COURT FILE NO.: CR-13-0086-BR
DATE: 2013-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Kevin Matthews, for the Crown
- and -
Andy Ljubomir Radic,
Chady F. Moustarah, for the Applicant
Applicant
HEARD: October 25, 2013,
at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
WARNING A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 517 OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment On Appeal For Judicial Interim Release
[1] Andy Ljubomir Radic seeks a review pursuant to s. 520 of the Criminal Code of Canada of the detention order of Justice of the Peace Gibbon given on September 5th, 2013.
[2] Mr. Radic faces two charges himself and two charges with a co-accused. The charges are for possession of controlled substances, oxycodone, for the purposes of trafficking, trafficking in oxycodone and possession of currency obtained by crime. The offences are alleged to have occurred on August 23rd and August 26th, 2013 in the City of Thunder Bay.
[3] Police arrested Mr. Radic in Thunder Bay following a lengthy drug investigation focused on a local dealer. It is alleged that Mr. Radic is a supplier of oxycodone to that dealer who was selling drugs in the Thunder Bay area. Following his arrest, a search was performed of a hotel room rented by Mr. Radic. In that room was found a locked suitcase containing approximately 3,000 oxycodone pills with an estimated street value in excess of half a million dollars and a large amount of currency.
[4] Mr. Radic is now 79 years old. He is ordinarily resident in Edmonton Alberta. He has a wife, who is 38 years old and who resides in Sophia, Bulgaria. Apparently she is seeking to immigrate to Canada to join her husband together with her two teenaged sons, who are not Mr. Radic's children. Mr Radic has two children from other relationships. His youngest daughter, Nada Govic, aged 28, of the City of Edmonton proposes to be Mr. Radic's surety.
[5] On this bail review, Mr. Radic chose not to testify and offered no other new vive voce or affidavit evidence. However, on consent, certain documents that were not before Justice of the Peace Gibbon were placed before the Court. These documents were;
Three letters testifying to Mr. Radic’s good character, one from Mr. Radic's son in law Kris Govic (Nada's husband) one from Nada and one from his other daugther Desa Radic;
A mortgage statement and a British Columbia Property tax assessment document for a condo property owned by Kris Govic in New West Minister British Columbia;
A gift agreement written in the Serbo-Croatian language, and the English translation of the document related to a $90,000.00 gift given by Mr. Radic's wife to him in July 2013;
A written release plan containing 17 proposed conditions and an increase in the amount of cash deposit offered from $10,000.00 to $40,000.00.
[6] In considering this application, the Court referred to these documents, the information setting out the 4 charges, Mr. Radic’s criminal record, and the transcript of the evidence of the proceeding before Justice of the Peace Gibbon on September 5th, 2013, and of course the submissions of counsel.
[7] Justice of the Peace Gibbon ordered that Mr. Radic be detained on the primary and secondary grounds. She also made a passing reference to the tertiary grounds. Her decision was given orally. On pages 106 through 118 of the transcript, she reviewed the evidence before her. She then gave what I view as the essence of her reasons for detaining Mr. Radic on page 119 of the transcript as follows:
“… Mr. Radic, based on all the information presented before me today, the court does still have concerns on primary grounds, and on that primary and secondary grounds, and based on that, I’m ordering you detained in custody. I believe that your relationships in another country, your frequent travel, the amount of money that you have access to, the amount of drugs that you had in your possession sir, both on you and in your home, indicate that you would have access to even more money. So the court is ordering your detention on both primary and secondary grounds. And in this case I think there’s also consideration for tertiary grounds, that the strength of the crown’s case, the gravity of this office sir, as was stated by Mr. Matthew’s, we’ve not had this number of oxycodone being brought into our community, and Northwestern Ontario particularly is struggling with this substance, the abuse of this substance, and the court has to take that into consideration. And so based on that sir, I am ordering you detained until your next court appearance, which would be when please?”
[8] Mr. Radic applies for a bail review on three grounds:
There has been a material change in circumstances since the first hearing;
The Justice of the Peace erred in principle; and
The Justice of the Peace misapprehended material evidence.
[9] In the decision R v. Budge,[2012] O.J. No. 2538, referred to me by counsel for Mr. Radic, Durno J. set out the onus on a review of this type. At paragraphs 22 and 23 of that decision Durno J. states:
“THE ONUS ON A DETENTION REVIEW
22 The applicant has the onus of establishing that:
There has been a material change in circumstances since the first hearing,
The Justice of the Peace erred in principle,
The Justice of the Peace erred in law, or
The Justice of the Peace misapprehended material evidence.
23 If one or more of those factors are established by the applicant, the reviewing court can examine the issue of bail afresh as a de novo hearing, without deference to the reasons of the Justice of the Peace. As Ms McGuirl referred to it, I would exercise my independent discretion in the matter. If it were to get to that stage, the onus remains on the applicant on the balance of probabilities.”
[10] I agree with Durno J's statement concerning the onus and the standard of review which applies in this matter.
[11] From my review of the reasons for decision, it appears the learned Justice of the Peace was most concerned with the issue of securing Mr. Radic’s attendance in Court, which is the so called “primary ground” for detention under s. 515(10). The detail that her reasons do provide, focus on factors which suggest the learned Justice of the Peace was concerned that Mr. Radic’s overseas relationships and his alleged connection to the drug trade gave rise to a legitimate belief that he would abscond. In light of this concern, some discussion of the extent to which Mr. Radic’s surety, could or couldn’t secure his further attendance was required. This however was not part of her reasons in my view.
[12] I agree with the argument made by Mr. Radic’s counsel, that Mr. Radic has demonstrated that the learned Justice of the Peace has made at least one error in principle. This relates to her failure to give any analysis regarding the plan for release as put forward by Ms. Govic. There is no mention whatsoever about the merits of Ms. Govic as a surety or her plan, other than a comment that the defence and crown agree she appears to be an honest and responsible person. In fairness, the level of detail given by Ms. Govic with regard to how she intended to ensure that her father would attend court and the day to day particulars of her plan to supervise him were not given to the learned Justice of the Peace. This is understandable given the sometimes summary nature of a bail hearing at first instance. However, in my view, it is necessary for a Justice of the Peace at first instance to make some reference as to how they view the merits of the plan when the primary grounds are referenced as the basis upon which a person is detained. There was no ability for this Court to consider for review purposes the assessment of the plan or the manner in which the proposal effected the learned Justice of the Peace’s decision that continued detention of Mr. Radic was necessary to satisfy the statutory grounds set out in s. 515(10)(a) and (b).
[13] Having convinced me that an error in principle was made, the matter is then placed before this court for a de novo assessment as to whether or not Mr. Radic’s detention ought to continue. Accordingly I do not see it as necessary to address the arguments made by Mr. Radic’s counsel one way or the other concerning the fact of a material change in circumstances or whether or not the learned Justice of the Peace misapprehended material evidence.
[14] The case of Mr. Radic presents as unusual. An elderly man is arrested very far from his home, driving a car which he had rented at the Thunder Bay airport, after having dropped off a car he first rented at the Winnipeg airport. After his arrest when his hotel room is searched, it is alleged a very large quantity of drugs, which are now relatively scarce, and accordingly more valuable on the street, are found in a suitcase alleged to belong to him. His proposed surety was shocked to hear her father is alleged to be found in possession of such a large quantity of prescription drugs.
[15] On this hearing, the surety did not appear. However, a new more detailed, plan was put forward by way of a document entitled “proposed release conditions”. A copy of the proposed release conditions, which contains a handwritten entry number 18, by me, which was added on consent, at the end of the hearing, is attached to these reasons as Schedule 1. Of significance, was the increase in the amount of the cash deposit. It was increased to $40,000.00. I was left to assume the money would come from Mr. Radic’s own finances as neither he, nor the proposed surety Ms. Govic testified about the funds and Ms. Govic was only prepared to offer $10,000.00 cash at the first bail hearing.
[16] Certain of the plan details were left blank on the proposal placed before this Court. These concerned a number of issues which I would have thought critical to an assessment of its merits. For example, the amount to be pledged by the surety was left blank. The address where Mr. Radic was to reside was left blank. The times for any curfew were highlighted and counsel advised that Mr. Radic was prepared to agree to house arrest if the Court felt it appropriate to do so. Also the proposal contained a provision at number 7 that Mr. Radic was to seek or maintain employment or alternatively attend school.
[17] This approach, which I felt was essentially one of “leaving it up to the Judge” was not satisfactory to persuade the Court on the balance of probabilities that Ms. Govic could adequately supervise Mr. Radic or could ensure that he would attend Court. In my mind, there are real issues of proposing a 28 year old mother of two young children, to supervise her father, whose whereabouts she was apparently unaware both when he was arrested in August in Thunder Bay, and when he was in Europe when the family visited there in July. Ms. Govic testified that Mr. Radic had been either to Bulgaria or Serbia at least 4 or 5 times in the past year to visit his wife. A wife of some means, apparently, as she was able to gift Mr. Radic $90,000.00 in July of this year. According to Ms. Govic she is “independently wealthy”.
[18] The scheme alleged by the Crown involves trafficking drugs between at least 4 Canadian cities. It is alleged that Mr. Radic had in his possession a large quantity of drugs that cannot be even legally be obtained by prescription in Canada at this point. The evidence of the arresting officer at the bail hearing suggested that the drugs seized may have been counterfeit in that they were not produced for the legal prescription market.
[19] I am mindful of the comments of the Supreme Court of Canada in the R v. Pearson case, 1992 CanLII 52 (SCC), [1992] S.C.J. No. 99 a copy of which was provided in the case book put forward by counsel for Mr. Radic. At paragraphs 61 and 62 of that judgment Justice Lamer stated:
”61 The unique characteristics of the offences subject to s. 515(6)(d) suggest that those offences are committed in a very different context than most other crimes. Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour. Special bail rules are required in order to establish a bail system which maintains the accused's right to pre-trial release while discouraging continuing criminal activity.
62 Another specific feature of the offences subject to s. 515(6)(d) is that there is a marked danger that an accused charged with these offences will abscond rather than appear for trial. Ensuring the appearance of the accused at trial is the primary purpose of any system of pre-trial release, and the system must be structured to minimize the risk that an accused will abscond rather than face trial. For most offences, the risk that an accused will abscond rather than face trial is minimal. It is not an easy thing to abscond from justice. The accused must remain a fugitive from justice for the rest of his or her lifetime. The accused must flee to a country which does not have an extradition treaty with Canada (or whose extradition treaty does not cover the specific offence which the accused is alleged to have committed). Alternatively, the accused must remain in hiding. Either prospect is costly. Neither prospect is possible unless the accused is exceedingly wealthy or part of a sophisticated organization which can assist in the difficult task of absconding. Most alleged offenders are neither wealthy nor members of sophisticated organizations. Drug importers and traffickers, however, have access both to a large amount of funds and to sophisticated organizations which can assist in a flight from justice. These offenders accordingly pose a significant risk that they will abscond rather than face trial.”
[20] In argument, Mr. Radic’s counsel argued that as Mr. Radic’s Canadian passport application has been denied and his Serbian passport has been seized by Thunder Bay police, he no longer has the lawful means to enter another country other than Canada. I do not find that argument very persuasive in light of the nature of the charges at issue and the evidence of Ms. Govic to the effect that Mr. Radic moved around a great deal in his life both in the world and in Canada. He has only lived in Edmonton for two years. His wife lives in Bulgaria. The crime alleged involves the sale of prescription drugs that cannot be procured now legally in Canada. These drugs are now substantially more valuable on the street according to the evidence of a Crown witness. Counsel for Mr. Radic relied on an argument that at worst Mr. Radic was facing a penitentiary sentence of 4 to 5 years. Practically speaking, counsel argued he would be out in 18 months. Contrary to this position, I am presented with the fact that Mr. Radic has a prior conviction for possession of oxycodone. While it was not recent, I am concerned that if Mr. Radic is convicted he may be facing a significantly stiffer sentence than his counsel suggests.
[21] Also with regard to the possibility that Mr. Radic would abscond, his counsel argues that Mr. Radic would not risk placing his daughter’s assets at risk when he was facing only a relatively short sentence.
[22] I think this argument might make more sense if Mr. Radic was significantly younger rather than his late 70’s. It would also make more sense if the actual surety was capable of putting up any real security.
[23] From the evidence placed before me, Ms. Govic does not own any real property which could be pledged. She testified her home in Edmonton is owned by her husband. The documents relating to title of the New Westminster condo list her husband alone as the titled owner. The fact that I was to “fill in the blank” about the security to be put forward by Ms. Govic did not give me any greater confidence in the plan put forward.
[24] I am concerned that given her own family responsibilities, Ms. Govic would not be capable of supervising Mr. Radic or ensuring he attend court as required. I am concerned that Mr. Radic’s primary ties are not in Edmonton, and certainly not in Thunder Bay, but are rather with his wife in Bulgaria. Constable Ryback for the Crown testified that Mr. Radic was found to have what appeared to be an electricity bill for a residence in Serbia on Mr. Radic when he was arrested. This evidence gives me some concern that he continues to have interests in residential property outside of Canada.
[25] I also am not persuaded by the arguments made by his counsel concerning the relative short period of incarceration Mr. Radic may be facing. I take the view that given his age, the possibility of any prison sentence could present to him as a kind of “life sentence” as there is a real possibility he could spend his last days of life in custody. This gives him a much greater incentive to abscond than would be the case for a person for whom it could be said “has their whole life ahead of them”. Mr. Radic’s period of being a fugitive from justice may appear much more attractive to him given the time he may reasonably consider he has left on earth.
[26] Mr. Radic’s counsel also made reference to the fact that the co-accused person has been released on bail. There was no evidence concerning the circumstances concerning the co- accused placed before the court. Mr. Radic’s counsel had indicated he had attempted to obtain it from the co-accused’s counsel but to date could not. Given the lack of any evidence concerning the circumstances of the co-accused I cannot give any weight to the fact that he has been released in assessing the circumstances of Mr. Radic.
[27] For the reasons noted above, I find it is necessary to detain Mr. Radic to ensure he will attend court in order to be dealt with according to law as set out in s. 515(10) (a). Despite the increase in the amount of a cash deposit, there are problems with the proposed plan, most notably the gaps in the plan and Ms. Govic’s relationship of child to parent, who herself has no assets to pledge, and is looking after two young children. Accordingly, I am not convinced in all the circumstances that she is equal to the task of ensuring Mr. Radic will return to Thunder Bay to participate in the ongoing proceedings.
[28] I am also persuaded that Mr. Radic’s detention is justified based on the secondary grounds. In this respect, I again turn to the reasoning in Pearson noted above and am persuaded that there is a substantial likelihood Mr. Radic will not be able to avoid the temptation of continuing to participate in the drug trade pending adjudication of the outstanding charges. Again, Ms. Govic’s professed lack of knowledge of the nature of the drug trade and her lack of knowledge of her father’s whereabouts do not give me confidence that she could supervise him appropriately if he determined to continue to engage in trafficking activities pending trial. Also as she has no security to pledge, I am not satisfied that she is an appropriate surety in this case.
[29] I am also mindful of the public safety aspect to Mr. Radic’s continued detention. While the learned Justice of the Peace referred to the danger oxycodone pills pose in her comments concerning the tertiary grounds for detention, I refer to the decision of Shaw J. in R v. Khan 2011 ONSC 2097 where he remarked that “oxycondone addition is literally destroying communities in Northwestern Ontario. The protection and safety of the public is clearly affected by drug trafficking”. If the charges against Mr. Radic are true, he was participating at a significant level.
[30] This in my view gives rise to a concern that public safety could be affected if Mr. Radic was granted interim release.
[31] I appreciate that the tertiary grounds are rarely relied upon to justify detention. I am also mindful of the argument of the defence that there will be a Charter challenge to the seizure of the drugs at the centre of the case against Mr. Radic. However, like the learned Justice of the Peace, I am of the view that Mr. Radic faces very serious charges that involve an enterprise, that if proven, are part of a much larger problem that is having a particularly devastating impact on our area. With respect to an allegation of oxycodone trafficking I am of the view that public confidence in the administration of justice would be adversely affected by the release of a person charged with such offences. However, the evidence concerning the nature of the search was not fully developed in the bail hearing, and counsel did not focus their submissions on this aspect of the detention of Mr. Radic. While Mr. Radic bears the onus of persuading me that his detention is no longer justified, I cannot say that on the tertiary grounds alone, he should remain in custody.
[32] Therefore I find that Mr. Radic has not proven on the balance of probabilities that his detention is no longer justified and I order that his detention pending trial continue.
[33] I understand the next date for this matter is November 8 at the Ontario Court of Justice. Mr. Radic is remanded to that date.
[34] The within application is dismissed and he shall remain in detention.
____________”original signed by”
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: November 5, 2013
COURT FILE NO.: CR-13-0086-BR
DATE: 2013-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and –
Andy Ljubomir Radic,
Applicant
REASONS FOR JUDGMENT ON APPLICATION FOR
JUDICIAL INTERIM RELEASE
Fitzpatrick J.
Released: November 5, 2013
/mls