Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200430 DOCKET: M51509 (C67754) & M51510 (C67755)

Brown J.A. (Motions Judge)

M51509 (C67754)

BETWEEN Her Majesty the Queen Respondent

and

Darko Stojanovski Appellant (Applicant)

M51510 (C67755)

AND BETWEEN

Her Majesty the Queen Respondent

and

Daniel Stojanovski Appellant (Applicant)

Counsel: Geoff Haskell, for the applicants Charmaine M. Wong, for the respondent

Heard by Teleconference: April 24, 2020

REASONS FOR DECISION

I. OVERVIEW

[1] The applicants, Darko and Daniel Stojanovksi, are 36-year twin brothers who are applying for bail pending appeal.

[2] On May 30, 2018, following a jury trial, they were convicted of attempted murder and discharging a firearm with intent to endanger the life of Nassundu Williams, contrary to ss. 239(1)(a) and 244(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46. On July 6, 2018, they were sentenced to 18 years’ imprisonment: R. v. Daniel Stojanovski and Darko Stojanovski, 2018 ONSC 4243, at para. 34. They are presently incarcerated at the Beaver Creek Institution.

[3] The Crown opposes their applications for bail pending appeal, taking the position that they have not met any of the criteria in s. 679(3) of the Criminal Code.

[4] For the reasons set out below, I dismiss the applications.

II. BACKGROUND FACTS

[5] At trial, Mr. Williams testified that when he was sitting in his car in a parking lot listening to music, both applicants arrived. A heated argument ensued. Mr. Williams said that Darko Stojanovski attacked him and forced him to the ground. They rolled around, wrestling on the grass, each trying to punch the other. A bystander separated them. Mr. Williams admitted he pulled out a knife as he stood up and as the applicants were walking to their car. He said that the applicants jumped into their car, drove by him, and both then shot at him. He was shot five times, twice in the shoulder and three times in the back as he was trying to run away. The evidence of a bystander who testified at the preliminary inquiry supported Mr. Williams' evidence.

[6] Darko Stojanovski testified at trial. He described the initial skirmish leading to the wrestling match. He said that after they were separated, Mr. Williams came after him with a knife. As the two sides continued to exchange insults, Darko got into the car with his brother. As Darko drove them out of the parking lot, he heard gunshots but did not know where the shots were coming from and just kept driving.

[7] The Crown presented alternate theories of liability to the jury: both Daniel and Darko shot Mr. Williams, or Daniel was the shooter with Darko liable as an aider or abettor. The trial judge instructed the jury on both theories of liability.

[8] Following their convictions and sentencing, the applicants filed inmate notices of appeal in November 2018 (C66249 and C66251).

[9] In August 2019, both applicants applied for orders appointing legal counsel to represent them on their appeals, pursuant to s. 684(1) of the Criminal Code. Pardu J.A. dismissed the applications.

[10] The applicants filed solicitor’s notices of appeal in December 2019. According to counsel, the transcripts are at the printers and he hopes to have the appeals perfected in a few months.

[11] Since the Crown takes the position that the applicants have not met any of the criteria in s. 679(3) of the Criminal Code, I shall consider each in turn.

III. WHETHER THE APPEALS ARE NOT FRIVOLOUS: CRIMINAL CODE s. 679(3)(a)

[12] The applicants’ notices of appeal advance two grounds of appeal: (i) the trial judge erred by not taking reasonable steps to mitigate the trial confusion and prejudice caused by the Crown injecting a new basis of liability – Darko as an aider; and (ii) the trial judge failed to provide an adequate jury instruction regarding party liability.

[13] The record of the proceedings below that was before Pardu J.A. on the s. 684(1) application is essentially the same as that on these bail applications. The grounds of appeal advanced at that time were slightly broader than those in the solicitor’s notices of appeal, yet Pardu J.A. characterized them as “weakly arguable”.

[14] The “not frivolous” test sets a “very low bar”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. I am satisfied that the applicants have established that their appeals are not frivolous.

IV. WHETHER THE APPLICANTS WILL SURRENDER INTO CUSTODY: CRIMINAL CODE s. 679(3)(b)

[15] The applicants do not have any record of breaches of recognizance or court orders. Although the Crown expressed some concerns about whether the applicants would surrender into custody, largely based on the applicants’ flight from the scene of the shooting, ultimately the Crown advised that it would not press the second ground. Consequently, I conclude that the applicants have satisfied s. 679(3)(b).

V. WHETHER DETENTION IS NECESSARY IN THE PUBLIC INTEREST: CRIMINAL CODE s. 679(3)(c)

[16] The focus of the Crown’s opposition to these applications is the third ground set out in s. 679(3)(c) of the Criminal Code. The Crown submits that detaining the applicants is necessary in the public interest.

[17] The public interest criterion has two components: public safety and public confidence in the administration justice. Courts are not to treat the two components as silos. Even where the public safety threshold has been met, residual public safety concerns, or their absence, should be considered in the public confidence analysis: Oland, paras. 23 and 27.

A. Public safety component

[18] The public safety component of s. 679(3)(c) of the Criminal Code essentially tracks the requirements of s. 515(10)(b) governing an accused’s release pending trial: Oland, at para. 24. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, where this "substantial likelihood" endangers "the protection or safety of the public" and when it is "necessary" for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737.

[19] The applicants sought but were denied interim release pending their trial.

[20] Neither has a record for failing to comply with a recognizance or probation order. Darko has no prior record. Daniel has a youth record for dangerous operation of a motor vehicle and failure to stop at the scene of an accident (2002). As an adult, he was convicted of criminal negligence causing bodily harm for which he received a 15-month conditional sentence, one year’s probation, and a 7-year driving prohibition (2004).

[21] The sentencing judge remarked that the applicants took positive rehabilitative steps while detained: at para. 31.

[22] The applicants’ plan of release contains the following main components:

• They will reside with their parents at their condominium;
• They will remain at the residence except for medical emergencies, attending court, meeting their lawyer, or travelling to and from work. They plan to work for a friend in his home renovation business;
• In their affidavits they state that they are willing to wear GPS tracking ankle-bracelets and pay for the cost of the monitoring service, although their draft release order does not contain such a term;
• Each applicant is prepared to pledge $3,500, although both acknowledge that their financial resources are slim;
• Their mother, Suzana Stojanovski, and step-father, Mario Tennina, are prepared to act as sureties, supervise their sons if they are required to remain in the residence under house arrest, and each is prepared to pledge $10,000. In her affidavit, Suzana did not mention her 1990 convictions for theft under $1,000 and possession of property obtained by crime.

[23] Darko’s lack of a criminal record, when combined with the dated nature of Daniel’s record and the absence in his record of any convictions for failure to comply with recognizance or probation orders, leads me to conclude that the applicants have met the public safety threshold.

[24] However, I am still left with significant public safety concerns. In particular, the applicants propose a very weak release plan: (i) the lack of any requirement that they be in the presence of a surety when they leave the residence is troubling; (ii) although the applicants are the registered owner of firearms, the draft release order does not propose any prohibition on the possession of firearms; (iii) the evidence does not indicate that the applicants have contacted a bail monitoring company that is prepared to monitor their release; and (iv) GPS ankle bracelets have their limits. They are not designed to prevent violations or ensure an immediate police response; they function more as a risk management tool: R. v. Jesso, 2020 ONCA 280, at paras. 24-25. GPS monitoring reveals where a person is, not what he is doing, and focuses more on gathering evidence of compliance rather than preventing non-compliance: R. v. Fleming, [2015] O.J. No. 4380 (S.C.J.), at para. 18; R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), at para. 25.

[25] I will consider these residual public safety concerns when dealing with the public confidence component of the public interest criterion.

B. Public confidence component

The enforceability interest

[26] Dealing first with the enforceability interest, the offences for which the applicants were convicted are very serious. The sentencing judge observed that the circumstances involved gun violence that is far too prevalent on the streets of Toronto and that “it is pure luck that one bullet or a combination of bullets did not kill Mr. Williams”: at paras. 1 and 8. As well, the applicants fired their guns in a residential neighbourhood filled with families and children and, before opening fire, they yelled at others to get out of the way: at para. 20. The applicants’ convictions attracted a very long penitentiary sentence of 18 years, less credit for pre-sentencing custody.

[27] The residual public safety concerns come into play here. As I explained in para. 24 above, the bail release plan proposed by the applicants is unacceptably weak.

The reviewability interest

[28] Considering the reviewability interest requires undertaking a more pointed assessment of the strength of an appeal than that performed in respect of the “not frivolous” criterion, with an eye to the general legal plausibility of the grounds identified in the notice of appeal and their foundation in the record: Oland, at para. 44.

[29] The key elements of the record that were before Pardu J.A. on the s. 684(1) application are also before me: the charge to the jury; the Crown’s closing submissions; counsel’s submissions on sentencing; and the reasons for sentence.

[30] As mentioned, the notices of appeal advance two grounds of appeal: (i) the trial judge erred by not taking reasonable steps to mitigate the trial confusion and prejudice caused by the Crown injecting a new basis of liability – Darko as an aider; and (ii) the trial judge failed to provide an adequate jury instruction regarding party liability. The joint notice of application for bail pending appeal elaborates on these grounds. As I understand the applicants’ main critique of the charge, it misled the jury because it did not provide adequate instructions on the alternative theory of liability of Darko as an aider or abettor and conflated the applicants into a single entity.

[31] This court has considered the adequacy of charges dealing with party liability as an aider or abettor in several recent decisions: R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445; R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346; R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476. I have reviewed the record in the light of these decisions.

[32] The legal adequacy of the trial judge’s charge must be assessed in the context of the entire charge and the trial as a whole, including objections to the charge made by counsel during pre-charge conferences and the closing submissions of counsel: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at paras. 39-51. I lack the transcripts of the pre-charge conference and the closing submissions of defence counsel. From the written charge included in the record, the trial judge instructed the jury on the issue of aiding or abetting twice: once before and once after her discussion of the elements of each offence. This was not a complex fact situation. Given the limits of the record before me, I agree with the assessment of Pardu J.A. in her s. 684(1) reasons that the grounds of appeal are “weakly arguable”.

[33] The joint notice of application for bail pending appeal also advances an argument that the evidence allowed for many different scenarios, some of which did not lead to guilt. Without the transcripts of the evidence at trial, I cannot assess those arguments.

[34] The applicants advance one additional factor that they submit should be balanced against the enforceability factor. Both are incarcerated in the Beaver Creek Institution. In their affidavits, they state that it is not possible to practice social distancing in the institutional environment, staff and inmates have not been given personal protective equipment, and they spend 22.5 hours of each day locked in their units. Although there were not any cases of COVID-19 at Beaver Creek when they swore their affidavits on April 17, 2020, “there is a great deal of anxiety about it getting introduced into the prison.”

[35] The current COVID-19 outbreak in Ontario is a factor that can be taken into account in considering the public interest criterion: R. v. Omitiran, 2020 ONCA 261, at para. 26. The weight played by that factor depends upon the particular circumstances of each case. For example, it might play a role where an applicant’s known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v. Kazman, 2020 ONCA 251, at para. 17. Other examples can be found in some of the cases helpfully summarized and reviewed in R. v. Paramsothy, 2020 ONSC 2314, at paras. 45-60.

[36] In the present case, the applicants are 36 years old. Neither deposed to having a medical condition that would increase his vulnerability to the virus. The Crown filed a Correctional Services Canada document reporting on inmate COVID-19 testing in federal correctional institutions as of April 21, 2020. It recorded that two tests of Beaver Creek inmates had been taken. One returned negative; the other result was pending. As of April 21, 2020, no positive tests of inmates at the institution had been recorded.

Balancing the interests

[37] Public confidence is to be measured through the eyes of a reasonable member of the public: Oland, at para. 47. A categorial approach must not be taken; the assessment must be qualitative and contextual: at para. 49.

[38] In the present case, the applicants have been convicted of very grave offences. A gun or guns were used in a residential area during daylight hours, a factor that plays a significant role in the public confidence analysis: see the comments made by Trotter J. (as he then was) in R. v. McGowan, 2009 ONSC 46439, at paras. 11-12, in the context of a s. 515(10)(c) analysis. Lengthy terms of imprisonment have been imposed. Their release plan is unacceptably weak, as specified in para. 24 above. The grounds of appeal appear to be weak. The applicants are not members of a group especially vulnerable to COVID-19 nor are they incarcerated in an institution that has a significant outbreak of the virus. I conclude that the enforceability interest significantly outweighs the reviewability and virus exposure interests: Oland, at para. 50.

VI. DISPOSITION

[39] Consequently, for these reasons I dismiss the applicants’ applications for bail pending appeal.

“David Brown J.A.”