COURT FILE NO.: CR-21-10000231-00BR
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
UMAR ZAMEER
Michael Cantlon and Karen Simone, for the Crown
Nader Hasan and Ryann Atkins, for Mr. Zameer
HEARD: September 7, 8, and 9, 2021
Information contained in the judgment is subject to a publication restriction under section 517(1) of the Criminal Code. This judgment shall therefore not be published in any document or broadcast or transmitted in any way before such time as: (a) a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b) the end of the trial in this matter.
Justice J. Copeland
REASONS FOR DECISION ON BAIL APPLICATION
[1] As noted in the box above, these reasons are subject to a publication ban pursuant to s. 517 of the Criminal Code. This publication ban is mandatory in the circumstances of this application. Its purpose is to protect the right to a fair trial and an impartial jury. The publication ban applies to the evidence taken on this application (both oral and in writing); the information given, or representations made during this application; and these reasons for judgment. In plain language, the publication ban applies to the entirety of these reasons, with one exception. The one exception is that the final result is not subject to a publication ban – that is, the decision to release the defendant on bail, and the conditions attached to that release order. This is the type of information set out in paragraph 250 below. However, the information in paragraph 250 is not yet the final terms, and is subject to counsel’s submissions. The final terms will be contained in the formal release order of the court.
Introduction
[2] Umar Zameer is charged with one count of first-degree murder. The allegations arise out of an incident on the night of July 1-2, 2021, in the parking garage under Toronto City Hall, where Detective Constable Jeffrey Northrop was struck and killed by Mr. Zameer’s car when he was driving. Mr. Zameer brought an application for release pursuant to s. 522(1) of the Criminal Code. I heard the application on September 7, 8, and 9, 2021. The application was heard by videoconference, with the consent of the parties.
[3] Mr. Zameer bears the onus to show why his detention in custody is not justified within the meaning of s. 515(10) of the Criminal Code, pursuant to s. 522(2). The Crown argues that Mr. Zameer has not met his onus under all three grounds in s. 515(10).
[4] In assessing whether Mr. Zameer has met his onus under the three grounds in s. 515(10), I bear in mind that Mr. Zameer is presumed innocent. I also bear in mind that in assessing the grounds for detention under s. 515(10), a court must apply the principle of restraint, and not detain a defendant unless less restrictive options will not address the concerns set out in s. 515(10): R. v. Zora, 2020 SCC 14 at para. 20-21, 24-25; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at paras. 25-26. I also bear in mind that in the context of a bail hearing on a charge of murder, the Criminal Code places the onus on Mr. Zameer to show that his detention in custody is not justified.
The Allegations and the strength of the Crown’s case
[5] The first portion of these reasons addresses my assessment of the strength of the Crown’s case. I begin with consideration of the strength of the case because it is relevant to the assessment of both the secondary and tertiary grounds, and also to the considering the risk of non-attendance under the primary ground.
[6] The death of Constable Northrup is a tragedy for his family, his colleagues, and for the community. The fact that this case involves the death of a police officer acting in the course of his duties is a central factor to be considered in assessing whether Mr. Zameer has met his onus to show that his detention is not justified. But in considering the allegations and the evidence on this application, I must objectively assess the strength of the Crown’s case for first-degree murder, or any other included offence, and the other criteria relevant to the determination of detention or release.
[7] A judge’s task at a bail hearing in relation to the strength of the Crown’s case is not to try the case like a trial judge or jury; rather, it is to assess the apparent strength of the Crown’s case. The bail judge must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to the strength of the case as a factor in the analysis: R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paras. 57-59.
[8] It is not always the case that a defence will be raised at a bail hearing, or evidence led to support anticipated defences. Where a defence is raised and explored at a bail hearing, the presiding justice must assess the defence in analyzing the apparent strength of the prosecution’s case: St.-Cloud at para. 59. In this case, as I will explain, there is a defence put before the court, and evidence to support it.
[9] The defence, in summary form, is that the defendant and his wife did not subjectively know that the plainclothes police officers who approached them were police, and late at night, in the isolated garage, they thought that the people approaching them intended them harm, and panicked. The defence, for purposes of the bail hearing, is based on the defendant’s statement to police at the scene, and his wife’s statement to police in a videotaped interview the next morning, as well as some aspects of the prosecution’s anticipated evidence. I flag now that I treat the statements of Mr. Zameer and his wife in the same way as I treat the police statements tendered at the bail hearing (and summary of the evidence through the officer in charge). They are hearsay, admissible at a bail hearing – in essence as will-states – to show the anticipated evidence of the various witnesses and the defendant. I add that counsel for Mr. Zameer indicated that he anticipates bringing an application pursuant to R. v. Edgar, 2010 ONCA 529, to tender Mr. Zameer’s statement at the scene as trial evidence, in the event it is not tendered at trial by Crown counsel. I do not need to decide that issue for the bail hearing, other than to state that I accept that that is an arguable position.
[10] The theory of liability for first degree murder advanced by the Crown in this case is based on Constable Northrup being a police officer acting in the course of his duties, under s. 231(4)(a) of the Criminal Code. It was not alleged at the bail hearing, nor is there any evidence, that there was planning and deliberation.
[11] For s. 231(4)(a) to apply, the Crown must first prove murder under one of the heads in s. 229. The parties join issue on the bail application and are in disagreement about the strength of the Crown’s case on two central issues: (i) the defendant’s intention when he drove in the manner he did, and in particular whether he deliberately drove at Constable Northrup with the intention of hitting him[^1]; and (ii) whether the defendant knew that Constable Northrup was a police officer. In the context of the allegation of murder and first-degree murder, these are both issues of the defendant’s subjective intent and knowledge. It is not in dispute that Mr. Zameer’s actions in driving caused Constable Northrup’s death. Further, no submissions were made on the issue of whether Constable Northrup was acting in the course of his duties. As a result, I take that as accepted for purposes of the bail application.
(i) The Anticipated trial evidence as led at the bail hearing
[12] I outline the anticipated prosecution case, and the anticipated defence case in chronological order of events on the evening of July 1-2, 2021. I flag now that although there are some areas of dispute about the physical acts of various parties, the primary issues in dispute in this case relate to the strength of inferences on two issues central to this trial – whether Mr. Zameer subjectively knew that the people who approached him, his wife, and child in the garage were police officers, and whether Mr. Zameer intended to hit Constable Northrup with his vehicle (as opposed to panicking and hitting him either in a criminally negligent manner, or in a non-negligent manner that could be characterized as an accident).
[13] Crown counsel led its evidence with respect to the strength of the case through Detective Sergeant Jeff Allington, the officer in charge of the investigation. DS Allington was not a witness to events in the garage. Thus, his evidence was hearsay summary of evidence, and tendering exhibits (as is, of course, common and appropriate at a bail hearing). In addition, the videotaped statements of the officers involved were filed. The defence filed various extracts from the disclosure in its written application and through the cross-examination of DS Allington. The most central pieces of defence evidence for the purposes of assessing the strength of the case are the statements of Mr. Zameer, in particular his statement at the scene very shortly after the events in the garage, and the videotaped statement of his wife, Aaida Shaikh, given approximately eight hours after the events.
[14] The evidence of events prior to when Mr. Zameer and his family went back to their car in the City Hall garage shortly after midnight is not significantly contested. I will focus initially on the evidence from video security cameras in and around Nathan Phillips Square, City Hall, and Dundas Square. The footage from these cameras is mostly very clear, and is in colour. Several of the videos which were played at the bail hearing. In addition, the defence materials included numerous still photos from the videos which were included in a police-prepared video chronology. The videos and stills from the videos show clearly the most of movements of Mr. Zameer, Ms Shaikh, and their son, from the time of their arrival downtown until their return to the City Hall parking garage. I will address Mr. Zameer and Ms Shaikh’s anticipated evidence (based on their statements to police) later in these reasons. But I include some aspects of it that do not appear to be in dispute as context.
[15] Mr. Zameer, Ms Shaikh, and their then two-year-old son travelled downtown from their home in Woodbridge in two vehicles, a Toyota and a BMW. Ms Shaikh drove the Toyota with their son in the back. Mr. Zameer drove the BMW. The reason they came in two vehicles was because they were renting out the Toyota for a few days on an app called Turo. The evidence did not disclose if the vehicles are owned or leased, but I understood them to be their vehicles.
[16] Security video obtained by police shows Mr. Zameer park the BMW at 11:03 p.m. in the underground City Hall Parking lot on the P2 level (DS Allington testified that officers had confirmed that the time stamps on the videos were accurate). DS Allington agreed in cross-examination that the security video showed Mr. Zameer exit the parking lot alone after parking the BMW at 11:04 p.m., and then almost immediately rejoin his wife and son. This is after the family has already dropped off the Toyota to the couple who were renting it on the Turo app. Video surveillance (not all of which was played, but which DS Allington summarized) showed Mr. Zameer, his wife, and son walk around Nathan Phillips Square, then over to Yonge and Dundas Square. DS Allington agreed in cross-examination that they arrived at Yonge and Dundas by 11:17 p.m. They then walked around in Yonge and Dundas Square. They then return to Nathan Phillips Square. Some of the video from the point of their journey back to Nathan Phillips Square was played at the bail hearing. In cross-examination, DS Allington agreed that the family can be seen on the security videos walking and playing in Nathan Phillips Square and Yonge and Dundas Square.
[17] In the security videos, Ms Shaikh is pushing a stroller, and their young son is on foot. Mr. Zameer is wearing long pants and a long-sleeved shirt. Ms Shaikh is wearing a light-coloured patterned hijab. It is agreed by the parties that Ms Shaikh was eight months pregnant at the time (this is apparent in some of the security videos). I flag these aspects of their descriptions because they have relevance to other aspects of the anticipated evidence.
[18] A video at the northeast corner of City Hall, at the intersection of Hagerman Street and Bay Street, shows a male in shorts and no shirt walking southbound. This video is time stamped 11:33 p.m. This male, other evidence shows, had earlier been the victim of a stabbing, and had a significant amount of blood apparent at the area of his waist/stomach. The video shows the male walk southbound and down a few stairs. He then stops, apparently to tie his show (putting his foot up on a bench). In this video, Mr. Zameer, his wife, and their son can be seen walking behind the male. When the male stops to tie his shoe, they pass by the male. The family has no interaction with the male. Mr. Zameer and his son, who is on foot at this point, briefly play on a grate in the sidewalk after they have passed the male. I would estimate the grate to be in the range of 15 feet from where the male is tying his shoe, but it is difficult to estimate. I note that the playing on the grate lasts about nine seconds, and Mr. Zameer and his wife start walking and he takes his son’s hand as soon as the male stabbing victim begins to walk again. A second video showing these events from another angle was also played.
[19] DS Allington agreed in cross-examination that videos obtained by police show the family back at Nathan Phillips Square at approximately 11:37 p.m. Although this video was not played at the bail hearing, DS Allington agreed that it shows the family approach the TORONTO sign and fountain in the square. He agreed that they can be seen in the video walking around the square and playing.
[20] A video time stamped 11:39 p.m. shows the family exiting the elevator which leads to a second-floor deck above the snack bar at the west side of Nathan Phillips Square. They exit out onto the deck. DS Allington testified that there are no security cameras outside on the deck.
[21] A video time stamped 12:09 a.m. shows the family outside the elevator down from the deck. At this point they are with a brown-skinned male, who is wearing a baseball cap.[^2] Their son is now in the stroller. The family and the brown-skinned male take the elevator down to Nathan Phillips Square. Although video was not played after that point in the bail hearing, DS Allington testified that the family and the brown-skinned male then walked a distance in the square together, around the fountain, and to the entrance to the parking. In a still photo from this video filed in the defence record, one can see at least two marked police vehicles on the east side of Nathan Phillips Square. The family then parts ways with the brown-skinned male (at 12:14 a.m.), and enters the underground parking lot (at 12:15:40 a.m.).
[22] DS Allington agreed in cross-examination that there were not many other vehicles in the parking lot at that time, at least not on the level where the defendant’s car was parked. This is also visible to some degree on the video of events in the garage.
[23] Before summarizing the evidence about the tragic events in the parking garage, I turn to the evidence about what Constable Forbes and Northrup were doing prior to going into the parking garage.
[24] Constable Forbes and Northrup were on duty in plainclothes that evening. Constable Forbes was wearing jean shorts, a dark T-shirt, and a black zip-up hoodie. In a photo of Constable Forbes taken from another officer’s body camera shortly before the events in the garage, and in her videotaped statement taken shortly after, she has her police badge around her neck on a chain, hanging at a level between her chest and waist (I would estimate a few inches above the belly-button level).
[25] Constable Northrup was wearing long dark shorts, a T-shirt, and over it an open short-sleeved coloured shirt, and a baseball cap. In the photo taken above ground in Nathan Phillips Square (on another officer’s body camera), his badge is not visible. There is no dispute that his badge was on his person that night. His badge was later found on the ground in the parking garage, and a broken beaded necklace for the badge was found around his neck. Constable Northrup appears quite tall in the photo. DS Allington testified that he was 6’ 3½” tall. At the time his photo was taken above ground in Nathan Phillips Square, Constable Northrup was also wearing a black surgical style mask, which I assume was a COVID precaution. There was no evidence at the bail hearing about whether he was still wearing that mask in the garage. I will return to the issue of the clothing and the badge(s), but I flag that in terms of the clothing that they were wearing, Constables Northrup and Forbes would not obviously have appeared to be police officers.
[26] Constables Correa and Pais, who were also present for the events in the garage, were also in plainclothes. A picture of Constable Correa’s attire was in the material filed at the bail hearing. No evidence was filed of the particular attire of Constable Pais. However, I do not describe the attire of Constable Correa because at the relevant times in the garage he was inside the unmarked police van – at most his head and shoulders would have been visible when he was in the van. But he was not in a police uniform.
[27] In the time before they went into the garage, and when they went into the garage, Constables Forbes and Northrup were responding to a call about a stabbing. It is common ground between the parties that the victim of the stabbing was the male that Mr. Zameer and his family walked past on their way back to Nathan Phillips Square.
[28] Constables Forbes spoke to the male who was the victim of the stabbing, and he gave a description to her of the suspect as a brown male, medium build, with a beard and possibly big hair. Although not a detailed description, in general terms, it fit Mr. Zameer. It later turned out, when the stabbing victim was interviewed by a Mandarin-speaking officer the next day (late in the afternoon of July 2), that he gave a very different description: male white, 5’ 10”, skinny build, wearing a light coloured T-shirt. This description would exclude Mr. Zameer, both in terms of skin colour, and because the security videos show that Mr. Zameer was wearing a dark long-sleeved shirt. The reason for the difference between the two descriptions was not apparent at the bail hearing; although a number of officers who dealt with the stabbing victim on the night of July 1-2 recorded in their notes that he seemed intoxicated or for some other reason not really “with it”.
[29] I want to be clear that there was no suggestion at the bail hearing that Constables Forbes and Northrup were acting in bad faith in any way in relying on the description of the suspect as a brown male with a beard. DS Allington testified that Constable Forbes put that description over the police radio that night at 12:00 a.m., and that he confirmed on the ICAD report that she had done so.
[30] I also want to be clear that the Crown and police now agree that Mr. Zameer had nothing to do with the stabbing. DS Allington agreed in cross-examination that the stabbing of that male had nothing to do with the death of Constable Northrup, other than that it was what brought the officers to the City Hall area, and to the parking garage. I flag this because it underlines that there is no evidence that was tendered at the bail hearing that would show that Mr. Zameer (or his wife) had any reason to expect to be approached by police officers in the garage when they returned to their car.
[31] While the police were investigating the stabbing that night, Constables Pais and Correa viewed footage from the City Hall security cameras that showed that the male victim of the stabbing had come up from the “Trout” stairwell of the underground parking garage at some point. Based on that information, Constables Forbes, Northrup, Pais, and Correa attended in the underground garage in order to see if they could find the crime scene of the stabbing, or witnesses.
[32] The anticipated prosecution evidence of what occurred in the garage comes primarily from three police officers (Constables Forbes, Correa, and Pais). In addition, there is a poor-quality security video of events in the garage. The anticipated defence evidence of what occurred in the garage comes from statements to police by Mr. Zameer and Ms Shaikh. I will summarize each of these sources of evidence in turn.
[33] Constable Forbes provided two statements. The first was taken at the scene, starting at 12:46 a.m., and recorded on another officer’s body camera. This was approximately 25 minutes after the events in the garage. Portions of this statement are difficult to understand for several reasons, including, that there is significant background noise where it was taken; that Constable Forbes is wearing an oxygen mask as she gives the statement; and because Constable Forbes is understandably emotional so soon after the events.
[34] In the statement taken at the scene, Constable Forbes said the vehicle which struck Constable Northrup was maybe an SUV. It had a male driver, brown, with a beard. He matched the description of the stabbing suspect. She said the driver looked at them, and he closed the door to his car. She said she knocked, and she said, “police”, and she held up her badge (at this time she gestures holding up the badge on the chain around her neck). The driver started to pull forward. She yelled at him to stop. He then went into reverse. She may at this point say the vehicle clipped Constable Northrup, but the recording is unclear. She then said the driver went “this way” and “that way” and gestures with her hand. She said the vehicle hit Constable Northrup around the knee (this part of the recording is difficult to understand). She yelled at the driver to stop. She said there was a female in the passenger seat, and a small child in a seat in the back that she did not think was secured properly. She said the woman was wearing a yellow hijab. She said the male “gunned it”, and Constable Northrup was down, and the car backed up “that way”. She said the male “gunned it” and Constable Northrup could not get out of the way. She said the vehicle ran over Constable Northrup with the front wheels and then with the back wheels. The vehicle then went towards the south in the garage. Constables Correa and Pais went after the vehicle in the van. Constable Forbes stayed with Constable Northrup.
[35] Constable Forbes gave a further videotaped statement in a police interview room on July 2, 2021, after she had been taken to hospital. I will summarize the portion about the events in the garage. She and Constable Northrup went into the garage to look for a scene in relation to the stabbing investigation. They started at the P4 level and worked their way up. She described the P2 level as “completely vacant”. On the P2 level, they heard a child and then people talking, so she thought they could find out if these people had seen anything related to the stabbing. At that point Constables Correa and Pais came by in the van. They discussed where each had already searched. Then Constable Forbes mentioned the people she had heard talking. She looked over and she saw a dark higher end vehicle (Mr. Zameer’s vehicle), and she could see that in it there appeared to be a male brown, with some form of a beard (i.e., matching the description of the stabbing suspect in general terms). The officers agreed to go over to talk to them. Constables Forbes and Northrup walked over to speak the people in the car. They approached the car from the passenger side, towards the front of the car. As they approached, Constable Forbes could see a female passenger wearing a pale-yellow hijab, and she could see a small child in a car seat in the back. She said the male was in the process of getting into the driver’s seat. Later in the interview, when she was asked if the car was running, she said she thought that it was, because she knew that she and Constable Northrup were in “a bit of a hurry” to get to the vehicle because another car had just pulled out and Mr. Zameer’s car looked like it was getting ready to pull out. But she said they walked as they approached. Constable Forbes said that as they approached the car, they called out, “hey, it’s the police”, and she was holding up her badge for identification purposes. She could not say if Constable Northrup had his badge out. She said the male immediately jumped in the car and closed the door. Constable Forbes said she and Constable Northrup were both knocking on the window saying, “it’s the police; roll down the window”. At that, the driver went to pull forward, but the Constable Correa had pulled the MCU van up in front of the car, blocking that direction. She and Constable Northrup were both on the driver’s side. They kind of ended up in front of the car. Then the car went back (in reverse). The officers said, “hey, police, stop”, and the car went pulled forward again. In follow up questions, Constable Forbes said when the vehicle pulled forward, she banged on the window when she said “stop”. Constable Forbes put her hands out and kind of jumped back off of the car. They were not knocked to the ground, but they were “kind of moved out of the way”. This caused her and Constable Northrup to split up. She was on the passenger side of the car, and Constable Northrup ended up kind where the mirror was on the car (I take this to mean on the driver side). The vehicle then reversed. It was backing up “to the north, to go south”. Constable Northrup was in the lane in the parking lot (i.e., not standing in a parking space). Constable Northrup was telling the car to stop. Constable Forbes said that somehow Constable Northrup found himself in front of the vehicle. The vehicle accelerated and hit Constable Northrup, causing him to go flying back and he landed on the ground. The vehicle then accelerated again, and the front wheels of the vehicle rolled over Constable Northrup. Constable Forbes screamed, “stop”. Constable Northrup was lying crossways in relation to the vehicle (perpendicular). Constable Forbes said in her statement that because Constable Northrup was a big man, when the vehicle struck him, it had trouble driving over him, so it accelerated more to drive over him. The back wheels then went over Constable Northrup. The driver then turned right and headed west in the garage. Constable Forbes said the officers yelled “stop” multiple times.
[36] Constable Correa was the driver of the unmarked MCU van. He gave a videotaped statement to police on July 2. I will summarize the portion of his statement about the events in the garage. Constable Correa attended in the garage in the van with Constable Pais to look for a scene or witnesses to the stabbing. There were barely any vehicles, and no pedestrians on the P2 level. They saw Constables Forbes and Northrup on foot in the garage. They had a brief discussion. In that discussion, Constable Forbes advised that there was now a suspect description for the stabbing, male brown with a beard. She further advised that there was a male brown ahead of them in a vehicle, and that she and Constable Northrup were going to approach. Constable Correa said he and Pais would stand by in the area to make sure everything was ok. He said he saw Constables Forbes and Northrup approach the driver’s side window of the vehicle. He said Constables Forbes and Northrup appeared to be speaking. But he said he could not hear the specific words because it was too loud in the garage, likely from fans. He saw the officers’ lips moving and making hand gestures. He was not sure if they had anything in their hands. He could not hear what was being said. As the MCU van approached the front of the defendant’s vehicle, vehicle then accelerated towards the MCU van, nearly striking the passenger side of the van. Later in the statement, Constable Correa described the initial forward movement as the vehicle moving forward abruptly, “almost like the driver was trying to evade the two officers”. The driver then put his vehicle into reverse. Both Constables Northrup and Forbes were sideswiped when the vehicle reversed, but not knocked down. Constable Correa heard yelling and screaming. The driver then put the vehicle into drive. Constable Northrup was right in front of the hood of the car. The vehicle then accelerated, in the words of Constable Correa, “with the intention to get out, to leave”. Constable Northrup was hit violently, and went over the hood of the car up in the air and landed. He was then run over by the wheels of the car. Correa was still in the driver seat of the van. He made a U-turn and chased the vehicle in the garage. The MCU van rammed the vehicle in order to stop it, and took the driver down at gunpoint.
[37] Constable Pais was in the MCU van with Constable Correa. He gave a videotaped statement on July 2. I will summarize his statement of events in the garage. The underground parking was mostly vacant, with just a few cars. They saw Constables Northrup and Forbes in the garage and spoke to them briefly. There was a car that had a brown male with it. Constables Northrup and Forbes were walking towards the car. Constables Pais and Correa continued to drive around the parking garage to look for possible crime scene, additional victim or suspect in relation to the stabbing investigation. As they circled back around, within 10 seconds from when they had started their drive around, he saw Constables Northrup and Forbes at the vehicle. Constable Northrup was at the driver’s side door of the car. Constable Forbes at the front or on the other side of the vehicle. Constable Northrup knocked on the window to the vehicle, and the vehicle took off forward towards the MCU van. The MCU van came to a stop in front of Mr. Zameer’s vehicle. Constable Pais was able to see a female passenger and a male driver. The female passenger was gesturing to tell Constable Pais (in the MCU van) to get out of the way. Later in the statement he added that when she was telling them to get out of the way by gesturing, she looked worried. Constable Pais said he and Constable Correa had stopped because they understood that Constables Northrup and Forbes were going to have a conversation with the driver to see if they were involved or had seen anything. At that point, the driver “threw it in reverse”. In his notes, Constable Pais describes this as a “rushed motion”. He did not think that Constables Northrup and Forbes had had any conversation with the occupants of the car before it went into reverse. When it reversed, the driver side front of the vehicle brushed and struck both Constables Northrup and Forbes. Constable Northrup then had his badge out in his left hand, and was pointing to the vehicle saying, “stop”. Constable Pais said he observed Constables Northrup and Forbes both say, “police” and “stop”. Constable Northrup “somehow ended up in front of the car”. The car lunged forward with the vehicle, and Constable Northrup ended up on the hood of the vehicle. Constable Pais said he did not know if the car braked or if it continued. Constable Northrup rolled off the car and ended up on the ground in front of the car. The car never came to a complete stop. It then ran over Constable Northrup. Constable Pais saw the front end and then the back end of the vehicle lift up as it drove over Constable Northrup. He then described going after the car and the takedown, which I will not summarize. In a follow up question, the police interviewer asked if the car could have done something other than drive forward (after it reversed). Constable Pais said when the vehicle went forward the first time (before it reversed) that because of the position of the MCU van the other vehicle could not have continued to go forward. But he said that after it reversed, it would have been possible for it to continue to reverse, rather than go forwards.
[38] Still photos of the scene in the garage were filed at the bail hearing. Mr. Zameer’s vehicle was parked at the outset in the middle parking space of three parking spaced between two large cement pillars. The distance from where his vehicle was originally parked, to where Constable Northrup’s body came to rest was in the range of 20 feet or so, according to DS Allington.
[39] Unlike above ground, the video camera coverage in the garage is very limited, and the quality of the video is very poor. A video from a security camera in the garage was filed in evidence. It is black and white. It is very grainy and has poor picture quality. It also does not show the full view of the defendant’s vehicle or of the events. In addition, part of the view is blocked by the arm of the parking gate, which is much closer to the camera than the scene, and so obscures a disproportionate amount of the image. Despite these significant limitations, the video is helpful for two things. First, it shows motions of the defendant’s vehicle forward, then in reverse (and turning), and then forward again (at which time Constable Northrup is struck – but that event is not clear on the video). The parties agree that what it depicts is the defendant’s vehicle. Second, it provides a timeline of events to a significant degree. DS Allington testified that the time stamp was accurate.
[40] The portion of the video played at the bail hearing starts at 00:18:10 (i.e., just after 12:18 a.m. on July 2, 2021). At this time the defendant’s vehicle is stationary, but the rear lights are visible. It appears that someone walks around the rear of the vehicle because briefly the lights are obscured. The relevant timeline is then as follows:
• 00:18:48-00:19:14 – the MCU van drives towards the camera and then turns right out of view. The parties are in agreement that out of the view of the camera it makes a further right turn and ends up somewhere near the front of the defendant’s parked vehicle.
• The defendant’s vehicle is still stationary at 00:19:14.
• At 00:19:19, the defendant’s vehicle pulls forward (which, based on other evidence, is towards the location of the MCU van).
• The defendant’s vehicle then reverses and turns at 00:19:29.
• The vehicle then goes forward starting at 00:19:32 or 00:19:33.
• The vehicle continues forward up the aisle of the parking lot and turns to leave. The turn is at 00:19:37. Based on the evidence of the scene, this means that Constable Northrup had been struck and run over by 00:19:37 at the latest.
• On can then see a figure (presumably Constable Forbes) move to the location in the garage where, based on the evidence of DS Allington and the scene photos, Constable Northrup’s body came to rest. The MCU van then drives and turns following where the defendant’s vehicle went (the MCU van is out of the camera’s view by 00:19:50).
[41] Based on the video, the evidence reasonably supports that the time between when the defendant’s vehicle first pulled forward to leave (and was blocked by the MCU van), and when Constable Northrup was run over, was in the range of 18 seconds.
[42] I turn then to the anticipated defence evidence from Mr. Zameer and Ms Shaikh. At this stage, I treat their statements like the officers’ statements, as will-states. But as I have noted, there is an arguable case for admissibility of Mr. Zameer’s statements on arrest and shortly afterwards as circumstantial evidence pursuant to Edgar.
[43] Constable Pais said in his police interview that at the scene, after the takedown, Mr. Zameer and his wife said repeatedly that they did not know they that the people who approached them were police. He said that Mr. Zameer also said that there was a stabbing in the area, and they were scared.
[44] Mr. Zameer also gave a statement to Constable D’Souza at the scene. In terms of timing of that statement, recall that Constable Northrup was struck and run over at 12:19 a.m. Constable D’Souza’s notes record that he arrived at the garage scene shortly after 12:21 a.m. According to his notes, he quickly came upon Constables Correa and Pais, the MCU van, and the defendant’s BMW with the airbags deployed. Mr. Zameer was kneeling and handcuffed to the rear. Ms Shaikh was further back and holding their son. After being quickly briefed by Constables Correa and Pais about what happened, Constable D’Souza notes: “Fml was crying loudly & visibly upset. Male in handcuffs appeared to be shocked. Very still, not moving or saying anything. Fixed stare.” Constable D’Souza records that Constable Pais read the male his right to counsel for dangerous operation of a motor vehicle. Constable Pais was then called away for some reason. Mr. Zameer did not respond when asked if he wanted to speak to a lawyer. Constable D’Souza then cautioned Mr. Zameer, and Mr. Zameer said he understood. Constable D’Souza then asked Mr. Zameer what happened.[^3] Mr. Zameer responded, as recorded in Constable D’Souza’s notes:
He recently moved to the country and found out there was a stabbing. Male said he saw a lot of police cars and wanted to leave. Male said he saw a black van and a male and a female get out. He said the male and female were hitting his window and door. The male said he was scared and was trying to get away. Male said he had no idea they were police. He said he saw the male approach his car and reach in his pocket but didn’t know they were police. Male said if he had known they were police he wouldn’t have gone. He said it didn’t say police like it did on mine. I asked him “You didn’t see they had badges?” Male replied no I didn’t see anything.
[45] The exact time this statement was made by Mr. Zameer is unclear, but it appears to be shortly after 12:21, in light of the timeline described in Constable D’Souza. In any event, it is between 12:21 and 12:50 a.m., because Constable D’Souza’s next time entry after 12:21 is at 12:50 a.m., when he records that Mr. Zameer is turned over to court officers for transport.
[46] Mr. Zameer gave a further statement at the police division. That statement was not filed at the bail hearing, but a summary was filed, and DS Allington gave some evidence about aspects of it. It was taken the same day as the arrest, after Mr. Zameer has spoken to counsel. DS Allington was one of the officers who took the statement. Mr. Zameer asserted his right to silence at the outset of the interview. The officers continued to ask questions (as the law permits them to do). That statement included that when DS Allington told Mr. Zameer that he was being charged with first-degree murder of a police officers, Mr. Zameer said, “I didn’t know he was a police officer”. Later in the interview, Mr. Zameer said, “he wasn’t in a vest or anything”. Later in the interview, he said that he responded the way he did, and drove the way he did, because they were scared and thought they were going to be killed. He also mentioned in the interview that the van blocked his car. DS Allington agreed that Mr. Zameer’s statement to Constable D’Souza at the scene contained more detail that what he said at the division, but that it was consistent with what he said at the division.
[47] I turn then to Ms Shaikh’s anticipated evidence. Before coming to her statement to police, I note that in his notes, Constable Pais records that after he had Constable Correa had stopped the defendant’s vehicle by driving into it, and removed Mr. Zameer and his wife from the vehicle at gunpoint, and put on his vest marked “police”, Ms Shaikh was screaming and crying and repeatedly saying, “we didn’t know”, “we didn’t know you were cops/police”, “you were not wearing your vests” (which he remembered that she pronounced “west” because of her accent).
[48] Ms Shaikh gave a videotaped statement to police starting at approximately 8:00 a.m. on the morning of July 2, 2021. She had been taken to hospital from the scene as a precaution because the MCU van had rammed their vehicle in the takedown, and she was pregnant. A police officer stayed with her at the hospital. DS Allington agreed in cross-examination that at the hospital she did not have the opportunity to speak to anyone other than medical staff and the police officer (notably, she did not have the opportunity to speak to Mr. Zameer). At the time Ms Shaikh gave her statement to police, her young son was with her in the interview room.
[49] In her statement Ms Shaikh gave a detailed account of the evening of July 1-2, and the incident in the garage. In general terms, she told the police that she and Mr. Zameer believed that the people who approached them were coming to rob or harm them; they did not know they were police; they were scared and tried to leave; and they did not realize that the vehicle had run over Constable Northrup.
[50] At the start of the interview one of the officers asked Ms Shaikh an open-ended question about what happened that night. After saying she did not understand where she should start from, Ms Shaikh provided a statement as follows. Because it was the 1st of July, they thought there would be fireworks, so they came downtown (which turned out to be wrong). She said they always bring their son to Nathan Phillips Square because there are lots of people and kids there. They did not find parking initially. Then Mr. Zameer remembered the underground parking. He dropped Ms Shaikh and their son off at street level, and went and parked the car. Mr. Zameer rejoined Ms Shaikh and their son after parking the BMW. She said they had their son in a stroller. They walked to Yonge and Dundas Square from Nathan Phillips Square. It was a long walk, and since she was pregnant, they walked slowly. They thought there would be celebrations for Canada Day at Yonge and Dundas Square, but there was only a vigil and nothing going on. So they decided to back to Nathan Phillips Square. While they were walking back to Nathan Phillips Square, there were a few things that got them worried, because they had never walked in downtown Toronto before. They saw a guy bleeding and walking in front of them. She also said they were scared because lately there have been issues with people in headscarves (recall that Ms Shaikh was wearing a hijab). They talked about it, “like, let’s keep walking faster”. Someone asked them for a dollar, she thought he was a drug addict, and he swore at them. In later follow up questions from police, Ms Shaikh said this happened when they first got to Nathan Phillips Square, while Mr. Zameer was parking. They felt it was not safe, and it was a bad idea to walk. The went back to the fountain (i.e., Nathan Phillips Square), and were there for a bit. The clock tower struck 12. They took some pictures. Then they decided to go home. They went down to the parking lot in the elevator. Mr. Zameer did not know where to pay. The walked to the car with the stroller. There was a slope in the garage, and they played with their son on the slope with the stroller for a minute. Then they put their son in his seat, and put the stroller in the car. They sat in the car. The minute they closed the door, they saw a lady and a man approach them. The lady was “doing this” (Ms Shaikh gestured with her hand pointing with her finger) and told them to stop. Because of all the things that had happened earlier, she and Mr. Zameer wondered why these people were coming towards them. They did not know the man and the woman. Her husband locked the doors because they were afraid the man and woman would rob them. The woman reached out for her badge and tried to show them. Ms Shaikh said to police, that they did not know the man and woman were police. She said, “I know it sounds dumb”, but she had seen in movies that police have something flat with ID and a badge, and what the woman showed her did not look like in the movies She said the woman was not in uniform. Referring to the badge she was shown, she said “she could have bought that somewhere, that’s what I thought.” She said they were scared. The man was reaching in his pocket. She told police that, looking back, she now thinks maybe he was trying to pull out his badge. But at the time she wondered if he was reaching for a gun or something. She said Mr. Zameer reversed the car, and on both sides the man and woman started hitting the windows of the car. Ms Shaikh said she did not think police were so violent. She said they started to jump on the car. She said to Mr. Zameer, “this is not a police, be careful and go”. She told police she was scared, and Mr. Zameer was scared. She said the male that was jumping (i.e., Constable Northrup), and she thought her fell down when Mr. Zameer was reversing. Then Mr. Zameer went over him (this comment appears to be her current belief reflecting back on events). She said she said to Mr. Zameer, “what are we going to do?” He told her to call 911. Her phone was dead, and Mr. Zameer’s phone was in the back. She was trying to call 911, but was unable to exit YouTube in the phone, and she was asking Mr. Zameer if the number to call was 911 or 999. Just then, they were hit from the back (by the MCU van). Two men got out with guns. She thought they would die then. The men from the van told them to get out. She said they complied because she did not want to get shot. The men pinned them to the ground. They were saying they were the police. Ms Shaikh said that finally, when the men from the van had handcuffs out, and one of them took out a vest that said “police”, she realized that they were police.
[51] Ms Shaikh then gave detailed answers to follow up questions by police about a variety of aspects of the evening. I will not summarize all of these portions of the statement. In terms of events in the garage, some of these responses included that Ms Shaikh said that when Mr. Zameer was not putting the window down or opening the door, the man and woman were not tapping, they were using their palms and hitting the windows. They were really angry looking. The woman reached into her shirt and tried to pull something out. When she pulled it out, it was on a silver chain. Ms Shaikh said she did not think it was a real police badge. The woman took it out to show them as she was coming towards the car, but then dropped it as she came towards the car. Ms Shaikh said she did not see any identification on the male. But she saw him reaching in his pocket. She did not know what for, and thought maybe to get something to break the window. She told police that she never saw the male and female with any weapons or firearms. She saw the male reach for something, but she could not say what he was reaching for. All she heard them say verbally was “stop”. She did not hear then say “police”. She only saw the badge for a second. They were saying “get out”, but not saying why.
[52] She said the male (who initially approached the car with the female) was tall, and he was trying to climb onto the car. She remembered looking back and reversing. They did not know what happened. They were looking around. Mr. Zameer drove. She said, “it was bumpy, but we didn’t know it was the man.” She said she did not know at the time that Mr. Zameer drove over the man. She said she thought it was a speed bump. She told police that the incident happened quickly, and that she and Mr. Zameer were confused about what was going on.
[53] When asked by the officers why she was trying to call 911, Ms Shaikh said that when she was trying to call 911, she wanted to report that someone had tried to rob them, not that their car had hit someone.
[54] The officers asked Ms Shaikh if she told Mr. Zameer (while they were in the vehicle) that the woman had tried to show a badge. She said that she had not told him, because she had already concluded that the badge was fake. And Mr. Zameer was “struggling to get out”, and she could “see him looking back and forth like he wants to reverse the car”. She said she could not remember if Mr. Zameer reversed once or multiple times. But she said he could not drive “straight” (forward) because “they were in front of us”. He reversed, and then they went forward and were driving to try and find the exit (prior to the takedown by the MCU van).
[55] I note that much of Ms Shaikh’s statement is consistent with other evidence later obtained by police, including the security video evidence of the family’s movements and activities prior to returning to the garage, and walking past the male who was bleeding (the stabbing victim), and the open hand full print of Constable Forbes’ hand on the rear driver window of the car found later by FIS.
[56] One final aspect of the evidence, which I will return to, is that based on the anticipated evidence, there is no evidence of any motive for Mr. Zameer to want to kill a police officer, or to kill anyone, for that matter. There is also no evidence of a reason why he would want to flee from police. There is no evidence that he was involved in any unlawful activity that evening. Indeed, the evidence is to the contrary. The video surveillance evidence (without even considering his and his wife’s anticipated evidence) shows a family – Mr. Zameer, his heavily pregnant wife, and his two-year-old son – out for an evening together, walking around downtown, and playing. As I will discuss below, I find that this is significant when it comes to assessing the strength or weakness of the inference the Crown seeks to support the case for murder – that Mr. Zameer intended to cause the death of Constable Northrup, or intended to cause him bodily harm that he knew was likely to cause death. It is also relevant to the inference the Crown asserts under s. 229(c), that Mr. Zameer fled from the officers knowing they were police.
(ii) Assessment of the strength of the Crown’s case
[57] Stepping back, and looking at the anticipated Crown and defence evidence as a whole, although I accept that there are some areas of factual dispute (in particular about what efforts the officers made to identify themselves, and how to characterize the intention that may or may not have been apparent in the defendant’s driving), the big picture of the physical actions of the various people involved in the events in the garage is broadly consistent among the various witnesses. What is in dispute is the subjective perceptions of Mr. Zameer (and Ms Shaikh) of what was happening, his subjective intention at the time he drove, and, to the extent one considers liability for manslaughter, whether his perceptions and manner of driving constituted a marked and substantial departure from that of a reasonably prudent person in the circumstances. Thus, what is most in dispute is the inferences to be drawn from the events.
[58] I say this for the following reasons. The evidence supports that Mr. Zameer and his family were returning to the garage from an ordinary family night out. There is no evidence that would support that Mr. Zameer and Ms Shaikh had any reason to expect to be approached by police in the garage. There is no evidence that they were engaged in any unlawful activity – indeed the evidence is to the contrary, an ordinary family outing. Their car was parked in an isolated underground garage. It was late. They were approached by officers who were dressed in a manner that they did not look like police officers. The police made some efforts to identify themselves. The extent of those efforts is in dispute, and to some extent the timing. Constables Pais and Correa are anticipated to give similar evidence about the path of the vehicle. It pulled forward. It was blocked by the MCU van, it then reversed and turned (sideswiping Constables Northrup and Forbes, but not knocking them down). It then went forward, hitting Constable Northrup, knocking him to the ground and running over him.[^4] This account of the path of the vehicle appears to be consistent with the garage security video. Ms Shaikh’s account of the movements of the vehicle is less detailed. She refers to reversing, and after that going forward and they left. In her statement at times she seems to say to police she says she thinks Constable Northrup was run over when the vehicle was reversing. Events in the garage happened very quickly. In the range of 18 seconds from when the car first goes forward, until it leaves as Constable Northrup is hit and run over. When arrested, Mr. Zameer made immediate utterances about not realizing that they people in the garage trying to stop them were police, and then a more detailed statement within a few minutes.
[59] DS Allington agreed in cross-examination to much of this big picture characterization of events. He agreed that the alleged offence took place in a nearly empty parking lot. He agreed that Constables Northrup and Forbes approached the defendant’s vehicle in plainclothes. He agreed that at the same time Constables Pais and Correa approached in the unmarked grey van. He also agreed that his understanding of the anticipated evidence was that the unmarked grey van blocked the defendant’s vehicle from exiting towards the front, so that if he was trying to leave, he could not do so by going forward. I note that based on the crime scene photos and evidence at the bail hearing, I find that this appears to be a reasonable assessment of the positioning of the vehicles. DS Allington also agreed that it was his understanding of the anticipated evidence of at least Constables Correa and Pais was that the defendant’s vehicle went forward, was blocked by the MCU van, reversed, and then drove away forward, and that this path was consistent with the garage security video.
[60] Crown counsel made submissions about several issues that they submit tell against the credibility of Ms Shaikh. My role as the judge at a bail hearing does not involve assessing the credibility of the witnesses (St.-Cloud at para. 58). But my assessment at this point is that these arguments by Crown counsel in the context of the evidence presented at the bail hearing are not strong.
[61] Crown counsel argues that Ms Shaikh has a reason to be biased in her evidence because she is married to the defendant. I accept that potential bias of Ms Shaikh, or any other witness, is something a trier of fact can consider in assessing a witness’ evidence. Indeed, it is part of the standard jury instruction on credibility. But based on the evidence led at the bail hearing, I do not see a strong case that Ms Shaikh was biased in her statement to police (which is her anticipated evidence at this stage). As I have outlined above, at the time she gave her statement to police, she had been at the hospital overnight and not in a position to speak to Mr. Zameer prior to giving the statement. Ms Shaikh’s account of events before they returned to the parking garage is significantly corroborated by the security videos of Nathan Phillips Square, Dundas Square, and the area around City Hall obtained by police. Her statement to police that the people were hitting the car windows with open hands is corroborated to some extent by the full palm print of Constable Forbes’ hand on the rear driver side window of Mr. Zameer’s car found by the FIS unit. And as I have outlined above, her version of events in the garage, in terms of the big picture, is not that different from police about the physical actions of various parties. She told police that the woman showed her something that looked like a police badge, but that she did not believe it was real, and explained why. The primary thing that is different in Ms Shaikh’s account is her explanation of her subjective perception of events in the garage, and why she perceived them that way. Taking all of these factors into consideration, the Crown submission that she is biased appears weak to me.
[62] Crown counsel made the submission that the fact that there were at least two marked police cruisers in Nathan Phillips Square when the family was in the square just before returning to the garage somehow should have put them on notice that the officers in the garage were police. I find this argument to be weak. The police vehicles in the square were marked cruisers. The officers in the garage were in plainclothes, and the MCU van was unmarked. There is no evidence that supports that Mr. Zameer and his wife would have had any reason to expect to be approached by police in the garage. There is no evidence that they were engaging in anything unlawful. The evidence supports that they were having an ordinary family night out. In these circumstances, I find the argument that the marked cruisers in the square should somehow have affected their perception of the plainclothes officers in the garage is weak.
[63] Crown counsel argues that Ms Shaikh’s statement to police that they were uncomfortable because of earlier having seen the man with blood on him (the stabbing victim), and interacted with an aggressive panhandler, is inconsistent with the evidence of Mr. Zameer playing on the grate with their son just after they walked past the stabbing victim; inconsistent with Mr. Jadoon’s evidence about a normal relaxed visit on the second floor deck in Nathan Phillips Square; and inconsistent with the fact that she said they regularly took their son to Nathan Phillips Square. Again, I find this to be a weak submission when the evidence is viewed objectively. As I have outlined above, in the security video, when Mr. Zameer and their son play briefly on the grate, it is in the range of what I estimate to be 15 feet away from the male who was stabbed, and when that male has stopped and is tying his shoe. The playing on the grate lasts a matter of seconds, and as soon as the male beings to walk, Mr. Zameer reaches for his son’s hand, and the family begins to walk away. It is true that Ms Shaikh said in her statement that they regularly took their son to Nathan Phillips Square. But she also said that this was their first time walking around downtown (recall that the security videos show them walk from Nathan Phillips Square to Yonge and Dundas Square and back). Further, I find that this argument by Crown counsel is based on taking what Ms Shaikh told police about being uncomfortable out of context. What she was saying is that these things had happened that evening and made them uncomfortable, and so when they were approached by strangers in the isolated garage it coloured their perception of what was happening.
[64] I have already addressed Crown counsel’s argument regarding Ms Shaikh’s not mentioning meeting with Mr. Jadoon on the roof deck in Nathan Phillips Square at footnote 2 above.
[65] My point here is not to assess the credibility of Ms Shaikh’s evidence. Rather, it is to say that I do not see any basis in the evidence presented at the bail hearing to find that she somehow starts in a less-favoured position than the police witnesses in terms of the ultimate assessment of her credibility and reliability. The police witnesses (Constables Forbes, Correa, and Pais), and Mr. Zameer and Ms Shaikh were all involved in and witnesses to the events in the garage. Each was involved in a different way. Each has a different perspective on events. Police witnesses do not receive different treatment than civilian witnesses in terms of the assessment of the credibility and reliability of their evidence. A jury will ultimately have to make findings about the credibility and reliability of all of the witnesses.
[66] I turn now to the legal and factual theories of liability asserted by the Crown. I will first address murder as defined in s. 229(a), which is the theory outlined in the Crown’s written materials. In the factum, the theory of liability outlined by Crown counsel was clearly based on s. 229(a). As the Crown summarized the submission in the factum: “there is a reasonable inference that the Applicant made a series of choices and used his vehicle as a weapon and committed first-degree murder”. I must assess the strength of this proposed inference on the record at the bail hearing.
[67] A culpable homicide is murder where the accused causes the death of another person and either (i) means or intends to cause their death, or (ii) means or intends to cause them bodily harm that they know is likely to result in death and are reckless as to whether death ensues or not: Criminal Code, s. 229(a)(i) and (ii). The difference in the mental elements set out in ss. 229(a)(i) and 229(a)(ii) is “too slight to warrant distinction”: R. v. Moo, 2009 ONCA 645 at para. 47; R. v. Nygaard, 1989 CanLII 6, [1989] 2 S.C.R. 1074 at pp. 1087-1088. The requirement in s. 229(a)(ii) that a defendant be “reckless” as to whether death ensues is essentially a redundant requirement, as a person who intends to cause bodily harm that they know is likely to result in death is invariably reckless as to whether or not death ensures: Moo at para. 48; Nygaard at p. 1088; R. v. Cooper, 1993 CanLII 147, [1993] 1 S.C.R. 146 at pp.154-155.
[68] The focus in this case in assessing the strength of the Crown’s case for murder under s. 229(a) is whether there is a strong case that Mr. Zameer subjectively intended to kill Constable Northrup, or subjectively intended to cause him bodily harm knowing that it was likely to cause death. In this case, this question is inextricably linked to whether the evidence supports the inference that Mr. Zameer intentionally hit Constable Northrup with his car (given the weight of a car and the damage that a moving car can inflict).
[69] In addition, if the Crown can prove the intention required for murder, in order to prove first degree murder pursuant to s. 231(4)(a), the Crown must prove beyond a reasonable doubt that Mr. Zameer knew (subjectively) or was reckless as to whether Constable Northrup was a police officer acting in the course of his duties: R. v. Collins, 1989 CanLII 264, 48 C.C.C. (3d) 343 (ONCA). Factually, the question of the intent required for murder and whether Mr. Zameer knew or was reckless as to whether Constable Northrup was a police officer are closely linked in this case.
[70] In summary form, the Crown’s submission is that there is a strong case to draw the inference that Mr. Zameer intended to kill Constable Northrup or cause him bodily harm which he knew was likely to cause death is based on the evidence from Constables Forbes and Pais that Constables Northrup and Forbes identified themselves as police officers; the evidence of the officers that the vehicle driven by Mr. Zameer accelerated forward and hit Constable Northrup when he was standing in front of the vehicle; and the evidence of Constable Pais that the path behind the vehicle after it has reversed and turned was clear, so it could have continued to reverse without hitting Constable Northrup.
[71] With respect, I find that the Crown’s theory of liability fails to consider objectively all of the evidence available at this point. I must consider the strength of the Crown’s case objectively based on all of the anticipated evidence as it was put before the court at the bail hearing.
[72] I find that the Crown’s case for liability for murder under s. 229(a) is weak, primarily for two reasons. The first relates to the absence of evidence of any motive for Mr. Zameer to want to kill a police officer (or anyone else). The second relates to the nature of the Crown’s burden of proof as it relates to proving the subjective intent required for murder with circumstantial evidence.
[73] On the first issue, I find that the absence of any evidence of motive on the part of Mr. Zameer to want to kill a police officer is a significant weakness in the Crown’s case to prove that he had the subjective intent required for murder. There is no evidence that he was involved in any unlawful activity that evening. Indeed, the evidence is to the contrary. The video surveillance evidence (without even considering his and his wife’s anticipated evidence) shows a family – Mr. Zameer, his heavily pregnant wife, and his two-year-old son – out for an evening together, walking around downtown, and playing. In short, doing family things. Mr. Zameer has no criminal record, and has a good work and education history.
[74] The Crown’s theory – that Mr. Zameer, who the evidence supports was out for a normal family evening with his pregnant wife and young son, who has no criminal record, who has a good work and education history, suddenly decided to intentionally kill or cause bodily harm that he knew was likely to cause death to a police officer – runs contrary to logic and common sense. In the context of all the anticipated evidence in this case, the absence of motive to kill significantly weakens inference the Crown relies on under s. 229(a) – that Mr. Zameer intended to cause death to Constable Northrup or to cause him bodily harm that he knew was likely to cause death.
[75] I appreciate that the Crown is not obliged to prove motive. I also appreciate the difference between and absence of evidence of motive, and evidence of an absence of motive. This case is in the former category. I accept that the importance of the presence or absence of evidence of motive may vary from case to case, depending on the full evidentiary record and the issues in each case. But as a practical matter, evidence of motive, or the absence of evidence of motive can be a significant factor in the strength or weakness in some cases. I find this to be one such case. As I discuss in more detail below, the Crown bears the burden on the murder count to prove the required subjective intent on the part of Mr. Zameer beyond a reasonable doubt. In the context of the available evidence in this case as led at the bail hearing, I find that the absence of any evidence of a motive on the part of Mr. Zameer to want to kill a police officer is a significant weakness in the strength of the Crown’s case to prove the subjective intent required for murder under s. 229(a).
[76] When I asked about the absence of evidence of a motive to kill in submissions, Crown counsel agreed that there is no evidence of a motive for Mr. Zameer to want to kill a police officer, or anyone else. He said the police continue to investigate that issue. I accept that it is entirely appropriate for the police to continue their investigation. But I must assess the strength of the case as it stands now. I note as well that this bail application was argued two months after the date of the alleged offence, not days after. The police have already had some time to investigate in relation to a potential motive.
[77] This brings me to the second weakness I find in the Crown’s case for murder under s. 229(a), which relates to the burden of proof and circumstantial evidence. The Crown’s case in relation to the intent requirement under s. 229(a) is circumstantial. The only direct evidence of Mr. Zameer’s state of mind are his two statements to police (which for purposes of the bail hearing, I treat as his anticipated trial evidence), which are exculpatory. Because the Crown’s case for intent is circumstantial, the subjective intent required under s. 229(a) can be proven beyond a reasonable doubt only if the only rational inference available on the circumstantial evidence as a whole is that Mr. Zameer intended to cause the death of Constable Northrup, or intended to cause him bodily harm that he knew was likely to cause death: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 30, 35-42; R. v. Roks, 2011 ONCA 526 at para. 142.
[78] Based on the evidence at the bail hearing, I find that the Crown has a weak case to prove that the alternative inference supported by the defence evidence is not a rational inference. As I have noted above, the big picture of the physical action of the individuals in the garage and the movement of the vehicle does not appear to be significantly in dispute. Mr. Zameer and his wife and child returned to their car after a family evening walking around downtown. Their vehicle was in an isolated parking garage, late at night. They were approached by Constables Forbes and Northrup, who in terms of their dress did not look like police officers. Mr. Zameer and his wife were not aware of any reason that would lead them to expect to be approached by police. The officers took some steps to identify themselves, but the extent of those steps is in dispute on the evidence. Based on the anticipated evidence of Mr. Zameer and Ms Shaikh, they did not believe the people who approached them to be police officers. He panicked and tried to leave. Mr. Zameer tried to go forward to leave. Their vehicle was boxed in from the front by the unmarked MCU van, driven by plainclothes police officers. The only way out was to reverse. Mr. Zameer reversed and turned. There is some dispute about the extent to which the officers continued to say they were police at this point. They were hitting the car with their hands, and telling Mr. Zameer to stop. He then put the vehicle in drive and left going forward, striking Constable Northrup and running over him. Mr. Zameer and his wife gave generally consistent accounts of their perceptions and actions to police. Much of Ms Shaikh’s evidence about the surrounding circumstances, such as the family’s activities prior to returning to the garage, has been confirmed by the video surveillance collected by police. There is no evidence of any motive on the part of Mr. Zameer to want to kill a police officer or anyone else.
[79] I note was well the portions of Constable Correa’s statement to police where he describes Mr. Zameer’s vehicle as coming forward initially “almost like the driver was attempting to evade the two officers”, and later when it went forward the second time that it drove “with the intention to get out, to leave”. This is a mix of description and inference on Constable Correa’s part. But it supportive of the defence position.
[80] Although Constable Pais said the vehicle could have continued to reverse (to leave) rather than go forward, I do not find that this possibility significantly weakens the reasonableness of the inference that Mr. Zameer thought the people approaching were going to do him and his family harm, and he panicked. For most people, driving in reverse is not something that can be done either quickly or accurately for any length of time. In the context of the other evidence supporting the case for fear and panic, I do not find that evidence of a decision to try to leave the area by driving forward undermines the availability as a rational inference of the defence the claim of panic.
[81] I find that in the full context, there is a strong case that the inference contended for by the defence, that Mr. Zameer did not subjectively believe the officers were police officers, thought they intended harm to him and his family, panicked and sought to remove himself and his family from the situation, is an available rational inference from the evidence.
[82] In all of the circumstances, looking at both the anticipated Crown case and the anticipated defence case, I find that the Crown’s case for murder under s. 229(a) is weak. The inference the Crown seeks is contrary to logic and common sense on the record before the court. And I do not see a strong likelihood in light of the question of intent being based on circumstantial evidence, that the Crown can prove beyond a reasonable doubt that it is not an alternative reasonable inference that Mr. Zameer did not subjectively believe that Constable Northrup and the other officers were police officers, and panicked.
[83] Crown counsel made submissions in relation to the strength of the case about the defendant’s failure to take steps to ascertain who the people approaching him and his wife in the garage were – for example, not asking questions or calling 911, and the fact that the officers had not asked for any property from them, or shown a weapon. Although I accept that these aspects of the anticipated evidence have relevance in relation to assessing the intention for murder, I find that ultimately, they do not in the context of all the anticipated evidence persuade me that the Crown has a strong case for murder. However, I find that these are aspects of the evidence that have importance for the Crown’s case for manslaughter. Ultimately, a trier of fact will have to assess, in the context of all of the trial evidence, whether Mr. Zameer misperceived events, and if so, whether his misperception, and actions taken as a result were reasonable (in the context of the marked and substantial departure test for manslaughter).
[84] In submissions, Crown counsel put forward a second theory of liability for murder, based unlawful object murder under s. 229(c). The theory of liability under s. 229(c) was not contained it its factum. I accept that the Crown is entitled to seek liability for murder under any branch of s. 229. However, I find that the Crown’s theory of liability under s. 229(c) is not a strong case. It essentially has two alternative branches. As I will explain, I find that one branch is not, as a matter of law, a theory that comes within the legal requirements of s. 229(c). The other branch, while legally available, I find presents a weak case, for reasons similar to my assessment of the strength of the Crown’s case under s. 229(a).
[85] Omitting the objective portion of s. 229(c), which was held to be unconstitutional in R. v. Martineau, 1990 CanLII 80, [1990] 2 S.C.R. 633 at p. 648 (“or ought to know”), s. 229(c) provides that culpable homicide is murder “where a person, for an unlawful object, does anything that he knows is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being”.
[86] Liability under s. 229(c) requires proof beyond a reasonable doubt of the following elements:
(i) An unlawful object. This is the accused’s subjective purpose;
(ii) A dangerous act. It is not necessary that the dangerous act itself be a criminal offence (although often, as a factual matter, it is);
(iii) Knowledge or foresight that death is likely to result from the dangerous act: Roks at paras. 124-137; R. v. Shand, 2011 ONCA 5; R. v. Vasil, 1981 CanLII 46, [1981] 1 S.C.R. 490.
[87] There are several important precisions established in the case law about these elements. First, the unlawful purpose under the first element must a serious criminal offence, that is, an indictable offence requiring full mens rea: Shand at paras. 114, 127-128, 147, 185, 188; Roks at para. 126; Vasil at pp. 484, 490. The primary reasons for this requirement are to ensure a sufficiently subjective mens rea to conform to the Charter, and to differentiate murder from manslaughter.
[88] Second, the unlawful purpose under the first element cannot be an intention to cause the death of the victim, or cause bodily harm that the accused knows is likely to cause the victim’s death: Roks at para. 126; Shand at paras. 188. This is because otherwise s. 229(a) would be redundant, which runs contrary to principles of statutory interpretation.
[89] Third, there must be a clear differentiation between the unlawful purpose under the first element and the dangerous act under the second element. In the words of Justice Watt in Roks, the unlawful object must “be distinct from and not merge with” the dangerous act: Roks at para. 127; Shand at paras. 134-137, 141.
[90] I turn then to the Crown’s first theory of liability under s 229(c). Because the s. 229(c) submission was not in the Crown’s factum, it was less clear than it could have been. At times the Crown seemed to be saying that the theory was that Mr. Zameer intentionally hit Constable Northrup. At times the Crown described it as driving dangerously knowing the officers were in front of the car. These are different theories, and I will address each in turn. I find that neither is a theory of liability that as a matter of law can fall within s. 229(c).
[91] On the first version of the first theory under s. 229(c), the proposed unlawful object of intentionally hitting Constable Northrup with the vehicle, the theory of liability falls afoul of the requirement that the unlawful purpose cannot be to kill or cause bodily harm that a defendant knows is likely to cause death to the victim. On the second version of the Crown’s first theory of liability under s. 229(c), the proposed unlawful object is that Mr. Zameer drove dangerously (i.e, the offence of dangerous driving). This theory falls afoul of the requirement that the unlawful purpose must be a full mens rea offence, because dangerous driving is a negligence-based offence. It also runs afoul of the requirement to separate the first two elements of the test for liability under s. 229(c), because the ultimate purpose is dangerous driving, and the dangerous act is also dangerous driving.
[92] The second version of the Crown’s theory of liability under s. 229(c) is that Mr. Zameer subjectively knew that Constables Forbes and Northrup were police officers, and that he disobeyed their lawful direction to him to stop, and thus his decision to drive away was unlawful (for example, obstruction of justice under s. 129). He then drove dangerously as the means to carry out his unlawful purpose of leaving in disobedience of the direction from police.
[93] I must admit to having some doubt as to whether these are sufficiently distinct elements as required under s. 229(c) (i.e., his purpose was to unlawfully flee, and he accomplished it by fleeing in a dangerous manner, are not as distinct as may be required). However, for purposes of the bail hearing I accept that they are sufficiently distinct, and that they describe a legally available theory of liability under s. 229(c). Obstructing police is a hybrid offence, thus indictable, and requires mens rea. It is thus capable, as a matter of law of fulfilling the unlawful purpose element under s. 229(c). Dangerous driving, depending on the evidentiary foundation, is capable as a matter of law of fulfilling the dangerous act element.
[94] However, I find that this theory of liability is weak based on the evidence led at the bail hearing. My reasons are similar to my conclusion that the Crown case for murder under s. 229(a) is weak. In particular, in order to prove the first element – the unlawful act of fleeing police after being directed to stop – the Crown will have to prove beyond a reasonable doubt that Mr. Zameer knew or was reckless about whether Constables Northrup and Forbes were police officers. It is not unlawful to disobey a request (or purported order) from someone who is not a police officer to stop, and to leave. As with intention to kill under s. 229(a), this is a subjective mens rea that the Crown seeks to prove by circumstantial evidence.
[95] I find that the absence of evidence of any motive for Mr. Zameer to want to flee from police is a significant weakness in the Crown case that he had the unlawful purpose of fleeing police under s. 229(c). On the evidence available at the bail hearing, there is no evidence of any motive to flee from police. There is no evidence that he was involved in any unlawful activity that night. As I have noted above, the evidence is to the contrary, that was on an ordinary family outing with his pregnant wife and child. I find that the absence of any motive to flee from police is a significant weakness in the Crown’s circumstantial case that Mr. Zameer knew the officers were police officers, and fled from them knowing this.
[96] Further, as with the inference in relation to the subjective intent for murder under s. 229(a), because the Crown’s case under s. 229(c) for the element of an unlawful intent to flee police is based on circumstantial evidence, the Crown must prove that the inference it seeks is the only rational inference. The only direct evidence (Mr. Zameer’s statements to police, which I take as his anticipated trial evidence) is exculpatory. The Crown will be required to prove beyond a reasonable doubt that in all the circumstances it is not an alternative reasonable inference that Mr. Zameer did not believe that the plainclothes officers approaching his vehicle were police, in the circumstances where he and his family were in an isolated garage, when he had no reason to expect police interest in him, and he panicked. For reasons similar to what I have explained above, I find that the Crown has a weak case that the alternative inference – that Mr. Zameer and his wife did not realize that the officers were police officers, thought some harm was about to come to them, and panicked, and this was the cause of his driving the way he did – is not a reasonable inference.
[97] This brings be to the included offence of manslaughter. The defence position in its factum was that if Mr. Zameer’s anticipated evidence (based on his statement to PC D’Souza) and that of Ms Shaikh is believed or leaves a jury with a reasonable doubt, he is entitled to an acquittal. I find that that is not necessarily so.
[98] I assume for the purpose of considering this argument (and in line with my assessment of the weakness of the Crown’s case for murder), that a jury is not persuaded beyond a reasonable doubt that Mr. Zameer is guilty of murder. I also assume for purposes of considering liability for manslaughter that a jury believes or is left in a reasonable doubt by evidence from Mr. Zameer and his wife consistent with what they said in their statements to police. Making both of those assumptions, I find that it is still possible that a trier of fact could find that Mr. Zameer’s misperception of events in the garage, and the manner of his driving was unreasonable to the level required for a finding of manslaughter by criminal negligence under s. 222(5)(b). This is possible because manslaughter, unlike murder, rests on a modified objective test for liability.
[99] Under s. 222(5), a homicide is culpable criminal negligence where the act (or omission – but this case is more concerned with acts) of a defendant that causes the death is a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances of the accused. The marked and substantial departure test applies to both the physical and mental elements of the offence. When assessing the mental element, a trier of fact is to apply a modified objective test, which takes into consideration a defendant’s perception of the facts, including whether a defendant adverted to the risk involved in their conduct, or failed to turn their mind to the need to take care: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 at paras. 9-10; R. v. M.R., 2011 ONCA 190 at paras. 28-31.
[100] I find that the Crown has a reasonably strong case for manslaughter. There is no question factually, assuming for the purposes of considering this issue, that the jury accepts or is left in a reasonable doubt by Mr. Zameer’s and his wife’s anticipated evidence that they did not realize the people approaching them were police, and he panicked and that was the cause of the way he drove, that he was mistaken in his belief. The issue that the trier of fact will have to consider is whether this mistake was unreasonable (in the marked departure sense described in the manslaughter case law), and whether the manner of driving, even in light of the mistaken belief about the circumstances, was unreasonable (in the marked departure sense described in the manslaughter case law). It is here that I find that Crown counsel’s submissions about the failure to pause and make any inquiry, or to call 911, and that neither of the officers had shown a weapon, or asked for something from Mr. Zameer or his wife, has more force. A trier of fact will have to consider whether the failure to take steps such as those prior to fleeing was unreasonable, and whether, even accepting the defence evidence, the manner of driving was unreasonable given the weight of a motor vehicle and the harm it could cause when driven in a dangerous manner with people on foot close by. It is on this basis that I find that the Crown has a reasonably strong case for manslaughter.
[101] But it is not an overwhelming case. It would be open to a trier of fact, if they accept or are left in a reasonable doubt by the anticipated defence evidence, to be left in a reasonable doubt about whether Mr. Zameer’s conduct constituted a marked and substantial departure from the way a reasonable person would have acted in the circumstances. Recall the context that Mr. Zameer and his pregnant wife and young child were alone in an isolated garage, late at night. They were approached initially by two strangers who they did not know, dressed in plainclothes telling them to stop. The woman showed what looked like a badge, but in the circumstances, including that Mr. Zameer would not have been aware of any reason that police would want to speak to him, they did not believe the people were police. When Mr. Zameer attempted to leave by driving forward, a van appeared with two more men, boxing his vehicle in at the front. The people were banging on the windows of the vehicle. The evidence of both the officers and Mr. Zameer and his wife will be subject to cross-examination at trial. The questions of whether his actions were a marked and substantial departure from what a reasonably prudent person would have done in the circumstances is a very fact-specific inquiry. It would be open to a trier of fact to have a reasonable doubt in all the circumstances about whether his actions were a marked and substantial departure from those of a reasonable person in all of the circumstances.
[102] For these reasons, I find that the Crown has a reasonably strong case on manslaughter, although not an overwhelming case.
[103] A jury will ultimately have to decide the facts in this case, and what, if any, offence the Crown can prove beyond a reasonable doubt. I accept that there are triable issues with respect to the first-degree murder count as charged, and the included offence of manslaughter. But the existence of triable issues is not the same as a strong Crown case. My assessment, based on the evidence on the bail application, and taking into consideration that the evidentiary picture may develop by the time the case comes to trial, and with cross-examination, is that the Crown case for first degree murder (or second degree murder) is weak. The Crown case for manslaughter by criminal negligence is reasonably strong, but it is not overwhelming.
Mr. Zameer’s background
[104] Mr. Zameer is 31 years old. He is married. He has two children, a son who is now three years old, and a new baby born in August.
[105] Mr. Zameer has no criminal record, and has never before been charged with an offence.
[106] Mr. Zameer and his wife, Ms Shaikh, immigrated to Canada from Pakistan two and a half years ago, in January 2019. They are both permanent residents. His permanent resident status and immigration to Canada is pursuant to the federal Skilled Worker Program. Although originally from Pakistan, Mr. Zameer also lived and worked in Malaysia from 2015 to January 2019. Mr. Zameer’s and Ms Shaikh’s newest child is a Canadian citizen.
[107] Mr. Zameer is an accountant by training. He completed secondary school and college in Pakistan. He also did his chartered accountancy studies in Pakistan. He has completed the Foundation level of his accounting study.
[108] Mr. Zameer has a steady work history since his arrival in Canada. From November 2019 to August 2020, Mr. Zameer worked in the accounting department of a company called Dynamic Property Management. This was his first full-time accounting job in Canada. Prior to that he had worked part-time jobs at various workplaces, including Uber, Amazon, and Lyft. At the time of his arrest, Mr. Zameer was working in the accounting department of FirstService Residential as an Accounts Manager, where he had worked since September 2020. If he is released pending trial, it is anticipated that he will be able to continue working there. Prior to his arrest, Mr. Zameer had been working remotely at FirstService Residential. If he is released from custody he would continue to work remotely.
[109] Material was filed on the application from Mr. Zameer’s current and former employers in Canada which speaks positively of him as an employee. In addition, he has a steady work history prior to his immigration to Canada. Character letters from a co-worker, and a longtime family friend were filed attesting to Mr. Zameer’s character as a kind, respectful, and honest person, and a family man.
[110] Mr. Zameer’s sister, Saima Zamir, who testified at the bail hearing and is proposed as the primary surety, describes him as smart, responsible, hardworking, and says he always did well in school. In school, Mr. Zameer was active in school sports on the football and swim teams. He has a history of community volunteer work in Pakistan. He volunteered with SOS Children’s Villages (a charity affiliated with UNICEF) for four years, raising funds for disadvantaged children around the world. He also volunteered as a donor ambassador for community blood drives.
[111] Since his immigration to Canada, Mr. Zameer and his wife have lived at three addresses all in the Greater Toronto Area: at the home of a cousin in Hamilton from January to August 2019 (when they first arrived in Canada); in Pickering from September 2019 to May 2020; and in Woodbridge from June 2020 until his arrest in July 2021. Since early 2019, Mr. Zameer’s sister, Saima Zamir, and her children also lived with them. Since the date of Mr. Zameer’s arrest, his wife and son (and now new baby), and his sister, Saima, have moved out of the home in Woodbridge. They are now living at an address in Thornhill, where it is proposed that Mr. Zameer reside if he is released from custody.
[112] As I discuss further below in relation to the primary ground, I am satisfied on the record at the bail hearing that Mr. Zameer has a settled intention to reside in Canada.
Proposed plan of release
[113] Mr. Zameer proposes that he be released on a recognizance in the amount of $335,000, with three as sureties. The proposed primary surety is his sister, Saima Zamir. The other two proposed sureties are Haunan Mahmood, and Akhtar Mahmood, a cousin and an uncle of the defendant, respectively. It is proposed that Mr. Zameer reside with his sister, as well as his wife and two children, at an address in Thornhill. If the court finds it appropriate for purposes of supervision, Haunan Mahmood is also willing to reside at the Thornhill address.
[114] The proposed release plan includes house arrest, with limited exceptions for work, visits to legal counsel, medical and dental appointments, and to attend at a medical office or hospital for an emergency. The proposed release plan includes conditions that the defendant not leave Ontario, that he be prohibited from attending at any international airport, or within 2 km of any Ontario border crossing, and that he deposit any passport or travel documents with a designated police officer, and not apply for any further passports or travel documents until the completion of the trial in this matter. In addition it is proposed that the defendant be subject to electronic monitoring through the Recovery Science Corporation.
[115] Each of the proposed sureties testified at the bail hearing. I find that each of them is a suitable surety. I focus first on Saima Zamir, as she is proposed as the primary surety, both in terms of financial obligation, and supervisory role.
[116] Ms Zamir is 34 years old. She is a permanent resident of Canada. She applied for her Canadian citizenship in January 2021. She has no criminal record.
[117] Ms Zamir lived in Pakistan until she completed high school in 2005. She came to Canada in December 2006 on a student visa to attend university. She completed one semester at Dalhousie University in Halifax. She then moved to Edmonton, Alberta in May 2007 to complete her studies at the University of Alberta. She graduated with a bachelor’s degree in biological sciences in 2011. From February 2011 to December 2012, she worked full-time as a research assistant at the University of Alberta Environmental Sciences Lab. After that, she completed a graduate certificate in stroke rehabilitation at the University of Alberta from 2013 to 2016.
[118] While she was at the University of Alberta, Ms Zamir was actively involved with the community. She volunteered with friends at the University Hospitals, a registered charity in Edmonton that aims to enhance patient wellness and provide community support for patients at the University of Alberta Hospital. She also volunteered with the University of Alberta chapter of UNICEF as a community outreach person, and worked at donor drives for Canadian Blood Services. She volunteered with the University of Alberta International Student Services, and was a student representative of the Pakistan Student Association.
[119] While living in Alberta and going to school, Ms Zamir financially supported herself by working numerous part-time jobs, including as a math and science tutor, as a research assistant with the University of Alberta Hospital Department of Neurology, working at the University of Alberta Population Lab (a call centre focused on gathering statistical information for research purposes), and working as a technical support agent for SITEL and AT & T. She was also a residence assistant supporting students who lived on-campus at the university. In this role, she was responsible for ensuring that students followed the rules of on-campus living, and for providing students with support and guidance.
[120] Ms Zamir applied for permanent resident status in Canada in 2012, and was granted permanent resident status in May 2013. She continued to live in Edmonton until late 2018. After travelling to Pakistan for a few months, she moved to Ontario in March 2019, to live with Mr. Zameer and his family, initially in a house belonging to their cousin and his wife. They moved out of that house in August 2019. She continued to live with Mr. Zameer and his family until the time of his arrest, although from January 2021, she travelled to Pakistan to visit family. She was able to do this because school for her older daughter was online due to the pandemic.
[121] As I have noted, Ms Zamir applied for Canadian citizenship in January 2021. In her affidavit, she states that she would never do anything to jeopardize that application.
[122] Ms Zamir is married. She was married in December 2013. Her husband is a medical doctor, employed by the Pakistan Armed Forces. Her husband is currently posted to Saudi Arabia as a flight surgeon, which means that she is unable to live with him. That posting will last until June 2023. Ms Zamir testified that her husband intends to join her in Canada once his current posting is over. He intends to go into medical education in Canada.
[123] Ms Zamir and her husband have two children, a daughter who is five years old, and a son who is almost one year old. Her children live with her (and as I have noted, she has lived for the past two years with Mr. Zameer and his wife, Aaida). Ms Zamir’s daughter has attended and continues to attend public elementary school in Ontario (at times recently, online, due to the pandemic, but back in person in September 2021).
[124] Ms Zamir has continued strong links to family in Pakistan. While Ms Zamir was in university, she would visit her family in Pakistan, usually during summer or winter breaks. In addition, she has travelled to Pakistan for her wedding and honeymoon, and from time to time to see her husband and family. This included a 4 month visit in 2009; a 2 month visit in 2011; a 1.5 month visit in late 2012 into 2013; a 6 month visit from October 2013 to March 2014 to prepare for her wedding, the wedding, and her honeymoon; a 1-year visit September 2014 to September 2015; a 1.5 year visit from July 2016 to January 2018; a 6 month visit from October 2018 to March 2019. In addition, in January 2021, Ms Zamir took her children to visit Pakistan to spend some time with her mother, and introduce her mother and older brother to her new son. She testified that she was able to travel to Pakistan in January 2021 for an extend time because, due to the pandemic, her daughter’s school was online. Ms Zamir was still in Pakistan when Mr. Zameer was arrested. She made immediate plans to return to Canada to be with Mr. Zameer and Ms Shaikh.
[125] As I discuss further below in relation to the primary ground, I am satisfied that Ms Zamir has a settled intention to reside in Canada, and to become a Canadian citizen.
[126] Ms Zamir testified that she has a good relationship with Mr. Zameer and his wife, Ms Shaikh. In Ms Zamir’s words, they have operated as a family unit for years. As I have noted, they had been living together for two years at the time of his arrest. She testified that Mr. Zameer is a kind and loving uncle to her children. Ms Zamir testified that Mr. Zameer respects her and listens to her. She feels that he looks up to her (as the older sister). She believes that Mr. Zameer will respect her as a surety if he is released on bail.
[127] Ms Zamir was asked in cross-examination if, over the years, she ever had had an opportunity to exert control over Mr. Zamir’s movements or behaviour. She responded that as an older sister, she was strict with him, but she would not describe it was controlling or restrictive.
[128] Ms Zamir agreed in cross-examination that she took an active interest in what Mr. Zameer was doing (over the years). I find that her cross-examination showed this to be true. Ms Zamir was cross-examined extensively about her knowledge of various aspects of Mr. Zameer’s life, including his work history in Canada, Pakistan, and Malaysia, his volunteer work in Pakistan, his travel history since he came to Canada, and where he lived since he came to Canada. Ms Zamir was able to answer questions in all of these areas in detail. I am satisfied that prior to Mr. Zameer’s arrest, Ms Zamir was sufficiently involved in his life as to have a great deal of knowledge of what he was doing with his time in all of these areas, and that she has a close relationship with him. Her knowledge in these areas speaks well of her ability to supervise him.
[129] As I have outlined above, Ms Zamir and Mr. Zameer’s wife, Ms Shaikh, have leased a house at an address in Thornhill where they will live with their children, and where it is proposed that Mr. Zameer live if he is released on bail. A copy of the lease is included in the application record.
[130] Ms Zamir is currently on maternity leave, which is to end in approximately six weeks. She testified that her current employment is done remotely from home. She offered that she is willing not to go back to work at the end of her maternity leave if the court feels that is necessary in order for her to supervise Mr. Zameer. I find that it is not necessary for her to stop work in order to supervise Mr. Zameer, since both of their employment involves working from home.
[131] Ms Zamir proposes to pledge $285,000 in support of Mr. Zameer’s bail. She does not own real property. However, she has significant assets, which she has transferred to Canada from Pakistan in the form of bank accounts, and an RESP. A record from Ms Zamir’s bank was filed as part of the application record showing her bank balances. In addition, she has gold jewellery in Canada appraised at close to $10,000. Recent appraisals were filed in the application record.
[132] Initially, Ms Zamir had proposed to pledge $130,356 in support of Mr. Zameer’s bail. In the initial proposal there was a fourth proposed surety, who had been proposed to pledge a significant amount in support of bail. Subsequently, the fourth proposed surety was no longer proposed. As a result, Ms Zamir took steps with her family in Pakistan to bring funds to Canada so that they would be recoverable assets as required to support a financial pledge for her to be a surety. These assets have been gifted to her by her mother, older brother, and Mr. Zameer’s sister-in-law (the sister of his wife). I flag that because the additional amounts Ms Zamir is now proposing come from irrevocable gifts to her from her mother, older brother, and Mr. Zameer’s sister-in-law, there is no issue about impermissibly indemnifying a surety.
[133] These additional funds include approximately $64,000 gifted to her by her mother. Her mother obtained these funds to give to Ms Zamir by selling a commercial flat and a residential flat that she owned in Pakistan. Her older brother (also Mr. Zameer’s older brother) has given her his life savings, approximately $33,000. In addition Mr. Zameer’s sister-in-law (Aaida Shaikh’s sister) Faiqa Yousuf Shaikh has given Ms Zamir her life savings, approximately $60,000. Documentation was filed during Ms Zamir’s evidence to support that these funds are all now in Ms Zamir’s bank accounts in Canada. In addition, affidavits were filed to attest that the money from her mother and older brother were given to her as no-strings-attached gifts.
[134] Through Ms Zamir, Mr. Zameer’s family is pledging her family’s entire life savings to support Mr. Zameer’s release. She testified that the only other assets her family has in Pakistan are the house they live in there, and the car they use. As Ms Zamir puts it in her affidavit: “My entire family stands behind Umar. We have moved heaven and earth to transfer what assets we have, substantially all of our collective net worths, into Canada in order to support this application. I have spoken to my family and we understand that all of this money will be lost if Umar breaches his bail. Umar will never let this happen.” Ms Zamir testified that she understands that she could lose all of these life savings if Mr. Zameer were to breach the terms of a release order. Ms Zamir also offered during her evidence in examination in chief to make a cash deposit of some or all of the $285,000 she is pledging.
[135] Ms Zamir testified in detail about her understanding of the responsibilities of a surety to make sure that Mr. Zameer attends all of his court appearances, and complies with all of the terms of his bail. Ms Shaikh testified that if she became aware that Mr. Zameer was not complying with a term of his bail, she would call police. She said she would first call the officer in charge, but if she was unable to reach him, she would call the general Toronto Police Service number. She was asked in examination in chief if it would be hard (emotionally) for her to report her brother to police if he breached a condition of release. She responded that yes, it would be, but her duty as a surety surpasses that. She testified that she loves her brother, but she has two small children, and cannot afford to lose the assets pledged. She also testified that the money she is pledging in support of Mr. Zameer’s release is all of her savings, and all of her families’ savings (now gifted to her). She described the financial consequences if Mr. Zameer were to breach his bail as “dire”. I accept her evidence and that she understands the responsibilities of a surety, and will carry them out conscientiously if Mr. Zameer is released.
[136] Ms Zamir was also familiar with the proposed terms of release. When asked how she planned to monitor Mr. Zameer’s compliance with terms of release, she said that he would be living with her. In the house, the living and dining room and kitchen are shared. Mr. Zameer’s bedroom door is next to hers. When she returns to work, she will work from home (as she had previously been doing). She said she was prepared not to work if the court felt that appropriate.
[137] I am also satisfied that Ms Zamir understands the seriousness of the charges before the court and the nature of the allegations. This was addressed in her affidavit and in her oral testimony. She understands that the charge he is facing is first degree-murder, and is a very serious charge.
[138] She was cross-examined about what she knew about the allegations. She testified that Ms Shaikh was the one who initially told her about the allegations. She testified that Mr. Zameer’s counsel had also told her about the charges, but he did not go into details. She testified that he had read the bail application materials. Ms Zamir was candid in cross-examination that her and the family’s understanding of events is that Constable Northrup’s death was a tragic accidental collision.
[139] Crown counsel cross-examined Ms Zamir extensively about the prosecution case as exemplified by the anticipated evidence of Constable Forbes. Although there were aspects of the prosecution view of the case that she had not previously been familiar with, I am satisfied from her affidavit and her evidence that Ms Zamir is sufficiently familiar with the allegations before the court. A prospective surety need not know the evidence to the level of parsing it to be a suitable surety. Nor must a prospective surety accept the Crown’s view of the evidence. I am satisfied that Ms Zamir understands that ultimately, a future court will determine the outcome of the charge before the court, and that she will carefully carry out the role of surety.
[140] I note as well an aspect of this area of cross-examination of Ms Zamir which in my view shows the care with which Ms Zamir takes her obligations to the court. Crown counsel asked her if she would feel an obligation to tell other family members who had gifted money to her in support of the bail pledge about new information about the allegations that she learned during the bail hearing. She agreed that yes, she would feel obliged to advise her other family members, but that she would have to ask counsel if she was allowed to do so, and would not do so unless she knew that she was permitted by the court to do so. I took this as a reference to the standard caution that I had given Ms Zamir at the end of the previous court day not to discuss her evidence with anyone while she was in cross-examination.
[141] Overall, I found Ms Zamir to be a credible and responsible person. I find that if Mr. Zameer is released, she has the capacity to effectively supervise that he complies with the conditions of a release order. I find that she fully understands her obligations to the court as a surety, a will take them seriously.
[142] In addition, I find in the circumstances of this case, the fact that her family and Mr. Zameer’s family have lived together in the same household since March 2019, for approximately two years prior to his arrest (except for when she travelled to Pakistani from January 2021), provides strong evidence of the closeness of their relationship, and her pre-existing close involvement in his day to day life. These factors support my finding that she is in a position to closely and effectively supervise Mr. Zameer on a bail release order.
[143] Ms Zamir was clear during her evidence that she understands that in taking on the role Mr. Zameer’s surety, she will not be able to travel outside Canada until the trial in this matter is completed. She stated that she is prepared to remain in Canada until the trial is completed, and she understands that this may be several years. I accept her evidence on this issue.
[144] Although it was not argued by Crown counsel, I have also considered the issue of Ms Zamir’s childcare responsibilities, and whether that would be likely to have an impact on her ability to carry out her obligation to supervise Mr. Zameer and his compliance with the terms of release. In some cases, a surety’s work or childcare obligations can impact on their ability to supervise, for the practical reason that other responsibilities can take up a lot of a surety’s time and attention.
[145] In this case in relation to Ms Zamir, I do not find that to be the case. The reason for this is based on the fact that Ms Zamir and her children have lived in the same household with Mr. Zameer and his family for the past two years (except when she travelled to Pakistan in January 2021). I find that it was clear from her evidence that the raising of her children and Mr. Zameer’s son (and now his new baby) has been integrated within the household. In addition, both Ms Zamir and Mr. Zameer work from home. They did so prior to the pandemic, and the evidence is that they will continue to do so. In these circumstances, where the two households live together, I do not see Ms Zamir’s childcare responsibilities as posing any impediment to her ability to supervise Mr. Zameer.
[146] I turn then to the other two proposed sureties, Haunan Mahmood and Akhtar Mehmood. It is important to underline that Ms Zamir is proposed as the main surety, and as the residential surety. Mr. Mahmood and Mr. Mehmood’s proposed role is secondary. As a practical matter, I find that the release plan proposed stands or falls, in terms of whether the sureties are sufficient, on the sufficiency of Ms Zamir as a surety. That said, the proposal of two additional sureties provides some additional support, because it brings in two more members of Mr. Zameer’s extended family, who are pledging what for them are significant assets, as further supervision. In their context as secondary sureties, I find that Mr. Mahmood and Mr. Mehmood are suitable sureties, who understand the role of a surety and their obligation to the court, and will carry out that role with care.
[147] The second propose surety is Haunan Mahmood. Mr. Mahmood is 27 years old. He was born in Pakistan, but immigrated to Canada when he was a child. His parents split up when he was a child. His father returned to Pakistan. Mr. Mahmood remained in Canada with his mother. He has lived most of his life in the GTA. When his father first left, he and his mother lived in the shelter system for two years. Then they found subsidized housing, where he still lives with his mother. He is a Canadian citizen. He has no criminal record.
[148] Mr. Mahmood is Mr. Zameer’s cousin. When he was a child, they grew up together like brothers, until Mr. Mahmood’s family immigrated to Canada. They have become very close again since Mr. Zameer came to Canada in 2019. Mr. Mahmood testified that after Mr. Zameer moved to Canada in 2019, he would see him often. Once the pandemic started, because they were not living in the same household and due to COVID precautions, they did not see each other in person as much. But they stayed in touch on social media.
[149] Mr. Mahmood is currently an undergraduate student at the University of Toronto, completing his bachelor’s degree in criminology and philosophy. He testified that he has almost completed his degree and intends to graduate in 2022. His goal is to attend law school and become a lawyer. In his free time, he volunteers with the basketball community in Mississauga. He is currently involved in fundraising to build a basketball court in the underprivileged area of Mississauga where he grew up.
[150] In addition, Mr. Mahmood has a small music recording studio that he keeps going through donations. He has space and equipment there for local musicians to record professional grade music.
[151] Crown counsel had disclosed to the defence prior to the bail hearing information from the Peel Regional Police Service that their records showed that Mr. Mahmood was charged with theft under $5,000 in 2014, and had failed to appear when required for fingerprinting (I note that Crown counsel agreed that there was no suggestion that Mr. Mahmood had failed to attend court).
[152] Mr. Mahmood was asked about the charge and whether he attended for fingerprinting in examination in chief. He testified that he was charged with theft when he was 19 years old. The charge was withdrawn. He had left a Shopper’s Drugmart store without paying for vitamins and a protein powder supplement. He was then stopped by a loss prevention officer, and police were called, and he was charged. He testified that the charge had a tremendous impact on him. He said that it forced him to grow up. He realized that he had jeopardized a lot – his school and career. He said all of that went through his head as he cried and waited in the room to be charged. He denied that he had failed to attend for fingerprinting in relation to the charge. He testified that he went to 22 Division (in Peel). He said he spoke to multiple officers at the front desk there. He said he was told by the officers that they could not find a record of him needing to be there to provide fingerprints. They took down his phone number and said someone would call him if he needed to attend to provide prints. No-one ever called to tell him he had missed the appointment. The first time he heard anything more about it was from Mr. Zameer’s defence counsel the week before the bail hearing. I accept Mr. Mahmood’s evidence on this issue. He was candid about the fact of the charge and its impact on him. His explanation of attending makes logical sense to me. There was no non-hearsay evidence led by the Crown on this issue. Nor was there any evidence about the exact source of the assertion that Mr. Mahmood did not attend for fingerprinting, or the reliability of whatever record that information came from.
[153] Mr. Mahmood lives with his mother in Mississauga. Mr. Mahmood is prepared to move to reside with Mr. Zameer, Ms Zamir, and Mr. Zamir’s wife, if the court finds that appropriate for purposes of supervision.
[154] Mr. Mahmood proposes to pledge $10,000 in support of Mr. Zameer’s bail. He supports this pledge with a TFSA in the amount of approximately $4,400, and the value of his car, and a professional condenser microphone. Documentation has been included in the application record to support these assets. This represents essentially all of his assets. Although I am cautious with the value of the microphone and the car, simply because sale value is inherently somewhat uncertain with this type of personal property, I note that Mr. Mahmood has provided material supporting the valuation of the two items combined as in the range of $7,500. Thus, with the TFSA, whose value if more precisely attainable and realizable, I am satisfied that he is in a position to pledge $10,000 as a surety.
[155] Crown counsel at the outset of Mr. Mahmood’s evidence advised that he took no issue about the evidence in Mr. Mahmood’s affidavit about his understanding of the role of a surety, and his knowledge of the proposed plan of supervision. As a result, this was not covered in detail in Mr. Mahmood’s oral testimony. As I have indicated, Mr. Mahmood is prepared, if the court considers it appropriate, to live with Mr. Zameer and his family and Ms Zamir’s family. He testified that if the court does not find it necessary for him to live with Mr. Zameer, that in order to supervise Mr. Zameer’s bail, he would stay in touch with him by way of live video calls. He would also visit the home frequently, and stay over from time to time for several days at a time. He would also make sure he was informed about Mr. Zameer’s daily plans. He testified that if Mr. Zameer failed to comply with a term of his bail, he would report it to the police. He agreed that this would be emotionally difficulty, but he said he understands what is at stake for himself, for the other sureties, and for their extended family. He would not hesitate to report if there were a breach.
[156] Crown counsel cross-examined Mr. Mahmood about whether he had ever had to exercise control or direction over Mr. Zameer, or give him guidance. Mr. Mahmood responded to the effect that he had probably given him advice, but not had direct him to do anything. He agreed that he had not previously had a supervisory role over Mr. Zameer.
[157] I accept Mr. Mahmood’s evidence in his affidavit that he understands the responsibilities of a surety and is willing take on that duty and use care in exercising that role. Although Mr. Mahmood has not previously had a supervisory role over Mr. Zameer, that is not infrequently the case where someone is a friend or relative being proposed as a surety (other than a parent). I am satisfied that Mr. Mahmood takes the obligation of being a surety seriously, and that he is sufficiently mature to act in that role in relation to Mr. Zameer. In addition, returning to the theft under charge, I find that the fact that he was charged with theft under when he was 19 years old, and the charge was withdrawn, is not a factor that leads me to find he is not a suitable surety. He is 27 years old now. He was candid about the charge. I accept his evidence that it was a wake-up call to him. The fact that he is now close to completing an undergraduate university degree speaks to that.
[158] The third proposed surety is Akhtar Mehmood. He is Mr. Zameer’s uncle. Mr. Mehmood is 58 years old. Mr. Mehmood is originally from Pakistan. He moved to the United States in 1989. He has a bachelor of science degree and a master of science degree, both in computer science, obtained from the State University of New York. The master’s degree was completed in 2005. Mr. Mehmood immigrated to Canada in 2005, to pursue further education. He obtained his MBA in 2008 from St. Mary’s University in Halifax, Nova Scotia. He became a Canadian citizen in 2009. He has no criminal record.
[159] Mr. Mehmood began working for IBM Canada in 2009, and continues to work there today. His current position at IBM Canada is as a Portfolio Manager and Management Consultant. From 2009-2016 he lived and worked in Alberta. In 2016, he was transferred to Halifax, Nova Scotia, where he continues to reside today. As part of his job, Mr. Mehmood has been a Portfolio Manager for the government of Alberta Ministries of Health and Transportation, and has acted as a security consultant for numerous companies and financial institutions. His current position with IBM is as an incident manager. In this role he oversees that computer systems used by various Canadian banks and credit unions are functioning smoothly. If there is a disruption in the systems, he is responsible to assemble and incident team to rectify the problem as soon as possible. His work is 100% remote (from home), at this time. Neither he nor IBM have plans that would involve him returning to the office.
[160] In September 2018, Mr. Mehmood joined the Canadian Armed Forces (Reserves) as a Commissioned Officer. He is currently a Signals Officer.
[161] Mr. Mehmood testified that although he works at both IBM and in the CAF, he has flexibility to control his schedule and delegate work, which would allow him time to supervise Mr. Zameer if he is released.
[162] Mr. Mehmood is Mr. Zameer’s uncle. He testified that he has always acted as a second father figure too him and his sister, particularly after their father (Mr. Mehmood’s brother) died in 1999. He believes they look up to him. He paid Saima’s expenses through university. He and Mr. Zameer attended the same military college in Pakistan, which Mr. Mehmood testified instilled in them a sense of duty and commitment to their responsibilities. He believes that Mr. Zameer will respect any conditions placed on him if he is released on bail.
[163] Mr. Mehmood was asked in examination in chief to explain how he was able to act as a father figure to Mr. Zameer given that he moved to the Unites States in 1989 (and Mr. Zameer and his family remained in Pakistan). Mr. Mehmood testified that he would speak to Mr. Zameer regularly by phone, and would consult with Mr. Zameer’s mother about important decisions, such as school, when Mr. Zameer was young. In the 1990s, the family would send him VHS tapes of the family. As technology developed, they would do Skype calls.
[164] In cross-examination and re-examination, Mr. Mehmood was asked about how recently he had spoken to Mr. Zameer prior to Mr. Zameer’s arrest. He testified that the last time he had seen Mr. Zameer in person was in 2016. He agreed that he had never been to any of Mr. Zameer’s residences in Ontario. He knew what cities Mr. Zameer had lived in in Ontario, but not the street addresses. He said in cross-examination that he had not spoken to Mr. Zameer since 2016; however in re-examination he said he spoke to Mr. Zameer when his son was born (which was in the fall of 2018, as his son recently turned three). In re-examination, Mr. Mehmood said the reason that he had not had much contact with Mr. Zameer since Mr. Zameer came to Canada was that it coincided with the intensive training he had to do when he joined the Canadian Armed Forces. Mr. Mehmood testified that since Mr. Zameer’s arrest, he has spoken to Mr. Zameer, and he has spoken to Ms Shaikh frequently. He estimated that he had spoken to Ms Shaikh 30 to 40 times since the arrest.
[165] Although Mr. Mehmood lives outside Ontario, he proposes to assist in the supervision of Mr. Zameer by daily telephone contact, by requesting daily a photo and video of Mr. Zameer in his home with his wife and sister, and by keeping track of Mr. Zameer’s court appearances and speaking to him before and after each one. In his oral evidence, Mr. Mehmood testified about the proposed plan of release, and knew the details well. He testified in detail about how he could supervise Mr. Zameer from his home in Nova Scotia. He testified that he would call Mr. Zameer multiple times a day, randomly, to gauge his mood. He said he would require Mr. Zameer to send him a photo once each day showing him at his home and in the presence of Ms Zamir and his wife, and also send a video of 60 seconds showing the same. He testified that he would also make video calls as necessary to Mr. Zameer and Ms Zamir.
[166] Mr. Mehmood proposes to pledge $40,000 in support of Mr. Zameer’s bail. Mr. Mehmood supports this pledge with approximately $15,000 in his pension plan and TFSA, and the value of his vehicle, which is currently estimated at between $23,000 to $27,000. Documentation has been included in the application record to support these amounts. The amount he is pledging is essentially all of his assets. In addition, Mr. Mehmood earns $92,600 annually from his work at IBM, and approximately $4,000 to $5,000 more from his work in the reserved (although he does not draw his full pay from the CAF – some is given to a charity that supports veterans). He explained that he does not have more savings than what he has pledged because of the financial support he has provided over the years to the family of Mr. Zameer and Ms Zamir, and also more recently financial support he provides to the family of another cousin in Pakistan.
[167] Mr. Mehmood gave evidence in his affidavit and oral testimony about his understanding of the responsibilities of a surety to make sure Mr. Zameer attends all of his court appearances, complies with all of the terms of his bail, and to contact police immediately if Mr. Zameer were to breach a term of his bail. Mr. Mehmood testified that he understands the serious consequences if Mr. Zameer were not to comply with is bail. He testified that there would be severe consequences for all. Mr. Zameer would be returned to jail and likely face new charges. There would be emotional trauma and huge financial loss for Ms Zamir, for himself, and for Mr. Mahmood. And he said it would be a breach of the trust in his relationship with Mr. Zameer and would damage the relationship. Mr. Mehmood acknowledged that it would be emotionally difficult to call the police on Mr. Zameer if Mr. Zameer breached his bail, but he testified that his duty as a surety and his duty as a Canadian army officer transcends his love for Mr. Zameer. He would perform his duty.
[168] I am satisfied that Mr. Mehmood understands the responsibilities of a surety. I am satisfied that if Mr. Zameer is released, Mr. Mehmood would carefully carry out his duties as a surety. Mr. Mehmood’s evidence as a whole speaks to the importance of duty to him – to his family and extended family, and to Canada through the CAF. I am satisfied that he takes the duty to the court of acting as a surety very seriously.
[169] Mr. Mehmood gave evidence in his affidavit that he understands the seriousness of the charge that Mr. Zameer is facing. In cross-examination, he was asked about what Ms Shaikh has told him about the events of July 1-2, 2021. He gave a detailed account, essentially consistent with Ms Shaikh’s statement to police. He also agreed that he had read the bail application record. He agreed that the defence application record on the bail presented the events in the garage as an accident. He was asked questions about the police perspective on the case and whether it came as a shock to him. He responded that he had observed all the videos (in the evidence at the bail hearing). He said that his role as a proposed surety was to remain objective. He said it was not his role to draw a conclusion about the case, and that it was the court’s role to draw conclusions about the case.
[170] I have considered that Mr. Mehmood has not been in frequent contact with Mr. Zameer in recent years prior to Mr. Zameer’s arrest. If Mr. Mehmood was being proposed as the primary surety, I would find that his residence in Nova Scotia, and the less frequent contact in the past would make him unsuitable as a primary surety. But I find that when paired with Ms Zamir, who I find is a strong primary surety, Mr. Mehmood provides an extra level of assurance, both in terms of supervision on an ongoing basis, and in terms of being another person with a financial stake in ensuring that Mr. Zameer comply with terms of a release order.
[171] Before leaving the issue of the proposed sureties, I note that all of the sureties gave evidence by affidavit and orally about their willingness and ability to work together to supervise Mr. Zameer. I accept this evidence.
The Primary ground
[172] The primary ground concerns whether detention is necessary to ensure the attendance in court of a defendant. The seriousness of the charges and strength of the Crown’s case are factors to be considered under the primary ground, on the theory that if a defendant is facing a strong case on very serious charges, and thus facing a severe penalty, this may provide greater motivation for a defendant to flee the jurisdiction to avoid facing trial. However, like all of the grounds in s. 515(10), the primary ground must be considered in the context of all of the circumstances before the court, including the background of the defendant (factors such as their ties to the community, whether they have a record of failing to attend court or other breaches of court orders, whether they have ties outside of Canada), and the plan of supervision.
[173] Even in cases where there are primary ground concerns, an appropriate plan of supervision may be sufficient to address those concerns and justify release. Like the secondary ground, the assessment under the primary ground is an exercise in risk prediction: The Law of Bail in Canada, Justice Gary Trotter, looseleaf, S. 3.2.
[174] The Crown’s submissions under the primary ground are based on its assertion about the strength of the Crown case for murder, and the submission that the ties of Mr. Zameer and his family to Pakistan, their country of origin, raise primary ground concerns.
[175] There is some force to the defence position that in assessing the primary ground, the court must be careful in how it weighs the ties that immigrants to Canada have with their countries of origin (or some other country), because it runs the risk of giving immigrants less favourable treatment when it comes to bail. I want to be clear that I am speaking of permanent residents to Canada, and not about visitors. It would bring the administration of justice into disrepute if individuals who are settled permanent residents of Canada were routinely treated as a greater risk under the primary ground because they maintain ties with their country of origin. Indeed, the concern that giving too much weight to significant ties to another jurisdiction may operate unequally, and that a person’s immigration status and citizenship are not necessarily indicative of their ties to Canada is recognized in The Law of Bail in Canada, in S. 3.2(iii). Having acknowledged this, I accept that the court cannot ignore evidence that a defendant has significant ties to another country. That factor must be weighed in the analysis.
[176] Weighing all of the circumstances on the record in this application, I find that any primary ground concerns are sufficiently addressed by the plan of release, and that Mr. Zameer has met his onus to show that his detention is not justified under the primary ground.
[177] The charge that Mr. Zameer is facing, first degree murder, is very serious. It carries a life sentence and mandatory parole ineligibility for 25 years. However, as I have explained above, I find that on the record before the court, the Crown’s case for murder is weak. I find that the Crown has a reasonably strong case on the included offence of manslaughter, although I would not describe it as an overwhelming case. There are triable issues. I address the potential sentence in the event that Mr. Zameer is convicted of manslaughter in more detail under the tertiary ground, as that is where counsel addressed it. My conclusion is that if convicted of manslaughter, he would likely face a penitentiary sentence. But the range of sentence is somewhat uncertain, likely somewhere in the range of five to ten years. Sentencing for manslaughter is notoriously fact specific. I accept that this is a significant potential sentence that Mr. Zameer is facing if he is convicted of manslaughter. But it is a different order of magnitude than the potential sentence for murder.
[178] I find that Mr. Zameer’s background does not support that he is a risk to flee Canada. He has no criminal record. He is a settled husband and father. He has a good education and work history that shows stability. In terms of his status in Canada, and his ties to Pakistan (and also history of having lived and worked in Malaysia prior to his immigration to Canada), I am satisfied that there is not significant risk in all the circumstances that he will not attend court as required and for his trial. I further find that to the extent there is any risk, it can be well-managed by the proposed plan of supervision.
[179] I find that the record shows that both Mr. Zameer, and the proposed sureties, in particular the primary surety, Saima Zamir, have a settled intention to reside in Canada and make it their home. Mr. Zameer and his wife both immigrated to Canada in January 2019 on the federal government’s Skilled Worker Program. Although they have moved house, they have lived in the GTA since their arrival. He has worked steadily since his arrival in Canada. He and his wife have two young children. I find that the record supports that the plan to make their lives in Canada. I note that their youngest child, born in August while Mr. Zameer has been in custody, is a Canadian citizen.
[180] I have considered that Mr. Zameer has family ties in Pakistan – his mother and older brother still live there. He also lived and worked in Malaysia prior to immigrating to Canada. On the record before the court, in the almost two and a half years that Mr. Zameer has lived in Canada up to his arrest in July 2021, he went back to Pakistan to visit family twice, each time for three weeks. According to Ms Zamir, whose evidence I accept, the reason for those trips were for their older brother’s wedding in January 2020, and when their mother had bilateral knee surgery in April 2021. I note that these dates are consistent with the evidence of DS Allington about information he obtained from Canada Border Services about dates their records show Mr. Zameer returning to Canada (CBSA does not keep records of dates people leave Canada). I find that the fact that Mr. Zameer has maintained strong links to family in his country of origin, as many immigrants do, does not undermine my finding that he has a settled intention to reside in and make his life in Canada.
[181] This record does not support a finding that there is a significant risk that Mr. Zameer will flee Canada rather than stay and face his trial.
[182] I have also considered Ms Zamir’s family ties to Pakistan, and her history of travel to Pakistan. In light of Ms Zamir’s long residence in Canada – since 2006, her education and work history, that she is settled her with her children, including that her daughter has only ever attended school in Canada, and her application for Canadian citizenship in January 2021, I am satisfied that Ms Zamir has a settled intention to reside in Canada and to become a Canadian citizen. I find that the fact that she maintains strong links to family who remain her country of origin, as many immigrants to Canada do, does not undermine that finding. As I have noted, she testified that if Mr. Zameer is released on bail, she will not travel outside Canada for the duration of the bail. I accept her evidence on this issue.
[183] The issue of links to Pakistan is less important for Mr. Mahmood and Mr. Mehmood, since they are not proposed as the primary sureties. But in any event, both of them have very strong ties to Canada. Both are Canadian citizens. Mr. Mahmood immigrated to Canada as a child, and he completed most of his pre-university education here. He attends the University of Toronto for his undergraduate university education, which he is close to completing. His parents divorced when he was a child. His father went back to Pakistan, and Mr. Mahmood remained in Canada with his mother, who he still lives with.
[184] Similarly, Mr. Mehmood immigrated to Canada in 2005, after completing two university degrees in the United States. He then completed an MBA in Canada at St. Mary’s University and has lived and worked in Canada since. He is a member of the Canadian Armed Forces Reserves.
[185] I find that there is not a significant risk that Mr. Zameer will fail to remain in Canada and attend for his trial.
[186] In any event, to the extent there could be said to be minimal risk based on his connections to Pakistan (or Malaysia), and the reasonably strong Crown case on manslaughter, I find that the proposed plan of release is strong, and fully addresses those concerns.
[187] As I have outlined above, I find that all of the sureties will take their obligations as sureties seriously and exercise their supervisory role with care. The financial amount pledged is significant – essentially all the life savings of the sureties. As I discuss later in these reasons, I will also order a cash deposit of part of the amount pledged by Ms Zamir. In addition to this, Mr. Zameer will be required to deposit his travel documents with police, and not apply for other travel documents, and be subject to electronic monitoring. This is a strong release plan that fully addresses the primary ground.
[188] On the issue of electronic monitoring, Crown counsel made the submission that electronic monitoring is not a foolproof method of monitoring, and that there can be delays in breaches being reported to police. DS Allington testified that he had canvassed other officers in the TPS homicide squad, and had been told of six cases where electronic monitoring was included as a term in a homicide bail order, and a defendant removed the electronic monitoring bracelet. It was clear from cross-examination that DS Allington did not know the details of any of these cases, including which whether Recovery Science, the monitoring company proposed in this case, was involved. However, he knew the names of the defendants in the six cases, and provided them when asked in cross-examination.
[189] Stephen Tan from Recovery Science Corporation testified at the bail hearing about their program of electronic monitoring, how it works, and its limitations. I found him to be a careful and credible witness. He explained in general how Recovery Science’s GPS monitoring program works. In very general terms, the monitoring, which is conducted by an ankle bracelet worn by a defendant, uses satellite GPS technology to monitor where a defendant is at all time. The GPS data of the bracelet’s location is uploaded to Recovery Science’s monitoring system from a cellular SIM card contained in the bracelet. The normal settings that are used are what they refer to as “1 x 10”, which means that the GPS tracks the location of the bracelet every one minute, and that data is uploaded to Recovery Science’s monitoring system every ten minutes. However, where a person is on a house arrest term, if they leave the boundaries of their residence entered into the system, that will override the every-10-minute uploading, and an alert notification will be sent immediately to Recovery Science. When there is an alert, a person monitoring the data at Recovery Science will review the data and assess if it is accurate, and assuming it is (if the person is outside the house arrest zone), verify whether it is within an exception to the house arrest in the bail terms. The default is that an alert in relation to being outside the house arrest boundary is considered a violation unless Recovery Science has objective evidence that it is not a violation.
[190] The monitoring system has other types of alerts. If the GPS satellites are unable to communicate with the bracelet, the system will look for the bracelet. If the system has not received a signal from the bracelet within 15 minutes, it will generate an alert. If the bracelet is tampered with or removed, Recovery Science receives an alert within one or two seconds, and will report it to the police forthwith. This is generally within five minutes. In general, there are two categories of alert responses, which govern how quickly Recovery Science will report an alert to the police. High priority alerts are where a bracelet is tampered with, or where a defendant goes to an exclusion zone (for example, where a defendant has a term to stay away from a particular address in order to protect a complainant or witness). The time to alert police n high priority alerts is forthwith, which is generally within five minutes. Regular priority alerts include where a person is outside the boundary of the residence for a house arrest term. For those alerts Recovery Science’s standard is to report to police within 15 minutes. There are also notification and alerts related to battery life, so that a defendant cannot let a battery run down to a low level without an alert being sounded (I will not summarize that evidence in detail).
[191] Mr. Tan testified that over all of the bails they have provided electronic monitoring for, the rate where they have had to report violations to police is about 12% of cases. He did not have current statistics for the violation rate for bails in homicide cases. But in past periods, the rate was lower than the overall rate. At one time it was one or two violations in 40 homicide bails supervised. At another time when the total number of homicide bails supervise was 70, there were 6 or 7 violations.
[192] In addition, Recovery Science Corporation offers access to its monitoring system and software to the officer in charge for all bails it monitors. And for bails in Toronto cases, Recovery Science automatically gives access to its system to the Toronto Police Service Public Safety Response Team, whose responsibilities include investigations involving bail compliance. If the police want to receive alert notifications directly on a particular case, Recovery Science also offers that to the officer in charge.
[193] Mr. Tan also explained the process of verifying with a surety or sureties in order to monitor a term that a defendant on a house arrest term may be out of the home in the presence of a surety. They use a system of voice verification using what is effectively a voiceprint of the surety as the password. The surety must call in 15-30 minutes before they leave the residence with the defendant. In addition, the surety and defendant are subject to random spot checks when they are out. The Recovery Science monitor will text the surety, and within a set period of time the surety must send a photo and a live video showing the surety with the defendant in which they state the time (which they will only know after a text is sent requesting it, so it cannot be pre-recorded). He also explained the process by which house arrest exceptions for medical visits and visits to lawyer’s are monitored. I will not summarize this evidence.
[194] With respect to the six cases referred to in DS Allington’s evidence, Mr. Tan testified that four of those cases were cases monitored by the Recovery Science Corporation. Mr. Tan gave detailed evidence about the circumstances in each of the four cases involving Recovery Science. In the first case, the police were attending to arrest an individual in their home. They had notified Recovery Science of this in advance. When the police had the home surrounded, the person removed the bracelet. An alert was received by Recovery Science, and Recovery Science notified the police of the alert. In the second case, a surety had called Recovery Science to say that the defendant had a medical emergency (thus allowing an exception to the house arrest). This turned out to be untrue. Recovery Science allowed a period of time for the defendant to travel to hospital (and monitored the route), but while the defendant was on Highway 401, 20 minutes after the call from the surety, Recovery Science received a tamper alert. The tamper alert was reported to police within four minutes. In the third case, Recovery Science received a tamper alert and reported it to police within one minute. In the fourth case, there was an alert when the defendant left her residence. At the same time the surety called. Recovery Science reported the house arrest violation to police when the defendant was at the edge of the residence boundary. It took the police about an hour to make an arrest. During the process of tracking down the defendant, Recovery Science communicated with the police with updates about the GPS, and also assisted by making the bracelet beep when requested by police when they thought they were close to the defendant. In that case, the surety had also reported at an earlier time that the defendant had removed their ankle bracelet. Recovery Science investigated and did not find that to be substantiated, but sent a technician to tighten the bracelet (Crown counsel suggested to Mr. Tan in cross-examination that the bracelet had been removed. He testified that that was not what their investigation showed. The Crown did not lead any evidence on this issue to contradict Mr. Tan).
[195] While these cases show that electronic monitoring is not foolproof, I find that Mr. Tan’s evidence about each case shows that the level of supervision of the electronic monitoring was very high, and in each case the tampering with the bracelet or house arrest violation was quickly reported to police.
[196] I draw the following conclusions based on Mr. Tan’s evidence, and the decided case law in relation to electronic monitoring as a condition of release. Electronic monitoring is not perfect, but when combined with suitable sureties, it provides a strong additional layer to support compliance with bail terms because it provides for accurate and fast detection of breaches of bail terms related to location of a defendant (such as house arrest, or specific terms about places a defendant is permitted or not permitted to go): R. v. F.D., 2020 ONSC 3054 at para. 14; R. v. B.D.M., 2020 ONSC 2671 at paras. 56-64; R. v. A.G., 2018 ONSC 5661 at para. 28; R. v. Sotomayor, 2014 ONSC 500 at para. 40.
[197] In the particular circumstances of this case, I find that the electronic monitoring is a strong support to the other terms to ensure that Mr. Zameer abides by house arrest conditions (and any exceptions), and remains in Canada. I want to underline, that in light of Mr. Zameer’s lack of a criminal record, and my finding of his settled intention to reside in Canada, I think it is highly unlikely that he would attempt to leave Canada. But I underline that leaving Canada is not a process that can happen instantaneously. It would take time to drive to a border crossing. Or if he attended at an airport, it would take time to clear security and to board a plan. Starting either of these activities would be quickly picked up by electronic monitoring and cause an alarm which would be reported to police.
[198] For all of these reasons, I am satisfied that Mr. Zameer has met his onus to show that his detention is not required under the primary ground.
The Secondary ground
[199] The secondary ground is concerned with the protection or safety of the public, and whether there is a substantial likelihood that a defendant will commit further offences if released.
[200] It is important to bear in mind that the test under the secondary ground does not require a defendant in a reverse onus situation to show that there is no risk that offences will be committed, or that it is certain that offences will not be committed. Rather, the court must consider whether the defendant has shown that his detention is not necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that the defendant will commit a criminal offence is released from custody. Further, in making this assessment, the court must consider whether conditions of release can be crafted that address the risk, such that detention is not necessary under the secondary ground: R. v. Morales, 1992 CanLII 53, [1992] 3 S.C.R. 711, at pp. 736-740.
[201] The seriousness of the allegations, and the strength of the Crown’s case are relevant to assessing the secondary ground. The secondary ground involves an assessment of risk – the risk to the protection and safety of the public if a defendant is released. It has been recognized that assessing risk of a future occurrence is inherently uncertain, and a court considering bail must “must negotiate the tension between making a mistake that imperils public safety or making a mistake that imperils the accused’s liberty”. The court’s task is to make a reasoned assessment based on all available information: R. v Williams, 2020 ONSC 2237 at para. 111; R. v. S.A., 2020 ONSC 3622 at paras. 23-24.
[202] The seriousness of the allegations and the strength of the Crown’s case play a role in this assessment. Where the allegations are very serious, and the Crown’s case is strong, this is a factor that can support secondary ground concerns, even if the particular defendant does not, for example, have a history of non-compliance with court orders, or a lengthy criminal record. This assessment will depend on all of the circumstances: R. v. Syed, 2020 ONSC 2195 at paras. 10-11; Williams at para. 113; R. v. R.H., 2006 ONCJ 116 (per Trotter J., as he then was). Conversely, even if a charge is very serious, if the Crown case is weak, it can be a factor favouring release (but which must, of course, be considered in all of the circumstances of a particular case).
[203] As I have explained above, the charge that Mr. Zameer is facing, first degree murder, is very serious. It carries a life sentence and mandatory parole ineligibility for 25 years. The classification of murder as first degree when it involves the killing of a police officer acting in the course of their duties recognizes the public interest that the community as a whole has in the enforcement of our laws, and the personal risks that police officers take on to carry out that public duty.
[204] However, as I have explained above, I find that on the record before the court, the Crown’s case for murder is weak. As I have explained, I find that the Crown has a reasonably strong case on the included offence of manslaughter, although I would not describe it as an overwhelming case. There are triable issues.
[205] For purposes of considering the secondary ground, the difference between liability for murder and liability for manslaughter is significant. If there were a strong Crown case that Mr. Zameer intentionally hit Constable Northrup with his vehicle, with the intention of killing him or with the intention of causing bodily harm that he knew was likely to cause death, that would raise significant secondary ground concerns. Where there is a strong Crown case that a person intentionally killed someone in either of the sense described in s. 229(a) or in the sense in s. 229(c), on its face that would raise secondary ground concerns because it will often be reasonable to infer that the person could pose a substantial risk to commit further offences.
[206] In this case, the secondary ground concerns that would exist if the Crown had a strong case for murder do not arise from my finding that there is a reasonably strong Crown case on manslaughter. The potential liability for manslaughter in this case is based on criminal negligence in the manner of Mr. Zameer’s driving. Thus, the risk of commission of further offences if released does not arise based on intentional conduct, but from danger posed by the evidence about his manner of driving in the circumstances of this case, and the alleged misperception that led him to that conduct. I accept that the reasonably strong case for manslaughter is a serious offence if successful at trial. However, in the context of a strong case for criminally negligent manslaughter in the operation of a motor vehicle, rather than murder, I find that under the secondary ground, the risk of offending and the risk to public safety that exists relates to danger posed by Mr. Zameer driving, but not due to risk of intentional conduct.
[207] I find support for this conclusion also in Mr. Zameer’s background before the court. He has no criminal record. He has never been in trouble with the law before. He is a family man with a good educational and work history. His background does not show a likelihood to commit offences or not comply with his bail if he is released. I appreciate that his background must be considered in the context of the current allegations against him. But as I have explained, I find that the case for murder is weak. Only the case for manslaughter is reasonably strong.
[208] In these circumstances, with the strong plan of release, and strong surety supervision, particularly from the residential surety Salina Zameer, I find that there is not a substantial risk that Mr. Zameer will commit offences or endanger public safety if released.
[209] However, this conclusion has one caveat – there would be risk to the public if Mr. Zameer is allowed to operate a motor vehicle. As I have outlined, the Crown has a reasonably strong case for manslaughter based on criminal negligence in the way Mr. Zameer drove in the garage that night. Based on the strength of the case for manslaughter, there is a basis to have secondary ground concerns if Mr. Zameer were permitted to operate a motor vehicle. Indeed, even on the best case scenario for the defence, that a jury accepts that Mr. Zameer’s acted under a mistaken belief and that his mistaken belief and conduct were reasonable in the circumstances (i.e., were not criminally negligent), it would still factually be the case that he made a mistake in his perception of the circumstances, and as a result a police officer was killed.
[210] I find that the risk of reoffending when the conduct is a criminally negligent manner of driving can be managed by surety supervision and prohibiting Mr. Zameer from driving. In light of the fact that Mr. Zameer has no criminal record, and no history of non-compliance with court orders, I find that there is not significant risk he will fail to follow an order prohibiting him from operating a motor vehicle. Indeed, I find there is very little risk he will not follow such an order.
[211] Thus, I find that the secondary ground concerns in this case are not significant, except with respect to if Mr. Zameer were permitted to drive. And as I have already explained, the plan of supervision for Mr. Zameer, in particular living with Saima Zamir as his primary surety and supervisor, and prohibiting him from operating a motor vehicle address what secondary ground concerns may exist.
[212] I am satisfied that Mr. Zameer has met his onus to show that his detention is not justified under the secondary ground.
The Tertiary ground
[213] The tertiary ground is concerned with public confidence in the administration of justice. Section 515(10)(c) requires the court to consider all of the circumstances, and in particular the four listed criteria, in order to determine if the detention of a defendant is necessary to maintain confidence in the administration of justice. It is important to bear in mind in assessing the tertiary ground that the defendant is presumed innocent. Further, even if all four of the criteria are met, the court must consider all of the circumstances, including the proposed release plan: St.-Cloud, at paras. 37-88.
[214] Where there may be tertiary ground concerns, the terms of a proposed release plan, if sufficiently strict, may be sufficient to address those concerns. In other words, depending on all of the circumstances, the confidence in the administration of justice of a reasonable and well-informed member of the public may not be diminished even where the Crown makes a strong showing on the four St.-Cloud factors, if a defendant is released on a restrictive bail plan: R. v. Dang, 2015 ONSC 4254.
[215] That said, St.-Cloud is also clear that the tertiary ground is a distinct ground that can provide a basis for detention by itself. The application of the tertiary ground is not limited to rare or exceptional circumstances or to certain types of crimes: St.-Cloud at paras: 50-54, 87.
[216] St.-Cloud is clear that a court considering the tertiary ground must consider all of the circumstances, and not just the four factors listed in s. 515(10)(c). St.-Cloud is also clear that even where the Crown can make a strong showing under the four listed criteria, detention is not automatic, and the court must consider whether in all of the circumstances detention is necessary to maintain confidence in the administration of justice: St.-Cloud at paras: 66-71.
[217] St.-Cloud is clear that a reasonable and well-informed member of the public, about whose confidence in the administration of justice s. 515(10)(c) is concerned, is familiar with the basics of the rule of law, and the fundamental values of our criminal law. These include the presumption of innocence, the right to liberty, and the rights guaranteed by the Charter: St.-Cloud at paras. 72-87.
[218] It is somewhat ironic when one considers the public confidence in the administration of justice under that 515(10)(c), in a case which garnered significant media attention at the time of the arrest, that because of the s. 517 publication ban, members of the public will not know the reasons for this decision (unless they personally attend at the courthouse and review the reasons in the court file). I do not say this to criticize the s. 517 publication ban. It fulfills an important role in protecting fair trial rights and jury impartiality. But I underline that the test under the tertiary ground is an informed member of the public, not a member of the public who will not have the opportunity to know the evidence on the application and the reasons for the court’s decision.
[219] The first St.-Cloud factor concerns the strength of the Crown’s case. As I have already explained, I find that the Crown’s case on murder is weak. I find that the Crown’s case on manslaughter is reasonably strong. However, as I have explained under the secondary ground, a strong case for criminally negligent manslaughter paints a very different picture in terms of both risk if Mr. Zameer is released, and of the public confidence in the administration of justice.
[220] The second St-Cloud factor concerns the gravity of the offence charged. The offence charged in this case is very serious – the most serious in the Criminal Code. As I have already noted, the murder of a police office is considered particularly serious, and classified as first-degree murder, because of the public interest in the enforcement of our laws, and recognizing the risks that police officers undertake to carry out their public duty.
[221] However, as I have explained, I find that the Crown case on the charge of murder is weak. I accept that manslaughter, where I have found that the Crown has a reasonably strong case based on criminal negligence, is also a serious offence. It involves the death of a person. But manslaughter based on criminal negligence does not have the same intentionality as murder. The balance is different in terms of consideration of the tertiary ground.
[222] The third St.-Cloud factor involves a consideration of the circumstances surrounding the commission of the offence, and whether a firearm was used. No firearm is alleged to have been used in this offence. That said, the circumstances are still very serious. The circumstances involve the death of a police officer acting in the course of his duties. If the Crown had a strong case that the killing was intentional and that Mr. Zameer knew that Constable Northrup was a police officer, these would be very serious circumstances even in the absence of a firearm being involved. In essence, the Crown case for murder, at least as it relates to s. 229(a), alleges that Mr. Zameer used his vehicle intentionally as a weapon. However, as I have explained, I find that the Crown case for murder is weak.
[223] In terms of the strength of the case for manslaughter, because it involves a death, it is still a serious set of circumstances. But as I have explained in relation to the second factor under the tertiary ground, a case based on criminal negligence presents very different considerations for bail than if there were a strong case of subjective intent to kill or cause bodily harm that the perpetrator knew was likely to cause death.
[224] The fourth St.-Cloud factor concerns the likelihood of a defendant receiving a significant sentence of imprisonment if convicted. If Mr. Zameer is convicted of first-degree murder, the sentence he is facing is very severe – a life sentence without the possibility of parole for 25 years. However, as I have explained, I find that the case for murder is weak. As I have explained, I find that the Crown case for manslaughter based on criminal negligence is reasonably strong.
[225] Because manslaughter convictions can cover a diverse range of circumstances, sentences for manslaughter are extremely varied. The only case put before the court in relation to sentencing for manslaughter said to show the range is R. v. Jiwa, 2012 ONCA 531; affirming 2011 ONSC 4071. Crown counsel contends that it is factually similar and speaks to the severity of sentence that Mr. Zameer would face on a conviction for manslaughter. The defence submits that the facts in Jiwa are distinguishable from the circumstances in this case.
[226] Considering the potential range of sentence when I cannot know the exact factual findings in a possible future conviction is, of course, not an exact science. I must consider it based on where I have found there is a strong case. In my view, the circumstances in Jiwa were more aggravated than the basis on which I find the Crown in this case has a reasonably strong case for manslaughter in this case. In Jiwa the defendant was in a stolen car at the time of the offence, and engaged in a course of conduct that evening of stealing car air bags. He was on bail at the time for a similar offence. And importantly, the findings of fact on sentencing included that he knew that the plain-clothes police officer who was killed was a police officer, and his purpose in driving in the manner that caused the officer’s death was to resist arrest. In this case, as I have explained, I find that there is a weak case that Mr. Zameer subjectively knew that Constables Forbes and Northrup were police officers. If he is found guilty of manslaughter, but without that factual finding, then the sentencing situation is very different than in Jiwa. In addition, as I have noted, there is no evidence that Mr. Zameer was engaged in any unlawful activity that night, unlike Mr. Jiwa.
[227] Because of the variation in sentences for manslaughter, and the uncertainty about what facts a sentencing for a manslaughter conviction would be based on, I find that if convicted of manslaughter, Mr. Zameer would likely face a sentence in the range of five to ten years. I am unable to be more specific than that. I accept that this is a serious range of sentence. It is in the penitentiary range, and the upper end is particularly significant. But this range is very different from sentences for murder, and weighs differently in the tertiary ground balance.
[228] As I have noted above, the assessment under the tertiary ground requires a consideration of all of the circumstances. Even where the Crown can make a strong showing on all of the four listed factors, other factors, in particular the presence of strong sureties and a strong release plan, can address tertiary ground concerns such that a court may find that release would not impair the confidence of a reasonable member of the public in the administration of justice.
[229] In considering all of the circumstances, I consider Mr. Zameer’s background, and the strength of the proposed plan of supervision. The impact is similar to what I have outlined in relation to the secondary ground. Taking all of the circumstances into account, I find that Mr. Zameer has met his onus to show that his detention is not justified under the tertiary ground.
[230] As I have explained under the secondary ground, in light of the reasonably strong case for manslaughter based on criminal negligence, and also the fact that even the best case defence scenario of an acquittal is based on a misperception by Mr. Zameer that led him to drive in a manner that caused Constable Northrup’s death, I find that the tertiary ground compels that Mr. Zameer be prohibited from operating a motor vehicle as a condition of his release.
Additional arguments
[231] The defence made submissions in relation to the impact of the COVID-19 pandemic on the assessment of whether bail should be granted (health risks and harsher conditions of confinement). The defence also made submissions on the related issue of the difficulty of counsel and the defendant having access to each other for trial preparation where an accused is in custody, particularly with current measures for such access limited due to the pandemic.
[232] I have not relied on either of those arguments in coming to the conclusion that Mr. Zameer has met his onus to show that his detention is not justified. I do not express a view on either of those issues.
Should there be some amount of cash deposit combined with sureties?
[233] During the evidence in examination in chief of Saima Zamir, defence counsel elicited from her that she was prepared to deposit some or all of the money she was pledging in support of Mr. Zameer’s release. In light of the Supreme Court’s decision in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, I asked counsel during submissions about the court’s authority to order a full or partial cash deposit combined with a surety release. Both defence counsel and Crown counsel submitted that the court has authority to do so. For reasons I will explain, I accept this submission. However, I find that a cash deposit should only be combined with a surety release exceptionally. As a practical matter, it will be rare. I find that this is an exceptional case, and order a partial deposit of the funds pledged by Ms Zamir in the amount of $50,000.
[234] In Antic, the Supreme Court considered the interpretation of and the constitutionality of s. 515(2) of the Criminal Code (as it then read) in relation to the possibility of combining sureties and a cash deposit for a defendant who resided locally. In Antic, the bail review judge had held that if he were able to, he would have released the defendant on a release with a surety and a cash deposit. However, the bail review judge held that s. 515(2) did not permit the combination of sureties and a cash deposit for defendants who resided locally. The impact of this was that the defendant was required to remain in custody. On a further bail review, the reviewing judge found that the geographical limitation under then s. 515(2)(e) violated the Charter. As a remedy, he severed and struck down the geographical limitation, and released the defendant on a release with sureties and a large cash deposit.
[235] In that context, Chief Justice Wagner, writing for the court, held that where a satisfactory recognizance with sureties can be obtained (i.e., where the sureties have “reasonably recoverable assets”), cash bail cannot be imposed. This is so because a pledge and a deposit fulfill the same function – the surety (or the defendant, as the case may be) may lose their money if the defendant breaches the terms of bail: Antic at paras. 4, 48-49. Chief Justice Wagner also recognized the unfairness that requiring cash deposits can work in many cases to individuals who do not have ready cash to deposit with the court: Antic at paras. 4,25-29, 56-59. At paragraph 67(h) the Court appears to speak to the availability of the combination of sureties and a cash deposit, but that it is not available if the defendant or their sureties “have reasonably recoverable assets”. The Court also describes as “exceptional” the circumstances in which cash bail may be ordered (either with or without sureties). It is not entirely clear whether paragraph 67 is referring to a cash deposit as only being available when there are no sureties if a defendant is locally resident. However, paragraph 69 seems to make clear that the court is saying that surety plus cash deposit is not available to defendants who reside locally. There, Chief Justice Wagner writes: “Because Mr. Antic is ordinarily resident in the province of Ontario, his release order is no longer legal. Cash-plus-surety release is not available to local accused under s. 515(2)(e). This leaves Mr. Antic without a release order.”
[236] Counsel made the submission that Antic strongly disfavours the combination of a surety and a cash deposit for defendants who reside locally, but is not an absolute prohibition. In light of what is said in paragraph 69 of Antic, I cannot read it that way. Paragraph 69 seems to speak to an absolute prohibition on the combination of sureties and cash deposit for defendant’s who reside locally.
[237] However, the Criminal Code bail provisions have been amended since Antic. The amendments appear to be designed to continue the policy of the ladder principle and the use of the least restrictive form and terms of release.
[238] As I read the amended provisions, in particular s. 515(2) and (2.02), I find that a bail judge has the authority to make a release order with a combination of sureties and cash deposit, even where a defendant resides locally. However, in light of the policy concerns expressed in Antic generally disfavouring cash bail, I find that the combination should only be ordered in exceptional circumstances, and that such circumstances will rarely arise.
[239] I find that two aspects of the 2019 amendments lead me to conclude that a release with sureties and a cash deposit is permissible under the 2019 amendments.
[240] First, the wording of s. 515(2)(c) as it stood when it was considered in Antic expressly prohibited deposit where sureties were ordered. At that time the provision read: “on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security” (emphasis added). The language of “but without deposit of money or other valuable security” was removed from s. 515(2)(c) in the 2019 amendments. Section 515(2)(c) now reads: “the obligation to have one or more sureties, with or without the accused’s promise to pay a specified amount if they fail to comply with a condition of the order”. Although the amended s. 515(2)(c) does not contain an express reference to allowing a cash deposit with sureties, the express prohibition has been removed.
[241] Second, the statement of the preference for a promise to pay over a deposit in the new section 515(2.02) is not expressly limited in its application to s. 515(2)(e). Section 515(2.02) is essentially a codification of the ladder principle as applied to form of release. It states: “The justice shall favour a promise to pay an amount over the deposit of an amount of money if the accused or the surety, if applicable, has reasonably recoverable assets”. There is no limiting language in s. 515(2.02). By contrast, the form of drafting used in 515(2.01) does use limiting language in constructing its application.
[242] Reading these provisions together, I find that a bail judge has the authority under the amended s. 515 to order release with sureties and a cash deposit for a defendant who is locally resident.
[243] There is little authority interpreting the 2019 amendments to the bail sections of the Criminal Code as it relates to the possibility of combining a surety with a cash deposit for a defendant who is locally resident. Counsel for Mr. Zameer directed the court to R. v. Basquin, 2019 ONSC 7168, where bail was granted on a bail review to a defendant who resided locally, and the revised plan adopted by the court included a surety and a cash deposit. There is no analysis in Basquin of the legal issue of the ability to combines sureties and a cash bail. Counsel for Mr. Zameer, as an officer of the court, drew my attention to caselaw from British Columbia holding that sureties cannot be combined with a cash deposit for defendants who locally resident: R. v. Kang, 2019 BCSC 2321[^5] at para. 47 (and cited with approval in R. v. Latimer, 2020 BCSC 892 at para. 36). The British Columbia cases are not binding on me. As I have explained, I reach a different conclusion.
[244] Although I find that I have the authority to combine sureties and a cash deposit, in light of the policy concerns expressed in Antic in its interpretation of the old wording of s. 515, I find that the combination of sureties and a cash deposit should be exceptional for defendants who are locally resident. One of the primary concerns in Antic about combining a cash deposit with a surety release is that it can lead to unfairness and overuse of pre-trial detention, where people are detained because they do not have cash to deposit: Antic at para. 56-59. The concern about unfairness caused by overuse of cash deposit bail is an important concern. I accept that over-reliance on cash deposit in bail runs contrary to the polices of the Bail Reform Act which are incorporated into the current legislative policies of the Criminal Code. For this reason, I accept that for defendants who are locally resident, the combination of sureties and cash deposit bail should be exceptional and rare.
[245] The concerns about potential unfairness caused by overuse of cash bail are not present in this case. In this case, it was the defence, through the proposed primary surety, that offered that a partial or full deposit of the funds pledged could be made. There is no issue that Ms Zamir has funds in cash in her bank accounts in Canada sufficient to make a substantial cash deposit.
[246] What I find unusual and exceptional about the situation in this case, is the combination of a very large pledge proposed in support of the release plan and that it is mostly in cash. More often, when a large financial pledge is made in support of a bail order, there is real property to support the pledge. This is just the practical reality that for people who are in a position to pledge a large amount of money in support of a bail order, often real property is their largest asset. I do not want these reasons to be read as saying that cash is inherently less recoverable than real property. For bail orders with smaller financial pledges, I would not consider a deposit. But in this case, with the combination of a very large financial pledge, and the fact that cash is inherently more mobile than real property, I find that a partial deposit of Ms Zamir’s pledge is appropriate. I also want to underline that I do not make this order because of any lack of trust in Ms Zamir as a surety.
[247] In all of the circumstances of this case, I find that it is appropriate to include as a term of Mr. Zameer’s release order that Ms Zamir deposit $50,000 of the funds pledged in support of her being a surety with the court prior to Mr. Zameer’s release.
Conclusion
[248] For these reasons, I find that Mr. Zameer has met his onus to show that his detention is not justified under any of the three grounds in s. 515(10). I find that release on terms similar to those proposed, with the addition of a prohibition on operating a motor vehicle address any concerns in relation to the primary, secondary, and tertiary grounds such that detention is not justified.
[249] I outline below terms of release that it is my preliminary view are appropriate, subject to submissions from counsel. I will hear submissions from counsel, if any, prior to finalizing the terms.
[250] Subject to the submission of counsel, Mr. Zameer will be released from custody on the following terms:
• Surety release in the amount $335,000, with named sureties Saima Zamir (in the amount of $285,000), Haunan Mahmood (in the amount of $10,000), and Akhtar Mehmood (in the amount of $40,000). $50,000 of the amount pledged by Saima Zamir shall be deposited with the court prior to Mr. Zameer’s release from custody;
• Reside with Saima Zamir at [address provided in application materials], Thornhill, Ontario, and do not change your address without prior permission of the court;
• Remain in your residence at all times, except while continuously in the presence of one of your sureties, with the following exceptions:
o To go directly to and from work, and remain at work, without a surety, but must travel continuously on the shortest route;
o To attend the offices of defence counsel, without your surety, but must travel continuously on the shortest route;
o To travel to and from and remain at medical or dental appointments without a surety, but must travel continuously on the shortest route; and
o To attend at a medical office or the hospital for medical emergencies;
• Do not leave Ontario;
• Do not attend any international airport, or within 2 km of any Ontario border crossing;
• Deposit any passport or travel documents to a designated police officer. This condition must be fulfilled prior to Mr. Zameer’s release. You may not apply for any further passports or travel documents;
• To be placed on electronic supervision for the entire length of the release and shall arrange for Recovery Science Corporation to provide monitoring service within 72 hours of release;
• Participate in and abide by the rules and regulations of the electronic supervision program as required by this court and as required by the Recovery Science Corporation and its employees and authorized agents, for the purpose of monitoring your house arrest, residence restriction, and other similar conditions;
• Permit the Recovery Science Corporation staff and/or persons who are authorized by the Recovery Science Corporation with the electronic supervision program to enter your residence for the purpose of setting up, installing, maintaining, repairing, or removing the electronic supervision program equipment;
• Permit police services in your residence during the investigation of any alerts while on the electronic supervision program;
• Do not possess any weapons as defined by the Criminal Code.
• Do not operate a motor vehicle;
• Keep the peace and be of good behaviour.
• Return to court on [date to be chosen in consultation with counsel], and thereafter as and when required.
[251] I thank counsel for their assistance in the hearing of this matter.
Justice J. Copeland
Released: September 22, 2021
COURT FILE NO.: CR-21-10000231-00BR
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
UMAR ZAMEER
REASONS FOR DECISION ON BAIL APPLICATION
Justice J. Copeland
Released: September 22, 2021
[^1]: Crown counsel advanced a different additional theory of liability under s. 229(c) in submissions, which was not advanced in the Crown’s written submissions. I deal with that theory of liability later in my analysis.
[^2]: Crown counsel in their written materials made much of the family apparently meeting with an “unknown male” on the deck. The defence called Farrukh Jadoon to testify at the bail hearing about this. In very summary form, he testified that he is a friend of Mr. Zameer’s and lives near Nathan Phillips Square, at Bay and Adelaide. Mr. Zameer called him that night three times using WhatsApp. Mr. Jadoon missed the initial calls, but then they connected. Mr. Zameer told Mr. Jadoon that the family was at Nathan Phillips Square. Mr. Jadoon walked up to the Square, and they visited on the roof deck. They then came down and he walked with them to the garage entrance, and they went their separate ways. Mr. Jadoon’s call log on WhatsApp, and a photo taken from the deck with meta data showing it was taken at 11:59 p.m. on July 1 were filed as exhibits during Mr. Jadoon’s evidence. In terms of my assessment of the strength of the Crown’s case, I find that the meeting with Mr. Jadoon has no evidentiary significance. Crown counsel in written submissions argued that it told against Ms Shaikh’s credibility that in her police interview on the morning of July 2, 2021, when she described the family’s activities prior to returning to the garage, she did not mention meeting with Mr. Jadoon. Crown counsel may, of course, make this argument to the trier of fact at trial. But I do not find it to be a strong argument. Ms Shaikh was not asked about whether they met with anyone in that interview. And although Ms Shaikh described in general terms the family’s activities prior to returning to the garage, those activities are not directly relevant to the credibility of her anticipated evidence about what occurred in the garage.
[^3]: On the face of this interaction, there may well be a s. 10(b) violation. But counsel for Mr. Zameer indicated at the bail hearing that he does not intend to contest the voluntariness of the statement, or seek its exclusion under the Charter.
[^4]: I acknowledge that Constable Forbes in both of her statements says there is one more reverse and going forward – i.e., that the car goes forward, is blocked by the MCU van, reverses, goes forward, reverses, and goes forward for the last time. At one point she describes it as a multi-point turn. However, this version of events is not consistent with the evidence of Constables Correa and Pais. It also does not appear to be consistent with what can be seen on the garage video. Although that video is not of very good quality, it appears to show the vehicle go forward, reverse and turn, and then go forward and leave. In any event, what all the officers describe are movements which could reasonably be interpreted as trying to turn the vehicle in order to leave, because the forward path out was blocked by the MCU van. What is common to the accounts of all three officers is that the vehicle hit Constable Northrup and he was knocked to the ground when the vehicle was going forward, and it continued forward and did not go into reverse after that time.
[^5]: Despite the Kang decision having a neutral citation, I was unable to find the decision on either of the commonly used electronic databases for Canadian caselaw. However, a lengthy quotation from its analysis of the 2019 amendments is included in the Latimer decision.