Five victims. Bail for the alleged gunman: The rare inside details behind this Toronto court decision

“Gun violence heightens risk and concern, and how it is dealt with shines a light on our justice system,” Roffey said in her ruling.

“The courts have a duty to maintain the public’s confidence.”

The bail system has been under increased public scrutiny, particularly in firearms cases, with police and politicians accusing the courts of being too lenient. In the wake of calls for immediate change from all 13 premiers, the federal government proposed a package of bail reforms that is currently being debated in Parliament.

Naseer’s case offers a rare glimpse into how a justice of the peace reaches their decision on bail. Such hearings are almost always covered by a publication ban intended to protect an accused person’s fair trial rights until the conclusion of the criminal case. There was no publication ban requested in this case.

“We expect people who are presumed innocent, and who come to court without any prior criminal history and with strong supervision plans, to be released on bail,” said criminal defence lawyer Daniel Brown, who wasn’t involved in the case.

“That’s the purpose of our bail system, to ensure people don’t spend time in jail before they’ve been proven to have done something wrong.”

The shooting occurred just after 1 a.m. in April 2022 in a Scarborough parking lot as about a dozen men gathered following Ramadan prayers. Supt. Steve Watts said upon Naseer’s arrest in September that there was no evidence the alleged offences were hate-related, and that he is “from that community and lives in that community.”

Toronto police declined to comment this week on the bail decision.

Five men were injured and taken to hospital. Roffey said one man was shot in the back, another suffered a bullet through his spine, injuring his liver and fracturing his ribs, and a third man was hit in the leg and required knee surgery. The two other men suffered abrasions from bullets grazing them.

Crown attorney Cara Sweeny had urged Roffey to keep the 21-year-old in jail, where he has been housed since his arrest. She argued there is a “substantial likelihood” that he’ll commit a serious offence if released.

Roffey found the Crown’s case was strong, calling the allegations serious and supported by “substantive evidence.” No motive or connection to the men who were shot was established, with Roffey describing the shooting as “seemingly random.”

She released Naseer after concluding that his proposed release plan — in which he would live under strict house arrest with his parents and wear a GPS ankle monitor — offered “a very high level of restriction and supervision.”

Naseer’s parents will act as sureties, meaning they promised the court they’ll ensure that their son follows his bail conditions. Should they fail, they risk losing some or all of the $200,000 they pledged to the court.

Roffey ordered that Naseer can only leave the house with one of his sureties and can’t leave at all between 10 p.m. and 6 a.m. unless for a medical emergency requiring an ambulance. He’s also banned from possessing weapons and from contacting his alleged victims.

“A lot of the allegations and the evidence against him only paint one side of the story, and there’s a lot more that will come out, hopefully at trial,” Naseer’s lawyer, Humza Hussain, told the Star. “Having bail offers him a chance to not be in custody while he awaits that day, because it’s taken a long time to get to trial.”

The case was already subject to rules meant to make it more challenging for alleged firearm offenders to get bail. As a “reverse-onus” case, it was on Naseer to show the court why he should not remain detained; the premiers urged the federal government to make more firearms offences reverse-onus situations.

Reverse-onus or not, Naseer’s case shows that the decision to grant or deny bail remains with the justice of the peace based on the individual circumstances of the case. “What is often true is that a strong supervision plan can overcome even a reverse-onus bail provision,” Brown said.

A bail decision involves a legal test on three grounds that an accused must pass, or be detained. The primary ground looks at whether jail is necessary to ensure his attendance in court. Sweeny argued that if found guilty, Naseer would face a lengthy prison sentence, which leads to a concern he would flee.

However, “that is true for anyone facing such serious allegations,” Roffey said. “It is not a strong argument, and he is not detainable on the primary ground.”

The secondary ground requires the accused to be detained if it’s necessary to protect public safety. Roffey said that while the allegations were serious, “detention on the secondary ground is much more difficult to argue when there is no history of convictions.”

Because it was a reverse-onus bail, Roffey said the burden was on Naseer “to mitigate the risk with a restrictive plan,” and she found he had done so. She did note, however, that she had “some issues” with his plan.

She said there was “some confusion” about where the family actually lives, an issue that “was not clear and became muddled under cross-examination” by the Crown. She said it appears that the parents don’t actually live at the address they listed in their affidavit — a sworn legal document — but rather it’s a rental residence that they will use for the purposes of Naseer’s bail.

His parents also admitted during the bail hearing that “they had little involvement in his comings and goings before his arrest,” as he was living in Toronto, and they were living elsewhere.

“It does seem odd to the court that they would leave a high school student to his own devices,” Roffey said. “However, under the plan proposed to the court, they will not be parents, they will be sureties. They will be bound by a substantial amount of money, have the backup of an ankle bracelet and a clear set of rules.”

Finally, an accused person must be detained on the tertiary ground if it’s necessary to maintain public confidence in the administration of justice. In deciding on this ground, Roffey said, “The court must turn its mind to a reasonable and dispassionate member of the community (who) understands the law of bail and the right to a reasonable release no matter how serious the charges.”

She highlighted that systemic racism has resulted in the overrepresentation of racialized people in jails. Jurists are required to consider the circumstances of Indigenous and racialized accused people in bail decisions, as a result of changes enacted by the federal government in 2019.

“Members of the public are aware of this court’s many failings with racial equality,” Roffey said. “From over-charging to over-incarceration, the court has been clearly instructed to turn its mind to this issue and ensure that when racialized or Indigenous communities come before it, it makes efforts to compensate for racial biases.”

Roffey found that a reasonable person would acknowledge that Naseer and his family “belong to a community that we know faces more surveillance by police and harsher outcomes when before the court as accused or sureties.”

Brown said the requirement to consider a racialized accused’s circumstances is meant to combat systemic racism in the justice system, and highlighted that statistics show a racialized person is still far less likely to be released on bail than someone who is white.

Naseer’s case returns to the Superior Court in February.