R. v. Sheakh Aadan, 2015 ONCJ 452

Citation: R. v. Sheakh Aadan , 2015 ONCJ 452 Case Name: R. v. Sheakh Aadan Between Regina and Cabdihakim Sheakh Aadan Ontario Court of Justice P. Kowarsky J.P. Heard: August 12, 2015 Judgment: August 14, 2015 Counsel: Crown Counsel: Ms. K. Nedelkopoulos Defence Counsel: Mr. R. Chartier JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. KOWARSKY J.P. A. INTRODUCTION 1 . On Wednesday, August 12 th 2015, Mr. Cabdihakim Sheakh Aadan appeared before me seeking an order for his release on bail. At the conclusion of the rather lengthy hearing, I adjourned the matter to today for my decision.

These are my reasons for judgment. 2 . Mr. Sheakh Aadan is a 23-year-old man whose family hails from Somalia. He informed me that he has one more examination to write in order to graduate from York University with an honours degree in Political Science. He is single, has no dependants and has worked on and off as a valet parker at Pearson International Airport while completing his studies at university. B. THE CHARGES 3 . The accused is facing two counts of robbery armed with a handgun; one count of disguise with intent to commit an indictable offence, and one count of assault with a weapon, namely a handgun. 4 .

He has no Criminal Record but he is on bail with respect to the following three offences:

i) Uttering death threats; ii) Assault causing bodily harm; and iii) Failing to comply with recognizance. 5 . These offences are alleged to have been committed during May 2015, which post-date the charges before me. Consequently, there is no consideration being given to revoking his bail under

section 524 of the Criminal Code . C. THE ONUS 6 . By virtue of the fact that the allegations involve the use of a firearm, the onus of persuasion is reversed in accordance with the provisions of section 515 (6) (a) (vii) of the Criminal Code . Consequently, the accused is required to satisfy the court on a balance of probabilities, with respect to all three grounds for detention under section 515 (10) of the Criminal Code that his pre-trial detention is not necessary. 7 . The Crown’s concerns are on the secondary and tertiary grounds pursuant to section 515 (10) (

b) and (

c) of the Criminal Code . D. THE ROBBERIES 8 . With the consent of defence counsel, the Crown referred to a 10-page police synopsis as she read the allegations into the Record. A

copy of that synopsis was provided to me by both counsel. In

summary, the allegations are as follows:

a) On March 28, 2015 at approximately 11:30 pm, 3 males, all wearing hoods over their heads to disguise their identities, entered the Extended Stay Hotel, 3600 Steeles Avenue West in the city of Vaughan, which is adjacent to the city of Toronto, via the front entrance. All 3 were brandishing pistol-type firearms.

b) They robbed the night manager, Mr. Sidharath Randhawa, who was alone at the time. c)They removed $480.00 from the cash drawer, making good their escape in what the police describe as “a dark-coloured sedan type” motor vehicle, which had been parked close to the entrance of the hotel. 9 . The accused is also charged with the commission of a second robbery, which occurred 2 days later on March 30, 2015. In

summary, the allegations are as follows:

a) At about 9:40 pm Yashwanth Thummalapally was working alone at the Red District Adult Video store at 2837 Keele Street in Toronto. There were no customers in the store.

b) A male suspect wearing a black coloured “Northface” jacket, white coloured running shoes with black coloured laces, entered the store, walked around for a minute, and then walked out.

c) A few minutes later 3 male suspects entered the store, faces disguised, each armed with a black coloured pistol.

d) At gunpoint they demanded money from Mr. Thummalapally. One of them pistol-whipped him on the head. Fearing for his safety, he opened the cash register; the suspects removed $700.00 and left.

e) The victim sustained a cut on his forehead. E. THE OUTSTANDING CHARGES 10 . On May 4, 2015 the accused was charged with making death threats and assault causing bodily harm in relation to an incident in which he is alleged to have severely assaulted and threatened to kill a woman who had rejected his advances. On May 5, 2015. He was released on a recognizance of $8000.00 with two named sureties. 11 . One of the conditions of his release was that he was to reside with his aunt, Hawa Saeed, who is one of his sureties, under house arrest with certain exceptions. 12 .

On May 26, 2015 he was charged with breaching the house arrest condition, and released on the same bail as previously ordered with the same sureties and conditions. F. THE CROWN’S CASE AGAINST THE ACCUSED 13 . Both the secondary and tertiary grounds require the court to take into account the apparent strength of the Crown’s case against the accused in determining whether to grant or deny bail. 14 .

The difficult task of endeavouring to determine the apparent strength of the Crown’s case, requires a thorough consideration and examination of the Crown’s case as it stands now, at this early stage of the criminal proceedings against the accused. 15 . At present, the case appears to be primarily based on circumstantial evidence.. The police were able to obtain numerous video surveillance videos that allegedly identify Cabdihakim Sheakh Aadan as one of the perpetrators of the robberies. The surveillance videos with respect to the first robbery at the Extended Stay Hotel reveal the following:

a) Three disguised men exiting a parked dark coloured sedan type motor vehicle, and entering through the front entrance of the hotel.

b) The clothing worn by each suspect including suspect #3 who is alleged to be the accused before me is detailed. He was wearing a black coloured hooded jacket with a black coloured hood over his head, light coloured pants, white coloured running shoes with black coloured laces, and he was wearing a black coloured back-pack with orange coloured accents on his back.

c) Suspect #3, allegedly the accused, is seen jumping over the front counter, approaching the victim, accessing the cash register, and then leaving in a get-away vehicle.

d) Close to where that vehicle had been parked, the police located fresh ‘spit saliva’ which DNA analysis indicated belonged to Mr. Hamse Nur, who is alleged to be one of the three perpetrators. 16 . The police also obtained copies of video surveillance images taken at the Driftwood Community Recreation Centre, 4401 Jane Street, Toronto on March 30, 2015 (2 days after the first robbery) between 7:05 and 7:35 pm. This video reveals the following:

a) A dark coloured 4-door Honda Civic car with a rear spoiler on the trunk arrived at the entrance to the centre.

b) Three males exited the vehicle, followed by a 4 th male. The clothing of each male was described in some detail.

c) Male #1 was described as ‘black’, and later identified by the police as Hamse Nur, who was alleged to have been one of the robbers at the hotel, by virtue of the DNA analysis of the spit found near the get-away vehicle at the crime scene.

d) Male #2 exited the driver’s side of the Honda Civic vehicle. He was later identified as the accused, Mr. Sheakh Aadan. He is

described as “male/black with a black coloured beard, wearing – a black coloured baseball hat with a white coloured logo on the front, a black coloured jacket with the imprint of “Northstar Jacket” with a small white coloured logo on the left chest area and a small white coloured logo on the right upper back area black coloured pants and white coloured running shoes with dark coloured laces

e) Male #2 gets into the driver’s seat of the vehicle, and at about 7:35 pm drives away with the other three males in the car. 17 . There is no mention of any form of disguise being worn by any of the four males. 18 . These videos were reviewed by a Toronto Police officer who identified Hamse Nur and Cabdihakim Sheakh Aadan because of his interaction with them during the accused’s arrest on his outstanding charges on May 4, 2015. 19 . Video surveillance images, taken from the Pioneer Gas Station, close to the Red District Adult Video store, were also obtained by the police.

The images reflect that on March 30, 2015 at 9:34 pm a dark coloured sedan type vehicle with the lights illuminated, was parked at the plaza adjacent to that store. At 9:42 pm three “figures” are seen exiting the parking lot in the vehicle. 20 . On June 8, 2015 Criminal Code Search Warrants were executed at the homes of Hamse Nur and the accused. From 394 Driftwood Avenue, Unit #5 in Toronto, an address which the police allege “is associated’ to Cabdihakim Sheakh Aadan, the police seized “a white pair of high-cut running shoes with black coloured laces.” 21 . The evidence presented by Mr.

Ahmed Dirir, the father of the accused, is that he is the registered owner of a 2011 Honda Civic four- door black motor vehicle, bearing Ontario registration number BVAK 474, and that he resides at 710 Trethewey Drive, Unit 603 in Toronto, where the accused was arrested on August 10, 2015. 22 . The synopsis indicates that on September 23, 2014 and March 19, 2015, the accused was driving his father’s Honda motor vehicle when he was stopped by the police and investigated in regard to highway traffic matters. G. THE ASSESSMENT OF THE CROWN’S CASE 23 .

The justice is mandated to consider the apparent strength of the Crown’s case at the commencement of the bail proceedings. Further investigation may reveal evidence, forensic and other, that directly identify the accused as one of the perpetrators of the two robberies. 24 . At this early stage of the proceedings I am requested by the Crown to accept the Crown’s theory that all the circumstantial evidence, taken together, implicates the accused.

While that inference may well be drawn, the issue of the accused’s identification is virtually based solely on the dark coloured car, a black “Northface jacket” alleged to have been worn by the accused during the robberies, the white running shoes with black laces, seen on the video images, the fact that the accused was seen driving his father’s dark colored Honda motor vehicle at the Driftwood Community Centre and during two police traffic stops. 25 .

Based on the synopsis and the paucity of any direct evidence presented, I am unable to determine that the Crown’s case against the accused at this stage of the criminal proceedings against him are rooted in a strong evidentiary foundation. Conversely, I find that the Crown’s case against the accused appears to be wanting in direct evidence particularly in relation to the identity of the accused. And, in my view the circumstantial evidence does not strengthen the case. 26 . However, there are other factors to be considered in relation to whether the accused’s pre-trial detention is necessary.

I must have regard to all the circumstances, which include the ongoing cycle of gun violence in the community, which is killing and wounding people, many innocent ones, on a regular basis in the greater Toronto area. 27 . I must consider also the strength of the plan of release as well as the accused’s personal circumstances. He is a young man about to graduate with an honours degree in political science. He has no criminal record and appears to be employed as much as is necessary in light of his university responsibilities. H. THE ADEQUACY OF THE PLAN OF RELEASE 28 .

In relation to the reliability of the accused’s aunt, Hawa Saeed, as the accused’s surety on the outstanding charges as well as on the current charges, the Crown proffers that she is unreliable and cannot be trusted to adequately supervise the accused who resides with her in accordance with the bail conditions on the outstanding charges. 29 . The plan for this release is that the accused should continue to reside with his aunt, subject to a house arrest condition with some exceptions. 30 . The Crown’s view of Ms. Saeed’s eligibility is based on the conflicting, circuitous evidence which Ms.

Saeed gave, when questioned about the accused’s alleged breach of his house arrest condition. The issue there is the veracity of her testimony that she was at home when the police came by for a bail compliance check. According to her, she answered the door and informed the police that the accused had just gone upstairs in the building for about 10 minutes to retrieve homework from a classmate. 31 .

However, the version of the police is that her son, Mohammed, answered the door, that she was not even home at the time, and that the accused eventually returned, having ostensibly been out of the building visiting friends. While the inconsistencies are troubling, the trial judge will have to deal with these issues when considering the guilt or otherwise of the accused in relation to the breach of his bail.

32. Defence counsel submitted that, in addition to the aunt, the accused’s father, Ahmed Dirir, recently returned to Toronto after workingin Alberta for several years for the specific purpose of assisting with the supervision of the accused in conjunction with the aunt. Such isthe evidence presented by the accused’s father at the hearing. He is prepared to pledge his entire savings of $10,000 to secure the releaseof his son on bail. 33. In addition, the aunt is prepared to pledge a further amount in excess of $10,000 and testified that she has assets to support thatpledge.

Consequently, both proposed sureties are willing to pledge a total of $20,000. I. THE RIGHTS OF THE ACCUSED 34. The accused enjoys the presumption of innocence and the right to reasonable bail pursuant to the Canadian Charter of Rights. It iswell documented that pre-trial custody is a last resort in our criminal justice system and that there is no crime for which bail is not apossibility. 35. I carefully considered the three cases which defence counsel presented to me in rendering this decision. 36.

In light of all the circumstances and the apparent weakness of the Crown’s case against the accused at this time, I am satisfied on abalance of probabilities that the plan of release is sufficient to attenuate my concerns on the secondary ground. 37. As far as the tertiary ground is concerned, defence counsel provided me with the case of R v. Dang, 2015 ONSC 4254 ,[2015] O.J. No. 3552, a very recent decision by Justice G. Trotter of Ontario’s Superior Court.

Justice Trotter made a number ofreferences to the latest judgment of the Supreme Court of Canada on bail, and in particular, with respect to the tertiary ground. 38. At paragraph 87 of R. v. St.-Cloud, 2015 SCC 27 , [2015] S.C.J. No. 27, Wagner J. summarized his conclusion on theapplication of S. 515 (10) (

c) of the Criminal Code, the tertiary ground, inter alia, as follows: No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case todetermine whether detention is justified. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to beasked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to bemet under s. 515(10)(c).

To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person whois properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available tothe accused.

This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to orderdetention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention isnot justified. 39. Having found significant weaknesses in the Crown’s case, I am of the view that if I were to order the detention of the accused, thereasonable person’s confidence in the administration of justice would be undermined. Accordingly, I order that the accused be releasedon a recognizance of $20,000, without deposit.

I name his aunt Hawa Saeed and his father, Ahmed Dirir as his sureties, each pledging$10,000. 40. Pursuant to section 515(13) of the Criminal Code, I confirm that in making this order, I have considered the safety and security ofevery victim revealed in these proceedings. 41. I acknowledge with gratitude the valuable assistance provided to me by both Crown Counsel K. Nedelkopoulos and Defence CounselR. Chartier in presenting their respective cases to the court. J. CONDITIONS OF RELEASE The conditions of your release will be as follows: 1.

Reside with your surety, Hawa Saeed at 603-710 Trethewey Drive, Toronto and be amenable to the routine and discipline of the home; 2. You will be under house arrest so that you are to be in your actual residence at all times except: For medical emergencies involving you or a member of your immediate family, such as your parent orsibling, While you are at school or at your lawful place of employment, In the direct presence of either one of your sureties or your mother, Shamso M. Ciise. 3.

You are not to contact or communicate in any way, directly or indirectly, with Sidharath Randhawa or Yashwanth Thummalapally norto be found within 200 meters of any place where either of them lives, works, attends school or happens to be as known to you. 4. You are not to attend or be found within 200 meters of the Extended Stay Hotel located at 3600 Steeles Avenue West, in the city ofVaughan or the Red District Adult Video Store located at 2837 Keele Street, Toronto. 5. You are not to contact or communicate, directly or indirectly, with Hamse Nur except through counsel for the purposes of preparing a

defence. 6. You are not to contact or communicate with anyone known to you to have a criminal or youth court record except members of your immediate family, namely a parent or a sibling. 7. You are not to possess any weapons as defined by the Criminal Code , including guns, firearms, ammunition, explosives, air guns, pellet guns, bibi guns or imitation guns nor any knives except while in the process of consuming or preparing food. 8. You are not to possess or apply for a firearms acquisition certificate or a gun licence. P. Kowarsky J.P.