COURT FILE NO.: CR-22-70002022, CR-22-70002035 & CR-22-7002247
DATE: 20220727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDIRAHMAN MOALIM
Defendant
Jennifer Armstrong, for the Crown
Steven Lee, for the Defendant
HEARD: July 26, 2022
SCHABAS J.
Overview
[1] The accused Abdirahman Moalim has been detained for more than 90 days following a detention order made on April 1, 2022. As his trial on the charges on which he is detained has not commenced, he is entitled to have his detention reviewed pursuant to s. 525 of the Criminal Code.
[2] On a review pursuant to s. 525 of the Criminal Code, the court reviews the “detention itself.” It is not a review of a prior hearing, and the judge has a “a wide discretion to make inquiries, as well as to receive and consider any evidence ‘considered credible or trustworthy’ in the circumstances of the case.” At the same time, however, if an initial bail hearing has been held the court should “show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them.” (R. v. Myers, 2019 SCC 18, paras. 47-48)
[3] On this review, I was provided with a transcript of a bail hearing held on March 24, 2022, and a transcript of the reasons for detaining Mr. Moalim of Justice of the Peace Grewal delivered on April 1, 2022. The Crown also provided me with, among other things, a summary of “key events” in the progression of the case, the Informations containing the charges and synopses of the allegations supporting the charges, Mr. Moalim’s criminal record and the synopses of a number of his prior offences.
[4] Mr. Moalim’s counsel provided me with an affidavit of the accused and affidavits from two proposed sureties, the accused’s brother Abdullahi Moalim and his cousin Ali Jama, outlining a plan of release. Those proposed sureties had also been put forward at the initial bail hearing and had testified on March 24, 2022. One of them, Ali Jama, was cross-examined on an additional discrete point before me. I also heard oral testimony from a third proposed surety on this review, Mr. Moalim’s sister Fartun Moalim.
[5] Mr. Moalim was arrested on March 9, 2022, following a roadside stop of him by police when driving a car. A handgun and ammunition, among other things were found in the car. Mr. Moalim was charged with several offences including unlawful possession of a firearm, possession of a firearm when prohibited from doing so pursuant to s. 109 of the Criminal Code, and driving while his license was suspended.
[6] Mr. Moalim was also charged with eight offences alleged to have been committed on February 20, 2022. Those charges arise from an incident in which Mr. Moalim is alleged to have been driving a car with a handgun which he brandished in threatening an individual in another automobile.
[7] As the charges involve firearms and Mr. Moalim was under a prohibition order within the meaning of s. 84(1), the onus is on Mr. Moalim to persuade the court that his detention is not justified on the grounds in s. 515(10) of the Criminal Code. The Justice of the Peace was satisfied that the accused’s detention was justified and relied on all three grounds in s. 515(10). For the reasons that follow, I also conclude that Mr. Moalim’s continued detention is necessary on each ground, namely, to ensure his attendance in court, to ensure the protection and safety of the public, and to maintain confidence in the administration of justice.
The primary ground – detention is necessary to ensure his attendance in court
[8] Mr. Moalim has a history of non-compliance with court orders. Most significantly, while released on a recognizance in Ontario, for which his mother was his surety, Mr. Moalim fled to Alberta. When arrested there in June 2018, following a brief attempt to flee the police, there were 20 outstanding warrants and 7 alleged breaches of conditions of recognizances.
[9] While it is said that Mr. Moalim’s flight from Ontario and other breaches of court orders took place several years ago, and that he has changed his ways and is no longer a flight risk, I am not satisfied that this is the case. Mr. Moalim’s many charges were resolved in March 2019. This included several convictions for failing to comply with recognizances, the offence of failing to attend court, and resisting arrest. While one must be cautious of putting too much weight on breaches of conditions which sometimes invite failure and can unfairly stigmatize individuals, Mr. Moalim’s convictions also include obstructing police officers, refusal to provide a breath sample and many earlier convictions for breaching recognizances and failing to comply with conditions of undertakings. Following his release from prison after the 2019 resolution, for which he received a sentence of an additional 16 months in prison after 15 months of pre-trial custody, Mr. Moalim is now alleged to have breached additional court orders - the weapons prohibition order made pursuant to s. 109 of the Criminal Code, and the suspension of his driver’s licence.
[10] While I cannot say that Mr. Moalim has a pattern of jumping bail, as he has only one conviction for failing to attend court, he has an extensive history of breaching court orders, including when family members stand to suffer. As I heard from Mr. Moalim’s sister Fartun, Mr. Moalim’s mother lost the funds she pledged for his release after he fled to Alberta.
[11] The onus is on Mr. Moalim to satisfy me that he will attend court if released. The evidence of the proposed sureties does not persuade me that Mr. Moalim will respect their money any more than he respected his mother’s money. When asked why they didn’t think Mr. Moalim would put their money at risk, the answer was, simply, that they think he may have learned his lesson, or that this is his last chance or “the final straw.”
[12] Fartun, who is eight years younger than Mr. Moalim, was uncertain about his age when asked. She was also unaware of the number of breaches of court orders Mr. Moalim has committed, thinking it was two or three when in fact he has at least 14 convictions, not including convictions for two breaches of undertakings.
[13] The evidence of the proposed sureties does not persuade me that Mr. Moalim will be motivated to respect the financial costs to his family if he breaches his bail. As Quigley J. put it in R. v. Bell, 2020 ONSC 3962 at para. 41: “The reasonable inference to be drawn from the evidence of past failures to comply with bail conditions is, as is often said, that past performance is an indicator of future success, or lack thereof.” Mr. Moalim has not overcome the primary ground.
[14] In reaching this conclusion I have not relied on the decision of Justice of the Peace Grewal. The Justice of the Peace erred in thinking that Mr. Moalim had also fled to Africa when in fact it was his brother Mohamed who had done so when facing his own criminal charges. The Justice of the Peace also erred in thinking that Abdullahi, was the surety for Mohamed, when in fact it was a different brother, Fuad, as I discuss below.
The secondary ground – detention is necessary for protection of the public
[15] Turning to the secondary ground, Mr. Moalim has a lengthy and serious criminal record. He has several convictions for drug trafficking, a crime associated with firearms. The charges he is alleged to have committed are serious, involving firearms and threats of violence. They arose following Mr. Moalim’s release after serving approximately 30 months in prison. His history demonstrates a strong propensity to breach court orders and to re-offend.
[16] Mr. Moalim has proposed a detailed plan of release. He will reside at his family home with his mother and several siblings, including his sister and surety, Fartun. He will be subject to house arrest and only be permitted to leave to work at the business owned by Abdullahi and Ali Jama, an auto shop and parts business on Weston Road. Mr. Moalim will be taken to work by Abdullahi who lives nearby the family home. Mr. Moalim will work in the office with Fartun, who is also employed at the Weston Road business. It is also proposed that Mr. Moalim wear an ankle bracelet.
[17] This plan does not satisfy me that the safety of the public will be protected or that there is not a substantial likelihood that Mr. Moalim will re-offend.
[18] I am not satisfied that Fartun will be able to exercise adequate supervision of Mr. Moalim. She seemed unfamiliar with the extent of his criminal activities and is much younger than him. There is no evidence of a close relationship between them – which is not surprising given the age difference and the time Mr. Moalim has spent in Alberta. Rather, Fartun just said she hoped to have some “moral authority” over her brother in making sure he understands that the household is a strict Muslim home that will not tolerate illegal activity. But this has not prevented Mr. Moalim from breaking the law when living there in the past, including when his mother was his surety.
[19] There are many people living in the family home, including Mr. Moalim’s mother, who had little success in controlling Mr. Moalim in the past. Mr. Moalim’s previous breach of bail was not reported by his mother, nor is there evidence that anyone else in the family reported it, even though he was living at the family home. Another brother who lives there, Fuad, was put forward as a potential surety on the initial bail application. Fuad’s evidence also demonstrated little insight or awareness of Mr. Moalim’s activities. Several years ago Fuad had been Mohamed’s surety along with another sister, Faiza. He conceded that nobody reported Mohamed’s disappearance in breach of his bail conditions. This suggests to me that Fartun will have little assistance from others in supervising Mr. Moalim in the family home.
[20] Comings and goings of others to the house will be difficult to monitor, assuming they are monitored at all. Who Mr. Moalim may see or associate with is of concern as the substantive underlying offences Mr. Moalim has committed in the past include drug trafficking – a crime, as I have noted, associated with guns, which relates to his current charges.
[21] Abdullahi’s evidence is also unsatisfactory. Although he said he believed he could influence his brother, he conceded that Mr. Moalim was continuing to drink prior to his arrest in March. Abdullahi was unfamiliar with how his brother was spending his time when not working. Abdullahi also acknowledged that Mr. Moalim had been in Alberta for lengthy periods of time. In addition, Abdullahi does not reside in the family home, but with his wife and his own immediate family in an apartment several blocks away.
[22] Ali Jama, the accused’s cousin and other proposed surety, lives many kilometres away from the family home in Regent Park.
[23] An ankle bracelet provides limited comfort. It does not track what an accused is actually doing or to whom he is speaking, just his location. As has been observed by other judges, GPS monitoring with an ankle bracelet does not prevent non-compliance, it just provides evidence of it afterwards: R. v. Ma, 2015 ONSC 7709 at para. 56. While for some offenders it may be a deterrent to committing additional offences, to non-compliant offenders it may not be of much use: R. v. Salvati, 2020 ONSC 3499 at para. 80. The Justice of the Peace was not persuaded that GPS monitoring would prevent Mr. Moalim from re-offending, and I am not persuaded either.
[24] In short, despite the best of intentions of the proposed sureties and a plan which at least contemplates 24-hour supervision, Mr. Moalim has not met the onus of satisfying me that his detention is not necessary for the protection of the public including the substantial risk that he will commit criminal offences.
The tertiary ground – detention is necessary to maintain confidence in the administration of justice
[25] The tertiary ground considers whether detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances. In a reverse onus situation, “the focus of the tertiary ground analysis is on whether members of the community would be satisfied that releasing the accused is necessary to maintain confidence in the administration of justice”: R. v. Bell at para. 81.
[26] When the secondary ground justifies detention, it will be a rare case in which the tertiary ground is not also met. This is not surprising: if detention is necessary to protect the public, then public confidence would not be maintained if an accused was released.
[27] At the initial bail hearing Justice of the Peace Grewal considered the four factors set out in s. 515(10)(c) of the Criminal Code relating to the tertiary ground and found that they each favoured detention. She found that the Crown’s case is strong, and that the gravity of the offences are serious. The charges involve firearms, which are “very serious” and, if convicted of them, Mr. Moalim will likely face a substantial penitentiary term.
[28] I see no cause to interfere with those findings. Indeed, the only factor which counsel for Mr. Moalim challenged was the strength of the Crown’s case, suggesting that there may be Charter issues regarding the search of the vehicle and issues around whether Mr. Moalim had knowledge and control of the handgun when arrested. Whether Mr. Moalim brandished the gun on the earlier offence date in February is also in issue. These points are valid; indeed it would be surprising if they were not raised in Mr. Moalim’s defence, but it does not mean the Crown’s case is not strong. Taken at face value, the Crown has considerable evidence to support the charges.
[29] In any event, no single factor is determinative; the court “must consider the combined effect of all the circumstances of each case to determine whether detention is justified”: R. v. St. Cloud, 2015 SCC 27 at para. 87. Balancing the four factors, in my view they strongly favour detention.
[30] Counsel for Mr. Moalim also asks me to consider the conditions of pre-trial detention and the accused’s ability to prepare a defence. As he puts it, where it is suggested, as here, that the Crown has a very strong case, then it is even more important that the accused not be hampered in preparing a defence by being in detention. This argument seems to turn the impact of the strength of the case on its head, and I do not accept it.
[31] Counsel also cites the continuing COVID-19 pandemic as a reason to release the accused. Earlier in the pandemic, prior to the availability of vaccines, there was widespread concern about getting seriously ill or dying from the virus. With vaccinations, however, the likelihood of serious illness and death is much reduced from the waves experienced in 2020. The continued existence of COVID-19, however, has resulted in ongoing staff shortages in detention centres causing frequent lockdowns. This may impact Mr. Moalim’s ability to consult counsel and prepare a defence. But in the absence of evidence, the mere possibility of such prejudice is not sufficient to support release.
[32] Counsel also submitted that the continued detention of Mr. Moalim may induce a guilty plea because of the possibility that by the time he is tried he will have effectively served whatever sentence he is likely to receive if convicted. This raises one of the objectives of a review under s. 525 of the Criminal Code, which is to ensure that there is no unreasonable delay in the matter proceeding.
[33] At this stage, there is no assertion of unreasonable delay. Much disclosure has been provided, a Crown pretrial was conducted on June 14, 2022, and a judicial pretrial is to occur on August 16, 2022. Counsel for Mr. Moalim has not sought orders or directions to speed up the proceedings. As the Justice of the Peace rightly noted, if convicted on the firearms offences Mr. Moalim is likely facing a lengthy term of imprisonment, which is why counsel was careful to only describe the concern that lengthy pretrial custody would induce a guilty plea as a “possibility.” In my view, at this stage of the proceedings, this is not a basis to support release.
[34] Finally, counsel for Mr. Moalim raised s. 493.2(b) of the Criminal Code, submitting that Mr. Moalim, a black man, is a member of a vulnerable population overrepresented in the criminal justice system who is disadvantaged in obtaining release. On this issue, however, I am inclined to agree with the view of Schreck J. that s. 493.2 does not supersede s. 515(10): “regardless of the accused's circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released”: R. v. E.B., 2020 ONSC 4383 at para. 42.
[35] This does not mean I ignore Mr. Moalim’s situation as a black man, but I have been given no evidence on which to consider how that circumstance would affect or change the application of the grounds in s. 515(10) of the Criminal Code in this case, which strongly supports detention.
[36] In conclusion, I order that Mr. Moalim remain in detention.
Paul B. Schabas J.
Released: July 27, 2022
COURT FILE NO.: CR-22-70002022, CR-22- 70002035 & CR-22-7002247
DATE: 20220727
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ABDIRAHMAN MOALIM
REASONS FOR JUDGMENT
Schabas, J.
Released: July 27, 2022