DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MARCIN GOSK
Frank Schembri, for the Crown
Leora Shemesh, for Mr. Marcin
HEARD: March 21, 2016
Trotter J.:
INTRODUCTION
[1] Mr. Gosk faces numerous charges relating to the alleged kidnapping, confinement and aggravated assault of Jagroop Dhaliwal.[^1] On February 18, 2016, after a bail hearing conducted by Justice Riun Shandler of the Ontario Court of Justice, Mr. Gosk was detained on the secondary and the tertiary grounds in ss. 515(10)(b) and (c) of the Criminal Code.[^2] Mr. Gosk applies under s. 520 of the Code for a review of his detention order.
FACTUAL BACKGROUND
[2] Mr. Gosk is 31 years old and has no criminal record. It is alleged that, on February 13, 2016, he was part of a group of men who abducted Mr. Dhaliwal behind his place of business. Mr. Dhaliwal told the police that 4 men were involved. They wore dark clothing with the word “POLICE” displayed on their jackets. Their faces were covered by ski masks. Mr. Dhaliwal said that these men had firearms. It was brought to my attention on the bail review that other witnesses at the scene did not mention firearms. Mr. Dhaliwal told the police that he was blindfolded and taken to a house. He said he was handcuffed to a pole in the basement. He was held for a $1,000,000 ransom. He was threatened and beaten. He was burned with a propane torch.
[3] The next day a phone with enhanced (PGP) encryption was dropped off at the home of Mr. Dhaliwal’s mother-in-law. The purpose of delivering the phone was to facilitate ransom negotiations. After some hesitation, the phone was handed over to the police. The police assumed the identity of the victim’s relatives and used the phone to communicate with the captors by text message. On February 15, 2016, two days after Mr. Dhaliwal was abducted, the police arranged for the drop off of what was ostensibly ransom money. The police were directed to various locations and were eventually asked to leave the money at an intersection. A car approached and men got out and examined the contents of the bag. After figuring out that the money was not real, they drove away.
[4] The vehicle was followed for some period of time by police officers in unmarked cars. Eventually, it was boxed in to facilitate a takedown. The driver of the car, Mr. Gosk, rammed police cars in an attempt to escape. When the car came to a stop, the passenger got out of the car. He was alleged to have had a gun tucked into the waist of his pants. He ran away and has never been apprehended. Mr. Gosk was unable to open the driver’s side door. As he attempted to escape through the passenger side door, he was shot in the arm, sustaining a very serious injury. Bullet fragments remain in his arm.
[5] Within a couple of hours of Mr. Gosk’s arrest, Mr. Dhaliwal was released. He told the police that his captors told him that they had kidnapped the wrong man. They dropped Mr. Dhaliwal off near a coffee shop. His mouth was duct taped, but he was able to tear it away. He was wearing shoes and pants, but no shirt. He sustained several injuries, including a burn to his back.
[6] The car driven by Mr. Gosk was a stolen silver Nissan GT-R. The police officer that testified at the original bail hearing described it as a high-end vehicle, with few in circulation. A fake, laminate licence plate was placed over the vehicle’s real licence plate. The licence plate number was the same as authentic plates for a different silver Nissan GT-R. The police located this vehicle in Mississauga. Lastly, a similar car was seen on surveillance cameras driving near the location where the PGP phone was delivered.
[7] According to the information provided by Mr. Dhaliwal, there were as many as seven men involved in his kidnapping and confinement. Only Mr. Gosk has been charged.
THE PLAN OF RELEASE
[8] Mr. Gosk has no criminal record. He has post-secondary education and has been gainfully employed over the years. Mr. Gosk enjoys a close relationship with his father, mother and sister. The latter two were offered as sureties and testified at the original bail hearing. At that time, Mr. Gosk’s mother testified that she would pledge $70,000 and his sister, who is a psychiatrist, was prepared to pledge $30,000. Mr. Gosk’s father was not offered as a surety because he was not comfortable testifying without a Polish interpreter that day.
THE BAIL JUDGE’S DECISION
[9] Justice Shandler detained Mr. Gosk on the secondary and tertiary grounds in ss. 515(10)(b) and (c) of the Criminal Code. In terms of the plan of release, he said that Mr. Gosk has “extremely strong family support.” Justice Shandler observed that Mr. Gosk’s family believes that they will be able to effectively supervise him while on bail. However, in his reasons, Justice Shandler said:
His sureties are honest and loving family members but they do not, as they claim, know or understand Mr. Gosk in his present circumstances. He is alleged to have committed these offences while living with them. His mother doesn’t believe that he was involved. Having listened to them and watched them testify, I do not believe they would be effective in supervising Mr. Gosk.
[10] Justice Shandler found that the evidence against Mr. Gosk was strong, in terms of being directly involved in the kidnapping for ransom, “as he was driving the vehicle used to pick up the ransom money with an armed passenger.” He also noted the seriousness of the offences, the use of firearms and encrypted phones, the level of sophistication and planning involved, and the fact that all other participants remain at large. These factors, and others, led Shandler J. to order Mr. Gosk’s detention.
THE BAIL REVIEW
[11] In affidavits filed on this review, Mr. Gosk’s mother clarified that she and her husband are prepared to pledge the entire equity in their home, which is roughly $500,000. Mr. Gosk, sr. now prepared to be a surety. As a final part of the new plan on review, it is submitted that Mr. Gosk be subject to electronic monitoring through JEMTEC Inc.
ANALYSIS
[12] The scope of review under ss. 520 and 521 was recently clarified in R. v. St-Cloud (2015), 2015 SCC 27, 321 C.C.C. (3d) 307 (S.C.C.). The Court held that a reviewing judge is not equipped with an unfettered discretion to substitute his or her own views for that of a bail judge. The exercise is more limited. As Wagner J. wrote at p. 349:
It will be appropriate to intervene if the justice has erred in law. It will be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently… Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[13] In this case, Ms. Shemesh relies on what she contends is a material change in circumstances. She also argues that Shandler J. committed legal errors.
[14] In terms of changed circumstances, it is argued that the bail judge may have misapprehended the evidence of the sureties, Mr. Gosk’s mother in particular, as to the amount of money that they were prepared to pledge. In his reasons, Shandler J. mentioned that Mrs. Gosk was willing to pledge $70,000. He was also aware of the fact that there was much more equity in the home.
[15] Given the manner in which the evidence was presented at the bail hearing, the bail judge cannot be faulted for acting on the assumption that only $70,000 was on the table as potential bail money from Mrs. Gosk. I am not faulting counsel either. It has now been clarified that up to $500,000 is available.
[16] As noted in para. 9, Shandler J. did not believe that Mr. Gosk’s mother and sister would be effective sureties. However, I am unable to conclude that this was related to the quantum of bail that was offered. I am more concerned about the link that was made between Mrs. Gosk’s disbelief in her son’s guilt and her suitability as a surety. The learned bail judge referred to Mrs. Gosk’s disbelief twice in his reasons.
[17] This theme emerged during the Crown’s cross-examination of Mrs. Gosk. The Crown (who was not Mr. Schembri) reviewed some of the allegations with Mrs. Gosk, highlighting the more serious aspects of the case. Mrs. Gosk responded: “Yes, I heard that. And this is, for me, this is unbelievable. This is not my son. He would never do this. He’s, he’s good heart. He not abduct somebody. He not take somebody money.” The Crown then made the following unfortunate comment to the accused’s mother: “Or maybe you don’t know him as well as you…think you know him?” Mrs. Gosk remonstrated with the Crown, insisting they were a close-knit family.[^3]
[18] A surety is placed in an untenable position when invited to comment on the seriousness and/or authenticity of the Crown’s case, as implicitly occurred in this case. In bail court, sureties who refuse to acknowledge or who minimize the situation are sometimes characterized as unsuitable. This is unfair. Standing alone, a proposed surety’s belief in the innocence of an accused person is not grounds for disqualification. Like all accused persons at a bail hearing, Mr. Gosk is presumed innocent. There is nothing wrong with his mother’s belief in his actual innocence, as long as this attitude does not affect her ability to discharge the obligations of a surety. I can find no indication that it would.
[19] With respect to the learned bail judge, and after reviewing all of the evidence at the bail hearing, I am unable to see how Mrs. Gosk is not a suitable surety. After all, she has successfully supervised him in the past. Similarly, I cannot understand how his sister was found to be lacking. The bail judge said “they do not know or understand Mr. Gosk in his present circumstances.” I take this to be a reference to the fact that he was living at home when the alleged offences were committed. However, at that time, none of his family members were under any obligation to monitor or supervise Mr. Gosk.
[20] Since the bail hearing, the release plan has been bolstered. It has now been clarified that a much greater sum of money is available to be pledged. Moreover, Mr. Gosk’s father is now offered as a third surety. Given his hours of work, in conjunction with those of Mr. Gosk’s mother and sister, the plan of supervision is credible. The addition of electronic monitoring only serves to solidify this plan.
[21] On the other side of the equation is the nature and strength of the Crown’s case. The Court in St-Cloud, at p. 330, acknowledged that it is sometimes difficult to accurately gauge the strength of the Crown’s case at a bail hearing. It is often the case that it appears artificially strong: see R. v. Blind (1999), 1999 CanLII 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.), at p. 94.
[22] In this case, the overall package of allegations is extremely serious. Kidnapping for ransom is, most fortunately, a rare occurrence these days. However, the extent of Mr. Gosk’s involvement is uncertain. The evidence of his involvement at the back end of this scenario is very strong and, on its face, very damning. The degree to which the evidence links him to the earlier allegations of the kidnapping, confinement and assault of Mr. Dhaliwal remains to be determined. The evidence is entirely circumstantial.
[23] The alleged use of firearms in this case is troubling. The use of firearms is a serious problem in Toronto and is always a cause for concern. At the bail hearing, the presence of firearms at the point of abduction was a significant aspect of the allegations. Since then, witness statements have emerged that may be inconsistent with Mr. Dhaliwal’s account. Moreover, the evidence that Mr. Gosk’s fleeing passenger was armed is rather vague at this point, as are the circumstances in which Mr. Gosk was shot upon arrest.
[24] Finally, I am concerned about Mr. Gosk’s injury. It is acknowledged that the injury is significant and still painful. Based on the affidavit evidence filed on the bail review, and due to the realities of pre-trial detention, Mr. Gosk’s injury may not be receiving the attention and pain management that it requires.
CONCLUSION
[25] In all of the circumstances, given that Mr. Gosk has no criminal record, and in view of the evidence presented at the bail review (as discussed above), I am satisfied that the release plan can properly address the very real secondary and tertiary ground concerns outlined in the reasons of the learned bail judge. Accordingly, Mr. Gosk will be released on bail on the following terms:
• A recognizance in the total amount of $250,000. Maria Gosk and Marek Gosk will be liable for $220,000. Milena Gosk will be liable for $30,000;
• Mr. Gosk will attend court when required;
• Mr. Gosk will reside at 3176 Taviton Court, Mississauga, Ontario L4X 2K1;
• Mr. Gosk will remain within his residence at all times. He may leave his residence for medical appointments, appointments with his lawyer and court appearances, but he must be accompanied by at least one of his sureties. Mr. Gosk will be permitted to be outside of this residence unaccompanied in cases of medical emergencies only;
• Mr. Gosk will have no contact, directly or indirectly, with Jagroop Dhaliwal or any member of his extended family;
• Mr. Gosk will not possess or use any cellphone or computer devices;
• Mr. Gosk will not possess any firearms or weapons;
• Mr. Gosk will not operate a motor vehicle; and
• Mr. Gosk will submit to the protocol for electronic monitoring for the entire duration of his release provided by JEMTEC Inc. and will enter into an Electronic Monitoring Agreement within 48 hours of his release.
TROTTER J.
RELEASED: March 29, 2016
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MARCIN GOSK
REASONS FOR JUDGMENT
TROTTER J.
RELEASED: March 29, 2016
[^1]: Mr. Gosk is charged with kidnapping (Criminal Code, s. 279(1)(a)), conspiracy to kidnap (s. 465(1)(c)), unlawful confinement (s. 279(2)), aggravated assault (s. 268(2)) and possession of stolen property (s. 354(1)).
[^2]: At the hearing, an order was made under s. 517 of the Criminal Code.
[^3]: I note that, in her evidence, Milena Gosk agreed that the allegations were “troubling” and “very serious.”