COURT FILE NO.: 22-11403543-BR
DATE: 2023/12/19
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Zabiullah Hayat
Applicant
Emma Loignon-Giroux, for the Crown
Daniel Howard, for the Applicant
HEARD: December 13, 2023
PUBLICATION BAN
REASONS FOR DECISION ON BAIL REVIEW APPLICATION
CARTER J BACKGROUND
[1] The Applicant Zabilluah Hayat seeks to vary his release conditions by way of a bail review pursuant to s. 520 of the Criminal Code.
[2] On October 15, 2022, the Applicant was charged with a number of offences against his wife Palwasha Hayat. He was released the next day on bail after a contested hearing before Justice of the Peace St. Jean. His release conditions included a no-contact condition with the complainant.
[3] The Applicant and the complainant had been together for over 12 years, and have six children together, aged 3-12. They are recent immigrants to Canada from Afghanistan.
[4] Since the Applicant has been charged, the children have been residing with the complainant and he has been exercising regular access arranged through a third party.
[5] The charges arose as a result of the complainant calling the police. She was screaming for help, but the line was disconnected. The police responded immediately. When they arrived, the complainant told one of the officers that an argument had ensued about the Applicant’s extra-marital affair. He began to kick and punch her. She also showed the officer pictures from her phone which she said related to previous incidents – a photo of her face with a goose egg on her forehead and one with the Applicant holding a knife in a threatening manner.
[6] The complainant subsequently prepared a written statement in which she also alleged that he:
a. Always beats her;
b. Told her that if she called the police, and they were separated, that he would find her and kill her anywhere in Canada;
c. Stated that if she left the apartment, he would kill her with a knife; and
d. Said that if they ever got divorced, he would kill her and the children.
[7] The complainant was then interviewed on video and under oath and made essentially the same allegations. However, on April 11, 2023, she provided a subsequent statement to police, stating that she had embellished the allegations when she originally spoke to police and that she now wished to resume cohabitation with the Applicant. After having obtained independent legal advice, the complainant provided an affidavit for these proceedings, in which she affirmed that she does not have any safety concerns and wishes to resume cohabitation with the Applicant. At the hearing, she was cross-examined on her affidavit by Crown counsel. During the examination she clarified that none of the allegations were true. In other words, she has now provided a full recantation under oath.
[8] The Crown concedes that a material change in circumstances has been established as a result of the evidence of the complainant and that a de novo hearing is mandated. The variation is opposed, however, on the basis that the conditions o n t h e Applicant’s release order regarding his contact with the complainant are both reasonable and necessary. They are directly linked to a ground for detention, namely the secondary ground. The Applicant is alleged to have committed a serious intimate partner assault on the complainant. The offences involved span several months and the complainant is in an exceedingly vulnerable position such that there are serious concerns for her safety. The complainant is a central witness in this case, which is ongoing and set for trial in April 2024. Varying the conditions preventing the Applicant from contacting the complainant in the manner sought removes any safeguard preventing interference with the administration of justice.
SHOULD THE VARIATION BE GRANTED?
[9] There is a tension that arises in cases involving allegations of intimate partner violence when it comes to bail. On the one hand, there is often a need for conditions restricting contact by the accused for the safety of the complainant. On the other hand, these conditions can create a significant hardship for the complainant, the very person they were designed to protect. The frequent result was described succinctly and clearly in R. v. Khinda, 2020 ONSC 7275 by Harris J at para. 13:
The pattern is a well-worn one: the allegation of an assault or threatening offence, the consequent bail order banishing the accused from the home and prohibiting contact, the ensuing hardship to the complainant, and then the recantation. This is a scenario acted out in domestic cases with alarming regularity.
[10] This case falls squarely into that pattern. But simply recognizing that a case fits into pattern does not, in and of itself, provide an answer as to whether the bail variation sought should be granted. That answer lies in an application of the evidence to the appropriate legal principles.
[11] In cases such as this one, where the Crown bears the onus, restraint and the ladder principle require anyone proposing to add bail conditions to consider if any of the risks in
s. 515(10) are at issue and understand which specific risks might arise if the accused is
released without conditions: is this person a flight risk, will their release pose a risk to public protection and safety, or is their release likely to result in a public loss of confidence in the administration of justice? Only conditions which target those specific s. 515(10) risks are necessary. If an accused poses a risk to public safety and protection, only the least onerous conditions to address that specific threat should be imposed. Further, such conditions will not be necessary for public protection and safety merely because an accused poses a risk of committing another offence while on bail, unless they pose a “substantial likelihood” of committing an offence that endangers public protection and safety: R. v. Zora, 2020 SCC 14 at paras. 83 and 84.
[12] Reasonableness deals with different concerns. To be reasonable, conditions cannot contravene federal or provincial legislation or the Charter. They must be clear, minimally intrusive, and proportionate to any risk. Conditions will also only be reasonable if they realistically can and will be met by the accused: Zora at para. 87.
[13] In my view, in cases involving the potential imposition of a no-contact condition in domestic violence cases the primary consideration is necessity. If the condition is necessary because there is a substantial likelihood that an accused poses a risk of committing another offence against the complainant, then it should be imposed regardless of the hardship it causes on the family unit. Conversely, if there is not a substantial likelihood that the accused would commit further offences without the conditions, it ought not to be imposed, even if there is scant evidence of any hardship it would cause.
[14] Furthermore, the decision to impose or vary such a condition must be based on the evidence. That does not mean that a judicial officer should just accept a complainant’s statement that they do not fear the accused. Such a statement may be “highly suspicious and quite unconvincing”: Khinda at para. 25. It is just one piece of evidence to consider, and it is for the decision maker to determine how much weight to accord it. Similarly, a recantation by the complainant should not automatically lead to the conclusion that they have been pressured to do so, bolstering the case for keeping the condition in place. Again, in some cases the evidence may suggest that the recantation has been influenced by the accused. In other cases that may not be so.
[15] In this case, the very nature of the allegations strongly supported the initial imposition of a no-contact condition. The alleged abuse was longstanding and specific death threats were allegedly made contingent on the precise circumstances that transpired – the calling of the police and the separation of the spouses as a result. Those circumstances cried out for judicial intervention.
[16] More than a year has passed. The circumstances have changed. A reassessment of the necessity of the condition is required.
[17] Despite the nature of the alleged threats, there is no evidence that the Applicant has attempted to harm the complainant in any way. In fact, there is no evidence that he has contacted her at all. No breach charges have been laid. This suggests that the Applicant is willing to abide by court orders.
[18] The complainant has testified under oath that the allegations are not true. While I cannot say that I whole heartedly accept the recantation as being truthful, I am unable to reject it. The evidence of the injuries to both the complainant and the Applicant could be consistent with the new version of events testified to at this hearing. The point is simply that the very nature of the allegations was the primary driver for the imposition of the no- contact conditions and those allegations are now in doubt. This is a factor the Court can consider.
[19] Finally, there is little concern that varying the conditions will lead to the Applicant attempting to influence the complainant’s testimony. She has sought independent legal advice. She has sworn an affidavit. And she has now testified in court that the original allegations are untrue. Her evidence, as it stands, favours the Applicant. There would be little reason for him to attempt to change it at this point. Given that there is no evidence the Applicant has had any contact with the complainant, it cannot be said that he may have been responsible for her change of mind, as was the situation in R. v. Bani-Naiem, 2023 ONSC 2300.
[20] The application is granted. Conditions two and three on the release order will be varied such that the Applicant may have contact with the complainant subject to her written and revocable consent. I will entertain submission on the appropriate wording.
Carter J.
Released: December 19, 2023
Released: December 19, 2023
COURT FILE NO.: 22-11403543-BR
DATE: 2023/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Zabiullah Hayat
Applicant
REASONS FOR DECISION ON BAIL REVIEW APPLICATION
Carter J.