Court File and Parties

COURT FILE NO.: 21-SA4556, 21-RD16234 DATE: 20220325 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – JASEM AL MAHMOUD Accused

Counsel: Moiz Karimjee, for the Crown Ariya Sheivari, for the Accused

HEARD: March 11, 2022

Pursuant to sections 520(9) 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. 520)

Aitken J.

Review of Release Order

[1] On December 6, 2021, I vacated an earlier release order made by Lipson J. on November 2, 2021 and ordered that the Accused be detained in custody under the secondary grounds. Subsequently, I provided written reasons for this decision (R. v. Al Mahmoud, 2021 ONSC 8029). At the time of the hearing, I offered some thoughts as to how the release plan could be strengthened. Defence counsel took these observations to heart and has been spending the last few months trying to improve the Accused’s release plan. The Accused now brings an application under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 for a review of my December 6, 2021 decision denying him bail.

December 6, 2021 Decision

[2] On December 6, 2021, I decided that the Accused had not shown cause that his detention was unnecessary for the protection or safety of the public. I noted that the allegations against the Accused in regard to the two sets of charges outstanding at the time were of concern. In the first set of circumstances involving a 12-year-old girl, not only was it alleged that the Accused helped a friend to engage in sexual contact with the underage girl by driving the vehicle in which the activity was occurring, but also it was 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, I noted that it was 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.

[3] As I indicated R. v. Al Mahmoud, at para. 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.

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.

Legal Framework

Test Under s. 520 of the Code

[4] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 120-121, the Supreme Court of Canada instructed that s. 520 of the Code does not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning judicial interim release. It does not call for a de novo hearing, but a hybrid remedy. The judge must determine whether it is appropriate to exercise her power of review. It will be appropriate for her to do so in only three situations: (1) where there is admissible new evidence, if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. The only ground upon which the Accused is relying is a material change in circumstances.

Reverse Onus

[5] Under s. 520(7)(e) of the Code, the onus is on the Accused to show cause as to why his detention in custody is not justified under s. 515(10) of the Code.

Material Change in Circumstances

[6] The Accused proposes a “beefed-up” release plan as follows:

• The Accused would reside at his family residence and be subject to house arrest, subject to standard exceptions and an exception to allow him to work with his former employer installing carpets. This mirrors the proposal at the last bail hearing.
• The Accused’s father, Mohammad Al Mahmoud, would be his surety and would post a bond of $5,000. This mirrors the proposal at the last bail hearing.
• GPS monitoring would be used and, assuming the Accused was permitted to work, he would be responsible for paying the cost of the monitoring. This is new.
• There would be a no-contact order in regard to the Accused’s former friends, as well as the complainants. The Accused would provide his father with his passwords for his cellphone and computer and his father would monitor the Accused’s communications over these devices. This is new.
• The Accused, who is Muslim, would obtain counselling from Shaykh Mohamad AbdulRahman Iyoun Alsoud, the Imam of a mosque associated with the Rhoda Foundation. Shaykh AdbulRahman is from Syria and shares the Accused’s cultural and linguistic heritage. He is prepared to meet with the Accused virtually once a week. The counselling would be conducted in Arabic, the Accused’s first language, and would be provided in accordance with Islamic teaching. The focus of the counselling would be the development of healthy, respectful attitudes towards women and girls and the development of anger management skills. This is new.

[7] The new aspects of the proposed release plan have to be considered together with the factors that underpinned my refusal to grant bail to the Accused to determine whether the alleged change in circumstances is both material and relevant to the case at hand. If the alleged change in circumstances could reasonably have been expected to affect my earlier decision, then I am authorized to conduct a new hearing and conduct a fresh analysis of the Accused’s request for release (St-Cloud, at para. 138; R. v. J.A., 2020 ONCA 660, 153 O.R. (3d) 593, at paras. 21, 25, and 26).

[8] At the bail hearing on December 6, 2021, I raised concerns about: (1) the Accused’s apparent inability to control his anger; (2) the Accused’s disrespectful attitude toward women and girls and his predatory sexual behaviour toward them; and (3) the inability of the Accused’s father and surety to monitor the Accused’s whereabouts 24 hours a day. The new release plan attempts to address all of these concerns through the addition of counselling and GPS monitoring. I find that these additional features in the proposed release plan amount to a material change in circumstances. The real question is whether these additional features in the release plan satisfy me that the continued detention of the Accused is not required for the protection and safety of the public.

Analysis

Counselling

[9] In regard to my concerns about the Accused’s anger management issues and his treatment of women and girls, Defence counsel has worked very hard to find appropriate counselling for the Accused as an added safeguard for the prevention of future aggressions. Shaykh AdbulRahman undertakes to teach the Accused “the art of dealing with women”, “how to project happiness into women’s hearts”, “how to deal with a lover, friend, and future wife”, “how to deal with women from the viewpoint of modern psychology”, “how to use gifts even if small”, and “how to be creative in dealing with females”. Shaykh AdbulRahman has already had one meeting with the Accused by telephone. He described the conversation as being positive and the Accused as being receptive and responsive toward him.

[10] I have no doubt that Shaykh AdbulRahman has much to offer by way of spiritual learning and wisdom and that he is well-meaning and committed to helping the Accused. That being said, I do have some concerns about the proposed counselling. Shaykh AdbulRahman has only been in Ottawa for three months and is therefore, himself, just learning about the values inherent in the Canadian legal system. He has no formal training in psychology or counselling relating to gender violence or anger management; though he indicated that he has dealt with these issues all his life. His field of study is Islamic Sharia law. No evidence was tendered as to how women and girls are to be treated under Shaykh AdbulRahman’s understanding of Sharia law when compared to requirements under the Canadian Charter of Rights and Freedoms [1].

[11] As well, unfortunately, prior to the bail review hearing, Shaykh AdbulRahman was not fully informed of the nature of the charges that the Accused is now facing and was unaware of how violent and serious the alleged offences are. He initially understood that the main focus was anger management issues. Although Shaykh AdbulRahman thought the Accused was being open and receptive to him during their first interview, the Accused was not forthcoming about the nature of the offences with which he is charged. Shaykh AdbulRahman seemed to be under the mistaken belief that the Accused’s problem with women and girls is simply that he does not understand how to become friends with them or how to treat them well if he is in a relationship with them. The Accused’s problem goes way beyond that.

[12] Despite this, Shaykh AdbulRahman believes that he will be able to help the Accused. He may be right. The Shaykh is well aware of the environment that the Al Mahmoud family fled in 2015 and the impact early life experiences may have had on the Accused. His taking a particular interest in the Accused may assist the Accused in becoming more respectful of others, controlling negative emotions, and living within the confines of the law.

GPS Monitoring

[13] The addition of GPS monitoring is a significant improvement over the last release plan in that it provides an additional layer of assurance that the Accused will not be leaving his residence unbeknownst to his surety or the police, as he has done in the past when his parents were sleeping.

[14] The GPS system would work most effectively if the Accused were under 24-hour house arrest. Such an arrangement, however, would cause financial hardship to the Al Mahmoud family. Mohammad Al Mahmoud does not work outside the home. Mr. Al Mahmoud, his wife, and seven children have the modest income provided to them by Ontario Works and the Child Benefit. There is no excess income from which Mr. Al Mahmoud senior could pay the monthly charge of $400-$500 for the GPS monitoring. Understandably, it is both his preference and that of the Accused that the Accused be permitted to work so that he can pay for GPS monitoring. In that the Accused’s work would have him travel to various locales in Orleans, Central Ottawa, Kanata, and Carleton Place, where carpets are being installed, GPS monitoring could not be used to actively monitor his whereabout when he is not at his residence. Instead, Mohammad Al Mahmoud would have to call Recovery Science Corporation each time the Accused left their home to go to work and each time he returned from work, and voice recognition would be used to confirm Mr. Al Mahmoud senior’s identity. Mohammad Al Mahmoud would have to ensure that his son did not leave the home unless he was being picked up by his employer or unless he was in the company of Mr. Al Mahmoud senior.

[15] In my view, the GPS monitoring would add significant reassurance that the Accused will be where he is allowed to be at any given time – even if he is permitted to work so as to pay for the GPS service. Such monitoring adds the extra protection required during the night, when Mr. Al Mahmoud senior and his wife are sleeping. Otherwise, I trust Mohammad Al Mahmoud when he says that he will carefully supervise his son and will not hesitate to call the police if he does not strictly adhere to the proposed release plan. Mr. Al Mahmoud has done this in the past and, if anything, is even more determined to do that in the future. The Accused’s previous employer, Moe Assaf, has committed to rehiring the Accused as a carpet installer and to pick him up and return him to his residence on the days the Accused is working. Mr. Al Mahmoud senior will notify Recovery Science Corporation when the Accused leaves the home with Mr. Assaf and when he returns to the home on work days.

The Accused

[16] The Accused is only 20 years old. His criminal record consists of three assault convictions arising from the altercation in the Market on October 23, 2021. He pled guilty on November 4, 2021 and was sentenced to 30 days plus one year probation. If the Accused is now released on bail, he will be subject to that probation order and the requirement to report regularly to a probation officer and follow that officer’s directives. This provides an added layer of supervision.

[17] The Accused has shown determination in the past by graduating from grade 11 in 2019 after only arriving in Canada in 2015. He has been working for the last two to three years to support himself. He wants to return to work and eventually get more education.

[18] The Accused has now been in jail for four months and I can take judicial notice of the fact that conditions at the Ottawa-Carleton Detention Centre during the COVID-19 pandemic have been particularly difficult. If not motivated before, the Accused now should be very motivated to stay out of jail.

[19] That being said, I did not find the Accused’s testimony at the bail review hearing particularly reassuring. He had difficulty accepting responsibility for breaching curfew on two occasions in the past and tried to put the blame on his friends. He attempted to minimize his responsibility for his assaults on the three strangers in the Market in the fall of 2021. He acknowledged not being truthful with his father in the past due to his fear of his father’s response and the possibility that some of his privileges would be withheld. Furthermore, he did not acknowledge to Shaykh AdbulRahman the nature and seriousness of the charges he is facing.

[20] Despite all of these reservations about the Accused, his credibility, and his good faith in promising to comply with all of the terms of the new release plan, I am satisfied, but only barely, that his detention is not necessary at this time for the protection or safety of the public.

Disposition

[21] The Accused’s bail review application is granted. He shall be released in accordance with the release plan detailed in Appendix A.

Aitken J.

Released: March 25, 2022

Appendix A - Jasem Al Mahmoud’s Release Order Terms March 25, 2022

1. Jasem shall post a bond of $1,000.
2. Mohammad Al Mahmoud shall act as surety for Jasem and shall post a bond of $5,000.
3. Jasem shall be subject to house arrest at the home of his parents at F-21 Woodfield Drive, Nepean, subject to the following exceptions:
   • for medical emergencies for himself or any members of his immediate family (proof must be provided to a peace officer upon request);
   • for travelling directly to and from and while at medical or dental appointments (proof must be provided to a peace officer upon request);
   • for travelling directly to and from and while at appointments with his lawyer or to attend court appearances (proof must be provided to a peace officer upon request);
   • for travelling directly to and from and while attending counselling provided for under this release plan or pursuant to the terms of his probation order (proof must be provided to a peace officer upon request);
   • for travelling directly to and from and while at work, such travel to and from work to be provided by the surety or by Moe Assaf or his designate on the understanding that Moe Assaf shall provide Recovery Science Corporation directly with Jasem’s work schedule in advance;
   • for the purpose of complying with this or any other court order; and
   • when in the company of his surety, Mohammad Al Mahmoud.
4. At all times, Jasem shall wear a GPS device provided through Recovery Science Corporation and shall be subject to GPS monitoring by that company, the cost of which will be paid for by Jasem. The GPS device shall be placed on Jasem at the home of his parents within 24 hours of his release from detention.
5. Jasem shall attend virtual weekly counselling sessions with Shaykh AdbulRahman for a minimum of 10 weeks to deal with anger management issues and issues relating to violence and aggression toward women and girls. Jasem shall provide the court with written confirmation of his completion of this counselling.
6. Jasem shall attend all other counselling sessions or programs recommended by his probation officer and shall provide proof of same to his probation officer upon request.
7. Jasem shall not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with the following individuals and shall not be within 250 metres of any place where he knows any of these named persons live, work, go to school, frequent or any place he knows the persons to be except for required court appearances: a. Tamer Tanora b. AbdulRahman Almajaresh c. Abbas Hameed d. The third individual involved with Jasem in regard to the assaults in the Market on October 23, 2021 and whose first name is Ahsan e. Marissa Turcotte f. Tanya Turcotte g. Sarah Eaton h. Devon Viau i. Jolene Eastman j. Emma Tyrell k. Nicole Albina
8. Jasem shall abstain from consuming alcohol and non-prescription drugs.
9. Jasem shall not possess any weapons.
10. Jasem shall not be alone with a person under the age of 16 years, except for siblings, without the presence of the surety.

COURT FILE NO.: 21-SA4556, 21-RD16234 DATE: 20220325 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. 520) Aitken J.

Released: March 25, 2022

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.