R. v. Hamid Date:, 2016 BCPC 271

Citation: R. v. Hamid Date: 20160830 2016 BCPC 271 File No: 242955-2-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. ABDUL SALAM ABDUL ABDUL HAMID EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: A. Ip Counsel for the Defendant: D. Ferguson (as Agent for F. Arbabi) Place of Hearing: Vancouver , B.C.

Date of Hearing: August 30, 2016 Date of Judgment: August 30, 2016 [1] THE COURT: Mr. Abdul Hamid, I spent last night struggling with this decision about your release. The Criminal Codeprovides that there are basically three situations where somebody should be kept in custody and not given bail. [2] One is if they have no roots in the community, they are unlikely to show up for trial. The Crown say that is a considerationthat I should have in this case.

In this case, my view is that you do have roots in the community with your family and the length of timeyou have already stayed in B.C., you have children here, and there is no past record of you not attending Court. So I do not have anyconcern with what is called the primary ground, that you may not show up for Court. [3] The Crown also asks me to keep you in custody pursuant to what we call the secondary ground and that is, the substantiallikelihood of you committing further offences if you are released from custody. With respect to that, you have no past record to go by.

Obviously, if somebody repeatedly commits crimes, one would move towards thinking that there is a strong likelihood or substantiallikelihood of their committing further offences unless that person was detained. [4] Here, you do not have a criminal record and I do not really know, to my satisfaction, that there is a substantial likelihood of youcommitting further offences. I do know there certainly is the possibility and probably beyond the possibility, that you might return tocause more damage to your girlfriend, but it is not a substantial likelihood that you will.

So I am not prepared to accede to the Crown'sargument to keep you in custody based on that secondary ground. [5] The Crown then proceeds to an independent third ground called a tertiary ground, which is a situation where the Criminal Codeprovides that if detention is necessary to maintain the confidence in the Administration of Justice, having regard to all the circumstances,including the apparent strength of the prosecution case, the gravity of the offence, the circumstances surrounding the commission of theoffence, including whether a firearm was used, and the fact that the accused is liable on conviction to receive a potentially lengthy termof imprisonment. [6] So what I look at is that

section of the Criminal Code concerning the tertiary ground, but I also look at the cases that both yourCounsel and the Crown Counsel gave me which have interpreted this whole subsection. They are R. v. St-Cloud, Supreme Court ofCanada, 2015 SCC 27 , 2015, S.C.J., No. 27; R. v. A.V.G., a decision of my sister Judge Challenger, 2015 BCPC 438 ,[2015] B.C.J. No. 3050; a decision of the Ontario Justice Court, R. v. Hunt, 2015, Ontario Judgments No. 6803; R. v. Fleming, [2015]O.J. No. 4380. [7] Now, what those cases say is that this Criminal Code list of four matters to be considered, is not all-inclusive.

There are othermatters that can and should be considered by the judge. So when I am looking at this issue, and the issue here is, would releasing you --in a substantial way cause disrepute to the Administration of Justice?

Would the Court be seen as not maintaining confidence in theAdministration of Justice if I were to have you released? [8] Now, every one of these cases say the same thing, that I have to put myself in the shoes of a member of the public, reasonablyintelligent, reasonably informed of all the principles of criminal law and the Criminal Code, and then based on that, make the decisionwhether, in my view, to maintain the confidence in the Administration of Justice including all the circumstances, whether you should beheld in custody? [9] The law is that everyone is presumed to be innocent unless and until they are proven guilty.

They have to be proven guiltybeyond a reasonable doubt. The law is, also, that everyone is entitled to reasonable bail unless it is necessary to keep him in custody forone of the three reasons previously discussed, the primary reason, secondary reason, and tertiary reason. Another principle of law is thatat a bail hearing, the principle of proof beyond a reasonable doubt does not apply. The next principle is that a person who is "anaccused" one has no obligation to say anything to the police or during the bail hearing or in Court as to the facts of the case.

That is leftfor the trial. [10] Typically, what happens in a case where there is a violent crime like this, the Court looks at the necessity of keeping somebodyin custody compared with what options are given or presented by defence counsel for the accused. In this case, your lawyer went togreat lengths to set out how he said that releasing you would, if under very strict conditions, not cause the confidence in theAdministration of Justice to diminish.

He said that you have a younger brother who has an apartment, a one-bedroom apartment, wherehe said that you could live, you could sleep on the couch, stay there with him, his wife and young children. He said that your youngerbrother, works at home as, I think, a coordinator for security people at Shoppers Drug Mart and he is home working from home andtherefore he could supervise you.

He is willing to put up his property in the amount of close to $80,000 equity in order to guarantee thathe will keep track of you and make sure that you do not go out and do not commit any retaliation or further crimes against your ex-girlfriend or anyone else.

He says that he understands that he could stand to lose his house if he was not able to control you and youractivities. [11] The one problem I see with that is that if the trial was to take place in a week or two weeks or three weeks, that is somethingthat is possible, but your trial probably will not take place and finish for anywhere between five months and 18 months.

I have to bepractical and know that your brother, although he is working at his house full-time, he does go to sleep at night, does go to the bathroom,does have a shower, occasionally would like to go out shopping on his own, and the likelihood for all that time for him to be stuck likeVelcro to you, is pretty small. When he goes to sleep, if you want to get out, you will. [12] So I am not sure, even with his commitment which I do not doubt for a moment is a sincere one, that he can for the long haul,make sure that you do not get out of his presence.

Even if I was to say that you could go out at any time with him, it still presents theissue of him getting called out on business, one of his kids getting sick, him having to run out to the store, or whatever and not with you.

[ 13 ] The real concern I have here is that when I consider what the factors are, for example, the strength of the Crown's case, I have a situation, where the Crown tells me that you waited for your ex-girlfriend to arrive home. Because she was away from you for the day, you were angry at her. She comes up, you are waiting outside her apartment. Within a couple of seconds, you withdraw a sword or at least a knife with an eight-inch blade, from your pants and you take one whack at her neck. She battles that off and then you proceed to stab her twice.

This is viewed by seven of the people who live in the apartment that your ex lives in and they watch all this happening. You then leave her in a lump on the ground bleeding and run off. The neighbours come to her assistance. [ 14 ] Obviously, with the swipe at her neck and two stabs, she could certainly have died. What your motivation or intention was, I do not know, but certainly it was not anything less that to cause her grievous bodily harm. [ 15 ] The gravity of the offence is huge.

The circumstances around the commission of the offence are very serious because it was planned, premeditated and not something that happened in a flurry of emotion. You had become so angry that you decided to wait with a big knife or a sword and attack her almost instantly. [ 16 ] Defence Counsel did not, in any way, challenge any of those facts.

Often, at a bail hearing, although defence does not have to tip their hand, as it were, when those uncontroverted facts are before me, they are scary. [ 17 ] I was waiting to see if there was going to be something that told me you have psychological problems, you have a drinking problem, you have a drug problem, something, but your counsel said you have no physical, no psychological, and no substance abuse problems. [ 18 ] So, I am left in this case, thinking why in the world did he do this? He has no past record, but this day, something or other caused him to do this.

He does it and then his immediate reaction is not to say, "Oh, my goodness, I harmed her, I am sorry, I want to help her." Instead, you take off, and what is equally concerning is, a few hours later, the police find you kind of casually sitting on a cement block somewhere or other, the knife is on the ground beside you and you give a "thumbs up" to the police as if, "Well, you know, it is business as usual." Nothing really had upset you. [ 19 ] If you are convicted, there is no question that you will receive a potentially lengthy term of imprisonment because of the violence of this case. [ 20 ] When I look to the Criminal Code and other case law, they tell me to look at the background of the person, what they have going for them, how likely they are to repeat or breach the orders.

As to your particular background, I am left with a situation where you have no job, you are going to be sitting around the house the suggested 24-hour-a-day, seven days a week. This offence was only a couple of days ago, and to think that somebody, whatever the motivation was, is "over it", as it were, and is never going to do anything again to this woman, to me, breaks with reality. [ 21 ] I have the situation here, where even the home that you propose staying at, is within one-kilometre of where this woman lives.

The concern is, from a public perspective, somebody does something like this and in the planned manner that you did and then is immediately allowed to walk around the streets and presumably, can terrify one of the witnesses who witnessed this horrible attack and, of course, the victim herself.

When I say "walk around the streets," even if it only were outside with your brother, the public would look at something like this and think, how could they, I asked myself, have confidence in the Administration of Justice when the Court lets a person out who has done such a dreadful act three days ago and is out and back on the streets and again? [ 22 ] In my mind, as I say, I struggled with this a long time because I, other Judges and the Law itself does not want to and tries to do whatever they can, not to detain somebody unless they absolutely have to, based on one of the three grounds. [ 23 ] I find here that I am not able to let you out and you will be Ordered Detained under the tertiary ground. [ 24 ] I also make an Order that, while you are in custody, under 512 [sic] of the Criminal Code , you shall not have any indirect or direct contact with the named complainant and then Mr.

Ip will give me the names of the witnesses. [ 25 ] All right. What do we do now, Counsel? [ 26 ] MR. FERGUSON: Mr. Arbabi hasn't actually given me a return date, but I would suggest two weeks in 307. So I think that is September 6th -- or we're into September 14th, I think, if I am not mistaken. [ 27 ] THE COURT: Okay, do you want it to go that long? Given that he is in custody, I would like to get him a trial as soon as we can. [ 28 ] MR. FERGUSON: There's September 6th. [ 29 ] THE COURT: We will use up a lot of dates if we adjourn him over two weeks. [ 30 ] MR.

FERGUSON: September 6th, then, maybe, I think that's one week. [ 31 ] THE COURT: All right. [ 32 ] MR. IP: That's fine. Is it a concern that being the Tuesday after the long weekend. I don't know -- [ 33 ] THE COURT: Why? [ 34 ] MR. IP: -- whether we are too busy in this courtroom or not, but -- [ 35 ] THE COURT: Oh, well --

[ 36 ] MR. FERGUSON: Well, it would be in 307. [ 37 ] THE COURT: 307. [ 38 ] MR. IP: 102, basically, what they require is an election. [ 39 ] MR. FERGUSON: Ah, so -- [ 40 ] THE COURT: What do you want to do? [ 41 ] MR. FERGUSON: -- yes, I think that -- I think that makes sense -- [ 42 ] THE COURT: Which Courtroom? [ 43 ] MR. FERGUSON: -- given I don't have instructions from Mr. Arbabi, so -- [ 44 ] THE COURT: All right, which Court, then? [ 45 ] MR. FERGUSON: -- 102. [ 46 ] THE COURT: 102. [ 47 ] MR. FERGUSON: Yes, by video if we could. [ 48 ] THE COURT: By video? [ 49 ] MR.

FERGUSON: Yes. [ 50 ] THE COURT: All right, 102, at 9:30 by video on September the 6th, is that what you said? [ 51 ] MR. IP: Yes. [ 52 ] THE COURT: September 6th. [ 53 ] MR. IP: Yes, and if I could provide Madam Clerk with the names of the -- [ 54 ] THE COURT: Yes, please. [ 55 ] MR. IP: -- with the names of the no-contacts. There is the named complainant, Kimmat Mirzabaeva, I have it all typed out here.

There are children, Rustam Amirov, Nasiba Amirova, Nafisa Amirova, Fotmia Mohammad Amir, Zuhra Mohammed Amir, and the aunt, Shohistohon Nizirova, and I can have that typed for Madam Clerk. [ 56 ] THE COURT: I do not know that I used the right

section on that -- [ 57 ] MR. IP: 515(12). [ 58 ] THE COURT: Thank you. [ 59 ] MR. IP: Thank you, Your Honour, those are my matters. [ 60 ] THE COURT: Thank you. [REASONS AT JUDICIAL INTERIM RELEASE HEARING CONCLUDED]