fleeing the country if that is what he decides to do. It would be simple for him to make it to the US border or elsewhere in Canada and he would likely have at least an hour or more head start before any authorities were notified.
[54] It can be seen from Ex. 1–11 that the accused is outgoing and can be charming. The only reason he was caught the last time was because the Texas police were investigating counterfeiting offenses. If the accused escapes again he will be more careful.
Secondary Ground
[55] The concern here, is for the deceased’s former roommate, Anna Manda and any new domestic partner the accused may have. The accused has already displayed hostility towards Ms. Manda.
[56] He is on record, that if he decided to escape, he would put down anyone who tried to alert authorities or get in his way.
[57] He engaged in further criminal activity that we know of, involving the theft of car license plates and counterfeit money while on the LAM.
Tertiary Ground
[58] The tertiary ground is a balancing act. It is not limited to particularly horrific criminal acts, nor rare or exceptional circumstances.
[59] The accused has already conceded that the enumerated factors in s. 515(10)(c) favour the Crown. These factors are:
i. The strength of the prosecution’s case,
ii. The gravity of the offenses,
iii. The circumstances surrounding the offenses, and
iv. If the accused is liable upon conviction for a potentially lengthy term of imprisonment.
[60] The Crown’s case is very strong and killing someone is at or near the top of the gravity scale of criminal offenses.
[61] In addition, as aggravating factors, the victim was in an intimate relationship with the accused and the accused was on bail not to contact her at the time of the offense. The accused stabbed the victim 47 times.
[62] Shortly after the killing, he sent an extremely cruel and insensitive email to the victim’s mother using one of his aliases, telling her that her daughter’s death was partly her fault and in a laughing manner stated “oh well you have other daughters right”.
[63] The accused is likely to get a lengthy prison term, given all the aggravating circumstances of this case, even if he is only convicted of manslaughter. Both manslaughter and murder are subject to life imprisonment.
[64] Releasing the accused would bring the administration of justice into disrepute. If the accused were released, absconded and needed to be extradited again, this would certainly bring the administration of justice into disrepute.
[65] To date, there has not been an unreasonable delay following extradition from the US. It was the defence that requested an adjournment of the October 2019 trial date.
[66] The Crown submits that a reasonable person pursuant to the definition at paragraph 106 of the Paramsothy case, would not grant bail to the accused.
[67] With respect to the charge of second-degree murder, the accused was jealous, controlling and relentless in his pursuit of the deceased, notwithstanding a noncontact court order. He took the position that if he could not have her, no one could have her.
[68] The Crown took the court through many emails/texts at Ex. 1-5, to show how relentless he was, how unwilling he was to let go and how obsessed he was with her, whether or not the deceased was unfaithful to him, wanting to know from the police, if they could verify that for him, even after she was dead.
[69] The victim suffered 47 stab wounds and had the accused’s DNA under her fingernails. Therefore, it is obvious that he intended to kill her. In addition, the crime is statutorily aggravating because they were intimate partners.
[70] In this case, the accused lied, wore her resolve down by “blowing up” her phone with texts and reassured her of his honourable intentions, all to lure her into a meeting with him, where he ended up killing her.
[71] He was on the LAM for 2 ½ months. Shortly after killing the deceased he sent an incredibly insensitive electronic message to the deceased’s mother, essentially mocking the deceased’s mother and telling her that she is partly responsible for her daughter’s death.
[72] Canada has already been put to many thousands of dollars of taxpayer expense to extradite the accused back to Canada.
[73] The Crown then took the court through its case brief. Without referring to each and every case cited to the court, the Crown made the following submissions:
a) With respect to Covid, while it remains a consideration, the accused is young and healthy, and no health issues have been raised in this hearing. The accused has already been in jail for 4 years.
b) Electronic monitoring is not a panacea. It “ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool – it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offenses in progress” (R. v. Jesso, [2020] O.J. No. 0887 para.24)
[74] In Paramsothy, paragraphs 99 and 100, the court stated:
[99] The thing that troubles the court, however, is that all the affidavits, including those of the applicant and the sureties, all speak about love, mutual respect and admiration for one another. It was submitted that this is a close relationship between Mr. Paramsothy and his parents. Yet, his actions that night and early morning demonstrate little regard to those he claims to be closest to him. The actions of Mr. Paramsothy do not show any love, mutual respect or admiration for his parents; in fact, quite the opposite. There is certainly inconsistency between the relationship described in the affidavits and what has been demonstrated. This court has considered the following alleged events…
[100] … However, well-meaning, it is not clear to this court that Mr. Paramsothy’s parents are able to exert any influence over him whatsoever. While the court accepts that they are committed to doing so, Mr. Paramsothy would appear to have no respect for them or their authority. … House arrest, constant supervision and electronic monitoring will not change that; especially given that he has demonstrated a willingness and ability to deceive his family. Electronic monitoring is not foolproof. The system itself can fail. The system can be tricked. Further, electronic monitoring is really an after-the-fact, reactive system, rather than a proactive one.
Findings and Reasons
[75] The court acknowledges that:
a) This is a reverse onus situation for the accused;
b) The accused’s proposal is relatively robust; and
c) An accused person charged with murder can apply for bail.
[76] In the Iglesias case, while there was a strong Crown case, the accused had no criminal record and in addition was not on any releases at the time of the offense. The court also took into account that it was the last time that the accused would be able to spend real time out of custody with her daughter for many years. That type of compassionate factor is not present in this case. In addition, the accused was not out on bail the time of the offense.
[77] Similarly, in the Bassi case, while the accused had no criminal record, he was not on any releases at the time of the offense.
[78] The court has many concerns about this bail application.
[79] The accused paid absolutely no attention to the bail conditions he was subject to after the April 4, 2017, break and enter charges at the deceased’s residence. He repeatedly and relentlessly contacted the deceased until she finally succumbed and agreed to meet him. Ultimately, it appears from emails, that because the deceased would not do what he wanted, or alternatively did something that he personally found unforgivable, he appointed himself Judge, jury and executioner.
[80] In addition, in April 2017, the accused was obligated by his bail conditions to reside at his father’s house, however at least during the time his mother was in Montréal, it appears that he was living at his mother’s house.
[81] In texts or emails he mocks the court’s authority and ability to restrain him in any manner whatsoever. He has only disdain and contempt for any court which tries to restrict his movements in any manner whatsoever. Court orders simply do not apply to him.
[82] The Crown has a very strong case and the butchering of the young female victim by the accused is nothing short of depraved and despicable. Therefore, there is certainly incentive for the accused, if given the chance, to simply get lost somewhere in the world, particularly after the last 3 or 4 years that he has spent behind bars. In one of his emails to his sister, he states “if we were in my country” clearly not referring to Canada.
[83] Although his mother and sister testified that the accused would never put their home at risk, he certainly appears to have thought nothing about stealing his mother’s car and trying to sell it while he was in the United States. Remember this is a lady on ODSP.
[84] The court has been told that the accused’s father only pledged $1,000 when he was a surety, however that pledge did not deter the accused from breaking his release conditions. There is no information before the court about what losing $1,000 would have meant to the accused’s father.
[85] The mother was a surety for a different son, Jagar, during the time the accused fled to the US in her car. At that time the mother testified that she went to Montréal for a week and there is evidence that during her absence, Jagar breached the terms of his bail on several occasions. Actions speak louder than words, and the evidence is overwhelming that she did not take her duties as a surety at all seriously in April 2017.
[86] Stealing and attempting to sell the mother’s car also argues against the mother’s belief that her son respects her.
[87] The accused seems to have no respect for females whatsoever and this includes his sister. On February 10, 2017, which is the date between the alleged break and enter and the death of the deceased, the accused sent several outrageous misogynistic, chauvinistic texts to his sister. While expressing his views on whether females can have sex outside of marriage he wrote:
“If I found my sister wasn’t one and it was for sure I would cut her off and if we were in my country I would probably get the authorities after her. And they have execute and I would not mind one bit”
[88] It is readily apparent that he was in favour of having women including his sister executed for sexual behaviour, that he personally would find offensive. For someone who has lived in Canada since he was a, child it is difficult to rationalize how he became so entrenched in such ideology.
[89] The mother’s home video security system certainly did not stop the accused’s brother, J., from breaching the terms of his recognizance.
[90] Therefore, on the evidence before me I find:
a) by his own words and actions, the accused is essentially ungovernable.
b) his actions speak louder than words.
c) that he does not respect females in any way shape or form whatsoever and it is impossible to believe that he would submit to their direction.
d) in particular his young 22 year old sister would not be able to control him.
e) his mother has already demonstrated that she does not take the duties of a surety seriously.
[91] Therefore, the accused’s application for bail pending trial is dismissed on all three grounds.
James W. Sloan
Released: May 19, 2021
COURT FILE NO.: BR 101302
DATE: 2021-05-19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
AGER MOHSIN HASAN Applicant
REASONS FOR JUDGMENT
J.W. Soan J.
Released: May 19, 2021