R. v. Al-Ramahi, 2011 ONCJ 495

Citation: R. v. Al-Ramahi , 2011 ONCJ 495 Case Name: R v. Mahmoud Al-Ramahi Between Her Majesty the Queen and Al-Ramahi Ontario Court of Justice G. Manno, Justice of the Peace Heard: August 24, 2011, September 15 & 22 nd , 2011 Judgement: Written reasons filed September 22 nd , 2011 Counsel for Accused: Mr. Spettigue Crown: Ms. Caponnechia 1 . The following is the Court’s reasons regarding a show cause hearing that commenced on August 24, 2011, continued on September 15, 2011 and concluding September 22, 2011. 2 . Mr. Al-Ramahi, the Accused is ably represented by Counsel Mr. Spettigue and the Crown by the equally capable Ms. Caponnechia. REASONS FOR JUDGEMENT

BACKGROUND 3 . To fully understand the case before this Court, one must review the events that took place at Mr. Al-Ramahi’s parents’ residence in Mississauga back in February, 2011. The Accused was alone in his parent’s residence when he answered a knock on the door. He was immediately pepper sprayed and subdued by an unknown group of male assailants. They entered the home uninvited, beat and stabbed the Accused about the torso, tied him up and proceeded to his second floor bedroom where they took a $14,000 gold chain and other property. They did not rob or disturb any other room in the residence.

The Accused sustained a puncture wound, slashes to the arms from a knife attack, and upon freeing himself, attended a hospital to seek medical attention for his injuries. A shotgun was alleged to have been present during the home invasion robbery but not fired. Police were not called but happened to be at the hospital on other matters when they commenced their investigation of the incident. The Accused informed the police that he was not intending to cooperate with their investigation. 4 . The Accused’s parents were notified of the attack by their son who called them at the hospital.

They present themselves to this Court as the primary residential sureties for this hearing. That evening they accepted their son’s explanation who told them he did not know his attackers and did not know why they singled out their home for the robbery. He implied that the robbery was random and they accepted their son’s explanation. The parents concluded that they would sell the family home after this incident and move away to some other neighbourhood. 5 . Sometime later, one of the Accused’s contacts told him that an old acquaintance by the name of Mr. Shane Thomas was responsible for the February home invasion.

As a result, in July of this year, Mr. Al-Ramahi along with 3 other associates, Mr. Grey (co-accused), Mr. Edwards (co-accused) and Mr. Lettman (not charged and is a crown witness) were in a black Lincoln car on or around a Kaneff Crescent apartment building in Mississauga and drove towards where Mr. Shane Thomas and two other associates were walking. The two other associates were identified as Mr. Wallace and an unidentified associate known only as “Tip” who was visiting from Edmonton. When the group on foot saw the occupants of the vehicle, Mr.

Thomas was alleged to have formed the sign of a gun with his hand and pointed it at the Lincoln car. The vehicle stopped and Mr Al Ramahi was alleged to have exited the front cab of the vehicle to confront Mr. Thomas about the February robbery. Other associates, (particularly Mr. Grey) exited the vehicle and uttered the words “where is my nigga’s shit”. Mr. Grey then instructed Mr. Al-Ramahi to return to the vehicle and to drive. Mr. Grey re-entered the vehicle to sit in the front passenger seat of the car. Once in the vehicle, Mr.

Grey allegedly pulled out a handgun from his waistband and commenced firing at the group on foot. In all, 5 to 6 shots were fired in the direction of Mr. Thomas and his associates but thankfully, no one was hit or injured from the exchange. 6 . Subsequent to this incident, police attend the scene and recover six 45 calibre shell casings and two bullets. No gun was recovered in the investigation. 7 . Mr. Thomas, a 26 year old male, articulated his concerns for his life to police as did the family of Mr. Wallace who called police fearing for Mr. Wallace’s life.

No contact was made with the third fellow by the name of Tip, a visitor from Edmonton. 8 . Mr. Al-Ramahi’s associates in the vehicle were Mr. Nicohli Grey, the alleged shooter, Mr. Jamal Edwards, otherwise known as Bubba (who has since been released on bail) and Carlton Lettman, who has not been charged and is one of the Crown’s chief witnesses. Mr. Lettman and Mr Edwards were alleged to have been back-seat passengers in the vehicle that day. There is some surveillance footage from the apartment building located on Kaneff Crescent showing or identifying Mr. Thomas at the scene. Mr.

Thomas is cooperating to varying degrees with the police investigation but was reluctant to give video tape evidence and preferred to speak off camera. CHARGES 9 . Based on the investigation to date, the Crown and police laid charges of 239

(1) X 4; a 91

(1) X 2 and 92(1) X2, though Mr. Al- Ramahi was only charged with three counts of 239(1) X3 for his role in the incident. Later as the investigation continued, and during the bail hearing, the police uncovered a backpack belonging to Mr. Al-Ramahi containing crack cocaine and cocaine. As a result, he was subsequently charged on separate information with 2 counts under CDSA 4 (1). Both Counsel and Crown agreed that these charges could be dealt with in the one combined hearing.

ONUS & OTHER CONSIDERATIONS 10. The Accused is presumed innocent, that is the golden thread that runs throughout our justice system. This is applicable to the Bailstage of proceedings as well. The Crown bears the onus of proving the charges beyond a reasonable doubt at Trial in a Court ofcompetent jurisdiction. This Court is not charged with finding guilt or innocence today. It simply looks at the principles of 515 (10) ofthe CCC to determine if the Accused is releasable, and if so under what terms and conditions.

It is a determination of risk and riskmanagement between now and the disposition of the charges before the Courts. 11. The second principle that the Court bears in mind concerns who bears the onus on the balance of probabilities at the bail stage. Inthis application, the 239

(1) X 3 charges are Reverse Onus where the Accused must show cause as to why he should be released giventhe Crown’s expressed concerns on the Secondary and Tertiary Grounds. The drug related charges that are found on separateinformation that was subsequently laid, are in fact a Crown Onus situation where the Crown bears the onus why the person should bedetained. It is distinctly understood that there are no primary ground concerns articulated or to be considered in this hearing. 12. Also germane is that Mr. Al-Ramahi comes before this Court with no criminal record or other outstandings.

The other co-accusedhave criminal records according to the Crown to one degree or another. CROWN CASE AUTHORITIES CONSIDERED 13. The Crown offers the Bench the following cases for the Court’s consideration: R. v. McGowan [2009] O.J. No. 3686, Justice Trotter R. v. Whervin [2006] O.J. No. 443, Justice Hill, SCJ R. v. C.P. [2006] O.J. No. 3709, Justice Dambrot, SCJ R. v. Alam [2005] O.J. No. 3941, Justice of Peace Kowarsky, OCJ R. v. M.A. [2008] O.M. No. 566, Justice of Peace Kowarsky, OCJ R. v. Beason [2005] O.J. No. 5706, Justice Hamilton, SCJ, Toronto R. v. Chong [2005] O.J.

No. 5853, Justice Sheppard, OCJ, Toronto R. vs. I.A. [2001] O.J. No. 6075, Justice Feldman, OCJ, Toronto The Crown also suggests that the Cases of McGowan, C.P. and Alam above which all involve shootings are more pertinent to one degreeor another. The Crown also contends that the McGowan case is the most similar and considered most relevant. In Reply, Counsel offersR. v. E.T. (see cite below) for its similarities to the case at Bar. DEFENCE COUNSEL CASES CONSIDERED: R. v. Bonnick, 2006, Justice Molloy, Toronto, unreleased decision R. v. A.B. (ON SC), [2006] O.J. No. 394, Justice Ducharme, SCJ R. v.

E.T. [2006] O.J. 1446, Justice MacDonnell, OCJ

OTHER MATERIAL CONSIDERED: R. v. Smith 2011 ONSC 4686 , [2011] O.J. No. 3683, Justice Ricchetti, SCJ R. v. Babalkher [2011] 2011 CarswellOnt. 7320 Items of Interest, Judicial Research Centre, OCJ, September 16, 2011 The Law of Bail in Canada, G. Trotter, Second Edition ANALYSIS 14. Beyond appreciating that the Accused is entitled to reasonable bail and to the presumption of innocence, the Court must attend tothe principles of release as articulated in 515(10) of the CCC.

The Secondary Ground concerns state: “Where detention is necessary for the protection or safety of the public including any victim of or witness to the Offence, having regard to all of 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.” The Courts have often relied on past behaviour for its predictive value of recidivism and when speaking of the substantial likelihood ofcommitting a criminal offence or interfering with the administration of justice. Mr.

Al-Ramahi has no criminal record or any otheroutstandings. One might be tempted to argue that the secondary grounds cannot be properly invoked or used as the reason for pre-trialdetention. However, the legislation and Common Law are clear in acknowledging that the criminal record is simply one item to examinewhen applying the secondary ground concerns.

In the recent Items of Interest, distributed by the Center for Judicial Research, OCJ(September 16, 2011) it is clear from Common Law, that the Secondary Grounds must also consider other factors including potentialgang affiliation, and any implied or express threat to any victim or witness ( R. v. Babalkher). Though there is no clear evidence that Mr.Al-Ramahi was a member of an organized gang, there is an implied threat to the safety of the victims of and/or witnesses to this event.

Some evidence is given to suggest that he was the catalyst or the reason why the two groups of individuals were found confronting eachother on that fateful day and for the subsequent shooting. Mr. Grey, his associate and the alleged shooter was heard to utter the words“where is my nigga’s shit”, that represents a street reference to the property taken from Mr. Al-Ramahi during the February homeinvasion. There is also some evidence that Mr. Al-Ramahi was the driver at some stage of the incident. Mr. Lettman and Mr. Thomas’sevidence may differ under scrutiny at trial, but at this juncture, Mr.

Al-Ramahi plays a key role in the incident. There is no evidence thatany of the other co-accused know the alleged victims and the only individual with a motive for the confrontation appears to be theAccused. In later statements to police, both Mr. Thomas and Mr. Lettman’s family express fear of retribution and fear for their safety. The suggestion is that Mr. Al-Ramahi may have been attempting to effect some form of street justice as a result of the home invasionincident in February, some months earlier.

The Court also considered that the shots were fired outside a multi-unit apartment building atabout 6:00 p.m. during daylight hours. The Court is mindful that innocent bystanders or passer-bys could have been hit by the straybullets, including any children. As well, since there is no evidence to suggest that the two associates who were with Mr. Thomas on footthat day had any role to play in the February home invasion, they could be considered as innocent bystanders upon whom shots werefired. 15.

Despite triable issues in the Crown’s case, and despite the absence of a criminal record, the Court is left with unanswered concernsabout the Accused’s release. Considering all of the circumstances Mr. Al-Ramahi’s detention is warranted under the secondary groundsto protect and keep the public safe, including any victim of or witness to the Offence. All of the circumstances the Court consideredincluded the February home invasion wherein Mr. Al-Ramahi was an apparent victim not a suspect. His motive for retribution wasborne of that incident and inspired the chain reaction of events that followed.

The alleged victims have expressed concerns for theirsafety. Given the brazen nature of the daylight shooting and location, it is this Court’s belief that the public would also be at risk andpossibly considered by the Accused and his associates as acceptable collateral damage. The Court believes that Mr. Al-Ramahi may havesome ‘unfinished business’ and the risk remains that he may continue to effect some form of street justice to the detriment of the partiesmentioned above. The Court acknowledges that Mr. Al-Ramahi was not alleged to be the shooter but was indeed a strong catalyst forthe shooter to be present.

The Court has also considered all of the case law presented by both sides. The Crown’s submissions include R.v. Whervin and R. v. McGowan where both His Honour Hill and His Honour Trotter, respectively uphold detention on TertiaryGrounds. Also key is the absence of criminal record in both those cases. As mentioned earlier, Alam and C.P. have some similarity tothe case at hand and both involve the firing of a weapon.

16 . Let us next consider the Tertiary Grounds . 515(10) specifically states, “where detention is necessary to maintain the confidence in the administration of justice, having regard to all of the circumstances including: (

i) apparent strength of the prosecution’s case; (ii) 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 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.” 17 . Let us examine these, each in turn. Firstly, the apparent strength of the prosecution’s case .

This is but one factor to consider in the application of the Tertiary ground concerns. Certainly, one might argue, as Counsel has, that there are triable issues here. For instance there was differences in Mr. Lettman’s version of events and that of Mr. Thomas. As well, Mr. Thomas’s level of cooperation with police seemed to decline when on camera. The Crown submitted that this lack of on-camera cooperation was evidence that the witness feared for his safety. Nevertheless, the level of that cooperation is not yet certain at this stage. Both he and Mr.

Lettman may have criminal records that might be raised at trial and speak to witness credibility. No gun was recovered at the scene or in the subsequent police investigation. There appears not to be any testing at this stage for DNA and/or fingerprints on the shell casings/bullets to strengthen the nexus between the alleged shooter and the witness statements. There was no explicit order given to Mr. Grey (the alleged shooter) by the Accused to fire his weapon. Pre-meditation of the murder might be thrown into question. Counsel argues that Mr.

Grey was the directing mind that day and that the Accused was ordered to drive and had no other choice but to cooperate with the order. He argued that there was no evidence of premeditation and the whole incident might have occurred as the result of a heated exchange that was not planned. All of this potentially raises reasonable doubt at trial as to who was aiding and abetting the shooter Mr Grey.

Despite these lingering questions, the crown’s case appears presumptively strong at the bail stage but one wonders what might happen once the higher standard of proof is employed at trial and all of the evidence is subject to scrutiny. As a result, the bail courts often summarize the Crown’s case as follows. The crown’s case may gain or lose momentum between now and Trial. Eventually, with further investigation and at trial, the strength and the integrity of the Crown’s case will be resolved one way or the other. 18 . Gravity of the Offence .

Wherever guns are used, particularly handguns, the situation is potentially grave. Handguns have one specific purpose – to kill. Attempt murder when combined with the drug charges are considered serious offences in our Courts. There is much case law to suggest that gun violence, society’s outrage with the use of guns, increased violence and the presence of drugs are all of particular concern. One need only reference R. v. Alam [2005] O.J. 3941 , OCJ at paragraph 42 as well as review the decision by J. Nordheimer in R v. J. G. [2005] O.J. 4599 OSC, or that of Justice Hill in R. v.

Whervin [2006] O.J. 443 OSC where a loaded gun and cocaine caused the Court to express significant concerns as to say, “ There is clearly an increase in concern in all segments of society for firearm crimes and risks to the public safety including to members of the public and police officers.” 19 . The circumstances surrounding the commission of the offence including whether a firearm was used. The allegations are that a handgun was used and in fact, shell casings and bullets were recovered from the scene along with witness statements. Mr.

Al-Ramahi was not alleged to be the shooter but, as previously stated, he appeared to have the strongest motive, knew one of the alleged victims, may have been the driver of the vehicle at one stage, and allegedly initiated the confrontation that day. There is no evidence that the other alleged victims who were the subject of the shooting were known to the shooter or to anyone else in the vehicle with the exception of Mr. Al-Ramahi. The evidence would indicate that he was the catalyst for the incident that day. Given the evidence, the Court believes that Mr.

Al-Ramahi was present in order to seek his own form of justice for the home invasion in February where he was stabbed and robbed. Multiple shots were fired during daylight hours, near a multi-unit apartment building and without due consideration to the general public which may have been in the vicinity. As well, later, property belonging to Mr. Al-Ramahi was recovered including a backpack containing cocaine. The earlier home invasion targets only Mr.

Al-Ramahi’s bedroom and no other location of the parent’s home, despite there being other valuables and electronic equipment in other rooms of the house, in plain view. One might be tempted to speculate whether such a robbery was in fact targeting the Accused in not in fact a random robbery. One also wonders if the Robbers were looking for drugs or drug-related property. The subsequent shooting smacks of some level of premeditation and motive, at least on Mr.

Al-Ramahi’s part, though Counsel contends that the meeting of the two groups of males was serendipitous and the Accused had little control of the events subsequent to the initial contact that day. The Crown argues that after the shooting incident, Mr. Al-Ramahi did not call police or indicate to his family that he was in fear of Mr. Grey. Following the incident, the Accused did not move back home yet returned to the apartment where both he and Mr. Grey lived at the time. He was found in Mr. Grey’s company some days later at this apartment by police and upon his arrest.

The circumstances when considered in their entirety are considered quite serious and quite compelling. 20 . 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.”

If the Crown is successful at trial, the combination of the presence and use of a weapon in the incident combined with drugs mightprompt the court to seriously consider a sentence of 4 years or more. The absence of a criminal record when combined with hisrelatively young age may be mitigating factors but the consideration of drugs when combined with weapons speak to a longer, notshorter term of incarceration. OTHER CONSIDERATIONS 21. Counsel argues that the Tertiary Grounds should not be invoked under these circumstances. He cites R. v.

E.T. (cite above) whereJustice MacDonnell considered the release of a 16 year old youth who was a party to a shooting, implicated with two other adults whopulled the trigger. In that case someone died from the gunshot and another wounded. The Justice commented that there was no evidencethat the YO accused did anything to assist in the ambush and shooting of the two victims. He had no criminal record at the time. It wasan act of revenge but Justice MacDonnell found no evidence to suggest that the Accused made a single decision in relation to theimplementation of the plan to seek revenge.

In that case, the Justice found that the Accused had shown cause why his detention was notnecessary for the protection and safety of the public and that he had established that if released, he would not commit a criminal offenceor interfere with the administration of justice. The Justice was speaking to the secondary ground concerns and the substantial likelihoodthat he would commit a criminal offence if released. He then addressed the tertiary grounds citing R. v. Hall 2002 SCC 64 ,[2002] 3 S.C.R. 309 and Chief Justice McLachlin’s explanation of the application of the tertiary grounds under 515(10) (c).

That casespeaks loudly about detention seen through the lens of the four factors articulated in 515(10)(

c) A judge can only deny bail if satisfied that in the view of these factors and related circumstances, a reasonable member of the communitywould be satisfied that denial is necessary to maintain confidence in the administration of justice. (para. 36, ibid) Justice MacDonnell ruled that despite the gravity of the circumstances, he found that the tertiary grounds would not be a reason fordetention in that case. He found that the Crown’s case was at best, neutral and that the circumstances included a YO Accused who hedeemed less responsible for the shooting than the two adults he was with that day.

He also found that the potential for lengthyincarceration was largely mitigated by the principles found in the YCJA that stipulate that a YO would receive a youth sentence unlessthe Crown could demonstrate why that YO deserved or required an adult sentence. Justice MacDonnell also argued that the fact that thetrial would require many months, particularly if it proceeds first by preliminary inquiry is a factor to consider under the tertiary groundconcerns. (see R. v. A.B., cite above) However, as the Crown rightly points out, R. v. E.T. differs from the case at hand in many significant ways.

For instance, the Accusedis not a youth nor entitled to the same considerations as afforded a YO under the YCJA. Justice MacDonnell found no compelling reasonto believe the safety of the public, including any witness to or victim of the offence was in any danger, that is not the case here in thisCourt’s opinion.

As far as the application of the Tertiary Ground concerns, admittedly, the particulars of this case might fall short ofsome of the more egregious or compelling cases one might see in the busy Brampton Courts, the question to be asked is does it meet thestandard to be included in those most rarefied cases that invoke the Tertiary Ground concerns? To a limited degree, this might be aquestion of context. If these allegations were heard decades ago when gun violence was less prevalent, would the public be moreconcerned than it would be today with the administration of Justice if a release were effected?

That consideration is beyond the scope ofthis Court and its decision, however, it may become widely accepted that as the use of guns increases and Courts are exposed to moreacts of violence and gunplay, one wonders if the

interpretation of what might constitute a Tertiary Ground concern might change. Forthe moment, in a case involving adults, guns that are used and combined with possible drug use and where the public’s safety andongoing fear might be of concern, the Tertiary Grounds play an important role for consideration. This Court believes they are worthy ofconsideration in this particular hearing. THE SURETY PLAN 22. The first surety presented was Wafa Alsayed, who after taking the stand, decided to withdraw from further consideration.

As such,the Court need not comment any further on her suitability as a surety as the consideration is now moot. 23. The second surety to take the stand was Mr. Fahmi Al-Ramahi, the Accused’s father. He is a 58 year old civil engineer born inJordan, lived for a time in Kuwait, the U.S.A. and immigrated to Canada with his wife and family in 1996. He has since become aCanadian citizen. He and his wife, a 16 year old daughter and son (the Accused) are in the process of moving residences to anotherhome in Brampton. He has no criminal record and is obviously a well-meaning person and concerned parent.

Oddly, he admitted tonever having asked his son what happened on the day of the shooting despite having visited his son in jail approximately 10 times andhaving talked with his son on the phone almost daily. He admitted that his adult son listens to his advice only about 30 percent of thetime.

24. The accused’s mother, Ms. Aman Abu-Samak gave evidence wanting to be the second residential surety, who along with herhusband would represent the primary sureties for their son’s release. She too has no criminal record and is Jordanian by birth. Shestudied to become a dental hygienist in the U.S.A. and immigrated with her family to Canada in 1996. Though she is considered self-employed, she manages a busy dental practice full-time. She admitted her son was not sleeping or living at home continuously for somemonths but did not know why.

Under cross-examination, she also admitted her son had problems in school as a youth and was oncesuspended for getting into a fight with a fellow student. He was switched to another school as a result. Her son had not completed grade11 or grade 12 and once he attained the age of 18 years old, he stopped taking any courses to complete his secondary school education. He was unable to obtain and maintain gainful employment up to his present age of 20 years old.

She too is well-meaning and along withher husband, supports her son with room and board as well as giving him cash upon request of up to 80 to 100 dollars a week, an amounther husband contends represents 25% of their salaries. She too did not ask her son about the shooting incident. As well, she did not askhim any details about the February home invasion beyond ensuring his health was fine and/or his injuries were not serious in nature. 25. Lastly, Mr. Philipe El-Chami, a family friend appeared as a potential third surety.

He would not be a residential surety but would bea resource to the family being available one or two days a week. He has two of his own children and a wife and is employed as a civilengineer as well is a registered real estate broker who along with another Agent, had assisted the family with both the sale of their oldhome and the purchase of their new home. He had also acted as a mentor/part time employer for the Accused in his real estate practicewhen the Accused was attempting to complete a co-op credit.

He too admitted to having given the Accused advice in the past andadmitted the Accused did not listen or heed his advice. He has never asked about the home invasion incident nor has he seen or heardfrom the Accused in many months. He said there is a whole other side to the Accused that he said he knows nothing about. Once again,he is well-meaning but professes to know little about the Accused’s comings and goings. 26. The surety plan presented by the sureties is as follows; (1) to install CCTV cameras in the Accused’s bedroom and outside the hometo monitor all activity on a 24/7 basis.

The cameras would feed a video signal directly to a third party remote security monitoring serviceas well as be taped and reviewed by the parents periodically from home; (2) a security system would be installed and monitored by thesame agency with the code not being shared with the Accused. The parents would place the alarm code on active status when at workand any tripping of the alarm would be immediately reported to the monitoring agency;

(3) The Accused would be placed under fullhouse arrest and only be permitted to exit the home in the presence of one of the sureties;

(4) The Accused would not be entitled to anyvisitors; (5) the Accused would not be permitted to have cell phones or computer internet; (6) the Accused is to be home schooled; (7)the Accused is to agree to take instruction in the Islamic Religion. 27. In short, the residential sureties are proposing to construct a form of ‘home prison’ for their adult son. It causes the Court somepause and compels us to consider, why is all of this necessary? We must admit that this is the first instance in our recollection where thesureties have proposed these far reaching measures.

Of course, this Court does not have jurisdiction to order the Accused to give up hisrights to privacy and be monitored in such a manner...it simply offends the boundary we maintain between the presumption of innocence, trust the Courts place on sureties, the individual’s right to privacy, and, the right to reasonable bail conditions. Interestingly, the notionof security systems was recently addressed by Justice Ricchetti of the Superior Court in R. v. Smith 2011 ONSC 4686 , [2011]O.J. 3683 OSCJ at paragraph 45 where the Justice said, “....has now installed an alarm system in her home.

The installation of analarm system adds very little to the “comprehensive” or “personal” supervision suggested by Mr. Smith’s counsel. It is simply too easyto bypass or disarm alarm systems from within a home. The security code may be compromised. The person inside the home may needto open a window or door. An alarm system simply has too many uncertainties associated with it to be a meaningful tool for supervisingMr. Smith’s house arrest.” Later in paragraph 46 (

b) the Justice goes on to say “the sureties say they will personally and fully superviseMr. Smith on a 24 hour basis, it is hard to imagine how this could happen.” In short that is the plan that is being proposed herein. 28. Despite the sureties saying they will be unrelenting in their vigilance and that they would report their son if there is a transgression,their past behaviour implies otherwise. They are clearly well-meaning parents who are in the unfortunate trap most parents findthemselves in from time to time.

They are ‘emotional hostages’ to their children’s requests and demands which obligates them to doanything for their children. As fellow parents we have all experienced that feeling and understand that it can clouds one’s capacity forintellectual rationalization – thinking that in other circumstances would normally allow us to see clearly that our children are not on theright path. Our continued assistance in those circumstances can be potentially and painfully deemed of little consequence or in someinstances harmful. Mr. Al-Ramahi’s parents give him money and yet acknowledge he is rudderless at home.

They do not know hisfriends nor ask the ‘tough’ questions about his fairly serious matters. They are willing to be sureties not having asked their son about histrue involvement in the shooting incident. This Court believes that they are incapable of saying ‘no’ to their child and that makes themless than adequate as sureties for the Court. Put another way, to simply release Mr. Al-Ramahi into the exact same environment he hasbeen subject to for the last few years, with the same parental figures that he neither shares information with nor confides in, wouldpotentially be a recipe for disaster.

To use an analogy from the cooking world, to repeat the same recipe with the same ingredients, yetexpect two different results is not logical and is bound to disappoint. DECISION 29. In general terms, to effect a release solely on the basis that an Accused has acceptable or good sureties would offend 515(10) thatcompels the Court to also address the principles of release. Aside from the surety plan put forth, and using the principles articulated in515(10) and for the reasons mentioned above, this Court finds Mr. Al-Ramahi has not met his onus and finds him detainable on both the

Secondary and Tertiary grounds. As well, the surety plan put forth gives the Court little confidence that the residential sureties will be able to report their son for any transgressions despite their willingness to construct a home prison like system. Considering all of the evidence, the onus, and the arguments presented above together with the case law considered, the Accused is ordered detained. 30 . In fairness, this Court also needs to consider the Crown onus drug related charges. Given the allegations and the absence of criminal record and considering all other circumstances, the Court would find Mr.

Al-Ramahi releasable on these charges to a suitable surety. As such a Release for this Information No. 10460, charging CDSA 4

(1) X 2 the following Judicial Release shall be put in place.

The Accused shall be released upon his entering into a Recognizance with one or more sureties in the amount of $3500 No Deposit with the following terms and conditions attached: -to reside with Surety and be amenable to the rules and discipline of the Surety; -to remain in the Province of Ontario; -to abstain communicating directly or indirectly with Nikolai Grey, Jamal Edwards, Carlton Edwards, Shane Thomas, Andrew Kreston, Pavandeep Singh, except through legal Counsel; -not to associate with anyone known to him to have a criminal record; -not possess, ingest, inject any drug, controlled substance or precursor as defined by Federal law EXCEPT in accordance with a medical prescription; -not to attend the residence, place of employment or anywhere you know the aforementioned individuals to be; -and due to the nature of the drug charges, not to possess until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or such items as intended for use as a weapon as defined by the Criminal Code of Canada ; -not to possess or make application for any license or authorization pursuant to the Fire Arms Act. -the appropriate cautions shall be read into the record.

G. Manno, J.P.