Court File and Parties

Citation: R. v. Stojanovski, 2017 ONSC 7194 Court File No.: CR-17-50000262-00BR Date: 2017-12-14 Superior Court of Justice - Ontario

Re: R. v. Darko Stojanovski

Before: Penny J.

Counsel: David Fisher for the Crown Mary Cremer for the Defendant

Heard: November 30 and December 1, 2017

Reasons

Overview

[1] This is a bail review application under s. 520 of the Criminal Code of Canada. The defendant seek an order vacating the detention order of His Worship Justice of the Peace Wilson, made on August 18, 2016, and an order granting his release from custody under s. 515(2)(c) of the Criminal Code.

[2] The grounds for the application are that a proposed new plan of supervision amounts to a significant change in circumstances since the time of the original bail hearing.

Background

[3] Mr. Darko Stojanocvski is charged with attempted murder with a restricted weapon and shooting with intent to endanger life. The Crown’s synopsis describes an angry altercation between the defendant and the victim. The defendant and his brother (who is also charged with similar offences) were both involved. The Stojanovski brothers got in the defendant’s car to leave, but then jumped out of the car in the parking lot. Both opened fire on the victim with handguns. The victim was hit five times. His injuries were serious and appear to have rendered the victim paraplegic. The victim and an independent third-party identified the defendant and his brother as the shooters. This is the direct evidence. There is also a good deal of circumstantial evidence relating to the firearms and the defendant’s efforts to avoid detection.

[4] Justice of the Peace Wilson heard the bail application. Because of the nature of the alleged offences, the onus was on the accused to show why his detention was not justified under s. 515(6) of the Criminal Code.

[5] At the original bail hearing, the accused’s mother was proposed to be a surety, with a commitment to post $40-$50,000 (and possibly more), based on the equity in her condominium. It was proposed that the accused be under conditions of house arrest at his mother’s residence. At the time, the mother worked full time but in her home, so she would have been at home to supervise the defendant essentially all of the time.

[6] The justice of the peace denied bail on the basis of the secondary and tertiary grounds in s. 515(10) of the Criminal Code. He held that the plan was not sufficient to curb concerns about public protection and safety. He also held that public confidence in the administration of justice, with particular focus on the four factors set out in the tertiary ground, was also insufficiently addressed by the proposed supervision plan. As a result, the justice of the peace ordered the defendant’s detention.

Legal Framework

[7] A review under s. 520 of the Criminal Code does not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. This application is not, therefore, a de novo proceeding. The reviewing judge must determine whether it is appropriate to exercise the power of review. Exercising this power is only appropriate in three circumstances:

(1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case;

(2) where the impugned decision contains an error of law; or

(3) where the decision is clearly inappropriate.

[8] The notice of application here is based on a change in circumstances. The change in circumstances is, in fact, the result of new evidence filed by the defendant supporting a different supervision plan. Thus, the requirements for the introduction of new evidence, outlined in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, are engaged.

[9] Palmer establishes four requirements for the introduction of new evidence:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at the trial;

(2) the evidence must be relevant in the sense that it bears upon a material issue;

(3) the evidence must be credible, that is, reasonably capable of belief; and

(4) the evidence must be such that, if believed, it could reasonably be expected to have affected the result at trial.

[10] There are, as a result two possible issues for determination on this application:

(i) the first issue is whether the new plan of supervision represents a material change in circumstances;

(ii) the second issue, if the answer to the first issue is yes, is whether the new evidence establishes, on a balance of probabilities, that the continued detention of the defendant pending trial is not justified under any of the three components of s. 515(10) of the Criminal Code.

Material Change

[11] Given the expedited nature of the interim release process, and since the release hearing takes place at the very start of the criminal proceedings, the reviewing judge must be flexible in applying the four Palmer criteria. The rules of evidence are relaxed in the context of a release hearing.

[12] The defendant did not provide an explanation for why the new components of the proposed supervision plan could not reasonably have been put before the court in August 2016. The Crown argues, therefore, that the first test for the introduction of the new plan of supervision has not been met. Under the relaxed approach to the interpretation of the Palmer requirements required for bail review, I am prepared to accept that, in the circumstances following so quickly upon the defendant’s arrest, it was not reasonably possible for the defendant to propose the supervision plan now before the Court. The Crown concedes that the evidence concerning the new plan is relevant and sufficiently reliable to meet the credibility test. Accordingly, the issue in dispute, which determines whether the proposed plan represents a material change, is the issue of whether the new evidence could reasonably be expected to have brought about a different result if it had been advanced in August 2016.

[13] There are three components of the proposed supervision plan which the defendant argues are different from the supervision plan advanced in August 2016:

(1) Mrs. Stojanovski will post $45,000 of equity in her condo;

(2) the defendant’s cousin, Mrs. Calvo, will post $10,000 of equity in her home and assist in the supervisory duties when Mrs. Stojanovski is unavailable; and

(3) the defendant will wear a radio frequency ankle bracelet monitored by Recovery Science Corporation.

The Sureties

[14] Before the justice of the peace, the defendant’s mother, Mrs. Stojanovski, was prepared to post the entire equity in her condominium. The condominium is located in Etobicoke near the intersection of the QEW and 427. Mrs. Stojanovski’s common-law husband transferred his half interest in their condominium to her as sole owner so she could have access to that equity. Mrs. Stojanovski told the justice of the peace that she would post $40-$50,000, or whatever the court ordered, as security for her son’s bail. It appears there was about $80,000 of equity At the time, Mrs. Stojanovski worked full time but was able to do all of her work from home. She would, therefore, have been present at home supervising the defendant essentially seven days a week, 24 hours a day.

[15] Since then, Mrs. Stojanovski has transferred her common-law husband’s half interest in their condo back to him, so only half of the equity is available to her. The evidence is, however, that if this application is successful, Mrs. Stojanovski’s common-law husband proposes to post the equity associated with his half interest in the condominium as security for a similar application to be brought on behalf of the defendant’s brother.

[16] However, Mrs. Stojanovski is no longer able to do her work from home. She must drive to her office in Brampton on Monday to Friday of each week. She will therefore not be at home supervising the defendant for the better part of every work day; i.e., she will be away from about 9:15 to 6:45 every Monday to Friday.

[17] Ms. Calvo is the defendant’s cousin. She lives in Caledon East. She is married with two young children. She also works full-time in North Toronto and drives to work. She is either on the road or at work about 10.5 hours each working day. It takes about 45 minutes to drive from her work to Mrs. Stojanovski’s residence and well over an hour to drive from from her home in Caledon East to her aunt’s residence.

[18] Both Mrs. Stojanovski and Ms. Calvo say that they will call the defendant at his mother’s home, randomly and periodically, throughout the working day. Ms. Calvo will share supervisory responsibilities with Mrs. Stojanovski when Mrs. Stojanovski is not available.

The Ankle Bracelet

[19] Recovery Science Corporation was formed in November 2009. One of its founders, Mr. Tan, testified during the bail review hearing. Recovery Science operates monitoring programs for various legal processes. This includes bail, conditional sentences, probation, parole, peace bonds, and family law and child protection matters.

[20] In essence, the proposal is that the defendant would wear a radio frequency ankle bracelet which operates within an inclusion zone. The inclusion zone would be configured to roughly conform to the size of Mrs. Stojanovski’s condominium.

[21] The ankle bracelet communicates with a base station located in the residence. The base station in turn communicates with monitoring systems maintained by Recovery Science. If an accused leaves the inclusion zone, an alert is triggered. Alerts are also triggered if the system is unplugged or the bracelet is tampered with. Recovery Science follows certain protocols to avoid false alarms, such as telephone calls to the residence and to the surety following an initial alert, but if satisfactory explanations for the alert are not confirmed, Recovery Science calls the police to report the suspected breach of bail condition.

[22] The Recovery Science process leading up to notification of the police could take anywhere from 5 to 30 minutes depending on the circumstances (the average is about 12 minutes, according to Mr. Tan). How and when the police would respond, of course, is unknown because that would depend upon variables such as availability of the officer in charge, resources, proximity and other police priorities in existence at the time.

[23] Recovery Science has about 80 court-approved monitors outstanding, although all but one of them is GPS based. The difference between the GPS and radio frequency models is that GPS monitoring shows where the accused is on an ongoing basis, whereas the radio frequency model only sends an alert when the inclusion zone is breached. Once the inclusion zone is breached and an alert is sent, the radio frequency monitoring system provides no information about where the accused is.

Analysis

[24] There are three issues of critical importance to the granting of bail: flight risk, protection or safety of the public and public confidence in the administration of justice. In the present circumstances it was and remains the defendant’s onus to show that detention is not justified under any of these grounds.

Risk of Absconding

The Crown argues that the strength of the Crown’s case combined with the likelihood of a lengthy penitentiary sentence if convicted gives rise to a strong incentive to flee.

The defendant argues that there is no history of failing to appear and that all the defendant’s ties are to the Toronto area, where he has lived and worked most of his life.

The justice of the peace did not in his ruling denying bail allude to the primary ground at all. He appears to have concluded, therefore, that the defendant had met the threshold for release under the first ground. It is not clear to me, therefore, how the proposed changes to the plan affected the likely outcome under the first ground. At this stage of the analysis, this is not a de novo hearing. I do not propose, therefore, to consider the first ground any further on the issue of material change.

Protection or Safety of the Public

[25] I am not satisfied the changes regarding the proposed sureties could reasonably have made any difference to the court of first instance in its decision to order the defendant’s detention on the secondary ground.

[26] Although there are now two sureties, not just one, the amount being posted is not materially different from the amount proposed before the justice of the peace.

[27] The new supervision plan is, in fact, a good deal weaker than the original plan with respect to the surety because, under the new plan, the defendant would be without in-person supervision for most of every working day.

[28] I have no doubt that the proposed sureties love the defendant and want to help him in any way they can. But while both sureties felt the defendant would do as they told him to do, it must be remembered that the defendant is 33 years of age. He has been living on his own with his brother, also accused of these offences, for several years. Before his arrest, he was employed full-time. He owns and drives his own car. He was the owner of two handguns. He has been involved, as an adult, in at least one prior incident involving uncontrolled rage, to which he pleaded guilty and received a conditional discharge.

[29] More importantly, both sureties work full time. Ms. Calvo has, in addition, significant other responsibilities at home. The proposed sureties are simply not in a position to supervise the defendant in a way that would ensure the safety and protection of the public. Leaving the defendant to his own devices five days a week is not, in my view, adequate to discharge the Palmer onus of showing that the new surety arrangements would reasonably have made any difference to the justice of the peace.

[30] With respect to the radio frequency ankle bracelet, I must start by reiterating that the defendant faces very serious criminal charges relating to a violent crime, the consequences of which were disastrous for the victim. The victim is now especially vulnerable and the principal Crown witness. It is clear that these circumstances led the justice of the peace to conclude there was a real concern over public protection and safety in this case, either by re-offending or through interference with the administration of justice.

[31] The proposed monitoring does not ensure public protection or safety. All it does is alert Recovery Science and, ultimately, the police, that the defendant has left the designated area of his house arrest. Radio frequency monitoring does not even assist with locating an accused after a breach of the bail conditions. Radio frequency monitoring, in fact, does less than a surety could do. If 24/7 monitoring by a family member was not sufficient to warrant bail, significantly less than 24/7 monitoring by a family member accompanied by a radio frequency ankle bracelet is likewise insufficient.

[32] I agree with Quigley J. in R. v. Obi [2015] ONSC 4444, that significant deficiencies remain in this technology and, when a court determines (as the justice of the peace clearly did in this case) that there is a risk that an accused may be determined to offend despite the consequences, it cannot be assumed that monitoring with active alerts will provide sufficiently timely intervention by the police to prevent it.

[33] To similar effect is the reasoning of Goldstein J. in R. v. Ma [2015] ONSC 7709 where he observed that ankle monitoring does nothing to prevent noncompliance, it only gathers evidence of noncompliance. Unlike a surety, who stands to lose something if the accused does not comply, the ankle bracelet is nothing but a reporting instrument, see also R. v. Bahman, 2007 CanLII 56470 (Ont SC) at para. 23.

[34] The concerns are especially acute in relation to the secondary ground because of the further suggestion that additional firearms were purchased and delivered to the defendant but remain unaccounted for. On the evidence, there are potentially significant time lags for reporting and police response. Thus, by the time the police might be in a position to respond to any alert received from Recovery Science, the damage may well have been done. At best, monitoring provides evidence of the bail violation; it is unhelpful with respect to prevention of the violation or any subsequent offence, R. v. Lalonde, 2017 ONSC 1882.

[35] For these reasons, notwithstanding the able and forceful argument of Ms. Cremer, I am not satisfied the new supervision plan could reasonably have led to a different result before the justice of the peace with respect to the need for public protection or safety. On this basis, therefore, the application is dismissed.

[36] While this conclusion alone is sufficient to dispose of the application, I will also deal with the arguments on the tertiary ground.

Public Confidence in the Administration of Justice

[37] It is clear since R. v. Hall 2002 SCC 64 and R. v. St. Cloud 2015 SCC 27, 2015 2 SCR 328 that while the same facts may be relevant to all three grounds, the tertiary ground represents a conceptually separate and distinct basis for detention pending trial. It is not a “residual” ground or one which is only justified in the “rare or exceptional” case.

[38] At the same time, the four enumerated factors, even if present, are not exhaustive; the Court must consider all of the circumstances of the case, paying particular attention to the four listed circumstances. It is the combined effect of all of the circumstances which determines whether detention is or is not justified. The Court must adopt the perspective of the “public,” that is, a reasonable person familiar with basic rules of law, such as the presumption of innocence and the right to liberty, but who is not a legal expert.

[39] Here, the Crown’s case, on its face, is strong. This is conceded. The offence is very grave indeed, especially given that it was only a matter of random chance that the victim was not killed. Obviously, the use of firearms in a public place adds to the gravity of the offence and to the risk to public safety generally, altogether apart from injury intended or done to the particular victim. In this regard, I also note the Crown’s allegation that additional firearms were purchased and apparently received by the defendant but remain unaccounted for. Finally, if convicted, the defendant will likely be liable to a lengthy term of imprisonment.

[40] An analysis of the circumstances relating to the tertiary ground similar to the one relating to public protection and safety leads me to the conclusion that the additional elements of the supervision plan could not reasonably have resulted in a different outcome before the justice of the peace.

[41] For this reason as well, I conclude that the defendant has not met the test of changed circumstance to warrant a reconsideration of the prior bail order.

[42] However, if I am wrong in these conclusions, I will also address the second issue.

Has the Defendant Shown Detention Is Not Justified?

[43] Had I concluded that the new plan of supervision is a material change, it would have been necessary to conduct what is, in essence, a de novo hearing on the basis of the new plan. As was the case before the justice of the peace, the onus would have been on the defendant, in the circumstances, under s. 515(6) to show cause, on a balance of probabilities, why detention is not justified.

[44] Had I been required to do so, I may well have concluded, on the available evidence, that the risk of absconding, standing alone, was not sufficient to warrant detention provided that the defendant be subject to GPS, rather than radio frequency, monitoring. The combined effect of the sureties, the GPS model ankle bracelet (which would disclose not only an apparent breach of bail conditions but the defendant’s whereabouts following the breach), the defendant’s connections to Toronto, the lack of any evidence of a history of breaching court orders or failing to appear (and the positive evidence that the defendant “earned” his conditional discharge 13 years ago by, it must be assumed, complying with the terms of his probation), would have satisfied me on a balance of probabilities that the primary ground under s. 515(10) was not a reason for detention.

[45] However, for the reasons articulated earlier, I would have concluded that public protection and safety concerns had not been addressed sufficiently to conclude, on a balance of probabilities, that detention is not justified. I would particularly comment on the fact that, while an ankle bracelet might well provide sufficient comfort on the issue of flight risk, its frailties, as discussed above (regardless of whether radio frequency or GPS), do not provide the same level of comfort on the issue of public safety in all the circumstances of this case.

[46] I would also have concluded that a reasonable member of the public, being aware of all the circumstances (and particularly those relating to the four enumerated circumstances under the tertiary ground) would be alarmed by the prospect of the defendant being left, albeit under house arrest, effectively on his own, without supervision, for most of every work day until his trial. Such circumstances would cause a reasonable person to lose confidence in the administration of justice.

Conclusion

[47] For these reasons, the application to vacate the order of the justice of the peace and to order the release of the defendant under the conditions proposed is dismissed.

Penny J.

Date: December 14, 2017