Ontario Superior Court of Justice

Court File No.: CR-24-11406392
Date: 2025/06/02

Reasons for Decision on Bail Hearing

Before: Catherine Parfett

Introduction

[1] On May 6, 2023, the Applicant, Mr. Ahmed Mashkor, walked into the lobby at the Ottawa Hospital, General Campus. He had his daughter, L.M., in his arms. He wandered around the corridors, eventually speaking to a triage nurse. The nurse took L.M. and immediately realized she was not breathing. Shortly after, L.M. was pronounced dead. She was four months old.

[2] Upon being told that his daughter was dead, Mr. Mashkor left the hospital without identifying himself or his daughter to hospital staff. He got into his car and drove off. An hour later, Mr. Mashkor was in a serious single car accident. As a result of the motor vehicle accident, Mr. Mashkor lost his leg and spent several weeks in hospital. He was also charged with driving-related criminal offences in relation to the accident.

[3] An autopsy was done on L.M., and it was determined that L.M. died of head injuries. The report noted specifically that "the history provided [by Mr. Mashkor] does not account for the injuries present. The overall pattern of injury is typical of inflicted injury." The injuries were consistent with impact head trauma with a whiplash component. There was bruising on her arm, neck, and chin.

[4] Most notably, there was evidence of previous head trauma that appeared to be at least several weeks old.

[5] Mr. Mashkor was arrested on September 13, 2024, and charged with second-degree murder.

Background

[6] L.M. was born on December 19, 2022. She was taken into care by the Children’s Aid Society shortly after her birth as her mother was known to have serious mental health issues.

[7] L.M. was initially placed with a foster family, but then on March 8, 2023, she was placed into the joint care of Mr. Mashkor and his mother.

[8] On March 28, 2023, police were called to the Mashkor residence because of a verbal and physical altercation between Mr. Mashkor, his mother, and his sister. Mr. Mashkor moved out of this residence and two days later moved in with his father.

[9] On April 26, 2023, a CAS worker noticed a bruise on L.M.’s cheek. Mr. Mashkor explained that L.M. had rolled in her crib and pressed her cheek against the bars, causing the bruise. On May 1, 2023, CAS visited again. There were no injuries visible on L.M., but Mr. Mashkor told the worker that L.M. had fallen off the couch earlier that week.

Release Plan

[10] Mr. Mashkor does not have a criminal record.

[11] He was released on the charges stemming from the motor vehicle accident.

[12] Mr. Mashkor is proposing that he be released on strict conditions to reside with a surety. Mr. Mashkor’s brother is to be his surety. It is also proposed that he wear an electronic monitoring device.

[13] Mr. Mashkor is presently on conditions that he not communicate with his mother and sister, both of whom are Crown witnesses. He asks that that condition be lifted as his family is his primary support network.

Surety

[14] As noted earlier, Mr. Ali Mashkor is being proposed as a surety for the Applicant.[^1]

[15] Ali does not have a criminal record. He supports himself with social assistance and occasional work as an Instacart driver. His sister pays his rent, his car expenses, and some of his cellphone expenses. His family also assists with other expenses such as clothes.

[16] His driver’s licence was suspended a few months ago for unpaid fines. His sister paid the fines and his licence was recently reinstated.

[17] He indicated that he could post a bond of $1000, without deposit. He is aware that the family has collected $5000 to post as cash bail. He did not contribute to this money.

[18] Ali testified that he understood his role as a surety and would call police should Ahmed breach any of his conditions. He stated that he also understood that he and his family could lose their money if Ahmed breached his conditions and he failed to call the police.

[19] Ali stated in his affidavit that he was close to his brother. However, he conceded in cross-examination that he had not lived with his brother for a long time. He had never been in a position of authority in relation to his brother. He was unaware of the nature of the dispute between Ahmed and their mother and sister. Ali agreed that he did not know the extent of Ahmed’s criminal charges.

[20] On cross-examination, Crown counsel questioned Ali about his record of contacts with the police. Ali agreed that he had gotten into disputes with his family but described them as minor disagreements that were childish and he testified that he had grown up since those incidents occurred.

[21] The Crown presented evidence that:

• In March 2012, Ali was involved in a swarming. He was the driver and hit two people while trying to get away. Police noted that he was not cooperative;
• In August 2012, police were called to the family residence because Ali’s mother complained that he was out of control;
• In September 2012, Ali and his stepfather got into a fight. His stepfather had a cut to his forehead. Ali stated that the reason for the assault was that he had intervened in an altercation between his mother and his stepfather. When Ali learned that police had been called, he left the residence;
• In 2014, police were called to the family residence because he was throwing items at his family members. He was taken to hospital for a mental health evaluation. Ali could not recall this incident;
• In January 2016, there was a home invasion at the family residence. Police responded but Ali refused to speak with them;
• In 2016, police were called to the family residence because Ali was trying to strike family members. Both Ali and Ahmed had scratches on their faces;
• In 2017, he threatened to kill his boss. Ali could not recall what the cause of the dispute was;
• In February 2020, he was advised by police that he was not to go to a Petro Canada station because he had received a trespass notice. Despite this information, Ali went back to the gas station and was heard yelling at the employees. Ali indicated that he did not recall this incident;
• In June 2021, police were called to his home due to a dispute where Ali was said to be in possession of a large knife. Police stopped him in his car. Ali told police that he did not have a knife. However, a large knife was found in the back seat;
• In August 2021, police were called because it was alleged that Ali was making death threats to his father.

[22] Ultimately, Ali agreed that he has a long history of not cooperating with police.

Positions of the Parties

[23] Defence counsel argued that the bail plan being proposed is very strict, involving house arrest, a surety, electronic monitoring, and cash bail.

[24] She asserted that despite his history with the police, Ali Mashkor is a suitable surety. She noted that he does not have a criminal record and the police reports are untested allegations that should be given little weight.

[25] Defence counsel also stated that any lack of cooperation with the police must be viewed in the context of a mistrust of police combined with living in a disadvantaged area that tends to be over-policed.

[26] Defence counsel noted that Ali can supervise Ahmed on a full-time basis and that the financial commitments are significant for this family, which would ensure that Ali complied with his role as surety.

[27] The Mashkor family has been in Canada since 2005 and Ahmed is a Canadian citizen. He is prepared to surrender his passport to police.

[28] Given Ahmed’s lack of a criminal record, there is no reason to believe that he is likely to commit another offence or interfere with the administration of justice. Consequently, Defence counsel argues that if there are any concerns on the secondary ground, they can be mitigated by the release plan.

[29] Defence counsel stated that the tertiary ground is the crucial ground in this case. She concedes that the charges are serious and the victim was vulnerable. However, she asserts that the case turns on expert evidence and the ultimate issue will be whether what happened to L.M. was intentional or an accident. Defence counsel argues that there are no aggravating circumstances beyond those of the homicide itself and therefore, there is no risk that the public would lose confidence in the administration of justice if Ahmed were released.

[30] Crown counsel argued that all three grounds – primary, secondary, and tertiary – were present in this case. She indicated that Ahmed fled from the hospital immediately upon being advised of L.M.’s death. He also failed to appear for an appearance on the driving charges.

[31] With respect to the secondary grounds, Crown counsel noted that Ahmed’s statements to his family as well as others are important to the case. She asserts that if Ahmed is released, there is a real possibility that he would contact his mother and sister. She also notes that in terms of family dynamics, there is evidence that Ahmed has been physically abusive towards his mother and sister.

[32] Crown counsel also states that Ali is not a suitable surety. He has a long history of violence, and his family has been a focus of this violence, including Ahmed. He also has a history of not cooperating with police.

[33] Crown counsel argued that the financial commitments made by Ali and the family will not encourage Ali to contact police in the event of a breach. She notes that none of the money belongs to Ali. However, he is dependent on his family for most of his expenses. That fact is more likely to encourage concealment of any breach so as not to put the money at risk.

[34] Crown counsel notes that the tertiary ground is the crucial one in this case. She states that there is a strong Crown case. There is no question who committed the act that led to L.M.’s death. The expert evidence is clear that the injuries could not have been inflicted accidentally. The charge is one of the most serious in the Criminal Code. The circumstances of the offence include a degree of violence that was significant and the fact the victim was vulnerable. Finally, there was evidence that there had been a prior head trauma and other evidence of physical abuse. These are serious aggravating factors.

Analysis

[35] Like all accused persons, Mr. Mashkor has a constitutional right not to be denied reasonable bail without just cause.[^2] The default position, except in the case of reverse onus offences, is that a person should be released. The release should be on the least onerous terms consistent with risk. As stated in R. v. Antic:

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons.[^3]

[36] In short, pre-trial detention is the exception, not the rule.[^4]

[37] A justice may, however, detain an accused person on either the primary ground (necessary to ensure attendance in court), secondary ground (necessary to prevent the commission of further offences or interference with the administration of justice), or the tertiary ground (necessary to maintain confidence in the administration of justice).[^5]

[38] In the present case, the charge is one listed in s. 469 of the Code and therefore, the onus is on Mr. Mashkor to show cause why his detention in custody is not justified.

[39] Crown indicated that all three grounds were applicable to this case but conceded that the tertiary ground was the most relevant.

Primary Grounds

[40] Crown has argued that Mr. Mashkor’s flight from the hospital is evidence that he might not attend court if he was released. Defence counsel asserts that at this stage of the proceedings, it is unclear why Mr. Mashkor fled the hospital but that his flight is equally consistent with shock as it is with a desire to avoid detection. I agree.

[41] Consequently, the primary grounds are not a reason to detain Mr. Mashkor.

Secondary Grounds

[42] Section 515(10)(b) of the Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”[^6]

[43] As was noted in R. v. Morales:

[T]he bail system also does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accused will not engage in criminal activity pending trial.[^7]

[44] One method of ensuring that an accused person abides by his conditions and does not commit further offences or interfere with the administration of justice is to have a surety.

[45] Sureties play an important role in the determination of whether a plan addresses any grounds of detention that are at issue. A surety is expected to be able to supervise an accused and prevent that person from committing further crimes or evading justice by fleeing the jurisdiction.[^8]

[46] As outlined in Kevork, a surety

...must be a friend or neighbour of the accused who is willing to place his trust and risk his property in his belief that the accused will comply with his release conditions... Being a surety, moreover, involves the notion of strict supervision over the accused in the sense that the surety is entitled, pursuant to ss. 700-701, to render the accused in custody when the surety is of the opinion that he has lost confidence in the ability and desire of the accused to honour his release conditions.[^9]

[47] A surety must not only be willing to supervise an accused, he or she must also be able to do so. The relationship between the proposed surety and the accused is critical to this analysis. As stated by Trotter, J (as he then was):

Just as important as the surety’s character is the nature of the relationship between the proposed surety and the accused. On a view of the surety relationship contemplates any degree of supervision of the accused, it is crucial to know whether the relationship is one which will realistically permit the infusion of these obligations and their potential enforcement. Thus, it is important to inquire beyond the mere formalities of the surety’s relationship with the accused and determine its nature.[^10]

[48] There are several factors that have emerged from the caselaw that inform the analysis of whether a surety is suitable in the circumstances of the particular case:

• the financial and supervisory roles of a surety must co-exist;
• a surety must be aware of the allegations and cannot be blindly loyal to the accused;
• an accused’s history of deception may undermine otherwise willing sureties; and
• an accused’s criminal history may not make release a tenable option.

[49] In the present case, Ali did not know the full extent of Ahmed’s criminal charges. He has not lived on a full-time basis with Ahmed for a long time. When asked about supervising Ahmed, Ali’s response was, “Ahmed is a free man. I cannot tell him that I am his boss.”

[50] He does not have any of his own money at stake. I agree with Defence counsel that given Ali is so dependent on his family for financial support, it is possible he would not risk that money. However, for other reasons I do not believe that Ali would see the risk of loss of the money as reason enough to turn his brother into police if necessary.

[51] Although Ali does not have a criminal record, he has had numerous contacts with police. In my view, this evidence is sufficiently credible to be given weight at this bail hearing. Those police contacts establish a pattern of disrespect towards police. The fact Ali has not been charged previously is primarily due to family members also refusing to cooperate with police. I have no confidence that Ali could supervise Ahmed and would ensure that he followed his conditions or call police if his brother breached his conditions.

[52] In short, Ali is not a suitable surety. The release plan is therefore flawed and would not mitigate any concerns on the secondary grounds.

[53] The addition of a GPS monitoring device does not assist Ahmed.

[54] As noted in R. v. Osman:

Electronic monitoring is a tool that reports non-compliance of bail conditions but does not prevent reoffending. It places an accused in a particular location but does not identify what they are doing at that time. Mr. Russomanno is correct in stating that electronic monitoring would be able to identify situations where Mr. Osman left his residence thereby disclosing a breach of the house arrest condition. However, in my view, it would not be able to report an offence that was being committed by Mr. Osman much less prevent it.[^11]

[55] In this case, the key concern is whether Ahmed would attempt to influence his mother and sister’s testimony. Crown led evidence that suggested Ahmed’s relationship with his mother and sister has been violent in the past. That evidence raises concerns that Ahmed could interfere with the administration of justice.

[56] If there were a strong release plan in place with conditions of no contact with Ahmed’s mother and sister, this issue could be mitigated. However, that is not the case.

Tertiary Grounds

[57] Section 515(10)(c) of the Code provides that detention is justified on the tertiary ground if it is necessary to “maintain confidence in the administration of justice, having regard to all the circumstances.”

[58] Public confidence refers to the perception of reasonable members of the community who are informed about the philosophy behind the bail provisions in the Code, the values contained in the Charter of Rights and the circumstances of the case. As stated in R. v. J.R.:

It does not take into account the perceptions of those prone to emotional reactions, those who do not have knowledge of the circumstances of the case or who disagree with society’s fundamental values.[^12]

[59] Subsections (i) to (iv) of s. 515(10)(c) of the Code provide a non-exhaustive list of circumstances that the court should take into consideration in relation to the tertiary ground:

• (i) the apparent strength of the prosecution’s case;
• (ii) the gravity of the offence;
• (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and
• (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[60] In the present case, the charge is very serious. I agree with the Crown that at this point in time their case is strong. The circumstances of this offence are tragic. A four-month-old child was killed. She was utterly dependent on the care of the adults around her, and they failed her miserably. The autopsy revealed that the head trauma that killed her was not the first head trauma she had suffered. Finally, Mr. Mashkor faces a lengthy term of imprisonment if he is convicted.

[61] As noted earlier, the release plan is not sufficient to mitigate any concerns. In these circumstances, the public would lose confidence in the administration of justice if Mr. Mashkor were released.

[62] Mr. Mashkor will be detained pending his trial.

Released: June 2, 2025

[^1]: For ease of reference, Ali Mashkor and Ahmed Mashkor will be called by their first names wherever both of them are being discussed in this decision.

[^2]: R. v. Pearson, [1992] 3 S.C.R. 665, at p. 691; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 31.

[^3]: R. v. Antic, 2017 SCC 27, at para. 1.

[^4]: R. v. Myers, 2019 SCC 18, at para. 1.

[^5]: Criminal Code, s. 515(10).

[^6]: R. v. Morales, [1992] 3 S.C.R. 711 at p. 737.

[^7]: R. v. Morales, at p. 738.

[^8]: R. v. Kevork (No. 3), [1984] O.J. No. 928 at para. 4.

[^9]: R. v. Kevork (No. 3), [1984] O.J. No. 928 at para. 5.

[^10]: The Honourable Justice Gary T. Trotter, The Law of Bail in Canada, 3rd Edition.

[^11]: R. v. Osman, [2020] O.J. No. 710 at para. 31.

[^12]: R. v. J.R., 2020 ONSC 1938 at para. 20, citing R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80.