SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-13-749
DATE: 2013 12 27
RE: R. v. William Mihajlovic
BEFORE: Baltman J.
COUNSEL:
J. Christie for the Applicant, Zivota Mihajlovic
E. Taylor for the Respondent Crown
Reasons on Application for Bail Review
[1] The applicant, Zivota Mihajlovic, seeks release pending trial. He is currently facing several fraud related offences and has been in custody since his arrest on October 9, 2013. After hearing this application on December 10, 2013, I declined his application for release, for reasons to follow. These are my reasons.
Background
[2] The applicant was arrested on October 9, 2013, when police found him running what appeared to be a phony credit card operation out of his car. At his initial bail hearing on October 17, 2013, defence counsel (not Mr. Christie) conceded that ongoing detention was required, as it became evident that the proposed sureties (the applicant’s wife and daughter) were potential witnesses for the Crown. The defence acknowledged (and still does) that the applicant cannot be released on his own recognizance.
[3] At this second bail hearing the applicant proffered five new sureties. On that basis the Crown conceded that there has been a material change in circumstances and I may therefore review the evidence anew to determine whether the accused should be released pending trial. The Crown acknowledges it bears the onus of justifying ongoing detention, and relies exclusively on the secondary ground under s. 515, namely there is a “substantial likelihood” that the applicant will commit a criminal offence if released from custody.
Factual Summary
[4] The applicant is 59 years old, married, and has two grown children. He has a criminal record dating from 1994, when he was convicted of four fraud related charges, including mail fraud and laundering proceeds of crime. He was sentenced to three years in the penitentiary.
[5] In 2008 he was convicted of further fraud related offences, on two separate occasions; in March he received a conditional sentence of two years less a day for two counts of fraud, and in April an 18 month conditional sentence for another count of fraud and failure to comply with a recognizance.
[6] The charges that bring him before the court now arise from a police investigation on October 9, 2013. Police were called by the manager of a nearby store to investigate what appeared to be suspicious activity in and around a car parked in a retail parking lot. When police arrived they found the applicant in the driver’s seat of the vehicle with three other people inside. They located a book containing over 25 credit cards and numerous financial documents inside the car. They also found the applicant’s personal dayplanner which, significantly, contained numerous references to credit cards, including the related security codes and dates of expiration. Among the applicant’s papers were some business stationary, in which he describes himself as a financial advisor.
[7] The police suspected the applicant was involved in a fake credit card operation. When they checked his name against their files they discovered there were three outstanding complaints of fraud that had been filed with the fraud bureau that had not yet been investigated, due to limited manpower. Two of those complaints came from the Toronto Dominion Bank, the other from the Royal Bank.
The Release Proposal
[8] The applicant has identified five sureties who, when combined, he claims can adequately supervise him. He advances his father as the primary surety, with whom he would reside. In addition, his good friend, Derek Hawker, would provide back-up and attend at the apartment if for any reason the father was unavailable. The applicant’s sister and two other friends would provide further support, if required. Importantly, the defence agrees that the proposal turns on the father being a reliable surety, and concedes that if he is not acceptable then the entire plan is seriously flawed.
Analysis
[9] In my view the father is a highly unsuitable surety. I recognize he is retired and lives alone in a two bedroom apartment, and therefore could in theory be available “around the clock” to supervise the applicant, who would live with him. However, the father is now 84 years old, and testified that while his health is reasonable for his age he has difficulty keeping track of dates and events.
[10] More importantly, the father has acknowledged that despite having raised his children to be honest and law-abiding, the applicant has repeatedly ignored that advice and committed crimes. The worst example is where the father was himself a victim. At some point in the late 1980’s the applicant persuaded his parents to let him use the equity in their house – to the tune of $180,000 - as collateral for one of his business ventures; within three months the money was lost and when the bank tried to seize the home the father sued the son and the lawyer who had been involved in the business deal, claiming they had tricked him into signing over his home. The lawsuit was unsuccessful and the parents lost their home, their only real asset after many years of hard work. The parents were forced to move into a small apartment.
[11] The father testified that while he was very upset with the applicant at the time, he has since forgiven him, largely because in approximately 1999 his grandson (the applicant’s son) was killed in a car accident; after that the father felt he needed to forgive, in order to help the family heal and move forward.
[12] While I applaud the father’s ability to forgive his son, it appears his faith in him was optimistic. Since then the son has again betrayed his trust, as his multiple convictions in 2008 reveal. At this bail hearing the father rationalized his son’s repeated transgressions as having fallen in within a bad crowd. There is no evidence of that, and even if it were true it underscores the fact that the father cannot control him or even properly monitor him. The applicant has proven repeatedly that he does not respect his father, to the point of stealing his house from under him. The father would therefore be completely ineffective as a surety.
[13] Given how pivotal the father would be to any plan of release, that finding alone is likely sufficient to justify ongoing detention. In case I am wrong in that regard, I further find that the addition of Derek Hawker as a surety does little to help. Hawker is a longstanding friend of the applicant’s. He works as a security guard and is prepared to pledge $90,000 for the applicant’s release. Hawker struck me as a sincere, caring friend who is prepared to support the applicant despite his serious criminal record. While all that is to his credit, I find his confidence too is misplaced, and he has underestimated the applicant’s ingenuity.
[14] The applicant has a troubling criminal record for fraudulent activities. A significant penitentiary sentence has failed to deter him, as he re-offended several years after he was released. The current allegations are of a similar nature; they involve him running a phony credit card operation out of his car. Those allegations have yet to be proven. However, having caught him essentially “red-handed”, the Crown appears to have a strong case. Moreover, this type of criminal activity, by its nature, can easily be cultivated and run from any location – including the father’s apartment. It therefore requires particularly diligent supervision. However sincere he may be, Hawker is employed full-time and therefore cannot be on site sufficiently to truly monitor the applicant. Indeed, given the applicant’s repeated involvement in crimes of deceit – which by nature require stealth and creativity - it may be difficult for most people to exercise the level of scrutiny needed.
Conclusion
[15] For the reasons set out above I find the Crown has established that, if released, there is a substantial likelihood the applicant will commit a further criminal offence. On that basis I denied the bail application.
Baltman J.
DATE: December 27, 2013
COURT FILE NO.: CR-13-749
DATE: 2013 12 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. William Mihajlovic
BEFORE: Baltman J.
COUNSEL: J. Christie for the Applicant, Zivota Mihajlovic
E. Taylor for the Respondent Crown
Reasons on Application for Bail Review
Baltman J.
DATE: December 27, 2013