R. v. Sharif, 2012 ONCJ 379

Citation: R. v. Sharif , 2012 ONCJ 379 In the Ontario Court of Justice Toronto Region Metro North In the matter of Regina v Jamal Sharif Before His Worship P. Kowarsky Justice of the Peace REASONS FOR JUDGMENT Judicial Interim Release Hearing Hearing: June 8, 2012 Judgment: June 12, 2012 Counsel:

Mr. B. Cohen for the Crown Mr. G. Goldman for the Accused R. v. Jamal Sharif A. OVERVIEW 1 . Jamal Sharif is a 24 year old man who has been in pre-trial custody since January 19 th 2012. On June 8 th 2012 he appeared before me seeking judicial interim release. At the conclusion of the full-day hearing, I reserved my judgment until today. 2 . The accused has no known Criminal Record. However, in December 2011, he was charged with possession of marihuana and possession of marihuana for the purpose of trafficking.

He was released on his own recognizance with conditions which included that he reside with his aunt, Keif Samatar at an address in Toronto, and he was not permitted to possess any weapons as defined by the Criminal Code . 3 . On January 19 th 2012 he was arrested and charged with seven very serious firearms related offences and two counts of breaching the aforementioned two conditions of his recognizance.

His weapons charges are: 1) Carrying a concealed firearm without being the holder of a permit; 2) Possession of a firearm for the purpose of committing an offence; 3) Possession of a firearm without being the holder of a licence; 4) Possession of a firearm knowing that he was not the holder of a licence; 5) Pointing a firearm at an unknown person; 6) Using a firearm in a careless manner; 7) Discharging a firearm with intent to endanger the life of an unknown person. 4 . By virtue of the charge of reckless discharge of a firearm under

section 244.2 of the Criminal Code , and the fact that he is on release for other indictable offences, the onus is reversed. Accordingly, to secure an order for judicial interim release, the accused is required to satisfy the court on a balance of probabilities that his detention is not necessary on any of the three grounds set out in section 515 (10) ( a),(

b) and (

c) of the Criminal Code. The Crown submits that the court should order the detention of the accused on all three grounds. 5 . The accused is co-accused on the firearms charges with his brother, Hakim Sharif, who was ordered detained after a contested bail hearing in February of this year. B. THE ALLEGATIONS 6 . The Crown read a synopsis of the allegations into the record, and supplemented those allegations with two surveillance videos which were shown during the hearing. These videos were submitted into evidence as Exhibits #1 and #2. 7 . In

summary, the allegations are as follows: • On January 18 th 2012 at approximately 11:53 pm the police received a report that gun shots were heard outside an apartment building located at 650 Lawrence Avenue West in Toronto. • Shortly before midnight, the police arrived on scene and located 3 shell casings from a 45 calibre semi automatic firearm, and some shattered glass in the parking lot of the building. • The police were able to view two surveillance videos shortly after arriving on scene. One video was taken from the building opposite the parking lot of the crime scene (Exhibit #1).

The second video was from the stairwell just inside the building, adjacent to the parking lot where the crime scene was (Exhibit #2). • Both videos appear to indicate that the following had occurred: A motor vehicle was driven into the parking lot, and parked leaving the headlights on. The two accused exited the vehicle and walked into the building and up the stairs. Shortly thereafter the two accused came back down the stairs , and Jamal Sharif appeared to have his hand on a gun which was in his waist band. The two accused then walked towards the stationary motor vehicle in which they had arrived.

Three quick flashes were seen around the vehicle, which the police allege were gun shots – two from a gun held by Jamal who

fired through the driver’s window, and one from a gun fired by Hakim into the vehicle from a different angle. The vehiclewas then seen speeding away. The two accused are then seen to be re-entering the building. Jamal was smiling as they walked hurriedly back up thestairs. Shortly after midnight, the police received another call complaining about a raucous on the third floor of the building. Members of the Guns and Gangs Task Force were immediately dispatched to the building.

They went to Apartment Number304 where they located both accused and a female, later identified as Jamal’s girlfriend who resides in that apartment. The police checked the apartment but located no-one else. All three of them were taken to the Police Station. The female was released without charge, but the two males werearrested and held for bail hearings. The police subsequently executed a Search Warrant at the apartment concerned. Although no firearm was located, some of theclothing alleged to have been worn by both accused during these events was seized.

The identity of the driver of the motor vehicle into which the shots were directed is not known. Neither has he/she evercome forward, so that his/her identity remains unknown. C. THE RIGHTS OF THE ACCUSED 8. The foundation of our criminal justice system is the presumption of innocence, which means that an accused is held to be innocentthroughout his passage through the criminal justice system until such time as he has been found guilty by a court of competentjurisdiction

Section 11(

e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause,and

Section 7 of the Charter accords to an accused the right not to be deprived of his liberty or security except in accordance with theprinciples of fundamental justice. 10. The abundant jurisprudence with respect to these rights makes it clear that: a. Imprisonment prior to trial should be the last resort. See R. v. Hajdu (1985), (ON SC), 14 C.C.C. (3d) 563(Ont.H.C.) b. Pre-trial detention is extra-ordinary in our system of criminal justice. See R. v. Bray (1983), (ON CA), 2C.C.C. (3d) 325 (Ont.C.A.) c. There are no categories of offences for which bail is not a possibility. See R. v.

Blind (1999), (SK CA),139 C.C.C. (3d) 87 (Sask. C.A.); R. v. Framboise, (ON CA), [2005] O.J. No. 5785 (Ont.C.A.) d. Bail will be denied only in a narrow set of circumstances. See R. v. Pearson, (SCC), [1992] 3 S.C.R. 665. 11. It is not the role of the Bail Court Justice to determine guilt or innocence or to punish the accused for the offences which he isalleged to have committed. Rather, it is the task of the Bail Justice to determine whether conditions of release can be crafted so as toreduce the risks envisaged in section 515 (10) of the Criminal Code to an acceptable level.

In other words, does the plan of releaseadequately satisfy the court that the accused will come to court as required, that he will not commit an offence which will endanger thewelfare and safety of the community or interfere with the administration of justice, and that his release would not bring theadministration of justice into disrepute? D. THE BACKGROUND OF THE ACCUSED 12.

From the testimony of both proposed sureties, I have been able to glean the following with respect to the background of the accused: • He was born in Somalia. • His mother moved to Kenya from which country he came to Toronto in 2009. • Upon his arrival in Toronto he resided with “a Somali lady” for one night, after which he went to the home of his aunt, KeifSamatar, also in Toronto. She is the sister of the accused’s mother who still resides in Kenya. Ms.

Samatar had no advance knowledgethat her nephew was coming to Canada, and that he wanted to live with her. • However, she agreed, and he has been residing with her and her 4 children at 83 Bagot Court, Toronto ever since his arrival. • Sometime after his arrival, he secured a job at Jack Astor’s Restaurant in Toronto, where he worked as a line cook until April 2010when he was involved in a motor collision. Since that time he has not worked, and has been receiving disability benefits from theGovernment. • A letter dated April 2012 from the Kitchen Manager of Jack Astor’s Restaurant was tendered as Exhibit #3.

It indicated that the

accused can return to work there when he has recovered from his injuries. • He is a Landed Immigrant of Canada. • In December 2011 he was arrested and charged with possession of marihuana and possession of marihuana for the purpose oftrafficking. • He was released on his own Recognizance with conditions which included that he reside with his aunt, Keif Samatar at theaforementioned address, and was not permitted to possess any weapons as defined by the Criminal Code. • In the early hours of January 19th 2012 he was arrested and charged with the crimes presently before this court. • He has remained in custody since then, for about 6 months, without addressing his bail until now. • The accused appears to have settled in Toronto and established some roots here.

I do not have concerns on the primary ground. E. THE SECONDARY GROUND ANALYSIS 13. The ultimate question before me is whether the presented plan of supervision is such as to reduce my concerns on the secondary andtertiary grounds to an acceptable level. Section 515(10)(

b) requires the court to determine whether having regard to all thecircumstances, there is or is not a substantial likelihood that the accused would commit further criminal offences which would endangerthe welfare and safety of the community or interfere with the administration of justice, if he is released on the plan submitted. 14. In R. v.

Morales (1992), (SCC), 17 C.R. (4th) 74 S.C.C., Chief Justice Lamer expressed the difficulty of evaluatingthe meaning of “substantial likelihood” when he said: “While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exactpredictability of future dangerousness is not constitutionally mandated.” F. THE MEANING OF “ALL THE CIRCUMSTANCES” 15. In R. v. 974649 Ontario Inc., [2001] 3 S.C.R.

Chief Justice McLachlin said the following at paragraph 38: "The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such that a courtinterpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risksfrustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances.Instead, we recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estates, (SCC), [1994] 2 S.C.R.807 at p. 814; see also

Interpretation Act, R.S.O. 1990, c. I11, s. 4. Preserving the original intention of Parliament or the legislaturesfrequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities. While thecourts strive ultimately to give effect to legislative intention, the will of the legislature must be interpreted in light of prevailing, ratherthan historical circumstances." 16.

And in Reference re Same-Sex Marriage, 2004 SCC 79 , [2004] 3 S.C.R. 698 the Supreme Court said the following inrelation to the principle that “the law is always speaking”: “The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional

interpretation: thatour Constitution is a living tree which, by way of progressive

interpretation, accommodates and addresses the realities of modern life.” 17. While I am fully aware that it is not the role of the Justice presiding in a Bail Court to pander to the hysteria and outrage of thecommunity, there are times such as these, when the surrounding circumstances of cases include an epidemic of gun violence, death,injury and destruction.

In such cases, I believe that the courts are obliged to consider with great care, the right of the community at largeto safety and protection when considering the accused’s right to the presumption of innocence and the right to be granted reasonable bail. 18. It must be remembered that those of us who are privileged to preside on the benches of our courts, from the lowest to the highestlevels, are all ordinary citizens, who reside within the community. We read, hear, and watch the news, and are equally concerned aboutsafety and protection.

So when gun violence erupts in the proportions which we continue to see in the Greater Toronto Area andsurrounding towns and cities, we, the Judiciary, cannot ignore these circumstances when considering judicial interim release into thecommunity. The plan of supervision impacts directly on the safety of the community. The stronger and more reliable the plan ofsupervision, the greater the protection. 19. From all that I have read and seen, statistics reveal that the vast majority of gun related crimes are committed by people whose gunsare illegal and unregistered.

It is paramount that these illegal firearms are eradicated from our streets, and the people who steal, import,distribute and use them must be held accountable even at the pre-trial stage of the criminal justice system. 20. The accused before me is facing charges of possessing and firing an illegal and unregistered firearm. G. THE APPARENT STRENGTH OF THE CROWN’S CASE

21. Of major importance in the release determination process is the apparent strength of the Crown’s case. I find that there are indeedsome weaknesses in the Crown’s case against the accused. No-one is alleged to have actually witnessed the shooting. The victim isunknown, and has never come forward to the police. The firearm has not been found. The first surveillance video is taken at a distancefrom the opposite building, and the images are small. Even with the zooming process which was utilized at the hearing, they remainedsmall.

The identities of the shooters, if the flashes were indeed shots which were fired, cannot be determined from the first video. 22. However, the images on the second video taken from inside the stairwell are large, well-lit and very clear. Although the identity ofthe co-accused is not very clear because he was wearing a baseball cap, the accused before me was not wearing any head covering andhis identity is very clear. The two accused are seen walking up the stairs after exiting the vehicle. They are then seen coming down thestairs. Jamal appears to have his hand on a gun protruding from his waistband.

They are then clearly seen exiting the building andwalking towards the vehicle. Then there are flashes at the vehicle, which is immediately driven away. The accused are then seen re-entering the building from the parking lot, walking hurriedly up the stairs while Jamal is apparently smiling. 23. Some minutes after these incidents, the police respond to a call about gun shots just heard in the parking lot. They arrive on sceneand find 3 shell casings from a 45 calibre firearm, and some shattered glass. A second call again shortly thereafter, reports a raucous fromthe third floor of the building.

The police investigate, and locate the two accused in apartment #304, and arrest them. A Search Warrantis executed at the apartment, and the police locate some of the clothing which the accused were seen to be wearing during the earliersurveillance. 24. Needless to say, at trial the Crown will have to connect all the dots in order to view the complete picture. However, at this stage ofthe criminal proceedings, I am satisfied that the Crown’s case against the accused, Jamal Sharif, appears to be rooted in a strongevidentiary foundation. H. CASE LAW SUBMIITED BY DEFENCE COUNSEL 25. Defence Counsel, Mr. G.

Goldman, submitted the (apparently unreported) decision of R. v. Yassin Ahmed released by Ontario CourtJustice Paul Reinhardt on 7 April 2010. That decision comprises an extensive examination and analysis of the jurisprudence in relation tothe application of the tertiary ground. Inter alia, the court referred to the excellent and often-quoted decision of Ontario Superior CourtJustice T. Ducharme in R. v. A.B., (ON SC), [2006] O.J. No. 394.

Justice Ducharme overturned a Detention Ordermade by the court below in a case involving an accused facing charges in connection with the 2005 Boxing Day death of 16 year oldJane Creba during a gang related shooting spree in downtown Toronto. The decision to release the accused on bail was made after athorough assessment of the law and all the circumstances concerned with the case. The court was satisfied that the plan of release wasgood, that the accused had met his onus on the tertiary ground, “and that he should be released, albeit on a very strict and carefullysupervised house-arrest regime.” I.

THE PLAN FOR JAMAL SHARIF’S RELEASE 26. The accused would be released on a Recognizance of $30,000.00 with two sureties. He would continue to reside with his aunt at the aforementioned address. He would be under house arrest with the usual exceptions: while in the presence of either surety, when going directly to and from andwhile at his place of employment, court and counsel. And of course, other conditions including a weapons prohibition. J. THE SUITABILITY OF SURETIES 27. In Justice G.

Trotter’s seminal book on bail: “The Law of Bail in Canada” Third Edition at page 7-17, the learned author said thefollowing: “In Canada there has been little in the way of recent consideration on the criteria that govern the suitability of sureties. Generally, inaddition to financial standing, a wide range of factors has been relevant to the suitability of a surety.” 28.

Justice Trotter writes that it is helpful to determine the suitability of proposed sureties on a case by case basis, having regard to allthe circumstances of each case, while remaining reliant on a functional approach. “The appropriate criteria should be derived from what the law expects of sureties and whether the proposed surety can realisticallydischarge the obligations and willingly exercise the powers of a surety.” 29. And at page 7-19, Justice Trotter states:

“On a view of the surety relationship that contemplates any degree of supervision of the accused, it is crucial to know whether the relationship is one which will realistically permit the infusion of these obligations and their potential enforcement.” A parent who has no effective control over a grown child who still lives in the family home will not be a good candidate.” K. THE TESTIMONY OF THE TWO PROPOSED SURETIES 30 . Ms. Amal Ali testified as follows: • She is a single mother, 22 years old and resides with her mother and daughter.

She was born in Somalia, does not have a Criminal Record and she is a Canadian Citizen. • She is a full-time student at George Brown College in Toronto, and not employed. • Her family and that of the accused are close friends and have known each other for a long time. • She met the accused in 2009 through his aunt who resides not far from where she lives. • She is prepared to pledge $32,000.00 to secure the release of the accused.

She has no earnings, but has accumulated these funds from her student loans and a settlement of $20,000.00 arising out of a motor collision. • The accused will not be permitted to reside with her. • In her own words, she testified that “I can’t supervise him on a daily basis realistically.” • She has not been in direct contact with the accused since his arrest and incarceration on January 19 th 2012. • Towards the end of May 2012, the accused called her. At that time he told her about the marihuana and the firearms charges.

All he told her was that “it is alleged that there was a weapon involved”, and nothing more about any of the charges. • Between December 2011 and May 2012 “I never knew that he was on bail.” And as she expressed it, this was because “ I was doing my own thing with my own life.

She explained that she was very busy with exams and taking care of her daughter, and did not become involved in any way with what the accused was doing. • Under cross examination, when asked whether she knew what is alleged to have happened at the crime scene, she told the court that; “I don’t need to know what happened; just that he has been arrested.” • Jamal and his girlfriend Marie Kone (who was sitting in the body of the court during the entire hearing) “have been together for almost 4 years.” • Marie is her best friend. • In late December 2011, Marie, who had been living with her family on Bagot Street near the home of Ms.

Samatar, moved into apartment #304 in the building located at 6 Replin Road, Toronto, which is where the crimes being considered in this hearing occurred. 31 . The accused’s aunt, 47 year old Ms. Keif Samatar, was presented as the residential surety. She testified as follows: • She came to Canada from Somalia in 1990, and is a Canadian citizen, with no Criminal Record. • She has been unemployed for a long time. She has no money. Her income is derived from Governmental disability insurance and baby bonuses.

She is willing to be the accused’s surety, but she can pledge only $100.00. • The accused has lived with her since he arrived in Canada, and he can continue to live with her and her 4 children for years if he wants to do so. Sometimes he goes to his girlfriend’s apartment, and sleeps over there.

She confirmed that it was a surprise to her in 2009 when the accused suddenly arrived and asked whether he could stay with her. • The accused doesn’t pay rent but gave her some money for food when he worked. • She will supervise the accused while he is on house arrest, and is confident that he will listen to her, and abide by the conditions of his bail, and she is willing to call the police if he breaches. • The accused never told her about his arrest on the drug charges in December 2011. • When asked about the current charges she said that the accused denied any involvement, and she doesn’t believe “that he could do

these things.” L. THE ADEQUACY OF THE PLAN OF RELEASE 32 . In R. v. W.R. (August 27, 2007) the Ontario Superior Court was dealing with a similar surety situation to the one before me, where a significant amount of security was pledged by the proposed surety with a limited supervisory role. The principal surety lacked sufficient funds so the secondary surety provided the funds. However, the Court held that the financial and supervisory components must co-exist, and ruled that the risk of financial loss engages the interest of the surety and provides the motivation to fulfil the supervisory obligations. 33 .

The plan of release for Jamal Sharif is similar to the plan in W.R. As Crown Counsel, Mr. Cohen, put it: “the plan is lob sided.” Ms. Ali will pledge the money while undertaking little, if any, significant supervisory role. Ms. Samatar will pledge virtually nothing, but will undertake to supervise her 24 year old nephew while he is on house arrest. As the Court held in W.R. ( supra) : the financial and supervisory components must co-exist, which is not part of this plan. 34 . In R. v. Cornel, [2011] O.J. No. 6262 (O.S.C.) the Ontario Superior Court considered the issue of the sufficiency of a surety release plan.

At paragraph 32 the court said the following: “For a surety to be sufficiently reliable one must be willing to make the very significant commitment to alter one's personal life on behalf of another person. In order to accept the surety, the Court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time.” And at paragraph 37 the court noted: “It is also possible that there is a fundamental misunderstanding on the part of Mr. Barrett of what a surety's responsibilities consist of. Mr.

Barrett testified that he did not see himself as babysitting or having to spy on Mr. Cornel.” 35 . In R. v. James, [2010] O.J. No. 2262 the Ontario Superior Court was again considering the suitability of a surety. Justice C. Hill stated as follows: “One of the sureties testified that he takes 20 weeks of holidays a year, and travels, and that his ability to supervise on a day to day basis was very low. Suretyship is not a part-time obligation. It is a manifest error in principle to assign community protection, even in part, to an individual who is effectively non-resident almost 40% of the year.” 36 .

Applying these principles to the case at bar, I find that the plan falls short of what is required to reduce the court’s concerns on both the secondary and tertiary grounds. 37 . Ms. Samatar is to be the residential surety, but has no money to pledge, and therefore the required financial and supervisory components do not co-exist. As I earlier quoted from W.R. ( supra): “the risk of financial loss engages the interest of the surety and provides the motivation to fulfil the supervisory obligations.” Ms.

Samatar does not run any risk of financial loss in the event that the accused breaches his bail, which he is alleged to have done before. 38 . In addition, he has been residing with her for several years, during which time he has been arrested on serious drug and weapons charges as well as two charges of breaching his bail. Ms. Samatar seems willing to undertake the responsibility, but Mr. Sharif has essentially been “doing his own thing” all the time. He is 24 years old. Ms. Samatar is not his mother. She has 4 children under the age of 18 with all the concomitant responsibilities.

I am not persuaded that she would be able to supervise the accused effectively so as to reduce my concerns for the welfare and safety of the community to a reasonable level. 39 . Ms. Ali, although she testified that she does have the money, she told the court in no uncertain terms that with her own responsibilities as a single mother and being a full-time student, she will not be able to supervise the accused on a daily basis. The accused will not be residing with her either, thereby reducing her capability of supervising the accused. 40 .

In addition, I had some significant concerns about her statement that she didn’t know anything about the accused’s alleged involvement in the firearms offences, and didn’t believe that it was important for her to know this. Furthermore, she testified that the accused’s girlfriend is her best friend. Her credibility in this regard is somewhat wanting. It begs the question: Why would her best friend not tell her anything about the serious charges her boyfriend was facing resulting in his pre-trial incarceration for the past six months? 41 . In R. v.

Yassin Ahmed ( supra ) the court was satisfied with “the exemplary plan for his release, subject to the supervision of his family” and that as such, the plan of release was sufficiently reliable and satisfactory so that the release would not undermine the integrity of the justice system in the eyes of the educated and well-informed member of the community. At paragraph 60 of Yassin Ahmed, the court said the following in relation to the plan of release: “When we look at Mr. Ahmed’s personal circumstances and attempt to assess the propriety of Mr.

Ahmed’s release, in light of his antecedents and the support available to him from his family and the plan put forward by the family, in my view the considerations of the tertiary grounds are clearly overcome and Mr. Ahmed has met the reverse onus.” 42 . And at paragraph 61, the learned Judge said: “The family members who testified before me and the plan they presented, impressed me.”

43 . And finally at paragraph 64, after hearing the testimony of the accused’s brother, his mother and three other family members, the court concluded as follows: “Each of these individuals testified before me and impressed me with their commitment to Mr. Ahmed, and their capacities to act as sureties.” M. DISPOSITION 44 .

As opposed to the plans of release which impressed the judges in both the A.B. and the Yassin Ahmed decisions to which I referred earlier, for the reasons which I have indicated, I am not satisfied that the plan of release for Jamal Sharif is sufficient to reduce my concerns on the secondary ground to an acceptable level. I believe that I have already noted the significant weaknesses in the plan. 45 . Accordingly, I am satisfied, on a balance of probabilities, that the accused has not met his onus on the secondary ground.

Consequently, having regard to all the circumstances, I am of the view that if I were to release the accused on the plan presented, there is a substantial likelihood that he would commit a further offence which would endanger the welfare and safety of the community. I therefore order that the accused be detained in custody until he has been dealt with according to law. 46 . Having come to this conclusion, I do not intend to address the tertiary ground in detail. However, I am of the view that this case would indeed attract a very serious tertiary ground concern. Section 515(10) (

c) provides that an accused may be detained in pre-trial custody: “ 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.” 47 .

Assessing all four factors together in light of the jurisprudence, against the backdrop of all the circumstances of this case, including the ongoing cycle of gun violence in the Greater Toronto Area, in my opinion, the tertiary ground would be engaged. 48 . I thank both Defence and Crown Counsel for the impressive manner in which they presented their respective cases to the court. P. Kowarsky Justice of the Peace