COURT FILE NO.: 4791/20BR

DATE: 2020/12/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Robert Mahler, for the Respondent

Respondent

• and -

Evgeny Zhelinskiy

Leora R. Shemesh, for the Applicant

Applicant

HEARD: December 14, 2020

The Honourable Justice D.L. Edwards

REASONS FOR DECISION

1Evgency Zhelinskiy brings this application for an order granting the Applicant’s release from custody.

2The Crown resists the application.

Background

3On September 9, 2020 I heard a bail review application and denied the same. The background facts and a summary of the law are set forth in that decision and I will not repeat the same.

4Rather I will comment only with respect to the changes since then and analyze the same as against the appropriate legal principles.

5Since the bail review before me, the Crown has withdrawn one drug offence and stayed the balance. The DNA analysis of samples found on two of the weapons has not yet been received. The Applicant has been in custody since March 2019.

6The Applicant also asserts that he will bring a Charter application with respect to the search warrant based inter alia upon the lack of veracity of the affiant.

Parties’ Positions

7The Applicant asserts that the Crown has failed to establish that his continued detention is justified.

8The Crown agrees that there has been a change in circumstances but submits that the Crown’s strength regarding the weapon offences remain strong, especially the one unloaded gun that was found in the walk-in closet of what has been identified as the accused bedroom. He submits that the continued detention of the accused is justified on the secondary and tertiary grounds.

The Law

9As the drug offences have either been withdrawn or stayed, the onus now rests with the Crown to satisfy me that the continued detention of the Applicant is justified.

10Detention can be justified where:

a. The accused is a flight risk;

b. The safety of the public is at risk if the accused is released; and

c. Detention is necessary to maintain confidence in the administration of justice: s.515(10) Criminal Code.

11The Crown agrees that the primary ground is not applicable here, but he does assert that continued detention is justified based upon the secondary and tertiary ground.

12Regarding the secondary ground, the Ontario Court of Appeal in R. v. Manasseri states that one must consider all of the circumstances, including any substantial likelihood, but not mere possibility, that the accused will if released, commit an offence, and that the Crown must demonstrate that his retention is necessary for the protection and safety of the public.

13Several factors that may be considered when assessing the risk of reoffending while on release are set out. They include the nature of the offence, the relevant circumstances of the offence, the likelihood of conviction, the degree of participation of the accused, the relationship between the accusing and the victim, the accused’s profile, the accused’s conduct prior to the commission of the alleged offence, and the danger which the interim release of the accused represents to the community. R. v. Abdel-Gadir, [2013] OJ No.4495, at para. 35

14There are five considerations in assessing the tertiary grounds:

a. First, one must consider all of the grounds, and in particular the four factors set out in s.515(10)(c).

b. Second, as in the case of the secondary ground, the use of the word “including” means that the listed factors are not dispositive.

c. Third, the judge must make his/her appraisal objectively through the lens of the four factors described in s.515(10)(c).

d. Fourth, detention can only be justified on the tertiary ground, if the judge after considering the listed factors and all related circumstances is satisfied that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice.

e. Finally, the term public as used in that section refers to reasonable members of the public who are properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. Manasseri supra

Analysis

Material Change in Circumstances

15With the withdrawal and staying of the drug offence charges, I am satisfied that there has been material change in the Crown’s case.

Review de novo

16As I have already noted, unlike the previous detention review this is not a reverse onus situation. It is the Crown who must show why the Applicant’s continued detention is justified.

17The Crown did not argue that there is sufficient evidence to justify detention on the primary ground and I agree.

18With respect to the secondary ground, as noted in Manasseri, one must consider all of the circumstances, including any substantial likelihood, but not mere possibility, that the accused will if released, commit an offence, and that where the onus is on the accused, he must demonstrate that his detention is not necessary for the protection and safety of the public.

19Other factors include the nature of the offence, the relevant circumstances of the offence, the likelihood of conviction, the degree of participation of the accused, the relationship between the accusing and the victim, the accused’s profile, the accused’s conduct prior to the commission of the alleged offence, and the danger which the interim release of the accuse represents to the community.

20The Applicant had no prior convictions at the time of the arrest.

21The Applicant has never been on bail before and therefore he has no record of honouring or breaching terms of release.

22At the time of the charges the Applicant was 31 years old, single, unemployed, and living at his parents’ home at the time of his arrest with no observed source of income.

23With the withdrawal of the drug offences, the Crown’s case is restricted to the weapon offences. However, the Applicant is accused of possessing prohibited weapons, serious offences which put the community at risk.

24One of the guns was discovered in a first level bedroom under a naked man who was lying under the bed. The second gun was found under a throw blanket in the living area. The third gun was found hidden upstairs in the walk-in closet of a bedroom in a house which, according to the evidence before me, was the Applicant’s bedroom. It was unloaded but ammunition was in the bag with the gun.

25Having considered all of the foregoing, I find that there is not a substantial likelihood that if he was released, he would commit an offence. The Crown has not satisfied me that his continued detention is required for the protection and safety of the community.

26Turning to the tertiary ground: Is the Applicant’s continued detention necessary to maintain confidence in the administration of justice?

27The Crown’s case regarding the gun found upstairs in the Applicant’s bedroom is strong. The offence is serious. The offence occurred while conducting a party in his parents’ home with persons of criminal background and in the presence of cocaine and three weapons.

28The DNA analysis for the other two guns has not yet come back. In the absence of that evidence, in examining all of the current evidence, the charges with respect to those two charges is not overly strong. The Crown’s case regarding the unloaded weapon found in the walk-in closet of the Applicant’s bedroom is strong.

29If found guilty of possessing loaded guns the Applicant would face a lengthy term of imprisonment.

30If found guilty of possessing the unloaded gun with ammunition close by, his term of imprisonment would be significantly less.

31He has been in custody since March 2019 and his likely trial date will not be until October 2021. There is a risk that even if he should be guilty of possessing the unloaded gun, and not the other weapons charges, his pre-trial custody might exceed any sentence.

32After considering all of these factors, I find that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice.

33Can therefore a release plan alleviate those concerns?

Proposed Plan

34The proposal is that the Applicant would reside at his parents’ home and his mother would be his surety.

35The surety agrees to pledge the equity in her home.

36The Applicant agrees to be bound by the terms of an GSP monitoring program.

37During this hearing I had the opportunity to hear the testimony of Ms. Yulia Zhelinskaya. I was impressed with her testimony. I agree that the passage of time has strengthened her resolve to enforce the terms of any release. I have no question that should the Applicant fail to follow her instructions and the terms of release, she would report those breaches to the police.

38No adult can force another adult to honour terms of a release plan. However, an adult can report any such breach to the police, and I find that Ms. Zhelinskaya would do so.

39The Applicant proposes house arrest at 4442 Cinnamon Grove, Niagara Falls under the direct supervision of his mother, Ms. Zhelinskaya. He would only leave the house for pre-approved medical appointments or court hearings, unless of health emergency.

40He agrees to GPS ankle bracelet monitoring.

41He would surrender his passport to the police.

42He would have a non-communication order with respect to his co-accuseds.

43He would report to police in such manner and at such times as the police may from time to time determine.

44I find that this plan does overcome my finding that the Applicant should be detained on the tertiary ground.

45For those reasons, I grant the Application.

46Summary

47The Applicant shall be released upon the following terms:

a. He shall reside at 4442 Cinnamon Grove, Niagara Falls under the direct supervision of his mother, Ms. Zhelinskaya;

b. Yulia Zhelinskaya shall act as his surety and shall pledge her equity in the home at 4442 Cinnamon Grove, Niagara Falls;

c. He would only leave the house for pre-approved medical appointments or court attendances, unless of health emergency;

d. He agrees to GPS ankle bracelet monitoring, to be operational within 48 hours of his release;

e. He shall surrender his passport and Nexus card to the police;

f. He shall have a non-communication order with respect to his co-accuseds; and

g. He shall report to police in such manner and at such times as the police may from time to time determine.