R. v. Duale, 2021 ONSC 757 — Superior Court of Justice | minicounsel

COURT FILE NO.: CR-20-00000332-00BR

DATE: 20210129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMUD DUALE

P. Zambonini, for the Crown

A. Herscovitch, for the Defence

HEARD: 11 January 2021

RESTRICTION ON PUBLICATION: Pursuant to sections 522(5) and (517(1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

s.a.Q. akhtar j.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] The applicant is charged with committing the first degree murder of Faysal Hees on 18 December 2016. Mr. Hees was found dead in his apartment having been shot five times. When examined, he was found to have four bullet wounds to his head and a single shot in his chest.

[2] Police investigation of the murder led the finger of suspicion to point to two individuals: Adil Zeno, whose fingerprint was found on a plastic bag in the apartment and Monique Ibrahim who was known to frequent Mr. Hees’s apartment.

[3] Video cameras captured individuals alleged to be Mr. Zeno and Ms. Ibrahim in the stairwell of Mr. Hees’ apartment building on 18 December 2016 in the company of the deceased. At 4.30 p.m., all three exited the apartment building returning at 4.44 p.m. when they were recorded entering an elevator. At 8:09 p.m., Mr. Zeno and Ms. Ibrahim were captured walking down the stairs from the direction of Mr. Hees’ apartment. Mr. Zeno pulled a hood over his head and Ms. Ibrahim wore a baseball cap pulled low over her face. The jacket worn by Mr. Zeno has since been identified as belonging to the deceased by Mr. Hees’ mother.

[4] Approximately 16 minutes later, two males headed up the same stairwell in the direction of Mr. Hees’ apartment. One of the men was holding a gun. Some six minutes later, the camera recorded these men running back down the stairwell. However, neither of these male’s faces was captured on camera.

[5] Investigating officers launched a “Mr. Big” operation with Mr. Zeno as its subject. From January 2017 to April 2019, undercover officers posing as members of a criminal organisation met with Mr. Zeno as well as contacting him by phone.

[6] In December 2018, their efforts appeared to have paid off: Mr. Zeno admitted killing Mr. Hees telling the police he had shot the deceased as he was coming out of his bathroom. He added that he had buried the gun. In February 2019, Mr. Zeno changed his account and told the officers that he had shot the victim twice on the left side of his forehead as he slept on the couch. In April 2019, he provided a third version of events stating that he had shot Mr. Hees three times in the “dome” as he lay on the couch “about to pass out”.

[7] When questioned about the discrepancies, Mr. Zeno maintained that he shot Mr. Hees on the couch and explained that he was drunk when he had recounted his earlier version.

[8] On 24 April 2019, Mr. Zeno told the officers that he had contacted the two men seen on the stairwell after the shooting, identifying them as “Dicey” - alleged by the Crown to be Ahmad Siyad - and “Yodi” whom the Crown submits is the applicant. Mr. Zeno was shown photos and identified the two men by their body shape. He told the officers that he met the “Dicey” and “Yodi” when they arrived and believed that they “went upstairs, tried to clean a little bit more probably and then just left afterwards”. When asked if he spoke to the two men when they came back, he said “Nuh, they just cut”.

[9] The Crown alleges that Mr. Zeno shot Mr. Hees three times and that Siyad and/or the applicant fired two further shots into him. This position is based on post mortem reports and Mr. Zeno’s comments that Siyad and the applicant had “probably double tapped” Mr. Hees.

[10] As a result of the investigation, Mr. Zeno, Ms. Ibrahim, Mr. Siyad and the applicant were charged with Mr. Hee’s murder.

[11] However, at the preliminary inquiry, Mr. Zeno recanted his comments testifying that he had been untruthful to the police. At the hearing, which, at the time of this bail hearing had not concluded, the Crown had been forced to apply to have Mr. Zeno’s comments admitted as prior inconsistent statements to be tendered for their truth pursuant to the principles set out in R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.

[12] The applicant applies for bail, making an application pursuant to s. 469 of the Criminal Code.

[13] At the conclusion of the hearing, I granted his application with reasons to follow.

The Applicant

[14] The applicant is now 29 years old. His parents were killed in the conflict that engulfed Somalia, when the applicant was very young. He was raised by and lives with his aunt, Nadifo Kahiye, one of his proposed sureties. The applicant attended Vaughan Road Academy in Toronto but left before he graduated. He has indicated his intention to finish High School if released on bail with a view to securing a professional career.

[15] There can be no dispute that the applicant has an extremely troubling criminal record. There are numerous violations of court orders involving breaches of bail, failing to comply with probation orders, and failing to attend court.

[16] The applicant’s adult record began in August 2011 when he was convicted of assault with a weapon and given a suspended sentence with probation after serving 295 days in pre-sentence custody. On 25 June 2014, he received a five year sentence for possession of a prohibited or restricted firearm with ammunition and other related offences including possessing a firearm whilst prohibited by court order.

[17] The applicant did not appear to remember much of his criminal past when questioned at this hearing. For example, he could not remember what charges he was facing when convicted of failing to comply with a recognizance. His recollection was that this offence involved failing to abide with curfew conditions and being arrested on his way home. However, he could not recall any other bail breaches even though he was sentenced to two others on the same day. Nor could he explain the reasons for behind his conviction for failing to attend court.

[18] When questioned about his conviction for assault, he could not remember who he had assaulted or the circumstances of the offence even though it was his first adult conviction. The applicant also contradicted prior statements made in a pre-sentence report regarding gang associations and whether being at Dixon Road, his surety’s residence, was a safe place for him to reside.

[19] I was not impressed with the applicant as a witness and have significant concerns about his ability to tell the truth. There is much to doubt about the sincerity of his intentions if released or his declaration that he is a “different” person to the one who has spent a large chunk of his life incarcerated.

[20] The applicant also testified that he had contracted COVID-19 in early December 2019 whilst in custody for this offence. However, he had very mild symptoms and told the court that he currently “feels good”.

The Plan

[21] The applicant offers a plan of release involving three sureties: his aunt, Ms. Keyahie, his brother, Ahmed, and a friend, Muhadeen Jama, in the sum of $20,000. These sureties would supervise the applicant in a form of house arrest during which the applicant would be obligated to wear an electronic bracelet and be monitored by the Recover Science Corporation.

[22] I note that Ms. Ibrahim was released on bail by my colleague C0de J. on 13 May 2020.

HAS THE APPLICANT SHOWN HIS DETENTION IS NOT JUSTIFIED?

The Secondary Ground

[23] The Crown’s concerns lie with the secondary and tertiary grounds of detention in s. 515(10) of the Criminal Code.

[24] Section 515(10)(b) of the Criminal Code, sets out the “secondary ground” of detention and states:

Where the detention is necessary for the protection or safety of the public, … having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[25] An accused’s release is only denied when there is a substantial likelihood of committing further offences or interfering with the administration of justice and when it is necessary for the public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91 at p. 107; R. v. Jaser, 2020 ONCA 606, at paras. 67-8. In first degree murder cases, s. 469 of the Criminal Code places the onus on the accused to demonstrate that their detention is not justified.

[26] The Crown posits that the applicant’s serious criminal antecedents (which include a conviction for possession of firearm) and his established history of failing to comply with court orders demonstrates a substantial likelihood that he will commit further offences that will endanger public safety.

[27] There is no doubt that the applicant’s criminal history weighs against his release. I also agree with the Crown that his pre-sentence report suggests that returning to the Dixon Road area is not ideal due to possible connections with the gang related sub-culture present in the area. The Crown, not unreasonably, argues that the applicant is a dangerous man and a danger to the public.

[28] However, mere dangerousness is not the test for release.

[29] Both the secondary and tertiary grounds mandate the need to consider the strength of the Crown’s case in deciding whether these grounds have been satisfied or rebutted. The horrific nature of Mr. Hees’ demise raises secondary ground concerns because those who committed the act might be said to be a threat to public safety if allowed to roam free and unrestrained. However, if the case against an accused is weak, that factor - and accordingly, the secondary ground considerations - are substantially diminished: R. v. Ibrahim, 2020 ONSC 3014, at para. 31.

[30] The Crown’s case against the applicant has significant problems. It is entirely reliant on the “Mr. Big” statements elicited from Mr. Zeno, an unsavoury witness who, at the preliminary inquiry recanted his evidence. At any potential trial, Mr. Zeno would be the subject of a very strong caution in line with the principles set out in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 and R. v. Khela, 2009 SCC 4. The jury would be instructed to look for confirmatory evidence in making its decision. Here, there appears to be none.

[31] Moreover, even if Mr. Zeno maintained the truth of his statements to the police, there are glaring inconsistencies between Mr. Zeno’s account and the objective evidence. For example, Mr. Hees’ body was not found on the couch but on the floor near a wall; video surveillance shows that Mr. Zeno and Ms. Ibrahim had left the building approximately 16 minutes prior to the two men in the stairwell arriving contradicting Mr. Zeno’s account of meeting them in the stairwell. Further, Mr. Zeno indicated that he had already shot Mr. Hees in the head before he contacted the applicant casting doubt on the notion that the applicant killed the deceased. These inconsistencies add to the internal discrepancies previously described.

[32] For these reasons, notwithstanding the fact that the sureties might not be ideal, I am satisfied that the applicant has met his onus on the secondary grounds.

The Tertiary Ground

[33] Section 515(10)(c) of the Criminal Code sets out the following statutory factors requiring consideration in deciding whether detention is necessary to maintain confidence in the administration of justice:

(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[34] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada explained that the tertiary ground had to be considered separate and apart from the secondary ground. In determining release under the tertiary ground, the question to be asked is whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[35] The four factors in s. 515(10)(c) are not exhaustive and, further, must be analysed together and not separately: R. v. E.W.M. (2006), 2006 CanLII 31720 (ON CA), 223 C.C.C. (3d) 407, 215 O.A.C. 125 (C.A.), at para. 31. However, where all four factors have “maximum force” detention is “entirely to be expected”: E.W.M., at para. 32.

[36] There is no doubt that grounds (ii)-(iv) weigh in favour of detention. However, as has been noted, the evaluation under this ground must focus on all four grounds together. My earlier comments on the strength of the Crown’s case resonate under this ground, and I find that its weaknesses are sufficiently significant to find that the applicant has met his onus under this ground.

[37] Indeed, I would think that the confidence of the administration of justice would be undermined if an accused person was held in custody when the evidence against them was very weak.

CONCLUSION

[38] For the foregoing reasons, I find that the applicant has met his onus demonstrating that his detention is not justified.

[39] He is to be released on a surety bail amounting to $20,000.

[40] He will reside with his surety at an address to be provided by the applicant’s counsel.

[41] He will remain in that residence at all times except for medical emergencies involving himself or a member of his immediate family and when he is in the presence of a surety

[42] The remaining conditions, as agreed by counsel, are set out in the release order that I have signed.

[43] I thank both counsel for their assistance in this matter.

S.A.Q. Akhtar J.

Released: 29 January 2021