Court File and Parties
COURT FILE NO.: CR-20-250-00BR DATE: 2020 12 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent Robin Prihar for the Crown
- and –
ANDRY KORKIS Applicant Andrea VanderHeyden for the Applicant defendant
HEARD: December 18, 2020
PUBLICATION BAN: Publication IS banNED PURSUANT TO S. 517(1) AND 520(9) OF THE CRIMINAL CODE with respect to the evidence of the ALLEGED offence and ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT and details of HIS PERSONAL CIRCUMSTANCES
REASONS ON BAIL REVIEW APPLICATION
D.E HARRIS J.
[1] The Applicant Andry Korkis applies under Section 520 of the Criminal Code R.S.C. 1985, c. C-46 for review of his detention order. He was originally detained on both secondary and tertiary grounds at his reverse onus bail hearing on January 3, 2020 by Justice of the Peace D’Sousa. A bail review to the Superior Court was heard in late May, 2020 and dismissed on both grounds by reasons delivered on June 4, 2020.
THE CHARGES
[2] The Applicant, now 21 years old, is currently facing three sets of charges:
Set 1: July 4, 2018: Mischief over $5,000 (s. 430(3)) x6 Arson causing damage to property (s. 434) x3 Possession of incendiary material (s. 436.1) x5 Possession of property obtained by crime (s. 354(1)(a)) Attempt to commit an indictable offence (s. 463(a)) x3
Set 2: August 28, 2019: Breach of recognizance (s. 145(3))
Set 3: December 20, 2019: Robbery using a firearm (s. 344) Possession of loaded restricted firearm without license (s. 95(1)) Possession of firearm without a license (s. 92(1)) Breach of probation (s. 733.1(1)) x2
[3] The first set of charges is based on allegations that the Applicant and others smashed the windows of three cars and then set two of them on fire. There was an attempt to set the third one on fire as well. The Applicant was released on July 4, 2018 by way of a promise to appear. The second set of charges, a fail to comply, is based on his being out of his residence without his surety contrary to a bail order unrelated to the present charges. Again, he was released on a promise to appear.
[4] The real issue is the third set of charges. On December 20, 2019, the Applicant made an arrangement to purchase a dog from an individual through Kijiji. He arrived as agreed upon and got into the complainant’s car. He was given the dog. He then pulled out and pointed a loaded handgun at the complainant. A struggle ensued. The Applicant left with the dog. As he was running away, a gunshot was heard. The Applicant fell to the ground. He had accidentally shot himself in the right tibia. He was arrested. The bullet was later matched to the firearm seized by the police at the scene. A subsequent search of his home turned up three .45 calibre rounds and one 9 mm. round. He is charged with robbery with a firearm and associated charges.
[5] The Applicant has three conditional discharges but no convictions on his record. They are: fail to comply, 2018; possession of property under $5000, 2019; and assault, 2019. His work history is sporadic. He did not finish high school.
HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?
[6] Counsel for the Applicant relies on three changes to argue for a full review: 1. The trial in this matter will be significantly delayed; 2. There was evidence from a physiotherapist at the Toronto South Detention Centre (TSDC) where the Applicant is housed suggesting that if he does not get more physiotherapy soon, the self-inflicted gunshot wound injury will not properly heal and he may be permanently disabled; and 3. The new sureties and the plan are a distinct improvement on the sureties proposed at the original bail hearing and on the review.
[7] In my opinion, the two factors of trial delay and the new proposed plan must lead to a full de novo review. With respect to trial delay, at the time of the last review, the Applicant had been in custody for 5 months. He has now been in custody for 7 months more, a year in total. Because he has new counsel who is unavailable for the preliminary hearing dates set for January 2021, new dates will have to be set. The timing of the eventual trial date is quite uncertain but there is a reasonable prospect that it might not be for another year or more. The COVID pandemic has caused a significant backlog. With the normal pretrial custody credit, not to mention Duncan credit for the lockdowns that have pervaded the correctional system, this two year delay is equivalent to three years.
[8] The mandatory minimum for robbery with a firearm under Section 344(1) of the Code is 5 years, although Ms. VanderHeyden intends to challenge it on constitutional grounds: see R. v. Hilbach 2020 ABCA 332 (Alta. C.A.). The Applicant is probably facing a sentence in this general range whether the mandatory minimum stands or falls. Nonetheless, serving “dead time” tantamount to three years before being found guilty and while retaining the presumption of innocence, raises obvious concerns.
[9] In reference to the new plan, the Applicant will be living, as suggested in the previous bail proceedings, within the family home. While his mother and father who live in the home were proposed as sureties in the past, now his younger sister (Andrena Korkis) and his grandmother (Madlen Sheba) are offered. They too live in the home. Both testified on this hearing. Ms. Sheba testified that she is much stricter than her son and daughter-in-law. The Applicant will listen to her. She thinks he can be trusted to do so. The Applicant’s sister, 19 years old, testified to the same effect. She is a student at Seneca College studying early childhood education.
[10] The evidence of the mother and father at the original bail hearing went badly for the Applicant. Both testified that they did not trust the Applicant. The Justice of the Peace concluded that although they were well-intentioned, there was insufficient confidence that the Applicant would co-operate. Upon the review, the judge reiterated that the parents believed the Applicant to be untrustworthy, hard to govern at times and were concerned that the Applicant does not follow the rules.
[11] Ultimately, however, on the secondary grounds, the review judge said,
69 …The question is not whether secondary ground concerns exist, which they do given the nature of the offence, but whether they can be adequately addressed by the proposed release plan having regard to all of the circumstances.
[70] Based on the evidence as a whole, I conclude that there is a substantial risk that Mr. Korkis would commit a criminal offence that endangers public safety if released pending trial. The public safety concerns are therefore sufficient to warrant his continued detention.
[12] The Justice of the Peace’s reasons could be interpreted to mean that the Applicant was unreleasable. If that was her conclusion, with respect, I view it as “clearly inappropriate” or, alternatively, as an error of law: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.) at para. 139. Accused who are unreleasable under our bail system will be few and far between. The Applicant clearly does not fall into that category.
[13] In any case, authority establishes that this review is not of the original bail decision, but of the review decision: R. v. Saracino (1989), 47 C.C.C. (3d) 185 (Ont. H.C.) at pp.190-191; Justice G. Trotter, “The Law of Bail in Canada”, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at Section 8.4 (b) and (c). Based on her reasons, the review judge held that the Applicant was releasable but that the secondary grounds had not been sufficiently placated by the sureties or the plan. It was inherent to the secondary ground detention that the sureties and the plan were not commensurate to the risk posed by the Applicant. In context, that was a reasonable conclusion.
[14] However, in my view, the new sureties have now altered that position. Ms. Prihar put directly to Ms. Korkis, the sister, that her parents had testified that the Applicant was untrustworthy. Wasn’t that true? But Ms. Korkis stood her ground. She agreed that the Applicant did not always listen to her parents. But she said that the Applicant had always listened to her and to her grandmother, the other proposed surety. I thought Ms. Korkis was a conscientious witness. A hallmark of truth telling is admitting to realities which do not reflect well on the party calling the witness. Ms. Korkis was forthright and did not see the situation through rose-coloured spectacles.
[15] Ms. Prihar argued that if the Applicant was untrustworthy in the eyes of his parents, Andrena’s contrary evidence that he was trustworthy was not credible or reliable. Although this concern is understandable, it is not unusual that a young man like the Applicant would have a problematic relationship with his parents but be closer to and be more likely to listen to a sibling.
[16] Ms. Korkis bridged the “paradox of bail”: R. v. Henry, 2020 ONSC 4196 (Ont. S.C.) at para. 37. Despite being very close to the Applicant, Ms. Korkis, because of the importance of the surety pledge money to her and her dedication to the role, I am convinced that she will not hesitate to scrupulously perform her obligations and notify the authorities of bail violations. She is no pushover and will be vigilant.
[17] These two circumstances—the trial delay and new sureties--require a full review of the Applicant’s detention. Both of these changes go to the crux of the review decision to detain and are therefore material: St. Cloud at para. 137. Justice Doherty has recently held,
52 … Circumstances relevant to bail are dynamic and can change significantly as a case progresses and time passes: see R. v. Zora, 2020 SCC 14 at para. 92. Bail orders are inherently more interim in nature than final. The integrity of the criminal justice process would suffer if the finality principle was afforded the same weight in bail reviews as it is given on appeals from convictions.
53 St. Cloud adopts a flexible, more receptive approach to fresh evidence on bail reviews under s. 520 and s. 521. That approach reflects the inherently interim nature of bail decisions and accommodates Charter principles underlying the presumption of innocence and access to reasonable bail. On s. 520 and s. 521 reviews, the court may receive new evidence not available at the bail hearing if the evidence is relevant and potentially material to the question of bail…
R v Jaser, [2020] O.J. No. 4423, 2020 ONCA 606 (Ont. C.A.)
THE SECONDARY GROUND
[18] In my view, the Applicant has discharged his onus on the secondary ground. There are several troubling aspects to the robbery allegations. The offence and its motivations are difficult to understand. The use of a loaded handgun to commit a robbery with the object of the theft being a dog is nothing short of bizarre. Using extreme force in the service of this frivolous purpose demonstrates that the Applicant was at the time unstable and out of control. Like the mischief and arson offences alleging the burning of random cars, there is a wild and irrational aspect to the offence.
[19] Ms. Prihar rightly emphasizes the mounting gun violence in Peel Region. A manager of analytics for the Peel Regional Police states in an affidavit that the general trend since 2014 is steadily upwards for shootings, possession of firearm charges and homicides committed with the use of firearms. Killing someone with a gun is as easy and sometimes, in the shooter’s mind, about as consequential as drinking a cup of coffee: R. v. Chizanga and Meredith, 2020 ONSC 4647, 165 W.C.B. (2d) 227 (Ont. S.C.) at paras. 5-39.
[20] This case illustrates another angle of the problem. Guns can be lethal not only to others but also to those who wield them. The Applicant’s accidental self-infliction of a gun shot would be almost comical if it had not resulted in a life threatening wound and life-long damage. In this case there is the double absurdity of robbing a person at gunpoint of a small domesticated animal followed by his self-apprehension by the accidental discharge of his own firearm into the right leg.
[21] But against this, the Applicant has no previous criminal convictions of any kind, including for violence against the person. Moreover, the irony of the Applicant’s gun shot wound is that through his own maladroitness, he has rendered himself a greatly reduced threat to the public. Although I reject the argument made by Ms. VanderHeyden that the Applicant cannot receive adequate physiotherapy in the TSDC and this could be catastrophic to him long-term, the evidence of the jail physiotherapist Joti Mall and the TSDC health manager Susan Robinson on this issue was helpful in understanding the Applicant’s physical infirmities. Due to the gunshot wound, he was confined to a wheelchair until July of this year. He then graduated to a walker and now is using a cane. He has difficulty walking without the cane and is incapable of running.
[22] Lastly, trial delays can transcend the secondary ground. A judge must look to the anticipated time of trial, as difficult as that may be in the present circumstances. Here, the parties agreed that as best as can be estimated in the midst of a host of contingencies, trial will be somewhere in the area of a year away. The Chief Justice said in R. v. Myers, 2019 SCC 18, (2019), 375 C.C.C. (3d) 293 at para. 53,
In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.
[23] Finally, the sureties and the rigorous plan assuage the remaining doubts on the secondary ground. The sureties will, I am convinced, properly enforce the bail. The bail is a true house arrest with no exception for work or school. The Applicant will be permitted to go out of the house with his sureties only, barring a medical emergency. He will not be allowed a cell phone or any visitors. There are security cameras at the home which will provide an extra level of comfort.
THE TERTIARY GROUND
[24] Mr. Korkis is one of the first, if not the first, applicant for bail in this province who has tested positive for COVID-19. He is a victim of the recent outbreak of COVID at the TSDC. On December 11, 2020, there were 25 cases; as of the date of this hearing one week later, there were 58 cases. Ms. Robinson said that the uptick in positive cases was a result of increased testing. A rigorous statistical analysis would be required to satisfactorily establish that as fact. But whatever the case, 58 cases in a closed system environment where people are forcibly congregated and confined is a matter of immediate and pressing concern. Social distancing in a jail is a major challenge: R. v. Kazman, 2020 ONCA 251, 386 C.C.C. (3d) 424 (Ont. C.A.) at paras. 17-18.
[25] The evidence from Ms. Robinson is that the Applicant is currently asymptomatic. She testified that he is better off in jail then anywhere else. There is constant medical care available. That might be true. However, from the public point of view, an infected individual in the environment of a jail is a substantial threat to others, including staff and inmates. The affidavit of Dr. Orkin referred to in many of the judgments on this topic stresses that “reducing the prison population benefits not only inmates but correctional staff and the public as a whole.” R. v. S.A.P., 2020 ONSC 2946 (Ont. S.C.) at paras. 84-85.
[26] Justice Doherty said in Jaser,
103 The presence of COVID-19 is a factor to be balanced in the tertiary ground analysis, especially where there is a viable alternative to actual incarceration, which can go a long way to achieving de facto incarceration outside of the correctional institution. I must, however, reject the contention that post-COVID-19 detention on the tertiary ground will “rarely be justified”. Like all other factors in the tertiary ground balancing, the significance of the pandemic depends on the individual case and the evidence provided to the court. On the evidence I have, COVID-19 concerns are relevant in the tertiary ground assessment. They are far from determinative.
[27] Here, house arrest and quarantine are viable alternatives to incarceration. A reasonable and informed member of the public would see the outbreak of COVID in the TSDC to be a significant factor militating towards the Applicant’s release and satisfaction of his onus on the tertiary ground. While the risk of infection is now a reality for him, the maintenance of safe correctional facilities for inmates and staff is a vital and urgent objective: Kazman, para. 17. Also see R. v. Rajan, 2020 ONSC 2118, [2020] O.J. No. 1437 (Ont.S.C.) at paras. 39 and 54.
[28] In my view, the other factors pertinent to the tertiary ground do not collectively mount a persuasive case for denying bail. I do agree that in reference to the statutory factors in Section 515(10)(c) of the Criminal Code, the case against the Applicant on the robbery and firearms charges is very strong. The offences are unquestionably serious. A firearm was used. The likely sentence may be somewhat lower than the five-year mandatory minimum if the Applicant is successful in the constitutional challenge. Four years is not out of the question.
[29] However, going beyond the statutory factors, trial delay is a recognized residual factor: St. Cloud at para. 71, Jaser at para. 98; R. v. Hope, 2016 ONCA 648 (Ont. C.A.) at paras. 28-29. A potentially 4 year term of incarceration must be viewed in the context of the prospect of what amounts to 3 years of custody served at the pre-trial stage if the Applicant is not granted bail. The Chief Justice emphasized the effect of delay on the tertiary ground in Myers,
53… In St-Cloud, the Court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71. In this sense, the analysis is not only retrospective, but also forward-looking. For example, let us consider a scenario in which an individual is detained on the basis of s. 515(10)(c), and at the time of the first detention order his trial is only two months away. If the trial date is then rescheduled for a date two years later and remains many months away at the time of s. 525 hearing, the continued detention of the accused may no longer be proportionate, or necessary, for the purposes of this third ground.
[30] The prospect of serving pre-trial custody which approaches the appropriate sentence for the Applicant and his alleged crimes is a critical factor tending to demonstrate that the public would not lose confidence in the justice system if the Applicant is released. The opposite is true. Looking at the non-statutory factors besides delay, a reasonable member of the public would take into account the Applicant’s youth--21 years old--and lack of previous convictions. They would also consider the two other factors contemplated above under the secondary ground. The plan and the sureties provide real comfort that the Applicant will abide by a bail order. Furthermore, he is physically disabled and is a much-reduced threat to the public for that reason. The public would not see the risk of further serious offences committed by the Applicant as requiring tertiary ground detention.
[31] For these reasons, in my view the Applicant has satisfied both the tertiary ground and the secondary ground. Bail is granted on the following terms:
The Applicant will be released on a surety bail, no deposit, with the sureties and amounts as follows:
a. Andrena Korkis - $3,000 b. Madlen Sheba - $2,000
The conditions will be:
I. Reside at 142 Thorndale Road, Brampton, Ontario; II. Remain within the boundaries of the property except: i. In the direct and immediate presence of one of his sureties; ii. For medical emergencies involving the Applicant or a member of his immediate family. III. Do not have any visitors; IV. Do not possess a cellphone, and do not use a cellphone unless under the direct supervision of a surety; V. Present yourself at the door of the residence as required by police; VI. Do not possess any weapons as defined by the Criminal Code; VII. Do not communicate directly or indirectly with: i. Katlin Cunha ii. Lily Valeiro iii. Faatima Murad iv. Kulwant Deol v. Navjot Deol vi. Damanjot Deol vii. Muhammad Bilal viii. Abdallah Muhammad ix. Lexia Davis x. Sukhdeep Gill xi. Mannat Gill xii. Balwinder Gill xiii. Harshveer Gill VIII. Do not attend: 42 Birch Tree Trail, Brampton 22 Birch Lake Court, Brampton 7130 Healey Road, Brampton 75 Skylar Circle, Brampton IX. Do not contact or communicate directly or indirectly, by any physical, electronic, or other means, with Adan Ayub, except in the presence of legal counsel for the purpose of preparing a defence. X. Attend court as required.
[32] I have deleted the suggested condition of keep the peace and be of good behaviour in accord with the Supreme Court judgment in R. v. Zora, 2020 SCC 14 (S.C.C.) at paras. 94-95. This condition is contrary to the principle of reasonableness and restraint in bail. The condition of keeping the peace and be of good behaviour could criminalize speeding, for example, and has no relationship to the three grounds for bail. The additional proposed condition of being required to follow the rules of the home is flawed for similar reasons. Justice Martin said at para. 95,
Imposing a condition that delegates the creation of bail rules to a surety or anyone else bypasses the judicial official’s obligation to uphold the principles of restraint and review and assess whether the rules of the house truly address any of the risks posed by the accused.
[33] If the sureties are dissatisfied with the Applicant’s performance on bail, they always have the absolute right to render the Applicant under Section 766 or 767 of the Criminal Code.