R. v. Ahmad, 2007 CanLII 21609 (ON SC)

COURT FILE NO.:  1750/07A

DATE:  20070611

SUPERIOR COURT OF JUSTICE – ONTARIO

RE:                 FAHIM AHMAD, ZAKARIA AMARA, SHAREEF ABDELHALEEM, QAYYUM ABDUL JAMAL, YASIN ABDI MOHAMED, JAHMAAL JAMES, AMIN MOHAMED DURRANI, STEVEN CHAND, SAAD GAYA, MOHAMMED ALI DIRIE

Applicants

– and –

SAAD KHAILD

Applicant

(Respondent on Cross-Application by the Crown in the Right of Canada)

– and –

HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA

Respondent

(Applicant on Cross-Application Against Saad Khalid)

– and –

HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO

Respondent

BEFORE:      DAWSON J.

COUNSEL:   Mr. Dennis Edney, for Fahim Amad

Mr. David Kolinsky, for Zakaria Amara

Mr. William Naylor, for Shareef Abdelhaleem

Mr. Anser Farooq, for Qayyum Abdul Jamal

Mr. Edward Sapiano, for Yasin Abdi Mohamed

Mr. Donald McLeod, for Jahmaal James

Mr. Ravin Pillay, for Amin Mohamed Durrani

Mr. Michael Moon, for Steven Chand

Mr. Paul Slansky, for Saad Gaya

Mr. David Mercury, for Mohammed Ali Dirie

Ms. Ingrid Grant, for Saad Khaild

Mr. John North, and Mr. Marco Mendicino, for the Crown (Canada)

Mr. Robin Basu, and Mr. Michael Dunn, for the Ministry of Community Safety and Correctional Services

This judgment is subject to an Order pursuant to s. 517 of the Criminal Code of Canada directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a)   if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b)  if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

 ENDORSEMENT

(REASONS FOR JUDGMENT TO FOLLOW)

[1]       In this Endorsement I will convey my rulings on the applications brought by the accused pursuant to section 520 of the Criminal Code, and by the Crown pursuant to s. 521 of the Criminal Code.  My reasons for these rulings will follow at a later date.  It is important that the result be known as soon as possible, as the Ministry of Community Safety and Correctional Services for Ontario has undertaken to the court that, depending on my ruling, some construction will occur at the Maplehurst Correctional Complex that will impact on the conditions in which the applicants are imprisoned.  I will also address some aspects of the applications for habeas corpus with certiorari in aid that have been brought by the accused applicants.  This Endorsement deals with “phase 1” of the application – the validity of the non-communication orders.

The S. 520 Applications and the Habeas Corpus Relief Sought by the S. 520 Applicants

[2]       The s. 520 applications are allowed and the non-communication orders made pursuant to s. 515(12) of the Criminal Codeare hereby struck out, but only insofar as they prohibit communication with co-accused who remain in custody, for the following applicants: Steven Chand, Saad Gaya, and Qayyum Jamal.  In view of this relief, there is no need to deal with the applications for habeas corpus with certiorari in aid for these men, and I decline to do so.

[3]       The s. 520 application brought by Zakaria Amara is dismissed.  As I will indicate in my reasons to follow, there is evidence which establishes that the non-communication order is warranted in Mr. Amara’s case.  The evidence establishes that in the circumstances here, the order is justified on at least the secondary ground.  The evidence shows that Zakaria Amara was one of the leaders and a driving force behind the conspiracies alleged, and of the truck bomb plot in particular.

[4]       Mr. Amara’s application for habeas corpus with certiorari in aid may be brought back on for the hearing of “phase 2,” (as discussed on the record between myself and counsel).  If Mr. Amara and his counsel wish to do so, the trial co-ordinator is to be notified in writing within 15 days with a copy to both respondents.  Therefore, for Mr. Amara, the non-communication order as currently framed remains in effect at this time.

Shareef Abdelhaleem

[5]       Mr. Abdelhaleem has not had a bail hearing.  However he is subject to a non-communication order made pursuant to s. 516(2) of the Criminal Code.  A s. 520 review is not available.  He seeks habeas corpus with certiorari in aid.  An order will go striking out the non-communication order, but only insofar as it prohibits communication with co-accused who remain in custody.  I am satisfied that there was a jurisdictional error in the making of the order in the circumstances of this case, and that on a proper consideration of the evidence the order is not supportable.

Fahim Ahmad

[6]       Mr. Ahmad has not had a bail hearing.  He is subject to a non-communication order made pursuant to s. 516(2) of the Criminal Code.  A s. 520 application is not available, and he seeks habeas corpus with certiorari in aid.  I conclude that while a jurisdictional error was made in the imposition of the order, when I review the record I find there is evidence which, properly evaluated, supports the order.  The evidential record clearly establishes that Mr. Ahmad is a leader and ideologically dedicated to terrorist goals on a long term basis.  There is every reason to think that Mr. Ahmad would pursue those goals if he were to be permitted to communicate with his co-accused.  The non-communication order will remain in effect for Fahim Ahmad at this time.  As in the case of Zakaria Amara, the “phase 2” aspect of this matter may be brought back on for hearing by contacting the trial co-ordinator in writing within 15 days, with a copy to both respondents, should Mr. Ahmad and his counsel wish to do so.

Saad Khalid – The Crown’s Application Pursuant to s. 521

[7]       When Mr. Khalid was denied bail and was remanded into custody the Crown did not seek an order for non-communication under s. 515(12).  The Crown submits this was an oversight and seeks the imposition of such a term on a s. 521 review.  I may address the jurisdictional issue raised by Mr. Khalid’s counsel when I release my further reasons.  For the time being it is sufficient for me to say that, assuming there is jurisdiction to make the order sought, I am not satisfied when all the circumstances are considered, including the impact of such an order on the conditions of the accused’s detention, that an order should be made, at least not one that would prevent communication with co-accused in custody.

The Other Applicants

[8]       In addition to Mr. Khalid, there are other applicants against whom no order for non-communication was made at the time they were detained.  Those individuals are Jahmaal James, Yasin Mohamed, and Ali Dirie.  Counsel agreed, and I concurred, that they had no standing to participate in “phase 1”, which dealt with the validity of the non-communication orders.  It is my understanding, given the position the Ministry of Community Safety and Correctional Services for Ontario has taken, and the order that I have now made, that they have nothing further to say.  Should I be incorrect in this, those applicants may contact the trial co-ordinator within 15 days of the date of this Endorsement to bring their matters back on in a co-ordinated fashion.  Failing that, their applications are dismissed.

[9]       For clarity, I will also make reference to Amin Durrani who was initially an applicant.  Mr. Durrani did not file material in compliance with the rules.  His counsel did not appear at the hearing.  Accordingly his application was dismissed in the early days of the hearing.

___________________________

DAWSON J.

DATE: June 11, 2007

COURT FILE NO.:  1750/07A

DATE:  20070611

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