R. v. Dahis

R. v. Dahis Collection Decisions of the Court of Appeal Date 2021-06-02 Neutral citation 2021 ONCA 933 Docket numbers M52456 Judges Trotter, Gary T. Subject Criminal Decision Content Publication Notice: The order restricting publication in this proceeding made under s. 517 of the Criminal Code is no longer in effect. This judgment was published on May 30, 2023. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Dahis, 2021 ONCA 933 DATE: 20210602 DOCKET: M52456 Trotter J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Hassan Dahis Applicant Mark Ertel and Jon Doody, for the applicant Jennifer Epstein, for the respondent Heard: May 26, 2021 by video conference Introduction [1] The applicant is charged with one count of first degree murder and one count of attempted murder, both offences alleged to have been committed with Mohammed Moussa on July 23, 2020. [2] The applicant and Mr. Moussa had joint bail hearings before Justice Patrick Hurley (“the bail judge”) of the Superior Court of Justice, pursuant to s. 522 of the Criminal Code, R.S.C. 1985, c. C-46. On February 10, 2021, the bail judge ordered that both men be detained. [3] The applicant applies under s. 680(1) of the Criminal Code for a direction that a panel of this court review his detention order.[1] For the reasons that follow, I direct that the applicant’s detention order be reviewed by a panel of this court. Factual Overview [4] The applicant, along with Mohammed Mousa, is charged with second degree murder of David Tobin and the attempted murder of Sylvain Pitre. On July 23, 2020, both Mr. Tobin and Mr. Pitre had been repeatedly stabbed. Mr. Pitre has identified the applicant as one of his assailants. DNA evidence also connects the applicant to the location of the attack; however, there is evidence that the applicant may have been at the location before the night of the attack. [5] The Crown alleges that the attack was related to the applicant’s role in selling cocaine to Mr. Tobin’s wife. Mr. Tobin was upset about this and wished to meet with the applicant, at another person’s house, to discuss the matter. On the night of the attack, Mr. Tobin communicated with the applicant by telephone and by text messages. At one point he expressed frustration over the applicant’s delay in attending the house. At about 11:45 p.m., the applicant, Mr. Moussa and another man arrived. Following an argument about money, the three men attacked the victims. [6] The applicant is 21 years old (he was 20 at the time of his bail hearing). He was born in Canada, but lived in Kuwait from 2007 to 2013. His family has connections to Kuwait – his parents are from that country, and his two sisters were born there. The applicant has what the bail judge referred to as a “minor” criminal record – a finding of guilt for robbery, under the Youth Criminal Justice Act, S.C. 2002, c. 1, on March 24, 2017. The applicant received 18 months’ probation. [7] At his bail hearing, the applicant’s mother, Nuwaier Farahan, and three family friends were proposed as sureties. Ms. Farahan was proposed as the applicant’s main surety. Ms. Farahan was in Kuwait at the time of the alleged offences; she returned from an extended trip to that country in January of this year. The applicant’s father and his younger sister remain in Kuwait until his sister graduates from an international baccalaureate program in June 2021. If released, it is proposed that the applicant live with his mother, under house arrest in the family home, and be subject to electronic monitoring provided by Recovery Science Corporation. [8] At the initial hearing, the Crown opposed release on all three grounds in s. 515(10) of the Criminal Code. [9] The bail judge assessed the strength of the Crown’s case as “formidable” against both applicants, “albeit a stronger one against Mr. Dahis than Mr. Moussa.” He pointed to eyewitness identification evidence, along with telephone records establishing contact between the applicant and Mr. Tobin in the hours leading up to the murder. Further, there is the evidence about the connection between the applicant and Mrs. Tobin the day before the murder, which provides context for what happened the night of July 23. [10] The bail judge expressed some concerns about Ms. Farahan’s evidence. He was concerned that she was not being forthright about why the family stayed in Kuwait for so long, and what the applicant’s father is still doing in that country when he has a job in Ottawa. The bail judge said the following: Even taking into account the delay that she might have experienced in returning to Canada because of the pandemic, it appears that she had no reticence in leaving her young sons behind while she, her husband, and their youngest daughter went to Kuwait for an extended period of time. I am troubled that Mr. Dahis’ father remained in Kuwait for the purported reason of his daughter’s education. It makes no sense that they would stay in the country instead of returning to Canada. Their daughter could obviously resume her education in Ottawa, and the father, if he is truly unemployed in Kuwait would have no reason to stay there. [Emphasis added.] [11] On the primary ground, the bail judge found that the applicant could find “safe refuge in Kuwait, a country that does not have an extradition treaty with Canada” and that there was “a significant flight risk.” The applicant’s counsel submitted to the bail judge that the applicant would be prevented from absconding if he were subject to electric monitoring, without a passport, and prevented from attending at airports. In his reasons, the bail judge said: But there are other means of escape when both countries have seaports. The lack of a passport would not prevent Mr. Dahis from leaving the country, and he has a substantial incentive to do so. He has, in effect, a second home in Kuwait. [12] The bail judge further found that the applicant had failed to satisfy his onus on the secondary ground, based on the cogent evidence against him and that, at the time of the alleged offences, he was an “active cocaine trafficker.” The bail judge also relied on the brutal nature of the offences, and the fact that “there is one eyewitness to the crimes that survived, and he still lives in the general area.” [13] Lastly, the bail judge found that the applicant had not met his onus on the tertiary ground, providing brief reasons for reaching this conclusion (given his findings on the primary and secondary grounds). Discussion [14] Bail orders made under s. 522 of the Criminal Code may only be reviewed in accordance with s. 680: s. 522(4). Section 680(1) provides: 680(1) A decision made by a judge under section 522, a decision made under subsections 524(3) to (5) with respect to an accused referred to in paragraph 524(1)(a) or a decision made by a judge of the court of appeal under section 320.25 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. [15] Section 680 establishes a two-stage process. The applicant, whether it be an accused person or the Crown, must first obtain a direction from the Chief Justice, Acting Chief Justice, or designate as a precondition to review by a panel of the court. [16] In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, the Supreme Court of Canada addressed the nature of the review undertaken when a panel of an appellate court reviews an order made under s. 522. Writing for the Court, Moldaver J. said the following, at para. 61: Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. See also R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 6. [17] On this application, I am engaged in a screening or gatekeeping function, akin to an application for leave to appeal. This too was addressed in Oland, where Moldaver J. held, at para. 64: “In short, the chief justice should consider directing a review where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances” (emphasis added). [18] The applicant advances a number of grounds in support of the conclusion that it is at least arguable that the bail judge erred in principle or made other errors that rendered his decision unwarranted. [19] The applicant submits that the bail judge should not have taken judicial notice of the possibility that the applicant could leave Canada for Kuwait by boat, a scenario he failed to raise with counsel at the hearing. [20] I am not troubled by the bail judge’s application of judicial notice as it related to both countries having sea ports: it is an uncontroversial fact that is “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: R. v. Williams, [1998] 1 S.C.R. 1128, at para. 54. However, the plausibility of this means of absconding is another matter, especially given the proposed plan of release, which includes electronic monitoring. [21] I am more concerned about the applicant’s further contention that the bail judge misapprehended the evidence of the proposed primary surety, and did so in a manner that compromised a fair assessment of the proposed plan of release. The Crown concedes that the bail judge misapprehended certain aspects of Ms. Farahan’s evidence, particularly when he said, “[I]t appears that she had no reticence in leaving her young sons behind while she, her husband, and their youngest daughter went to Kuwait for an extended period of time.” In fact, the two sons (including the applicant) travelled with the rest of the family to Kuwait; they were not left behind, they just came home earlier. Moreover, while her sons might be “young”, they are both adults. [22] Moreover, the bail judge’s skepticism (“it makes no sense”) about the reason why the applicant’s father and sister remained in Kuwait may flow from the bail judge’s approach to Ms. Farahan’s evidence, and a misapprehension about the nature of the educational program in which the applicant’s sister was enrolled in Kuwait. [23] The bail judge was also critical of the vagueness of Ms. Farahan’s evidence about her supervision of the applicant when he was in the youth criminal justice system. She testified that she went to court with him each time and attended a meeting with his probation officer. This was largely unchallenged by the Crown (not Ms. Epstein) at the bail hearing. [24] The bail judge was undoubtedly correct to harbour concerns on all three grounds under s. 515(10) of the Code. The question was whether the plan of release was sufficient to address these concerns. Ms. Farahan’s evidence was key to the applicant’s proposed plan of release. On the materials before me, it is arguable that the bail judge’s assessment of her evidence, and the release plan as a whole, was distorted by a misapprehension of her evidence, calling into question the appropriateness of the detention order. Disposition [25] I direct that a panel of this court review the applicant’s detention order. The parties should contact the Appeal Scheduling Unit to arrange a date for a hearing of this bail review. “Gary Trotter J.A.” [1] I have been designated by the Chief Justice of Ontario to hear this application.