COURT FILE NO.: 21-SA4556, 21-RD16234, 21-A11655
DATE: 20211206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
JASEM AL MAHMOUD
Accused
Moiz Karimjee, for the Crown
Ariya Sheivari, for the Accused
HEARD: November 25, 2021
Pursuant to sections 521(10) 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 publication on legal research websites and an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.
REASONS ON Review of release order (s. 521)
Aitken J.
Review of Release Order
[1] The Crown applied under s. 521 of the Criminal Code, R.S.C. c. C-46 for a review of the release order made by Lipson J. on November 2, 2021.[^1] The Crown asked that the release order be vacated and that the Accused be detained in custody under the secondary and tertiary grounds set out in s. 515(10)(b) and (c) of the Code. At the conclusion of the hearing, I vacated the earlier order and ordered that the Accused be detained in custody under the secondary grounds. These are my reasons for doing so.
Background Context
[2] The Accused is facing three sets of charges.
[3] It is alleged that, on December 15, 2020, the Accused committed sexual assault and sexual interference against a 12-year-old girl who was sitting in the passenger seat of the car he was driving by placing his hand on her thigh and, after she removed it, by again touching her thigh. These charges are scheduled to be tried in December 2022.
[4] It is further alleged that between April 13 and April 27, 2021, the Accused sexually assaulted another complainant whom he had recently met by twice trying to force vaginal intercourse on her in the back of a vehicle and by forcing vaginal intercourse on her while in his bedroom. He is also alleged to have assaulted her on a number of occasions by whipping her arms and legs with a rod, by slapping her in the face, by pinning one of her arms behind her back and restraining her, by kicking her, and by whipping her with a belt. It is alleged that on the evening of April 24, 2021, a vehicle in which the Accused was a passenger, tried to run this complainant’s vehicle off the road. The complainant pulled off the road. The Accused followed, approached the complainant’s vehicle in an aggressive manner, and then spat directly on her. Finally, it is alleged that on April 27 and April 28, 2021, the Accused uttered numerous threats via text messages to hurt the complainant and, following his arrest, told a police officer that he was “going to kill that bitch” as he was advancing toward the police officer. The complainant has expressed concern for her safety and the safety of her family. All these charges are scheduled to be tried in October 2022.
[5] The Accused was released on a recognizance dated May 4, 2021, with his father, Mohamad Al Mahmoud, as surety. Mr. Al Mahmoud pledged $2,500 and the Accused pledged $1,000. The second condition of the Accused’s release order required him to remain in his residence daily between 9:00 p.m. and 5:00 a.m. (though the actual order referred to 5:00 p.m.) except for (1) medical emergencies; (2) attending court, meeting with his lawyer, or complying with any court order; (3) travelling directly to, from, and while at work or school; or (4) when in the presence of his surety.
[6] On May 21, 2021, the Accused was out with friends past his curfew and his surety called the police. The police spoke to the Accused and cautioned him but did not charge him because of the typographical error in the recognizance.
[7] Again, while on release for the earlier charges, the Accused on October 23, 2021 breached his recognizance by being outside of his residence past midnight, without his surety and not for one of the permissible purposes. On that occasion, the Accused committed additional offences for which he pled guilty on November 4, 2021. The circumstances were that he was out with friends in the Market area of Ottawa. He began “cat calling” two women who were walking on the street. The boyfriend of one of the women stepped in and told the Accused to leave them alone. The Accused got into an argument with the two women and the boyfriend. The Accused punched one of the women in the face with a closed fist, causing her to have a swollen/bruised lip and bleeding mouth. He then attacked the boyfriend who was trying to defend his girlfriend. The Accused, with the help of his friends, kicked and punched the boyfriend in the face while he was on the ground. The other woman tried to help her friend but was thrown backwards by the Accused, causing her to fall on the pavement.
[8] The Crown brought an application under s. 524 of the Code for the Accused’s release order of May 4, 2021 to be cancelled. The Accused sought release under ss. 524(4) and (5) of the Code respecting the two outstanding sets of charges and under ss. 515(6) and (10) respecting the newest set of charges.
Hearing on November 2, 2021
[9] At the beginning of the hearing on November 2, 2021, Crown counsel made it clear that he was bringing an application under s. 524(3) of the Code for the May 2, 2021 release order to be cancelled and the Accused detained in custody in regard to all outstanding charges. There was no issue that the preconditions to the cancellation of the release order under both s. 524(3)(a) and s. 524(3)(b) had been met. Evidence was heard from the Accused’s father as to his ability to be a surety. When submissions started, Defence counsel proceeded first, acknowledging that it was a reverse onus situation with the justice being required to detain the Accused under s. 524(4) “unless the accused, having been given a reasonable opportunity to do so, shows cause why [his] detention in custody is not justified under subsection 515(10)”. At the same time, Defence counsel argued that, in regard to the newest charges, the Accused should be released under ss. 515(6) and (10) of the Code. Again, a reverse onus applied.
[10] Defence counsel proposed that the Accused be released with his father again acting as surety but with significantly tightened release conditions, such as home confinement with the exception of the Accused being allowed out in the company of his surety or to go to work.
[11] Before hearing submissions from Crown counsel, the justice indicated where “he was at”. First, he noted that there was strong evidence that not only did the Accused breach his bail but also he engaged in a violent crime in the company of others past his curfew. Next, the justice opined:
I’m inclined on the 524 application to maintain Justice Perkins-McVey’s order on the basis of the father’s commitment to supervise him. However, on the current charges before the Court I’m in a position to say that the accused has not met his onus on those charges. Is there anything to prevent the Crown application under 524 from being dismissed, maintaining the bail on the first set of charges and detaining him on the new charges?
[12] Crown counsel suggested that the appropriate way to proceed would be to cancel the earlier release order and, if the justice was so inclined, to grant a new release order relating to all three informations before the court. The justice responded as follows:
If the Crown had not brought the other information, the older charges into court, I would have likely detained him on these charges. …I think he’s – he hasn’t met his onus on the current charges, but I’m hesitant to cancel his bail on the older charges, because these new charges, while serious, do not involve the same type of conduct. In other words, if he had been involved with minors in the new set of charges, that would be an entirely different story, but this is unrelated to the charges relating to an intimate partner or children.
[13] The justice indicated his desire to dismiss the s. 524 application regarding the earlier release order but then to not give the Accused bail on the new charges. He stated: “[t]hey’re unrelated to the older charges, but they still – there’s still an onus on the accused to meet, and in my view, it is difficult to say that he has met his onus.” The justice appeared to be of the view that the Accused only had an onus to meet in regard to the newest charges before the court.
[14] After Crown counsel pointed out the mandatory language in s. 524(3) of the Code to the effect that the justice shall cancel the release order in respect of an accused if the justice finds that one of the two preconditions set out in ss. 524(3)(a) and (b) has been met, the justice went on to say:
… but I don’t wish to cancel his bail and detain him on the [earlier charges]. I would make a bail order similar to Justice Perkins-McVey’s, with maybe a little tightening up.
[15] After a recess to allow everyone to consider what the justice was proposing, Crown counsel again reiterated the mandatory wording in s. 524(3) of the Code. The justice then agreed that the earlier release order was cancelled on the older charges; however, he also reiterated his wish to grant bail to the Accused on those charges – just with tighter conditions – and to deny bail to the Accused on the newest charges. He queried:
I haven’t made up my mind entirely on that, but what I was asking is, is that an available option? I don’t see why it isn’t, because he’s being asked to show cause. He’s being asked to show cause on the new charges and he happens to have an existing bail that’s cancelled. It could be replaced with either a detention order or a new bail order.
[16] Later the justice used language to say that he would be continuing, though tightening, the earlier release order but would be denying bail in regard to the new charges because the Accused had not met his onus.
[17] Crown counsel explained that once the earlier release order was cancelled under s. 524(3), the onus was on the Accused to show cause why his detention was not justified under s. 515(10) – just as the onus was on the Accused to show cause under s. 515(6) why his detention was not justified in regard to the new charges. As Crown counsel pointed out, there was not an option to detain on the latest information and release on the earlier informations when the same test based on the same circumstances had to be applied in regard to all outstanding charges at the same point in time.
[18] Clearly the justice had difficulty accepting this interpretation of the law. He noted that: (1) the s. 524 application related only to the older charges and whether to cancel the original release order and replace it with a detention order or a new form of release; (2) the older charges were separate and apart from the newer charges; and (3) the Accused had a reverse onus and had to show cause why he should be released on the newer charges.
[19] Ultimately, the justice granted the s. 524 application and cancelled the earlier release order. He then made a new release order in regard to the earlier charges, increasing the surety’s pledge to $5,000 and imposing house arrest with the Accused only leaving the residence in the company of his surety or for one of the excepted purposes listed in the earlier release order. The justice detained the Accused on the newest charges. He did so because the Accused had not met his onus to show that his detention was not justified on the secondary grounds. The justice added: “… had the new charges related in any way to minors or intimate partners, [the Accused would] likely be detained on the older charges too …”.
Errors of Law
[20] Crown counsel argued that the learned justice made three errors of law in his handling of the s. 524 Crown application to cancel the earlier release order granted by Perkins-McVey J. and the Defence application for a release order under ss. 515(6) and (10) of the Code.
Failure to Recognize Reverse Onus on s. 524 Application
[21] Nowhere during the interchange between the justice and counsel did the justice ever acknowledge that, under s. 524(4) of the Code, there is a reverse onus. Once an earlier release order is cancelled under s. 524(3) – something which had to be done in the circumstances of this case based on the evidence and findings at the hearing – the onus is on the accused to show cause why his detention in custody is not justified under s. 515(10)(a)(b) or (c). Not only did the justice not acknowledge the reverse onus situation under s. 524(4) but he repeatedly differentiated the ss. 515(6) and (10) application from the s. 524 application by pointing out that the former placed a reverse onus on the Accused. The implication was that the justice did not recognize that s. 524(4) imposed the same reverse onus on the Accused as did s. 515(6).
Failure to Apply the Proper Test Under s. 515(10)
[22] The justice was required under s. 515(10)(b) of the Code to consider whether the Accused’s detention on November 2, 2021 was “necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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”.
[23] On November 2, 2021, the Accused was facing three sets of charges, with all three involving different levels of assaultive or violent behaviour against others. The justice was obliged to take all alleged offences into account as part of “all the circumstances” existing on November 2, 2021 in assessing the level of risk to public safety posed by the Accused, including any substantial likelihood that he would commit a criminal offence or interfere with the administration of justice if he were released from custody. For some reason, the justice did not seem to think the earlier offences were of much significance when the newest charges involved assaults against strangers and not intimate partners or children. He stated that, if the newest alleged offences had been against intimate partners or children, he likely would not have made a release order in regard to the earlier charges. At the same time, the justice concluded that the newest alleged offences were an escalation from the earlier alleged offences and were enough on their own to warrant detention. The task before the justice was not to determine whether there was a substantial likelihood that the Accused, if released, would commit another offence against an intimate partner or child; instead, it was to determine whether the Accused’s detention was necessary for the protection or safety of the public at large, or any member of the public, taking into account any substantial likelihood that the accused would commit any offence if released.
Inconsistent Verdicts
[24] It was an error of law for the justice to make two opposing orders for the one Accused when the justice was obliged to apply the same test on the same day to the same set of circumstances when considering both the s. 524 and ss. 515(6) and (10) applications. That test was set out in s. 515(10) and was to be applied with the onus on the Accused to establish why his detention was not justified.
Conclusions re Errors of Law
[25] As a result of the errors of law, the order of the learned Justice was vacated.
Disposition
[26] By the time this matter was heard on November 25, 2021, the Accused had pled guilty on November 4, 2021 to the various charges arising from the assaults in the Market on October 23, 2021. He had served his sentence and had been released to live in the community in accordance with the conditions of his probation order and of the November 2, 2021 release order. No new incidents of disobeying the terms of the release order have been reported since his release.
[27] Unfortunately for the Accused, he has not shown cause that his detention is unnecessary for the protection or safety of the public. The allegations against the Accused in regard to the two sets of outstanding charges are of concern. In the first set of circumstances involving the 12-year-old girl, not only is it alleged that he helped a friend to engage in sexual contact with an underage girl by driving the vehicle in which the activity was occurring, but also it is alleged that he personally engaged in such behaviour when given the opportunity to do so. Respecting the series of incidents making up the second set of charges, it is alleged that the Accused “raped” the complainant and attempted to do so on a number of occasions and assaulted and threatened her in order to gain her compliance and silence. A police officer will testify that the Accused threatened to cause death to the complainant in that second set of charges and referred to the complainant as “the bitch”. If the Accused is speaking like that in the presence of police officers, one can only wonder what he says or does when no authorities are present.
[28] Both sets of allegations raise serious concerns about the Accused’s attitudes about girls and women and about his sense of entitlement to have his sexual needs gratified as and when he likes. These concerns are only augmented by his guilty pleas and findings of guilt in regard to the very recent assaults on two women and a man, three complete strangers, as recently as October 23, 2021 – an incident that arose because the Accused was once again being disrespectful to women and treating them as sexual objects. That incident shows the Accused’s inability or unwillingness to control his outbursts.
[29] Without adequate safeguards in place, I conclude that there is a substantial likelihood that the Accused will, if living in the community, commit an offence that will put the safety of one or more members of the public at risk.
[30] In reality, the safeguards being proposed by the Accused are not much different than those put into place under the original release order of May 4, 2021 granted by Perkins-McVey J. The fact that the surety has doubled his pledge from $2,500 to $5,000 has no direct impact on the Accused. It may put additional pressure on the surety to ensure the Accused’s compliance with the terms of a release order, but I have no doubt that the surety has always done his very best to ensure such compliance. Alas, he had to acknowledge that he cannot guarantee where his son is at every moment of every day. The problem is that the Accused gets into trouble with his friends late at night when his family is asleep and, unbeknownst to them, he leaves the house. Under the earlier release order, the Accused was subject to a curfew from 9 p.m. to 5 a.m. He ignored that on two occasions (of which we are aware) and the serious offences for which he pled guilty on November 4, 2021 happened on one of those occasions. The incident involving the 12-year-old girl also allegedly occurred very late at night. The Accused’s father and mother cannot be expected to stay up during the night to ensure their son does not leave the house undetected. As well, it does not provide me with much assurance that his younger brother, who is not yet an adult, could be expected to supervise the Accused. That is unrealistic.
[31] It is for these reasons that I ordered the Accused be detained.
Released: December 6, 2021
COURT FILE NO.: 21-SA4556, 21-RD16234, 21-A11655
DATE: 20211206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
JASEM AL MAHMOUD
Respondent
Reasons on review of release order (s. 521)
Aitken J.
Released: December 6, 2021
[^1]: Under s. 524(10) of the Code, an order made under s. 524(4) or (5) respecting an accused other than the accused referred to in s. 524(1)(a) is subject to review under ss. 520 and 521 as if the order were made under s. 515 of the Code.