Court File and Parties
Court File No.: 21-7673-00BR Date: 2021/12/21
Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Daniel Hajrizi, Applicant
Counsel: Hart Shouldice, for the Crown Robert Carew, for the Applicant
Heard: December 16, 2021, oral reasons given December 17, 2021
Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.
Endorsement on Bail Review Application
Anne London-Weinstein J.
[1] The accused is charged with a number of offences relating to allegations of domestic violence in relation to his former girlfriend. The charges include: break and enter, assault, assault with a weapon, administering a noxious substance, possession of a weapon for committing an offence, point firearm, and assault with a weapon.
[2] The accused is 22 and has no criminal record. Other than the charges before the court, he has no other outstanding charges.
[3] The complainant in this case is the accused’s former girlfriend. The accused last had contact with the complainant on November 9, 2021. He was arrested on November 19, 2021.
[4] The accused was detained on the secondary and tertiary grounds by Chester J. on November 23, 2021.
[5] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court noted the court’s jurisdiction to review a bail judge’s decision at paras. 92 and 121:
[92] For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C. do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order.
[121] It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[6] The defence seeks review of the decision of the bail judge, listing a number of errors. The Crown position is that there were no legal errors, nor a material change in circumstances.
[7] Section 520 of the Criminal Code permits a bail hearing de novo where there is either a material change in circumstances or an error in law.
[8] I found there was legal error in the reasons of the bail judge, which were material to his decision.
[9] The accused had three legal, registered, and properly stored firearms in his home. They are handguns. The accused is properly licensed. At this point, handguns are still legal to possess in Ontario, whatever other legislative changes may take place in the future.
[10] The bail judge faulted the proposed sureties for “not knowing” what the accused did with the firearm in allegedly pointing it at the complainant or striking her with it.
[11] The bail judge is required to consider whether the sureties could adequately supervise the accused and to assess the strength of the bail plan. A bail judge is required, relying on the principle of restraint and the ladder principle, to consider what risks might arise if the accused is released without conditions. Only conditions that target the accused’s risk in relation to flight, public protection and safety, or maintaining confidence in the administration of justice are necessary: R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1.
[12] The presumption of innocence applies at all stages of a criminal proceeding, including bail: see R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665. The Charter guarantee to the right to reasonable bail is linked to one of the cornerstones of our criminal justice system, which is the presumption of innocence. In the context of bail, the presumption of innocence must be interpreted in light of issues related to bail, including securing the attendance of the accused at trial, protection of the public, and public perception of the administration of justice.
[13] In my view, the sureties in this case could not be faulted for not “knowing” about an allegation of a threat with a firearm.
[14] In some bail cases, it is evident by the nature of the alleged facts in the bail hearing that a surety who had been previously living with or close to the accused may have turned a blind eye to potential criminal activity around them.
[15] In those cases, it is not a violation of the presumption of innocence for the bail judge to consider whether the surety is appropriately able to supervise the accused in the circumstances. However, it is worth noting that a friend or family member is not yet equipped with the tools of revocation and the other powers provided to a surety to control the accused.
[16] In some cases, the accused may also conceal their activities from family members or friends who are pro-social based on the knowledge that family or friends would disapprove of the activity. Once a surety is empowered with the tools available to a surety through a strong plan of supervision, the accused’s ability to conceal criminogenic activity may be ameliorated.
[17] However, this case does not involve sureties who were willfully blind, or ignorant of the accused’s activities. It is not a case where a type of general knowledge of the accused’s criminal lifestyle on the part of the surety can be safely assumed. The accused has no criminal record. He has been employed in the past for three years as a chef. The allegation of using a firearm is not admitted. The facts at the bail hearing did not suggest that the sureties were present when the incidents are alleged to have taken place. In my view, with respect, the bail judge presumed the guilt of the accused in faulting the sureties for not knowing about something that is at this point an unproven allegation.
[18] I note as well that sureties are often people who are close to the accused. To fault a surety both for knowing, and/or for not knowing, about criminal allegations places the surety in a catch-22 situation. On the one hand, if the surety did not know about the allegations, they are faulted for being out of touch with the accused and unable to control the accused’s behaviour. If there is evidence that they were aware of the allegations and did nothing, they are faulted for appearing to condone criminal behaviour, or for being unable to deter the accused’s allegedly criminal behaviour.
[19] In this case, I found that the bail judge erred in disqualifying the sureties over their lack of knowledge regarding the allegations. In finding that the sureties should have known about an allegation that did not occur in their presence, the bail judge erred.
[20] The bail judge also failed to consider the strength of the Crown’s case as part of the tertiary ground analysis. The strength of the Crown’s case is a statutorily mandated consideration on the tertiary ground. This error alone would warrant a new hearing.
[21] I also found that the bail judge erred when he found that the accused’s mother must have been pardoned for a serious criminal offence to warrant a 10-year weapons prohibition. There was no evidence that the mother had been convicted of a serious offence. A 10-year prohibition order can be applied to a discharge or a conviction for any indictable offence, where violence against a person was used, threatened or attempted, and for which the person may be sentenced to imprisonment for 10 years or more. See: Section 109 (1) of the Criminal Code.
[22] The transcript also reveals that the accused’s mother was never asked about whether a prohibition order existed before the issue of the length of it being for life was raised. I agree with the defence that she was asked and repeatedly challenged by the Crown regarding the imposition of a lifetime ban. She continually maintained that it was a 10-year ban, now long expired. Further, she had been pardoned for that offence. The Crown confirmed that the entry on CPIC was incorrect, and that the accused’s mother had only been subject to a 10-year weapons prohibition.
[23] The defence listed a number of other errors on the part of the bail judge. I need not deal with all of them, as I am satisfied that the legal errors above warrant a new hearing.
[24] At this point a new hearing is conducted. The defence proposes a new surety. I see no reason why the defence would be precluded from calling a new surety given that this is a new hearing. The reason a new hearing is being granted is due to the legal errors of the bail judge in the original hearing and not based on a material change in circumstances.
De Novo Hearing:
Crown’s position:
[25] The Crown’s position is that Mr. Hajrizi was not candid in his evidence, that he was “cagey’’, and his evidence selective and self-serving. Credibility assessments of an accused at a bail review relate to my ability to be satisfied that the accused will obey the conditions of his release. I agree with the Crown that the accused was not candid at points in his evidence. It is clear that he wanted to present himself in the best possible light. Still, I found the accused’s lack of credibility at certain points in his evidence must be weighed with all of the evidence that I heard in this bail review to determine whether I am satisfied that the secondary and tertiary ground concerns are met.
[26] I heard from two very good sureties. They are both the sisters of the accused. They have a close relationship with their brother. They are both pro-social individuals. They were credible witnesses. There was extensive cross-examination about vehicles and finances. The sureties in this case were inadvertently not excused from the courtroom while their brother testified.
[27] This oversight was my fault. I normally physically sit in the courtroom and today I could not pass the COVID-19 courtroom screening process due to a cold, and so I worked from home. I presumed, wrongly, that the sureties would be attending by Zoom. The older sister Rokzana was a very good surety. She is a pro-social individual, older than her brother, and is a new surety to this plan. She lives at the family home with her brothers, her sister Camilla, and her mother. She heard her brother testify but did not hear her sister Camilla testify. Both sisters are close to their brother. Both satisfied me that they would be good sureties.
[28] I gave less weight to the areas of their evidence pertaining to why the accused drove his brother to work, however, in the main, I did not find that the fact that the sureties heard their brother testify had much of an impact on the evidence they gave, although I accept that this is perhaps hard to measure. The accused did blurt out remarks during the original bail hearing, as the Crown indicated. However, he testified that he had never been in court before and felt he had to defend himself. I accepted his evidence on this issue.
[29] Camilla admitted that their other brother had an interlock device installed on his vehicle. He works as a security guard. The accused drives him to work. The accused did not want to admit that his brother had a charge/conviction for impaired driving. I agree with the Crown that the accused omitted this information from his evidence. However, I did not find that I was satisfied on a balance of probabilities that the risk of him committing a criminal offence while on bail was substantially likely.
[30] The secondary grounds require that the accused be detained where there is a substantial likelihood that he will commit additional criminal offences or interfere with the administration of justice.
[31] The accused is 22 years old with no criminal record or other criminal charges. He previously was employed for three years as a chef at a retirement home in Manotick, Ontario, prior to being involved in a serious car accident.
[32] His firearms have been seized by police. The firearms were properly registered, legally owned, and legally stored. He shoots at a shooting range. He surrendered to police and co-operated with them when they indicated they did not have a Feeney warrant.
[33] I am of the view that the secondary ground concerns have been satisfactorily addressed in this case through the two good sureties who testified. I am also satisfied that the accused is of the view that it is in his interest to follow his bail conditions after spending three weeks in jail during a pandemic. The accused testified that he was bullied and terrified in jail and had no wish to return. I am satisfied that his experience in jail will positively impact his ability to follow court orders. I appreciate that the accused was not always completely candid with the court, but I am satisfied, when I consider all of the evidence I heard, that there is not a substantial likelihood that the accused will commit additional criminal offences, or interfere with the administration of justice if released on bail.
Tertiary Grounds:
Strength of Crown’s case:
[34] I agree with the defence that this is not an overwhelming Crown case. There are credibility issues. The complainant has denied one allegation already. The accused has no record. However, I note that the accused may not fare very well under cross-examination. He tends to get defensive, which may not enhance judicial perception of his credibility at trial. This factor does not favour detention.
Gravity of the Offence:
[35] The offence is grave in nature and contemplates a sentence range which may, depending on how the facts are established at trial, result in a sentence in the low federal range. This factor favours detention.
Potential for a lengthy period of incarceration:
[36] If convicted the accused is liable to be sentenced to jail for a considerable period, however, since he has no record, the principle of restraint would apply. He is youthful. However, this ground favours detention.
Surrounding circumstances:
[37] The nature of the allegations involves domestic violence. It is alleged the accused pointed a firearm. This ground militates in favour of detention. This factor would militate in favour of a longer sentence being imposed.
[38] Three of the four tertiary ground factors favour detention. Even where all four factors favour detention, that is not determinative of the issue.
[39] The factors set out in s. 515(10)(c) are not exhaustive: see St-Cloud. The statutory factors are to be given paramountcy. However, all relevant circumstances are to be considered. I also considered the youth of the accused, his lack of criminal record, and his co-operation with police who arrested him despite the fact they lacked a Feeney warrant. These factors are relevant to public perception and the maintenance of public confidence in the administration of justice relevant to the secondary ground concerns, but also to the tertiary ground concerns: see Trotter J.’s decision, as he then was, in R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85.
[40] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, the court explained that denying bail to maintain confidence in the administration of justice is not a mere catch all for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevant to all three heads, but that does not negate the distinctiveness of the three grounds: see Hall, at para. 30; R. v. Lee-Jones, 2019 ONSC 7603.
[41] Specific factors supporting a proposed bail plan are not only relevant to secondary ground concerns but may also be relevant to tertiary ground concerns. A reasonable person’s confidence in the administration of justice could be affected by knowing that stringent terms of release are being proposed versus very few conditions being imposed. This may have a particular impact in close cases. The public might very well, for example, lose confidence in the administration of justice upon learning that an individual charged with a serious offence was released with few conditions. However, that confidence may not be undermined if the public were aware that very significant restrictions and continuous supervision were imposed. The conditions imposed by the court are directly relevant to public perception of the administration of justice.
[42] Relying on Hall and Dang, I have considered the fact that the accused is just 22, has no criminal record, has good sureties, and has spent the last three weeks at the OCDC in custody during the pandemic, having never been in jail before, to be relevant to the public perception of his release. I found that being in jail for three weeks impacted the accused and will bring home to him the seriousness of following his conditions.
[43] I am required to consider the combined effect of all circumstances in each case, with a special focus on the four factors singled out by Parliament to determine whether detention is justified. The question to be answered is whether detention is necessary to maintain confidence in the administration of justice. Detention is not automatic even where all four factors are met: St-Cloud, at para. 70
[44] The release of an accused person is the cardinal rule, and detention the exception: see R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, cited in St-Cloud.
[45] The entitlement to reasonable bail as guaranteed by the Charter is linked to one of the cornerstones of our criminal justice system, which is the presumption of innocence. For that reason, I must be satisfied that interim detention is truly justified having regard to all the relevant circumstances of the case.
[46] Finally, I also considered that one of the few silver linings of COVID-19 is that people who would otherwise be at work are now home and able to provide ongoing supervision. Roksana is a very good surety and she is currently at home due to loss of employment during the pandemic.
[47] In the circumstances, I am not satisfied that the detention of the accused is necessary to meet the tertiary ground concerns that exist in this case. Having found that there was no substantial likelihood that the accused would commit additional criminal offences, nor that his detention is necessary to maintain confidence in the administration of justice, he is to be released.
Anne London-Weinstein J.
Released: December 21, 2021
Court File No.: 21-7673-00BR Date: 2021/12/21
Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Daniel Hajrizi, Applicant
Endorsement on Bail Review Application
A.E. London-Weinstein J.
Released: December 21, 2021