ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: DR(P) 2016/12
DATE: 20120711

BETWEEN:

HER MAJESTY THE QUEEN – and – ALEKSANDAR STOJKOVIC

D. D’Iorio
B. Brody

HEARD: July 10, 2012

BAIL REVIEW APPLICATION

MILLER, J.

[ 1 ] Aleksandar Stojkovic is charged with, on May 13, 2012, Possessing Cocaine, 15 counts of Possession of Credit Cards obtained by Crime and Breach Recognizance in relation to a peace bond. While on release for these offences, he is alleged to have committed, on May 28, 2012, Possession of Cocaine for the Purpose of Trafficking, Possession of Crack Cocaine for the Purpose of Trafficking, Possession of Ecstasy, Possession of Marijuana, and three counts of Possession of Proceeds of Crime. He is also charged with, on that date Possessing a Firearm without a licence, Possessing a Prohibited Firearm with readily accessible ammunition, Possession of a Loaded Firearm and Careless Storage of a Firearm and Ammunition, two counts of Careless Storage of Ammunition, three counts of Breach of Recognizance, Possessing an Instrument for Forging Credit Cards, and three counts of Possession of Credit Card Data.

[ 2 ] On June 7, 2012 there was a 524 application and a bail hearing held on all counts. Mr. Stojkovic was detained on the secondary grounds.

[ 3 ] Mr. Stojkovic applies for a review of the bail decision, arguing that the learned justice of the peace erred. He presents the same proposed plan for release that he presented at the bail hearing.

Allegations

[ 4 ] May 13, 2012 Aleksandar Stojkovic was operating a rental motor vehicle in Toronto. He was stopped by police for speeding. He was not the driver specified on the rental agreement for the vehicle. There were three other occupants. One had been sitting on a wallet containing 12 fraudulent credit cards. A search of the vehicle revealed a fraudulent driver’s licence with a photograph of Mr. Stojkovic but bearing a different man’s name. There were also three counterfeit credit cards. The trunk of the vehicle contained five bags of cocaine. On one of the other occupants police located cocaine, marijuana and ecstasy. Mr. Stojkovic was at the time bound by a s.810 order to keep the peace.

[ 5 ] Mr. Stojkovic was released on those charges the same date on a recognizance in the amount of $2,500. He was required to reside at 1748 Pagehurst Avenue in Mississauga, to abstain absolutely from the possession or use of non-medically prescribed drugs; he was not to possess any financial or banking instruments in any name other than his own. His surety was a friend, Mr. Ahmed.

[ 6 ] May 28, 2012 police executed a search warrant at 265 Enfield Place Apartment 1904 in Mississauga. Police concluded Aleksandar Stojkovic was residing there because of identification and male clothing found on the premises. Police located in the apartment a .357 magnum handgun and 157 rounds of ammunition for it, 12.54 g of cocaine, 124.82 g of crack cocaine, 12.29g of marijuana and some ecstasy pills. The estimated street value of the drugs was over $14,000.

[ 7 ] Police also located in the apartment a card reader and instrument for forging credit cards, a pouch containing numerous stolen credit cards, S.I.N. cards and driver’s licences. Mr. Stojkovic was located getting into a vehicle with Melissa Black in the parking garage of the apartment building. Upon his arrest police found him to have $2,000 in U.S. currency.

Proposed Plan for Release

[ 8 ] At the bail hearing June 7, 2012, Mr. Stojkovic’s mother, Elena Stoykovich was proposed as a surety. Mrs. Stoykovich testified that she had been out of the country attending to family business in Jamaica at the time of Mr. Stojkovic’s arrests on both incidents. She testified that Mr. Stojkovic resides at the family home at 1748 Pagehurst Avenue in Mississauga and to her knowledge that is where he was residing May 28, 2012.

[ 9 ] Mrs. Stoykovich testified that she did not know Mr. Stojkovic’s previous surety and was not aware of the conditions of her son’s previous release. Mrs. Stoykovich proposed that Mr. Stojkovic live with her and attend with her at her workplace in Mississauga. She was prepared to ensure he had no contact with his co-accused.

[ 10 ] Mrs. Stoykovich also testified and was cross-examined at length on the hearing today. She was questioned about a search warrant executed at her home in February 2011 resulting in CDSA charges against her younger son, Taras. Mrs. Stoykovich testified that those charges remain outstanding but that she has taken Taras in hand on very strict conditions and that he is presently doing very well. She is not a surety for Taras.

[ 11 ] Mrs. Stoykovich testified that she was very disappointed when learning of the charges in relation to each of her sons, and she felt that she had been away from the home too much and trusted them too much. She is confident, however, that she can have the same effect on Aleksandar that she has had on Taras. She reaffirmed her resolve to turn her son into police if he failed to comply with any condition set by the court. She denied any animus toward the police and spoke of her efforts working with youth in the community in conjunction with police.

[ 12 ] Mrs. Stoykovich was cross-examined about her own interaction with police on an occasion in October 2010 when her younger son had been arrested. Despite being removed from the police station due to her behaviour and being subsequently charged – those charges later withdrawn – Mrs. Stoykovich maintained that she bears no animus toward police.

[ 13 ] Mrs. Stoykovich is prepared to pledge a substantial amount of money, $350,000, which amounts to her life savings. The learned justice of the peace found that she was an upright citizen, hardworking, with lots of assets. He found that she was serious in her commitment to offer effective supervision “24/7”.

Secondary Grounds

[ 14 ] The Supreme Court of Canada in R. v. Morales 1992 53 (SCC) , [1992] S.C.J. No. 98 upheld the constitutionality of s.515 (10) (b) of the Criminal Code (the secondary grounds) on the basis that on those grounds, 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 and safety of the public and where detention is necessary for public safety. (at paragraph 39) Gans, J. in R. v. Walton [2005] O.J. No. 48 held that the test under s. 515(10(b) is one which admits of reasonable management of risk. (at paragraph 11)

[ 15 ] The justice of the peace detained Mr. Stojkovic on the secondary grounds. He described the proposed plan and proposed surety in glowing terms, then expressed shock at how little Mrs. Stoykovich appeared to know of her son’s activities. The justice of the peace did not address the fact that Mrs. Stoykovich had been out of the country for an extended period of time covering Aleksandar Stojkovic’s two arrests. I find that in so doing he failed to properly address the proposed plan for supervision as it related to the secondary grounds. This is an error in principle which brings me to the conclusion that I may review the matter afresh.

[ 16 ] The learned justice of the peace in summarizing the evidence also made a factual error in referring to Mr. Stojkovic being found, on May 28, 2012, in possession of $14,000. The evidence was that some $14,000 worth of drugs was found on the premises, and that Mr. Stojkovic had over $2,000 in cash on his person.

[ 17 ] There can be no doubt that the offences alleged are serious and the particular combination of drugs and a gun and ammunition raise a significant concern in regards to the safety of the public. However I am satisfied that the proposed plan here is one which appropriately addresses the concern that Mr. Stojkovic will continue to commit offences. I am confident in Mrs. Stoykovich’s resolve to take matters in hand with respect to Aleksandar Stojkovic. I find that her proposed plan for supervision, which will not permit Mr. Stojkovic out of her sight, is one, provided she is serious in her commitment to brook no non-compliance on Mr. Stojkovic’s part, which will provide the means to ensure Mr. Stojkovic will have no opportunity to commit further offences.

[ 18 ] It is clear that this level of supervision is one which will impose a great burden on Mrs. Stoykovich and her ability to conduct her life as she would, I am sure, prefer. Her commitment to do this in order to give her son an opportunity to remain out of custody pending trial is significant.

[ 19 ] I find that Mr. Stojkovic has met his onus on the secondary grounds.

Tertiary Grounds

[ 20 ] The Supreme Court upheld the constitutionality of s. 515(10) (c) (the tertiary grounds) in R. v. Hall 2002 SCC 64 () , [2002] S.C.J. No. 65 on the application of the four factors to be considered: the apparent strength of the Crown’s case, the gravity of the nature of the offences, the circumstances surrounding their commission, and the potential for a lengthy term of imprisonment. It is only when, in consideration of those four factors, the court concludes that a reasonable member of the community would be satisfied that the denial of bail is necessary to maintain confidence in the administration of justice that detention on the tertiary grounds is justified.

[ 21 ] The Crown sought, on June 7, 2012 and seeks today to detain Mr. Stojkovic on the tertiary grounds. It remains to consider the application of the tertiary grounds to the circumstances of this case.

[ 22 ] There can be no question that the nature of the alleged offences is grave and the circumstances serious. The particular combination of drugs and a gun and ammunition is troubling. The apparently sophisticated set-up in respect of theft of stolen credit cards and identification and the creation of counterfeit cards is also significant. There can be no doubt about the impact identification theft has on many ordinary citizens and the overall economic impact these crimes have on everyone. In addition there is the aggravating allegation that Mr. Stojkovic was involved in very similar activity of a more serious nature some 15 days after being released on judicial interim release, and was in breach of those terms on May 28, 2012.

[ 23 ] Mr. Stojkovic does not dispute that if convicted of all of these alleged offences he would be facing a lengthy term of imprisonment.

[ 24 ] The strength of the Crown’s case is a live issue, however, and counsel for Mr. Stojkovic posits that the search conducted May 13, 2012 raises some Charter issues and further there are some questions surrounding the extent to which Mr. Stojkovic’s knowledge and control of the illicit items can be proven. He further points out that there is some question regarding the degree to which Mr. Stojkovic’s knowledge and control over the specified items on May 28, 2012 can be proven.

[ 25 ] In considering all of the branches of the tertiary ground together, I am not persuaded that Mr. Stojkovic’s detention is necessary on the tertiary grounds.

[ 26 ] Aleksandar Stojkovic may be released with Elena Stoykovich as his surety, in the amount of $250,000 without deposit and conditions that he reside with his surety at 1748 Pagehurst Avenue in Mississauga. He may not leave the residence except in the presence of the surety and the surety must be present in the residence when Aleksandar Stojkovic is there. He is not to communicate directly or indirectly with any of the co-accused – Jovan Nikolic, Lotfi Gacem, Youcef Joseph Ouansa or Melissa Adams. He is not to be in possession of a cell phone. He is not to possess any non-medically prescribed drugs. He is not to have in his possession any weapons. He is not to have in his possession any identification or financial documents in any name other than his own.

MILLER, J.

Released: July 11, 2012