ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-CR
DATE: 20120410

BETWEEN:

HER MAJESTY THE QUEEN – and – ZELJKO ZELIJCA ZDERIC Defendant

MICHAEL MARTIN , for the Crown
ALAN GOLD , for the Defendant

MR. JUSTICE C.J. CONLAN

R E A S O N S

INTRODUCTION

[ 1 ] In Canada, a person charged with a criminal offence has a Constitutional right to reasonable bail. That right is one of the hallmarks of our criminal justice system. Without it, the presumption of innocence becomes illusory as there would be scores of accused persons behind bars without being found guilty. The importance of bail cannot be overstated. Whether an accused person is granted bail often determines the plea, for example.

[ 2 ] Not everyone, however, is released on bail. There are occasions where the Crown meets its onus to show why the accused should be detained on the primary, secondary and/or tertiary grounds pursuant to section 515(10) of the Criminal Code , and there are instances where the accused bears the onus to show on balance why s/he should be released on bail but fails to meet that onus.

[ 3 ] Mr. Zeljko Zderic failed to meet his onus in the Court below. After a contested bail hearing before His Worship Justice of the Peace Stafford on October 11, 2011, Mr. Zderic was detained on the secondary ground alone – section 515(10) (b). His Worship concluded that the bail plan being offered by the accused was insufficient in that it provided inadequate supervision of Mr. Zderic. The Crown had sought detention on all three grounds.

[ 4 ] Mr. Zderic has now been in custody awaiting a preliminary inquiry and/or trial for nearly a year and a half. He has applied to this Court for a review of the bail detention Order made in October of last year.

[ 5 ] The filing of a Bail Review Application does not automatically give an accused person a fresh bail hearing. There is a threshold issue to determine as to whether there has been a material change in circumstances and/or an error in the Court at first instance. The Applicant bears the onus to demonstrate one or both of those on a balance of probabilities.

[ 6 ] For oral reasons delivered in Court on April 5, 2012, I find that Mr. Zderic has indeed established a material change in circumstances; in fact, the Crown did not argue otherwise. Clearly, the much stricter bail plan being proposed now, with three new sureties not offered previously, is materially different from the plan that was presented to His Worship. Ms. Matheson, who testified in the Court below, is no longer being tendered as a surety.

[ 7 ] Further, although strictly unnecessary to determine, there was in fact a misapprehension by the learned Justice of the Peace as to the number of charges facing Mr. Zderic. At page 72 of the transcript of the initial bail hearing (tab 5 of Mr. Zderic’s Application Record), His Worship opens His decision with a remark that Mr. Zderic “stands charged with somewhere between 51 and 81 counts of fraud and false pretences”. There was some confusion due to what the Court below found to be discrepancies between the docket, the Informations and the synopsis. Mr. Zderic was in fact facing 57 charges in total, 49 of which were fraud and false pretences.

[ 8 ] The charges in this jurisdiction were and remain a follows:

a. Information 11 382 sworn May 5, 2011 – 4 counts: assault, criminal harassment, breach of probation and breach of recognizance

b. Information 11 509 sworn June 14, 2011 – 2 counts: fraud over $5000 and false pretences

c. Information 11 936 – 51 counts: 18 counts of fraud over $5000, 11 counts of fraud under $5000, 18 counts of false pretences, possession of property obtained by crime under $5000, mischief over $5000, breach of probation and uttering threats

[ 9 ] Having established on balance both a material change in circumstances and an error in the Court below due to a misapprehension as to the charges facing Mr. Zderic, the Application in the Superior Court of Justice proceeded as a hearing de novo (a fresh bail hearing). A Publication Ban was ordered. There was an Order excluding witnesses with no exceptions.

[ 10 ] This is a reverse onus situation as agreed by counsel. At the time of his arrest on the charges in this jurisdiction, Mr. Zderic was at large on an Officer in Charge Undertaking dated June 8, 2010 regarding charges in Wellington County (Guelph): personation and obstruct police. Mr. Zderic also currently faces those two same offences in the District of Cochrane (Hearst).

THE ISSUE

[ 11 ] Has Mr. Zderic established on a balance of probabilities cause as to why he should be released from custody?

[ 12 ] Mr. Gold says yes. The Crown, Mr. Martin, says no. The Crown seeks detention on all three grounds.

THE EVIDENCE

[ 13 ] I have considered the following evidence:

a. The Application Record filed by Mr. Zderic which includes the Affidavit of the accused sworn March 29, 2012 including Exhibits A (the criminal record limited to convictions), B (the Probation Order for a conviction for theft on October 21, 2010 at the Ontario Court of Justice in Owen Sound which does not appear on the CPIC printout), C (Information 11 382 referred to above), D (Information 11 509 referred to above), E (Information 11 936 referred to above), F (the Information for the two Guelph charges referred to above), G (the Promise to Appear for the two Guelph charges), H (the Undertaking for the two Guelph charges), I (correspondence from Mr. Zderic’s former counsel to the Crown Attorney in Kapuskasing regarding the two Hearst charges referred to above), and J (the Information for the two Hearst charges referred to above); the Affidavit of proposed surety Mr. Lev Olevson sworn March 29, 2012 including a tax bill and mortgage statement as Exhibits A and B; the Affidavit of proposed surety Mr. Graeme Riddell sworn March 29, 2012 including a bank personal credit agreement as Exhibit A; and the transcript from the bail hearing at first instance.

b. The Affidavit of proposed surety Mr. Zoran Sudar sworn April 4, 2012 including a bank mortgage statement as Exhibit A. That Affidavit was marked as Exhibit 2 on this Application.

c. The Application Record filed by the Crown which includes the Affidavit of Ms. Julie Phair (a legal secretary in the Crown office) sworn April 3, 2012 including Exhibits 1 (a 22 count Information from Toronto sworn May 31, 2002 showing the dispositions at the Ontario Court of Justice on June 10, 2002 and the Restitution Orders), 2 (a 6 count Indictment from Toronto dated November 27, 2007 showing the findings at the Superior Court of Justice on December 3, 2007, the dispositions at Court on January 7, 2008 and the Restitution Order which was later displaced by the Forfeiture Order made by Marrocco J. on 24 April 2008 upon Application by the Crown: R v. Zderic, [2008] O.J. No. 1576 ).

d. A chart filed by the Crown on consent of the Applicant which summarizes 48 of the charges facing Mr. Zderic in this jurisdiction.

e. the viva voce testimony of (i) Mr. Zderic who was cross-examined by the Crown and then re-examined very briefly by Mr. Gold, (ii) Mr. Olevson who was cross-examined by the Crown and then re-examined very briefly by Mr. Gold, (iii) Mr. Riddell who was cross-examined by the Crown without any re-examination, and (iv) Mr. Sudar who was cross-examined by the Crown without any re-examination.

THE GROUNDS FOR BAIL DETENTION

[ 14 ] In Canada, accused persons cannot be detained at the whim of the Court. Parliament has directed that there are only three grounds upon which a detention order may be made. Those grounds are found in section 515(10) of the Criminal Code . There is no authority to deny bail to someone charged with a criminal offence for some discretionary reason outside the parameters of section 515(10) .

[ 15 ] The primary ground in paragraph (a) is where detention is necessary to ensure the attendance of the accused in Court. It is meant to address flight risk and the absconding accused.

[ 16 ] The secondary ground in paragraph (b) is where detention is necessary to protect members of the public, whether connected to the charges as a victim or witness or not. All of the circumstances must be considered, but the focus is whether there is a substantial likelihood that the accused will on release commit a crime or interfere with the administration of justice.

[ 17 ] The tertiary ground in paragraph (c) is where detention is necessary to maintain confidence in the administration of justice. Again, the Court shall consider all of the circumstances, but Parliament has delineated four specific factors: the strength of the Crown’s case, the seriousness of the offence, the nature of the offence such as whether a firearm was used, and the potential punishment if the accused is found guilty including the possibility of lengthy prison time or a minimum custodial sentence for a firearms offence.

THE POSITIONS OF THE APPLICANT AND THE CROWN

The Applicant

[ 18 ] Mr. Gold argues that not much weight should be attributed to the reverse onus predicament that Mr. Zderic finds himself in; that this is a “technical” reverse onus.

[ 19 ] The Applicant submits that the charges against him in this jurisdiction are weak. For example, the possession of property obtained by crime charge cannot benefit from the doctrine of recent possession and is completely devoid of any supporting evidence. The fraud charges are really unpaid civil debts owing to tradespersons that Mr. Zderic did business with. This is not a case where the Crown can rely upon similar fact evidence, either between the current counts or with regard to the prior convictions. The complainant on Information 11 382 is not a credible witness. There are strong triable issues. Mr. Zderic will languish in jail for a long time as no preliminary hearing date is set in the Ontario Court of Justice (estimated to last five weeks). Unlike in the past, Mr. Zderic is adamant to maintain his innocence and defend these charges through to the conclusion of a trial. He will surely not be pleading guilty.

[ 20 ] Counsel for the Applicant stresses the positive characteristics of Mr. Zderic. For example, he had custody of his children before his most recent arrest.

[ 21 ] Mr. Gold argues that the primary and tertiary grounds are not applicable on these facts.

[ 22 ] He argues further that the concerns expressed in the Court below regarding the secondary ground are met by a better bail plan with more appropriate sureties. Counsel describes Mr. Olevson in particular as an “ideal surety” and Mr. Zderic’s evidence as credible. Independent arm’s-length sureties can be better than close family members, submits Mr. Gold. Besides, the Applicant argues that there were no contradictions in the evidence between the sureties and no reason to detain Mr. Zderic just because the proposed sureties did not know about his criminal past until recently. They are well informed now, which is what is important. Mr. Gold emphasizes that Mr. Zderic’s criminal record is dissimilar to the current fraud-related charges and does not include any fraud convictions when the Applicant was on a surety bail.

[ 23 ] The Applicant’s counsel questions the relevance of the unpaid Restitution Orders filed in the Crown’s Application Record. If they are unpaid, then it is up to the creditors to collect through civil Judgments.

[ 24 ] The Applicant relies upon several Court decisions: R v. Morales , 1992 SCC 53 , [1992] S.C.J. No. 98 (Supreme Court of Canada), specifically paragraph 37; R v. Perron (1989), 51 C.C.C. (3d) 518 (Quebec Court of Appeal), specifically page 526; R. v. Stevenson , [1998] O.J. No. 4390 (Ontario Court of Justice, General Division – Glithero J.), specifically paragraph 37; R v. Lamothe (1990), 58 C.C.C. (3d) 530 (Quebec Court of Appeal), specifically page 540; R v. Falls , [2004] O.J. No. 5870 (Ontario Superior Court of Justice – Nordheimer J.), specifically paragraph 38; and R v. Fedossov , [2011] O.J. No. 6109 (Ontario Superior Court of Justice – Gilmore J.), specifically paragraphs 24, 27 and 30.

[ 25 ] I have read each of those decisions in its entirety. I have considered them carefully.

The Crown

[ 26 ] Mr. Martin disputes the estimated length of the preliminary inquiry – he says it would take three weeks. He submits further that the Crown has been ready for the preliminary hearing for a long time but the delay has been on the part of Mr. Zderic who has yet to retain his counsel of choice.

[ 27 ] On the primary ground, the Crown argues that Mr. Zderic must be detained to ensure his attendance in Court due to the constellation of these alleged facts: the outstanding and sizeable Restitution Orders, the Applicant’s strong European ties both personal and business, the Applicant’s sophistication in terms of business, travel and language, the outstanding criminal charges spread around Ontario, and Mr. Zderic’s criminal record which includes a dated fail to attend Court conviction in 1997.

[ 28 ] The Crown concedes that the case for detention is weakest on the primary ground.

[ 29 ] On the secondary ground, the Crown focuses on the number of victims, the number of transactions and the amount of money involved with regard to Information 11 936. Further, Mr. Martin argues that Mr. Zderic’s criminal history is for similar offences. The Crown submits that the Applicant is untrustworthy as the “hub of the wheel” of this bail plan. Mr. Zderic was not a credible witness, says the Crown. He is “fast and loose with the truth” in the submission of the Crown. Finally, Mr. Martin questions the workability of this proposed bail plan in that the Applicant has limited connections to and flimsy relationships with the three sureties being offered, and further, the sureties do not know each other. The Crown is suspicious as to why these three men are willing to pledge such substantial amounts of money as sureties for Mr. Zderic’s release ($200,000 for Mr. Olevson, $140,000 for Mr. Riddell and $325,000 for Mr. Sudar) when they seem to know him so fleetingly.

[ 30 ] On the tertiary ground, Mr. Martin focused on the Applicant’s criminal record, especially his conviction in 2002 for attempting to obstruct justice by counselling his cousin to falsely alter his testimony in a judicial proceeding. Confidence in the administration of justice will be undermined if the Applicant is released on bail, submits the Crown.

ANALYSIS

[ 31 ] Mr. Zderic has met his onus on the primary ground.

[ 32 ] Accused persons ought not to be detained lightly. Detention on the primary ground should be resorted to only where the Court concludes that no release conditions could reasonably ensure that the accused attends Court as required. Otherwise, the word “necessary” in section 515(10) (a) has no meaning.

[ 33 ] I do not perceive Mr. Zderic as being a real flight risk. He has children, property and friends in Ontario. His ties are here and have been so for many years. Besides, the bail plan being proposed including the reporting term together with additional conditions to surrender any travel documents and remain in this Province are reasonably capable of ensuring the Applicant’s attendance at Court.

[ 34 ] There will be no detention on the primary ground.

[ 35 ] Mr. Zderic has also met his onus on the tertiary ground.

[ 36 ] I suspect that the alleged victims would lose confidence in the justice system if the Applicant was released on bail. In fact, many members of the public would be enraged. But, then again, there are some who believe that all persons charged by the police are guilty. They are not. The tertiary ground must be measured against the perceptions of a reasonably-minded and informed member of the public who appreciates cornerstone principles of our criminal justice system such as the Constitutional right to reasonable bail, the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt.

[ 37 ] As I said to counsel during closing submissions, I am particularly fond of the very thorough and sound decision of Justice Ducharme of the Ontario Superior Court of Justice in A.B. , 2006 ONSC 2765 , [2006] O.J. No. 394. The result in that case is immaterial; it is the analysis of the tertiary ground that is instructive.

[ 38 ] In my view, we must be diligent in guarding against an evolution away from the well-established jurisprudential principles which make it clear that the tertiary ground ought to be resorted to sparingly. Its invocation should be confined to exceptional cases on an infrequent basis. By analogy, the tertiary ground could be contemplated in a vein similar to that of a stay of proceedings, that is, confined to the “clearest of cases” after a full analysis of all of the circumstances including but not limited to the four factors expressly set out in section 515(10) (c).

[ 39 ] This is not one of those cases. I am unable to conclude that the Crown’s case is particularly strong. The number of charges is high, but one look at Information 11 936 reveals some overlapping of the fraud and false pretences counts. Some of the charges are inherently serious such as the criminal harassment. But the gravity of the fraud-related offences is far from the high-end. This is not a case involving firearms or gang activity or gratuitous violence. These charges do not bring, upon conviction, minimum punishments of imprisonment.

[ 40 ] There will be no detention on the tertiary ground.

[ 41 ] This case turns on the secondary ground.

[ 42 ] What a pleasure it was to have the hearing conducted by such experienced and competent counsel. I am indebted to their assistance.

[ 43 ] This case turned out to be closer than what I originally anticipated upon an initial review of the materials filed. In the end, I have concluded that Mr. Zderic has not met his onus on the secondary ground. His detention is necessary for the protection or safety of the public. I find that there is a substantial likelihood that the Applicant will commit a further criminal offence or interfere with the administration of justice if he is released on bail, even in the context of the bail plan being proposed with the three sureties offered.

[ 44 ] There is no one factor that has led this Court to that conclusion. No single item can be considered in isolation. All of the circumstances must be considered in totality. The constellation of factors is what must govern.

[ 45 ] The following are the three primary factors that have been influential in the Court’s decision:

(i) Mr. Zderic has serious credibility and trustworthiness issues. Those concerns give rise to a legitimate risk, in fact a substantial likelihood, that he will not obey the terms of his release. The Applicant’s criminal record is surely not the longest that this Court has ever seen, but it is strikingly unusual in that it contains 28 convictions for crimes of dishonesty between 1997 and 2010. Mr. Zderic admitted in cross-examination by the Crown that he pleaded guilty to charges in the past that he was in fact not guilty of. Let there be no mistake – this Court is intimately familiar with the practical realities of our criminal justice system; it is naïve to think that does not happen. But it is concerning that Mr. Zderic has been disingenuous with Courts in the past. I do not accept the Applicant’s evidence that he has no recollection whatsoever of an immigration conviction from just four years ago (in 2008) which on its own resulted in a twelve month prison sentence. That makes no common sense, especially when one considers that Mr. Zderic demonstrated in his testimony a remarkably good memory about certain matters in his life that were from many years earlier than 2008. It is equally implausible that Mr. Zderic did not understand or even know about the Restitution Orders made against him in the past. That testimony is more concerning than the fact that he has not paid them. I do not accept it. The Orders are crystal clear and beg no confusion as to whether they can be satisfied by having goods returned, for example. Mr. Zderic is an intelligent man, but he had a very difficult time in his testimony answering the most basic of questions, such as whether paragraph 5 of his Affidavit at tab 2 of his Application Record is accurate. It contains an error. That is not the point; the point is that it took what seemed like an eternity for the Applicant to clearly acknowledge the simple error. There was a certain evasiveness about Mr. Zderic. There were several times during the cross-examination that I had to remind myself of what the Crown’s question was since Mr. Zderic’s answer was so long and unresponsive.

(ii) The relationships between Mr. Zderic and each of the three proposed sureties are far from “close and personal”, as alleged in the various Affidavits filed. I have serious reservations as to whether Mr. Zderic would listen to any of these three men or whether any of these men would force the Applicant to listen, and thus, I do not believe that these proposed sureties will combat the substantial likelihood that the Applicant will commit a further criminal offence or interfere with the administration of justice if released on bail. Mr. Olevson testified in cross-examination by the Crown that, before he swore his Affidavit very recently, he was not aware of his “close personal friend’s” criminal record or that his friend had ever been in jail before. That is bizarre to say the least given that Mr. Olevson testified that he saw the Applicant at least once a week in the five years or so leading up to 2011. Mr. Zderic amassed 12 criminal convictions during that time. He was on probation for 12 months starting in August 2007. He was sentenced to several years in prison in 2008. It is no wonder that Mr. Olevson answered “yes and no” when asked by the Crown whether any of this new information gave him concerns about being able to trust the Applicant. Mr. Olevson made it clear that he has always taken a hands-off approach with Mr. Zderic (my words). Mr. Olevson does not intrude on, interfere with, ask about or even concern himself with Mr. Zderic’s personal affairs, yet he is to be the primary surety under the proposed bail plan. I agree with Mr. Gold that there is no requirement or even recommendation that a surety be a family member or something akin to that, however, there must be a willingness on the part of both the surety and the accused to essentially surrender the accused’s privacy. The dynamics here make that very unlikely. Mr. Riddell has seen the Applicant once or twice in the last four to five years, once during a visit at jail. He found out that his “close personal friend” was in jail in January 2012, months after Mr. Zderic’s most recent arrest. Before January 2012, he did not know that Mr. Zderic had a criminal record of any kind. I agree with Mr. Gold that persons do not go around advertising their criminal histories, but to be completely unaware of such an extensive criminal record, including lengthy stints in prison, of one’s dear friend is very odd. Mr. Gold is correct that this is not a case of lying by the Applicant to these three men. He just never told them, and they never asked or noticed or found out. Mr. Gold argued further that this is not a case of concealment on the part of Mr. Zderic. I am not so sure about that. In any event, it is a case of very tangential relationships between Mr. Zderic and the proposed sureties, incapable in my view of forming the underpinnings of the community jailer role that these men must perform if Mr. Zderic is released on bail. Mr. Sudar went four years without seeing or hearing from the Applicant. He first found out that Mr. Zderic was in jail last month. That is when he also discovered for the first time that Mr. Zderic has a criminal record and had been to jail before. It became clear that Mr. Sudar’s major connection to Mr. Zderic is as fellow countrymen from the former Yugoslavia. Mr. Sudar mentioned that more than once in his brief testimony as the reason for wanting to help the Applicant.

(iii) These three proposed sureties are essentially strangers to each other, yet the proposed bail plan depends on them working together, collaboratively, as a supervisory team. That is very unlikely to work, in my opinion. Mr. Olevson and Mr. Sudar are complete strangers to each other. Mr. Riddell and Mr. Sudar are complete strangers to each other. Mr. Olevson and Mr. Riddell are either complete strangers to each other or are very recent acquaintances (the evidence was unclear). There is no foundation for cooperation. They live in Thornhill, Milton and Hamilton. They have their own work and families. They have had nothing to do with each other. To expect them to work as a team to guard the Applicant 24 hours per day as proposed (and I accept as required) is something that the Court finds to be unrealistic and unworkable. The substantial likelihood that the Applicant will commit a further criminal offence or interfere with the administration of justice will not be met by this bail plan with these proposed sureties.

CONCLUSION

[ 46 ] To borrow the Crown’s analogy, Mr. Zderic is at the centre or the hub of a wheel. His criminal history, his testimony on the Application and the charges currently before the Courts make this Court conclude that he is someone that the public needs to be protected against in that there is a substantial likelihood that on release he will commit further criminal offences or interfere with the administration of justice. On the outside of the wheel is the bail plan comprised of the proposed terms and the sureties as three spokes. The bail plan is inadequate for the three major reasons noted above. Assessed in the context of the bail plan, there remains a substantial likelihood that Mr. Zderic will commit a further criminal offence or interfere with the administration of justice.

[ 47 ] The Applicant has not met his onus on the secondary ground. The Application
is dismissed. The detention Order on the secondary ground made on October 11,
2011 remains in place. Mr. Zderic is remanded in custody to the next date already scheduled in the Ontario Court of Justice.

[ 48 ] Thank you to counsel and the witnesses for your assistance.

Mr. Justice C.J. Conlan

Released: April 10, 2012