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Criminal

Bail process involves balancing Crown’s concerns, public safety

Canadian Press THE CANADIAN PRESS

TORONTO — A Toronto neurosurgeon charged with first-degree murder in the death of his wife has been denied bail.

Dr. Mohammed Shamji, 41, showed little emotion as he sat in a Toronto courtroom on Wednesday.

Shamji worked at Toronto Western Hospital and was a faculty member at the University of Toronto.

He was charged in December 2016 in the death of his wife, Dr. Elana Fric-Shamji.

The 40-year-old woman, a family physician at Scarborough Hospital, was last seen on Nov. 30.

Her strangled and beaten body was later found in a suitcase by a roadside north of Toronto.

Police have said the couple, who were married for 12 years, had three young children.

In an interview with AdvocateDaily.com, Toronto criminal lawyer Roots Gadhia says accused murderers infrequently are granted bail as they await trial. Still, the court considers the circumstances of each matter in any bail hearing, she adds.

“It’s very rare — there may only be a handful of individuals who have been granted bail in Canada after being charged with murder,” she says. 

Gadhia, principal of R. Roots Gadhia Criminal Defence Law, explains the judicial interim release conditions in the Criminal Code of Canada allow an individual accused of a crime to apply for bail.

That section of the Code also sets out three grounds the Crown may argue to keep the individual in custody: the primary ground addresses whether the individual is a flight risk; the secondary ground assesses whether the accused has a substantial likelihood of reoffending if he or she is released; and the tertiary ground focuses on whether their release would bring the administration of justice into disrepute.

“The tertiary ground is an application of how a reasonable person would react to the release of the individual into the community — it’s the reasonable person test,” she says. 

“The question is whether it would send shock through the community if the court released him and if the public’s confidence in the criminal justice system would be shattered if he was released.

“The tertiary ground creates a nexus between what was assessed under the primary and secondary grounds, and how the public would see it.”

Gadhia says in assessing the primary, secondary and tertiary grounds in the Shamji matter, “the court determined the plan proposed to supervise him on bail would not have adequately addressed the concerns of the public, the Crown and the court to ensure he would attend court as and when required, that he would not commit further offences, and that the public wouldn’t be outraged.”

She notes these are the only reasons one can be denied bail.

“When an individual is charged with murder, the onus rests with the defence to show why the accused should be released,” she says. “If the plan isn’t sufficiently strong enough to address the Crown’s concerns, the court won’t release the person.”

Gadhia also notes that the Supreme Court of Canada has stressed an individual’s right to bail except in exceptional circumstances, and emphasizes the need for release provisions to be applied consistently and fairly.

She says that while the court, in assessing the primary grounds in the Shamji matter, would have considered the fact that the accused is a professional without a criminal record, with a family and ties to the community, it also would have recognized the seriousness of the crime he is accused of committing.

Gadhia also notes the court considers the strength of the Crown’s case when deliberating the release of an individual.

“There is an important balancing that goes on throughout the bail hearing process, weighing each aspect of the Crown’s concern and then balancing it against how to protect the public,” she says. 

– With files from AdvocateDaily.com

© 2017 The Canadian Press

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