COURT FILE NO.: 21-11796-BR
DATE: 2022/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Abdo A. Yussuf
Applicant
Alex Riopelle, for the Crown
Forest Poff-Smith, for the Applicant
HEARD: June 23, 2022, oral decision given June 27, 2022
Restriction on Publication
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.
RUILING ON BAIL REVIEW APPLICATION
Carter J.
BACKGROUND
[1] Mr. Yussuf brings a bail review pursuant to s. 520 of the Criminal Code R.S.C., 1985, c.C-46. The matter was heard on June 23, 2022 and lasted the full day. At the conclusion of the hearing, I indicated that I would render an oral decision on June 27^th^ and that written reasons would follow. At that time, I ordered that Mr. Yussuf be released on strict conditions. These are my written reasons for so ordering.
[2] Mr. Yussuf was charged with a number of offences arising out of an incident that occurred on November 7, 2021. Although he has also been charged with assault, the majority of the offences relate to the possession and pointing of a loaded, restricted firearm. These are serious offences. If convicted, Mr. Yussuf faces a significant jail sentence.
[3] At the time of his arrest, Mr. Yussuf was subject to a conditional sentence order. As a result, a reserve onus was triggered at the bail hearing, which took place before Justice Lipson on November 22, 2021. At the conclusion of the hearing, Justice Lipson ordered Mr. Yussuf’s detention on both the secondary and tertiary ground. With respect to the secondary ground, the bail judge noted that while the release plan was not frivolous, the question was whether Mr. Yussuf could be trusted in any way to comply with the terms of a release order should it be granted. In light of Mr. Yussuf’s record for non-compliance with court orders and his record for violence, it was held that he could not. Justice Lipson further found that Mr. Yussuf was a model for detention on the tertiary ground. The strength of the Crown’s case was overwhelming and the gravity of the offence obvious. He faced the potential for a lengthy term of imprisonment. The bail judge ultimately concluded that the public would be appalled that an individual in the position of Mr. Yussuf could be released on bail with the proposed bail plan.
[4] Mr. Yussuf served the remainder of his conditional sentence in custody. On June 7, 2022 Justice Bourgeois determined that no further action on his conditional sentence was required. As a result, he has completed the sentence and remains in custody only with respect to the charges dating from November 7, 2021.
BAIL REVIEWS BASED ON A MATERIAL CHANGE OF CIRCUMSTANCE
A. Legal Principles
[5] Section 520 of the Criminal Code does not confer an open-ended discretion on the courts to vary initial bail decisions. Rather, the section establishes a hybrid remedy that provides greater scope than a traditional appeal. To be entitled to a review of the initial decision, the accused must satisfy one or more of the three criteria established by the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27. Those criteria are:
a. there is admissible new evidence that involves a material and relevant change in the circumstances of the case;
b. the impugned decision contains an error of law; or
c. the impugned decision is clearly inappropriate. (paras. 121 and 139)
[6] This application has been brought on the basis that there has been a material change in circumstances. I have not been asked to consider whether the bail judge erred in law or principle. As per the Supreme Court of Canada’s decision in St-Cloud, a two step process is followed. First, the court must determine whether there has been a material change in circumstance since the accused was before the court for his bail hearing. Second, and only if the court concludes that there has been a material change, does it then proceed to a hearing de novo to determine whether Mr. Yussuf’s continued detention is required. The Ontario Court of Appeal in R. v. J.A., 2020 ONCA 660 has held that there will only be a material change if the new evidence “could reasonably be expected to have affected the result.” More specifically, the Court said that the new evidence must be considered along with the findings of the first bail judge (paras. 25 and 26).
[7] In terms of establishing proof of a “material change in circumstances”, the Court in St-Cloud declined to adopt the strict fresh evidence test that usually governs the admissibility of new evidence in appellate proceedings. Instead, the Court directed that the traditional fresh evidence test would be modified to account for the more informal and expeditious nature of the bail process and the significant liberty interests at stake. As such, reviewing courts are directed to apply a “generous and liberal” interpretation to the meaning of “fresh evidence.” (St-Cloud at paras. 127 to 138)
[8] A material change of circumstances typically arises where an improved release plan is proposed, particularly where the new plan addresses weaknesses or deficiencies revealed at the initial bail hearing. It can also arise in cases where the defendant’s jeopardy has changed either through withdrawal of counts, discharge at a preliminary hearing or where the disclosure shows that the Crown’s case is not as strong as had been anticipated. The passage of time, particularly where it appears that the defendant has spent more time in custody than he or she may get if convicted, can also amount to a material change in circumstances. This list is not exhaustive but rather highlights some of the more common scenarios where courts have found a material change in circumstance.
B. Application to the Facts
[9] The Defence submits that there are three bases on which I could find a material change of circumstances:
a. that Mr. Yussuf has completed his sentence on the CSO;
b. that Mr. Yussuf has given evidence about his time spent in custody, his disclosure of his criminal past to his family and the reasons why he would abide by his conditions if released; and
c. a revised bail plan that includes an additional surety, the installation of two security cameras in the home and stricter conditions.
[10] The Crown did not oppose the admission of the “fresh evidence.” However, it is argued that the evidence does not establish a material change of circumstance. Mr. Yussuf is not credible when he says he has a change of heart. His record speaks volumes. Time spent in custody previously has not deterred him from breaching court orders. Furthermore, the plan is not substantially different enough to affect the result.
[11] I agree with the Crown that the mere completion of a conditional sentence does not amount to a material change of circumstances, at least on the facts of this case. The fact that Mr. Yussuf has served a sentence of imprisonment does not, on its own, make it any more likely that he would be abide by conditions if released. However, I conclude that the combination of Mr. Yussuf’s evidence on this hearing (discussed in greater detail below) and the revised bail plan amount to a material change in circumstances. They directly address the bail judge’s principal concern – that Mr. Yussuf could not be trusted in any way to comply with the terms of a release order. Furthermore, as noted in R. v. Dang, 2015 ONSC 4254, and followed in numerous other decisions, the nature of the release plan is a relevant factor to be considered on the tertiary ground. The evidence of Mr. Yussuf and the revised plan are material changes that could reasonably be expected to have affected the result on the tertiary ground.
HEARING DE NOVO
[12] Given my finding that the Defence has established a material change in circumstances, I am directed to conduct the bail hearing de novo. Both counsel have indicated that the primary ground is not at issue. The focus of these reasons will be on the secondary and tertiary grounds.
A. The Secondary Ground
[13] To determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct (“commit a criminal offence”) or an interference with the administration of justice. The term substantial likelihood refers to a probability of certain conduct, not a mere possibility. The probability must be substantial. It must be significantly likely (R. v. Manasseri, 2017 ONCA 226 at paras. 86 and 87).
[14] The Supreme Court of Canada described the test in these terms:
Bail is not denied for all those individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers the “protection of the public”. Moreover, detention is justified only when it is ‘necessary’ for public safety. It is not justified where detention would merely be convenient or advantageous (R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 at para. 39 [emphasis added]).
[15] When considering detention on the secondary grounds, the following factors are relevant indicators in the assessment of future dangerousness:
a. the nature of the offence;
b. the relevant circumstances of the offence, which may put in issue events prior to and subsequent to the offence;
c. the likelihood of a conviction;
d. the degree of participation of the accused;
e. the relationship between the accused and the victim;
f. the profile of the accused, i.e., his occupation, his lifestyle, his criminal record, his family situation, his mental state;
g. his conduct prior to the commission of the alleged offence; and
h. the danger which the interim release of the accused represents for the community specifically affected by the matter.
[16] It is the combined effect of these factors which will determine the result (R. c. Rondeau, 1996 CanLII 6516 (QC CA), 108 C.C.C. (3d) 474 (Que. C.A.); R. v. Sanghera, 2011 BCSC 994 at para. 58).
[17] My Yussuf has given evidence that the time he has spent in custody has changed his perspective on following court orders. The time spent has been harder than on any prior occasion. He has been placed in maximum security and has also been subject to restrictions as a result of COVID, in some cases being kept in cells for 23 hours a day. Importantly, he has now disclosed the full extent of his criminal background to his family and feels as if a weight has been lifted off his chest. Now that matters have been fully aired, he is prepared to accept the help they have generously offered. I find that Mr. Yussuf gave his evidence in a straightforward manner. In cross-examination, he readily made concessions about his criminal record, did not argue with the Crown and did not take unreasonable positions. His evidence was largely unchallenged. For the most part, I accept it.
[18] That said, given his criminal record, and in particular his history of breaching court orders, I would not be prepared to release him unless the originally proposed bail plan had been strengthened. As fairly conceded by the Defence, if left to his own devices Mr. Yussuf would very likely breach court orders. The new plan now has three sureties, the installation of two motion sensor security cameras and more restrictive conditions. Given the schedules of the three sureties, there will be someone present in the home to monitor Mr. Yussuf at virtually all times. The house is small, making monitoring easier.
[19] An issue arose at the hearing with respect to whether Mr. Yussuf had ever breached conditions while on a release order with a surety. A recognizance from Alberta was produced and marked as an exhibit. The language on the recognizance was unclear as to whether a surety had been ordered. Nevertheless, Mr. Yussuf testified that his father had been his surety while in Alberta. He said that he moved to Ottawa believing that the charges had been dealt with but found out afterwards that they had not. He readily admitted that he had breached his conditions and stated that if he had known the conditions were still valid, he would have stayed in Alberta. In re-examination he testified that in the future he will ensure he abides by the conditions until a judge tells him otherwise.
[20] In any event, based on the evidence before me it appears that Mr. Yussuf has complied with his terms of release in the past when his mother has acted as a surety. She is prepared to do so again and I have no doubt that she will take her responsibilities seriously. She also now has the assistance of two of her other adult children. The security cameras and previously proposed GPS monitoring, while not in the same category as the sureties, add an additional layer of protection. Finally, Mr. Yussuf will be subject to a very strict form of house arrest. He will not be allowed to leave the house except for medical necessities or emergencies and except to enter the backyard in the presence of a surety.
[21] No plan is fool proof. There is always the possibility an accused person will breach the conditions of release. That said, in light of the factors set out above, I am not satisfied that Mr. Yussuf poses a “substantial likelihood” of committing an offence or interfering with the administration of justice if released on strict conditions.
B. The Tertiary Ground
[22] The application of s.515(10)(c) is largely informed by the principles set out in St-Cloud. The Supreme Court held that whether detention is or is not necessary on this ground is to be determined by a consideration of all the circumstances, but in particular, the four factors Parliament has marked out for specific consideration:
a. the apparent strength of the prosecution’s case;
b. the gravity of the offence;
c. the circumstances surrounding the commission of the offence, including whether a firearm was used; and
d. 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.
[23] A judge is to make his or her appraisal objectively, through the lens of the four factors Parliament has specified, and with particular focus on those factors. Detention can only be justified on the tertiary ground if the judge, having considered the listed factors and related circumstances, is satisfied that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice (St-Cloud, at para. 35). The term “public” in s. 515(10)(c) refers to reasonable members of the public who are properly informed about the philosophy of the legislative provisions; Charter values; and the actual circumstances of the case. A “reasonable member of the public” is familiar with the basics of the rule of law in Canada and with the fundamental values of our criminal law, including those protected by the Charter. He or she knows the importance of the presumption of innocence and the right to liberty and that these are fundamental rights guaranteed by our Constitution. The reasonable member of the public also expects, perhaps even more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time (St-Cloud at paras. 74 and 79).
[24] A few important, additional points have emerged from the post St-Cloud caselaw. First, a justice must bear in mind the strength of the Crown’s case but must also understand that bail hearings occur at an early stage. The defence has had no meaningful opportunity to test the Crown’s case. Many a strong Crown case at the bail stage has resulted in a withdrawal or acquittal at some later stage (R. v. Ma, 2015 ONSC 7709 at para. 27). Second, s. 515 does not create a legal regime in which everyone charged with a serious offence is automatically detained under the tertiary ground unless he or she can show that the Crown’s case is weak. Rather, courts must consider all the relevant circumstances that bear on the question of whether the public’s confidence in the administration of justice require the accused’s pre-trial detention (R. v. Deko, 2019 ONSC 2468 at para. 35). Finally, as previously noted, an accused person’s release plan can be considered under the tertiary ground (R. v. Dang, 2015 ONSC 4254 at para. 58; see also Deko, supra at 36.)
[25] With respect to the tertiary ground, the four enumerated factors weigh in favour of detention in this case. However, I may consider the strictness of the proposed release plan. In addition, I am required to apply s. 493.2(b) of the Criminal Code. The section mandates me to give particular attention to accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this part. As an African-Canadian, there is no question that Mr. Yussuf is part of a vulnerable group that is overrepresented in the criminal justice system. Section 515(10)(c) refers to confidence in the administration of justice "having regard to all the circumstances". As noted by Justice Schreck, "all of the circumstances" clearly includes the circumstances that a court considering bail is statutorily required to consider, including the accused's membership in a vulnerable and overrepresented group. This is part of the "circumstances of a case" that a reasonable member of the public would consider. (R. v. N.Y, 2021 ONSC 1398 at paras. 41 and 42.)
[26] When I consider both the strict release plan and s. 493.2(b), I am satisfied that Mr. Yussuf’s detention is not necessary to maintain confidence in the administration of justice.
[27] Mr. Yussuf will be released on a recognizance in the amount of $2,000 on the following conditions:
a. Be subject to GPS monitoring by Recovery Science Corporation and abide by all of its rules and protocols;
b. Remain in custody until a GPS monitoring device is placed on his person;
c. Remain in his residence at 19 Horsdal Private, EXCEPT
i. To enter into the backyard of 19 Horsdal Private in the presence of one of his sureties;
ii. In the event of a medical emergency to himself or a member of his immediate family (spouse, child, siblings); and
iii. For purposes of travelling directly to, from while at court appearances, or meeting with your lawyer, or the purposes of complying with this or any other court Order in the presence of a surety, while attending the office of your lawyer you can meet with counsel without a surety present.
d. Abide by the rules of the house as put in place by his sureties;
e. Do not possess weapons as defined by the Criminal Code or any imitation weapons;
f. Present yourself within 5 minutes of a uniformed member of the Ottawa Police Service knocking to ensure your compliance with this order; and
g. Do not communicate directly or indirectly with by physical or electronic or other means with the following: Paulin Barankitse, Lauriel Mugisha, Camille Kamanzi and Herve Iradukunda.
[28] Bakal Yussuf, Hodo Bakal and Nafisa Cige are to be named as sureties. Bonds without deposit in the amount of $1,000 from each surety will be made.
Carter J.
Released: July 18, 2022
COURT FILE NO.: 21-11796-BR
DATE: 2022/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Abdo A. Yussuf
ruiling on bail review application
Carter J.
Released: July 18, 2022