r v. NAZIR AHMAD HUSSAIN, 2018 QCCQ 7378

R. c. Hussain 2018 QCCQ 7378 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS TOWN OF SALABERRY-DE-VALLEYFIELD No: 760-73-001373-188 DATE: October 17, 2018 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

NAZIR AHMAD HUSSAIN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The accused faces three charges: conspiracy to import cocaine and possession for the purpose of trafficking of same, along with accusation of being in possession for the purpose of trafficking of the same substance. [ 2 ] All the accusations originate from the same criminal transaction: the discovery of 81 kilos of cocaine on September 14 th 2018 in Valleyfield on a cargo ship named Jacqueline C in the circumstances that will be described below.

The accused was arrested the same day. [ 3 ] Crown’s theory is that the accused played a significant role in Guyana before the ship left, and once again in Canada when the ship reached its destination. [ 4 ] The accused is detained since his arrest. The issue is to determine if the accused can be released on bail pending the outcome of the procedures. PRELIMINARY REMARKS [ 5 ] The evidence presented was direct, circumstantial or incidental. The bail hearing is not a trial. It is supposed to be an expedite process and the evidence is therefore not exhaustive. The same goes with the decision.

It is not supposed, neither expected, that the judge will examine all elements of proof presented or that he will make rulings or decision on all the question of law that could be raised from the evidence. He has to make a choice and summarize [1] .

It follows that not all of the testimonies, exhibits, evidence or jurisprudence tendered or existing will be analysed or commented. [ 6 ] This being said, Crown objects to the release of the accused on the primary and tertiary grounds of s. 515(10) that read as follow: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (…) (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

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 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.

[ 7 ] We also have to bear in mind that by the nature of the accusations, s. 510(6) of the Criminal Code operates and the onus is on the accused: he is to be detained in custody unless he shows cause why his detention is not justified. THE FACTS [ 8 ] The Royal Canadian Mounted Police (RCMP) received an anonymous tip that the cargo ship contained drugs. They planned a joint operation with the Canadian Border Service Agency (CBSA) to board the vessel and investigate the information once the ship docked the port in Valleyfield.

The ship was coming from Guyana and had made no stop in between. [ 9 ] Once on board, the suspicious behavior of one of the sailor, Roldan De Gorio Tito (Tito) attracted attention and led to the following : − he volunteered that drugs, namely cocaine, was present on the ship and that he was an actor in its presence; − he related that shortly before the cargo ship's departure from Guyana, he had been approached by a security guard at the harbour asking if he could help hide some drugs; − he was afterwards invited to a meeting in a restaurant where he met three people: a lady, Rose, who was coordinating the conspiracy, her boss and a police officer that Rose presented as her husband; − the police officer was carrying a firearm to his belt and wearing a hat with a police logo present; − upon their instructions, the drug was indeed placed on the cargo ship and was to be delivered in Canada upon arrival; [ 10 ] At this point, the boss remains unknown.

However, Crown's theory is that the police officer in Guyana was a role played by the accused and Rose was indeed his wife Rosemary [2] . [ 11 ] The evidence leading to this conclusion is as follows : − Tito's cell phones were seized and a cursory search revealed text messages of interest with two numbers at play; − one was Rose's number with discussion between Tito and her on September 14 confirming the arrival of the boat and in reply that her husband would text him from row on; − the other number was tied to someone identifying himself as Rose's husband on the same day and wanting Tito to meet him once he would be outside the ship; [ 12 ] By that time, the RCMP was already performing covert surveillance of the harbour in order to hopefully identify suspect vehicles or individuals that could approach the boat.

One such car, a Ford Taurus was deemed suspicions and followed on the 14 th . It led the officers at the local Plaza Hotel. Nothing resulted. But once there, a black Volkswagen Jetta with Ontario licence plate became of interest. One officer recognized two of the four occupants as being the two persons who had tried the day before to enter the harbor to visit Tito posing as family members. They had been denied access, not being on the boat’s guest list. [ 13 ] The Jetta left the hotel and was followed. It eventually stopped at a Tim Horton.

One officer then rang the number with which Tito was communicating (the one attributed to Rose's husband here in Canada) and the accused answered. [ 14 ] The four were then arrested. [ 15 ] What unfolded can be resumed as follows : − the accused was travelling with his son Mohamed and two other individuals; − all are resident of Ontario and the purpose of the trip was to celebrate Mohamed's birthday in Montreal; − on the request of the accused, a detour in Valleyfield was necessary for him to meet someone according to Mohamed; − at one point, his father's cell phone had problem before arriving in Valleyfield and his father's wife Rose switched to Mohamed’s number to continue exchanges, including the sending of an "APP" that was to be useful to locate the ship and its arrival date and time; − Mohamed knew nothing about the drugs but became suspicious during the trip.

Some messages concerned exchange of money; − his father has remarried since his mother's death with Rosemary who lives in Guyana. He had disapproved of this marriage and did not attend the wedding. Rose was of dubious character as far as his perception went and her previous husband was allegedly mixed in the drug business; − the accused was also questioned and offered some statements; − he corroborated his marriage with Rose.

He stated that he was in the process of having her and her son immigrate here; − his presence in Valleyfield was to celebrates his son's birthday; − he could not explain the cell phone that he answered at the Tim Horton, save for the fact that it had been given to him by a friend. He could not indicate when. [ 16 ] The subsequent search and seizure of the Jetta revealed the presence of two new burgundy piece of luggage with Walmart sticker

prices still on, a hat with police written on it, two boarding pass and two airplane receipts from Guyana. [ 17 ] Text messages from Rose to Tito on September 14 th discussed the fact that her husband would bring him two new burgundy piece of luggage. Video surveillance camera obtained at the local Walmart revealed that the day before, on September 13 th a , the accused with the others were there and left with the two burgundy luggage, one being carried by the accused around 2 in the afternoon. [ 18 ] Tito was at the same police station where the four were brought in.

Already in custody, he recognized from his cell the voice of the individual who had been Rose's husband (the police officer) at the restaurant in Guyana. He volunteered the information and formally identified afterwards the accused as that person both on the spot and later on a photo line-up. [ 19 ] Further investigation with CBSA confirmed for the accused two recent arrivals in Canada from Guyana on August 29 th 2018 and September 11 th 2018. [ 20 ] This is where we are. The investigation is not complete.

As an example, it has not been established when the accused would have left Canada for Guyana on both these recent trips. [ 21 ] As to the cell phones of the accused (he had two on him), both were seized and searched, their content downloaded and already sent for expertise. A cursory search allowed the capture of exchanges (text messages) that took place on September 14 th. They are on record. [ 22 ] At this point, only the accused and Tito are charged with the import and possession for the purposes of trafficking of the cocaine.

They are also accused of conspiracy with each other and with a person known as "Rose". [ 23 ] Finally Tito stated that he was coerced by fear to help. He initially stated that 30 kilos was to be put on the boat and that he even threw some of it overboard at sea during the voyage. That drug was in the cargo area of the boat.Eventually, the 81 kilos were found in a ventilation shaft. THE ACCUSED [ 24 ] We can infer that he led a law abiding life until now. He has no criminal record in Canada. He states having none either in Guyana. He was born and raised there. He still holds a Guyana passport that is expired.

He also holds a Canadian passport. He already had some family in Ontario when he immigrated there in 2000. He worked initially at his sister’s supermarket before opening a restaurant adjacent to the store. He operated the restaurant with his wife. Business was good. They had four children (three are now young adults and one is a teenager) who were doing well and everything seemed fine. [27] Unfortunately, tragedy struck. His wife was diagnosed with cancer. She died at Christmas 2013. Her care had him neglect the restaurant. Her absence at the restaurant afterwards did not help.

It led to the sale of the business. [ 25 ] He has been unemployed since. He somehow accumulated $80,000 of debts. They are right now consolidated with monthly payments of $100. He has no significant assets. [ 26 ] His only source of income is $1,500 a month related to an unspecified disability and $450 a month from the Canadian Pension Plan for loss of his spouse. [ 27 ] He shares an apartment with one of his daughter and pitch in $900 a month for his part. The rest is assumed by her. [ 28 ] He visited Guyana in 2011 for three weeks with his family. He returned with his wife before her death.

She knew she was condemned and wanted to say her farewell to her family still living there. [ 29 ] He also returned in 2017 for holidays with two of his daughters. One put the entire trip on her credit card, still unpaid save for minimum payments each month. [ 30 ] He went back twice this year, in June for two months and in August for his niece's wedding. This latter trip was paid by his brother, father of the bride. [ 31 ] He met Rosemary Singh (Rose) through his brother in 2017. Rose was a widow and operating a bar locally. Marriage was discussed and he married her this summer. None of his children attended.

They all had reasons or excuses for not coming. [ 32 ] His daughter Bibi Fazeela testified. She describes a loving and dedicated father for all his children who educated them correctly and well. He got depressed after the death of their mother and she had to step in. The youngest one is now living with her. [ 33 ] She never met Rosemary or talked to her .She did not attend the wedding. [ 34 ] She is willing to deposit $2,000 as a surety. [ 35 ] His son Mohamed also testified.

Married, with three children, he lives in an apartment in Ontario free of charge as part of his employment conditions as a maintenance superintendent in an apartment building. [ 36 ] He is willing to take his father with him for the duration of the procedure. [ 37 ] He describes his father’s character the same as his sister. He is willing to deposit $10,000 as a surety (that comes from wedding gifts and some savings) and sign for an additional $10,000 without deposit. [ 38 ] He was in Valleyfield on September 13 th and 14 th with his father and two other before being arrested [3] . The initial purpose of

the trip was to celebrate his birthday in Montreal, with a detour to see a friend of his father. They finally celebrated on the 13 th in Valleyfield when they realized that the boat had not arrived. [ 39 ] Drugs were never discussed prior to the trip or once on their way to Montreal. [ 40 ] He has never met Rosemary. She is trouble from what he hears through the grapevine from certain friends of his. He did not attend his father’s wedding, disapproving of this marriage and having told his father so.

PRELIMINARY IMPRESSIONS [ 41 ] First off, it is somehow surprising that four people living in the greater Toronto area [4] decide to come to Montreal to celebrate. No reasons were offered at the hearing for such a decision. [ 42 ] It is also surprising that the reason of the detour in Valleyfield (to meet a friend of the accused) was not simply put aside when they realized that the ship had been delayed. Not only did they wait, but two went to the trouble of trying to meet him posing as cousins. More surprising still, it was not even the accused who did so, but his son and the one named Martelli.

And we're not even discussing about the business of getting two new pieces of luggage at Walmart and staying overnight in Valleyfield for the next day. [ 43 ] The first impression is that we did not get the full story related to that birthday trip save to speculate that the accused was with three very patient, willing and accommodating persons. The first part of the previous sentence stands as more likely. [ 44 ] On another topic, when questioned by his attorney if he would be willing to reside with his son, the accused was clearly taken by surprise as to this proposed location. Maybe with reason.

It does not seen realistic that in the long run, it would not cause problem or friction when we know that the apartment has only two bedrooms and that the plan is to have the couple and their three young children in the same bedroom in order to let the other one to the accused. [ 45 ] Nevertheless, it is open to concern that the address offered for the accused to reside pending trial is not even known to him before he’s questioned on the subject. [ 46 ] On still another topic, we do not know anything relevant about Rose. The accused testified before his son and his testimony about her.

We don’t know if his initial comments made at the station are in the disclosure. But he had heard at least from the officer testifying for Crown before him that his son had told them that she was of dubious character and that her late husband had been involved in drugs. He never denied or contradicted these impressions conveyed about her. As a fact, he offered very little information about her. It is also of concern. [ 47 ] The accused was not forthcoming either as to why he stayed two months in Guyana during last summer.

Must we infer or speculate that it was in relation to his wedding? [ 48 ] But more surprising is his decision to come back at the end of August before returning a few days after. Evidence shows that he returned in Canada from Guyana on August 29 th 2018 and again on September 11 th. The second trip was to attend his niece’s wedding, paid by his brother. But the invitation produced in evidence to justify that second trip reveals that the wedding reception was on September 2 nd . Why leave on the 29 th then?

With just three full days in between his departure and the wedding, why not stay and simply return home after the wedding and avoid his brother an unnecessary travel expense? We obviously miss some pieces of the puzzle to get a clear picture. This conduct defies common sense. [ 49 ] Of course, credibility issues are better left to the trial judge. But it is often said that the bail hearing is the privileged forum for an accused to let himself be known by the Court.

The accused was indeed talkative with his history, his good deeds, his past employment up until the death of his wife, including his ongoing love for his children. But he was much more silent with his recent activities, his stay in Guyana over the summer, his wedding and his wife's character to name a few. [ 50 ] Grey zones remain. The Court is left with the impression that we know well the old accused, but not the recent one.

ANALYSIS OF THE PRIMARY GROUND [ 51 ] Even though it was said in the context of extradition, the reasoning is the same here in assessing the flight risk contemplated by the primary ground [5] : [27] Premièrement, lorsqu'il s'agit d'assurer sa présence au tribunal, la question n'est pas de savoir s'il peut être facile de retrouver le fuyard, mais bien celle de savoir si la détention est nécessaire pour empêcher la fuite [11] .

En principe, le maintien d'un emploi, des liens avec la communauté et des attaches familiales sont des facteurs importants, tout comme la qualité de la preuve, la sévérité des conséquences ou des liens avec l'étranger. Aucun n'est déterminant et il faut certainement envisager l'effet des conditions éventuelles pour tempérer le risque. (citations omises) [ 52 ] The same is expressed in English in a subsequent case [6] : [38] Subsection 515(10)(

a) provides that bail may be denied where the detention is necessary to ensure the accused’s attendance at Court. Considerations under this ground include connections the accused may have to his or her community as well as connections to another country [9] . Factors which must be considered include employment, links with community or with family, quality of the evidence against him, severity of the consequences of the accusation and links with other countries, along with links with a criminal organization [10] . (citations omises)

[53] It was argued that the accused’s strong ties with his children would dictate him to not put in jeopardy their deposit by breachingany condition including failure to attend Court. [54] The Court is not doubting the mutual love between the accused and his children. But save for the youngest one, they are allyoung adults leading their lives. And as much as it could be argued that the youngest needs her father and that it should be considered,the evidence reveals that the accused left her when he recently stayed in Guyana for two months. [55] Apart from his children, not much ties him to this country.

He has no property and no job and must face an $80,000 debt thatpays itself at the hopeless rate of $1,200 a year. [56] We also have to factor that even if he surrenders his Canadian passport, he could still renew his Guyana passport with nopossibility of control from the Canadian authorities. [57] This is not a farfetched proposition. The accused has renewed his interest with his country of origins. Even though some of hispast travel were with his deceased wife or children, the most recent ones are on his own.

The accused still has family living there, withwhom he's keeping contact. [58] He also married in Guyana, with his wife still residing and living there. She can definitely help him renew his Guyana passport atfirst glance. This passport is in Guyana according to the accused, therefore it cannot even be surrendered here. [59] As for the incentive of preserving the sureties paid by his children, they are not such as to bankrupt them, even if these amountsare substantial for both. But they are not astronomical either.

It renders plausible that the accused could certainly factor in his decisionthe possibility of reimbursing them later once in Guyana. [60] The accused is almost fifty. He is obviously presumed innocent at this stage. He nevertheless faces the prospect or risk of livingthe next ten years, if not more, in jail. He has nothing to lose such as a house, investments, business or a job. He only has his family.

Butbetween not seeing his family on a regular basis because he is in jail versus not seeing them on a regular basis because he's in Guyana,the latter could easily prevail. [61] The Court is conscious that the accused does not at first glance offer the classic profile of the drug trafficker outlined in the oftenquoted Supreme Court decision of Morales[7]. He is not wealthy or already known to be associated with a sophisticated organization,factors that were mentioned to evaluate the flight risk.

However, it should not preclude the risk of absconding when other facts orcircumstances are at play, as here. [62] In the context of the accused's situation, the conclusion is that the flight risks or concerns contemplated by the primary groundare not negligible. ANALYSIS OF THE TERTIARY GROUND [63] The Supreme Court of Canada has recently revisited s. 515 (10)(

c) in St-Cloud[8]. [64] Even though the decision in St-Cloud was in the context of a bail review, the principles nevertheless apply here. [65] The first thing to consider is that s. 515 (10)(

c) is worded clearly and does not require exceptional or rare circumstances to apply. [66] As for its components, they will be analysed one by one. [67] The first is the apparent strength of the prosecution’s case. [68] How should the Court determine the apparent strength of the prosecution’s case? [69] The Supreme Court addressed this issue at par. 57 to 59 and provides guidance : [57] An interim release hearing is a

summary proceeding in which more flexible rules of evidence apply. As a result, some of theevidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess the strength of theprosecution’s case at such a hearing: “The expeditious and sometimes informal nature of a bail hearing may reflect an unrealisticallystrong case for the Crown” (p. 3-7). [58] Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’scase.

On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and thejustice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability ofscientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must considerthe quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancingexercise.

For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidencemay be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case. [59] On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence at the initialhearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may noteven raise one before trial.

If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and ifthere appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of theprosecution’s case.

As the Quebec Court of Appeal noted in a relatively recent decision, “it would be unfair to allow the prosecution tostate its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests”: R. v.Coates, 2010 QCCA 919 , at para. 19. [70] The suggestion of a defense is argued in regard of the accused’s testimony that he never met Tito. This denial, not contradicted

save by Tito in his statement, should immediately raise the issue that either Tito is lying or mistaken as to who was present at the restaurant if indeed such a meeting took place. Or, at the very least, that the accused has a solid defense to offer. [ 71 ] This argument is basically trying to isolate that piece of evidence in disregard of the whole of the evidence. [ 72 ] Indeed, Tito has offered so far variations of his role and what he did. Defense calls him unreliable and therefore insufficient for crown to rely on in order to argue a strong prosecution file.

First off, the variations concerns what he did on the boat and whatever advantages he received in exchange for his help, including not very good explanations as to the origin of the sums of money found in his cabin. But it did not concern the accused role in Guyana. We don’t know if Tito will enter a plea or if he will be tried as a co-conspirator or seek a trial by himself. Nevertheless, it flows that it could be inferred that Tito will be looked as an unfavourable character at the accused’s trial.

If this happen, a Vetrovec warning is predictable with the usual caution that maybe only the parts of his testimony that can be corroborated is to be retained. At first glance, a good part of his statements so far are. [ 73 ] Rose exists. She is the accused’s wife. Text messages on September 14 relates to her husband being in Valleyfield. They refer to much more than simply trying to visit a friend, with allusion to bring the stuff and that the meeting could take place later at the next port due to apparent difficulties for Tito to leave the ship.

We add the fact that Rose states that they (in Canada) have the money and are trying to get a small boat. A police hat fitting the description of the one that wore Rose’s husband at the restaurant in Guyana is found in the Jetta. By his own admission, the accused was in Guyana at such a time as to not render impossible this meeting.

He is in possession of the cell phone that fits the number that Tito uses to communicate with Rose’s husband .These examples will suffice. [ 74 ] One cannot conclude at this moment that Tito’s evidence is pure fiction and trying with no foundation to shift the blame to others or diminish his responsibility if that is the accused’s argument. [ 75 ] In assessing the weakness of the case, and to give just one example where it could be a factor in favour of weakness, we are far from a situation where Crown’s case rely only on a bystander who happened to be on the scene of the crime and can barely identify the accused as the perpetrator.

The other face of the coin is that we are neither in presence of an accused who has nothing more as incriminating evidence against him than a mere presence on a crime scene. [ 76 ] The first conclusion is that the apparent strength of the prosecution’s case is present. [ 77 ] The second component is the objective gravity of the offences. [ 78 ] Both importing cocaine and trafficking in cocaine are liable to imprisonment for life. [ 79 ] In comparison with other offences in the Criminal Code , we can only conclude that the objective gravity of the offence is therefore present. [ 80 ] The third component is the circumstances surrounding the commission of the offence. [ 81 ] The Supreme Court has specifically listed as relevant among other factors that

a) the offence was committed in the context of a criminal gang and

b) that if it had been committed by several people, the extent to which the accused participated in it is also relevant [9] . These factors are present here. [ 82 ] One can easily infer that importing such a quantity of cocaine, with purity between 78% and 82% and a street value of between 4.5 million and 11 million dollars, depending how it will be cut, is not a crime in the range of any first comer acting alone. There has to be a criminal gang present at both ends to organize first the import and later its distribution once at destination.

It is not revealed with certainty where Rose and the accused stands in this at this point. However, the accused played a part at both ends and was the key player in Canada to contact Tito and facilitate the extraction of the cocaine from the ship. The accused is definitely not a small fry.

At worst for him, he is a gang with his wife and the unidentified boss, at best he is somewhere in the pyramid above the lowest level with much more than a mule role to play, to give an example. [ 83 ] Maybe more anecdotal at this point than specifically relevant, one cannot ignore that a firearm was present on the accused at the restaurant meeting.

One could argue that it was used in the commission of the conspiracy to install fear or obedience in the new recruit Tito. [ 84 ] The fourth and last component is if the accused is liable for a potentially lengthy term of imprisonment. [ 85 ] The reasoning is explained at paragraphs 62 to 65 in St-Cloud . Applied here, the facts of the case, at this stage of proceedings, have sufficient merit to a claim of much more aggravating than mitigating circumstances.

This can only tip the balance of sentencing in the upper scale of appropriate sentences for similar offences [10] . [ 86 ] Defense has conceded that an 8 to 10 years sentence could be imposed following a guilty verdict. Crown is looking at these numbers more as a realistic starting point and arguing that a higher range is predictable. The Court assessment is that these numbers are indeed realistic. [ 87 ] Considering the positions of the parties, the principles at play and the nature of the accusations, we can conclude that the accused is liable for a potentially lengthy term of imprisonment.

CONCLUSION [ 88 ] Seeing the already mentioned conclusion that the flight risk is not negligible, the Court concludes that the accused has not shown cause why he should not be detained in regard of the primary ground. [ 89 ] For the tertiary ground, all of the four listed components specifically identified by the Supreme Court at 515 (10) (

c) as part of all

the circumstances apply here. The conclusion is that detention of the accused (notwithstanding the reversal of burden) is necessary to maintain confidence in the administration of justice, having regard to these components as well as to all the circumstances.

The accused has not shown cause either on that ground. [ 90 ] The accused will therefore remain detained in custody until his trial. [ 91 ] The Court reserves the right of the parties to present their observations now that the detention is ordered in regard of an order of no communication as per section 515(12) of the Code. __________________________________ RICHARD MARLEAU, J.C.Q Me Roxanne Gagné Me Annabelle Racine Lawyers for the Federal prosecution Me Constantin Kiryakidis For the accused Date of hearing: October 3, 2018