COURT FILE NO.: CTR-21-56-00BR DATE: 20210224 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Applicant AND: Daniel Dubajic, Respondent

BEFORE: Nishikawa J.

COUNSEL: Kerry Benzaiken and Jennifer Lynch, for the Applicant Mitchell Worsoff and Jordan Silver, for the Respondent, Daniel Dubajic

HEARD: February 12, 2021, by teleconference

Publication Ban

RESTRICTION ON PUBLICATION: Information contained herein is subject to a publication ban pursuant to s. 517 of the Criminal Code. The ban does not apply to publication of these reasons in full in law reports nor to a discussion of the underlying legal principles in other publications without reference to the particulars of the charges or personal details in relation to an accused person.

Endorsement

Overview and Background

[1] The Crown brings this application under s. 521 of the Criminal Code for an order vacating the release order made by Justice of the Peace Finn on January 21, 2021 (the “Order”) and for an order requiring that the Respondent, Daniel Dubajic, be detained in custody pending his trial on the charges.

[2] In support of the application, the Crown submits that in granting the Order, the Justice of the Peace made certain errors of law, as further detailed below.

The Allegations

[3] On November 17, 2020, Toronto police executed a search warrant at Mr. Dubajic’s apartment in Toronto. Mr. Dubajic was alone in the living room of the apartment at the time.

[4] In the apartment, police found the following quantities of firearms and drugs:

• 106 kilograms of cocaine;
• 5 kilograms of fentanyl;
• 61 kilograms of methamphetamine;
• 9 kilograms of MDMA;
• 57 handguns
• 8 long guns;
• 7 prohibited devices; and
• More than 15,000 rounds of ammunition.

[5] On the same day, Mr. Dubajic was charged with the following offences:

• 4 counts of possession for the purpose of trafficking (cocaine, fentanyl, methamphetamine, and MDMA);
• 53 counts of possession of an unloaded regulated firearm;
• 6 counts of possession of a loaded regulated firearm;
• 6 counts of unauthorized possession of a firearm;
• 7 counts of possession of a prohibited device; and
• 2 counts of possession of firearms for the purposes of trafficking.

[6] The cocaine was analyzed, revealing that it ranged in purity from 88 to 93 percent.

[7] The apartment where the search warrant was executed had a kitchen, a living room, an office, and two bedrooms. One bedroom was fully furnished, with a bed, several dressers, and a white armoire. The second bedroom had a sign that reads “Vandelay Industries” on the door. That bedroom was unfurnished, except for a large brown armoire and an air purifier plugged into the wall. The firearms and most of the drugs were located in the second bedroom.

[8] Mr. Dubajic is 46 years old and has no criminal record. Prior to his arrest, he was self-employed as a painter and a holistic healer. He has lived in the apartment for approximately 14-20 years and appears to be the sole occupant of the apartment.

The Show Cause Hearing

[9] At the bail hearing on January 11, 2021, the Justice of the Peace granted Mr. Dubajic’s release on a recognizance of bail of $50,000. The Justice of the Peace found that his detention was not justified on the primary, secondary or tertiary grounds.

[10] The Justice of the Peace acknowledged that a significant quantity of drugs and firearms were seized from Mr. Dubajic’s apartment, but found that there were many triable issues, including whether Mr. Dubajic had knowledge and control of the drugs and firearms. The Justice of the Peace was satisfied with the release plan put forward for Mr. Dubajic and his sureties.

[11] Mr. Dubajic was placed under the direct and constant supervision of two sureties, his younger brother, Mirko Dubajic (“Mirko”), and his friend of 30 years, Rodrigo Fuentes. Mr. Dubajic is required to live with Mirko, who shares a two-bedroom apartment with their mother. Mirko is employed as a sales manager for a technological company and is currently working from home. Mr. Fuentes is required to supervise Mr. Dubajic in the event that Mirko is not available. Mr. Fuentes works for a roofing company but because of the pandemic and weather conditions, he is not likely to be working until April 2021. Mr. Dubajic is prohibited from using a cell phone or computer except under the direct supervision of one of his sureties.

Issues

[12] The issues raised in this application are as follows:

(a) Did the Justice of the Peace err in law in granting Mr. Dubajic’s release, such that this court should exercise its discretion to review the Order? (b) If the Justice of the Peace erred, does a de novo review of the applicable grounds lead to a finding that Mr. Dubajic ought to be detained?

Analysis

The Principles Applicable to a Bail Review

[13] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada held that a reviewing court does not have open-ended discretion to review the bail decision made by the lower court. The court cannot interfere with the initial decision simply because it would have weighed the relevant factors differently: R. v. St-Cloud, 2015 SCC 27, at paras. 120-21.

[14] In respect of the detention or release of an accused, a reviewing court must first determine if it is appropriate to exercise its powers of review. There are three bases for a higher court to exercise its discretion to review a lower court’s order:

(i) where the lower court has erred in law; (ii) where the lower court’s decision was clearly inappropriate; and/or (iii) where new evidence is submitted to show a material and relevant change in the circumstances of the case.

St-Cloud, at para. 121.

Did the Justice of the Peace Err?

[15] The Justice of the Peace properly stated that because of the offences with which Mr. Dubajic is charged, he bore the onus of demonstrating that his detention was not justified on the primary, secondary or tertiary grounds: s. 515(6)(d) of the Criminal Code.

[16] The Crown takes the position that the Justice of the Peace erred in finding that Mr. Dubajic’s detention was not justified under the primary, secondary or tertiary ground. The Crown submits that this court ought to exercise its discretion to review the Order because the Justice of the Peace committed the following errors of law:

(i) Misapprehending the seriousness of offences, the strength of Crown’s case, and the length of sentence to be imposed in event of conviction; (ii) Misapprehending impact of her decision on public confidence in the administration of justice; (iii) Failing to address the likelihood that Mr. Dubajic is part of a sophisticated and well-funded criminal organization; (iv) Failing to address the protection or safety of the public; (v) Failing to address the imbalance between the sums pledged by the sureties and the value of the contraband seized, and its impact on the secondary grounds; (vi) Placing undue emphasis on the sureties’ trust in Mr. Dubajic; and (vii) Discounting evidence that Mr. Dubajic has substantial connections to Serbia and therefore poses a flight risk.

[17] The Crown further submits that the Order was clearly inappropriate because the Justice of the Peace gave excessive weight to some factors and insufficient weight to others.

[18] The defence submits that this court ought not to review the decision anew because the Justice of the Peace carefully scrutinized the evidence and properly considered all of the relevant factors.

[19] In my view, the Justice of the Peace committed errors of law in her assessment of the secondary and tertiary grounds, as further discussed below. In addition, the decision to release Mr. Dubajic was clearly inappropriate because she gave excessive weight to certain factors and little or no weight to others.

The Tertiary Ground

[20] The Crown’s submissions focused on the tertiary ground under s. 515(10)(c) of the Criminal Code. I will thus begin with the tertiary ground.

[21] The tertiary ground is concerned with public confidence in the administration of justice. Paragraph 515(10)(c) requires the court to consider all of the circumstances and, in particular, the four listed criteria in order to determine if the detention of the defendant is necessary to maintain confidence in the administration of justice. The four criteria are:

(i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[22] It is important to bear in mind in assessing the tertiary ground that the defendant is presumed innocent. Further, even if all four of the criteria are met, the court must consider all of the circumstances, including the proposed release plan: St-Cloud, at paras. 37-88. Where there are tertiary ground concerns, the terms of a proposed release plan, if sufficiently strict, may be sufficient to address those concerns. In other words, depending on all of the circumstances, the confidence in the administration of justice of a reasonable and well-informed member of the public may not be diminished even where the Crown makes a strong showing on the four St-Cloud factors, if a defendant is released on a restrictive bail plan: R. v. Dang, 2015 ONSC 4254.

[23] The reasonable and well-informed member of the public, about whose confidence in the administration of justice s. 515(10)(c) is concerned, is familiar with the basics of the rule of law, and the fundamental values of our criminal law. These include the presumption of innocence, the right to liberty, and the rights guaranteed by the Charter: St-Cloud, at paras. 72-87.

[24] Because the tertiary ground is a distinct ground for detention (St-Cloud, at para. 34), an error of law in applying the relevant criteria under that section would constitute a sufficient basis to review the Order anew.

[25] The Crown submits that the Justice of the Peace erred in her application of the tertiary grounds because she misapprehended certain factors, thus understating the Crown’s case, and overemphasized factors supporting release.

[26] As noted above, a reviewing court may not review a release or detention order simply because it would weigh the factors differently. In my view, in assessing the relevant factors under s. 515(10)(c), the Justice of the Peace erred in law because she either set an excessively high standard for the Crown to meet or reversed the onus, thus requiring that the Crown demonstrate that Mr. Dubajic’s detention was justified. Either way, the effect was the same: evidence supporting his detention was disregarded or discounted and evidence supporting his release was overstated. The overall effect was a failure to give adequate consideration to the issue with which s. 515(c) is concerned: whether detention was necessary to maintain confidence in the administration of justice.

[27] For the same reasons, the Order is clearly inappropriate because the Justice of the Peace gave excessive weight to certain factors and failed to appreciate others: St-Cloud, at para. 121.

Strength of the Crown’s Case

[28] At the bail hearing, the defence argued that in order to establish possession, the Crown will have to demonstrate that Mr. Dubajic had both knowledge and control of the drugs and firearms found in his apartment, and that he denied both.

[29] The Justice of the Peace accepted that this defence undermined the strength of the Crown’s case. In her oral reasons, she repeatedly stated that Mr. Dubajic “happened to be there” when the drugs and firerarms were seized. She specifically found that “there wasn’t a lot of, a lot of additional evidence, aside from your being in the apartment, of your involvement in the selling or use of these firearms and drugs.” Similarly, the Justice of the Peace relied on Mirko’s statement that Mr. Dubajic “rented a room” in the apartment and raised the possibility that someone else could be living there.

[30] In my view, the findings made by the Justice of the Peace were not available on the evidentiary record before her. The possibility that Mr. Dubajic rented a room in the apartment or that another person lived there were speculative. Only one of the bedrooms had a bed. Many personal items, including clothing, were located in that bedroom. There was no evidence that the second bedroom, which had no bed and little furniture, was occupied by another person. Multiple pieces of identification in Mr. Dubajic’s name, and mail addressed to him, were located in the apartment, as were his pets. Moreover, both sureties testified that Mr. Dubajic lived in the apartment for approximately 20 years. Mr. Dubajic’s brother, Mirko, visited him frequently and had not seen anyone else there in years. While it was Mirko who stated that Mr. Dubajic rented a room at the apartment, he also testified that his last roommate moved out many years ago. Mr. Fuentes testified that before the pandemic, he went to Mr. Dubajic’s apartment almost weekly and never saw anyone else there.

[31] Before me, the defence argued that there was evidence before the Justice of the Peace that the second bedroom was locked and that the lock was breached when the warrant was executed, which is supported by a photograph. The Justice of the Peace made no mention of the lock, however, and it does not appear to have impacted her findings.

[32] The Justice of the Peace also disregarded evidence that connected Mr. Dubajic to the seized items and thus erred in finding an absence of a connection between Mr. Dubajic and the drugs. Aside from the fact that no one other than Mr. Dubajic lived at the apartment, a duffel bag containing bricks of cocaine was found next to the bed in the first bedroom. The bricks were packaged in a manner identical to those found in the second bedroom. The Justice of the Peace inexplicably disregarded the evidence of the drugs found in the first bedroom, where Mr. Dubajic’s personal items and identification were also located. In assessing the strength of the Crown’s case, the Justice of the Peace erred in discounting evidence connecting Mr. Dubajic to the charges while relying on speculative assertions unsupported by the evidence before her.

[33] It was clear from the evidence before the Justice of the Peace that Mr. Dubajic did not just “happen” to be in a place to which he had no connection and where five kilograms of fentanyl, multiple bags of bricks of cocaine and over 60 firearms, among other things, were found. He lived in the apartment and, on the evidence before the Justice of the Peace, was the only person known to be living there for many years. There was simply no evidentiary basis for the defence’s position that Mr. Dubajic had no knowledge or control over the drugs or firearms.

[34] The Justice of the Peace’s finding that Mr. Dubajic “happened” to be in the apartment when the drugs and firearms were seized distorted her assessment of the strength of the Crown’s case. The Justice of the Peace then relied on the sureties’ evidence that it was “out of character” for Mr. Dubajic to be involved in criminal activity and of his honesty to further support the absence of a connection between Mr. Dubajic and the drugs or firearms.

[35] Moreover, in assessing the strength of the Crown’s case, the Justice of the Peace repeatedly stated that it was not known what role Mr. Dubajic played in connection with the drugs and firearms. For example, she stated: “Is there overwhelming evidence with respect to your role or involvement with all these items that have been seized? I wouldn’t say so, except the fact that you were there. So that’s a significant note.” Because he is charged with possession for the purposes of trafficking, the precise nature of Mr. Dubajic’s role is not relevant to the strength of the Crown’s case. The Crown did not have to adduce evidence that Mr. Dubajic is involved in or connected to a criminal organization. In requiring such evidence, she failed to consider the strength of the Crown’s case on the charges that were before her.

[36] The defence’s position that Mr. Dubajic had no knowledge or control of the drugs or firearms had to be considered in the context of the evidentiary record. In any event, the mere identification of a defence does not necessarily undermine the Crown’s case: R. v. Nguyen, 2018 ONSC 687, at para. 40. [1] The Justice of the Peace erred in accepting the defence’s tenuous position and finding that, despite the significant evidence before her, the Crown did not have a strong case. Moreover, the Justice of the Peace repeatedly stated that the Crown’s case was “not overwhelming.” The Justice of the Peace’s comments raise concerns that, not only did she significantly understate the strength of the Crown’s case, but that she put the Crown to an excessively high standard of proof, resulting in an inadvertent reversal of the onus, which was on Mr. Dubajic.

The Gravity of the Offence

[37] Mr. Dubajic is charged with 78 counts of possession of drugs and firearms for the purposes of trafficking. The seizure at his apartment was the largest single day seizure of cocaine and the largest seizure of drugs and firearms by the Toronto Police Services. The total value of drugs seized is approximately $18 million. The total value of firearms is approximately $300,000.

[38] In respect of the gravity of the offences, the Justice of the Peace found that the offences are “very grave” given the issues of gun violence and the opioid crisis in Toronto. However, while the Justice of the Peace repeatedly mentioned the significant volume of drugs and firearms, she did not grapple with the gravity of the offences with which Mr. Dubajic is charged and the implications of a seizure of this size. The effect was to discount any effect that this factor would have on the question of whether Mr. Dubajic should be released, resulting in an error of law.

[39] In R. v. Wong, 2012 ONCA 767, at para. 11, the Court of Appeal stated that “the courts have repeatedly emphasized the toxic combination of drugs and guns posed a pernicious and persisting threat to public safety and the welfare of the community.”

[40] The guns, prohibited devices and ammunition found in Mr. Dubajic’s apartment are of a quantity that, had they not been seized, could have wreaked incalculable harm to the community. One can only infer from the volume of drugs and firearms seized from Mr. Dubajic’s apartment that the items are part of a supply chain. In R. v. Abdullahi, 2013 ONSC 4873, at para. 40, Quigley J. found that a reasonable member of the public would lose confidence in the administration of justice if the court were to release “not just perpetrators who use guns in drug-related or other criminal circumstances, but even more sinister, those whose daily occupational efforts appear dedicated to ensuring a continuing supply of those illegal handguns to those in Toronto who would possess them.”

[41] In addition to the firearms, an unprecedented quantity of cocaine, fentanyl and other drugs were seized from Mr. Dubajic’s apartment. Fentanyl is a highly addictive and deadly drug. In R. v. Yu, (unreported, September 17, 2017), McMahon J. described fentanyl as “the most deadly, illicit drug available on the streets at this time.” Fentanyl was found to be twenty times more powerful than heroin. Trafficking in fentanyl creates huge risks to public safety; overdoses and deaths have reached crisis proportions.

[42] Having found the offences to be “very grave”, the Justice of the Peace proceeded to consider the potential sentence to which Mr. Dubajic would be subject in the event that he is found guilty. The gravity of the offence, however, is a separate factor under s. 515(1)(c) of the Criminal Code and is not only relevant to the potential sentence. The gravity of the offence is also relevant to determining whether detention is necessary to maintain confidence in the administration of justice. The Justice of the Peace failed to consider the gravity of the offence in this context. In doing so, she erred in giving little or no weight to this factor.

Circumstances Surrounding the Commission of the Offences

[43] Before the Justice of the Peace, there was little evidence regarding the circumstances surrounding the commission of the alleged offences. The Justice of the Peace found that “the circumstances are not violent in this case” because there was no violent attack and because there was no evidence that Mr. Dubajic held or pointed a gun at anyone.

[44] The Justice of the Peace was correct in finding that there was no evidence that Mr. Dubajic used a firearm in the commission of an offence, in the sense of pointing a gun at anyone. However, in my view, the Justice of the Peace erred in finding that the firearms were not used within the meaning of s. 515(10)(c)(iii) of the Criminal Code.

[45] In Abdullahi, the accused was charged with nine firearm-related offences, including possession, trafficking and conspiracy to traffic firearms. Even though no firearm was used in the sense of being pointed or discharged, Quigley J. interpreted s. 515(10)(c)(iii) to include possessing, selling, and arranging for the purchase of firearms. In his view, “the seriousness that is added to the third factor by the use of firearms is necessarily relevant and aggravating to the tertiary ground factors,” (Abdullahi, at para. 7.)

[46] Similarly, in R. v. Nguyen, 2018 ONSC 687, at para. 44, Clark J. found that despite the absence of evidence that the firearm was pointed or discharged, it was “used” because it was there to protect a drug stash.

[47] I agree with those interpretations of “whether a firearm was used” in s. 515(10)(c)(iii). To interpret the reference to “use” as being limited to those offences where a firearm is held, pointed or discharged would be unduly narrow. Moreover, it would be incongruous that this factor would weigh in favour of detention where an accused points a single gun but would not have the same effect where an accused allegedly possesses over 60 firearms for the purpose of trafficking them.

[48] The Justice of the Peace distinguished Abdullahi on the basis that, in that case, there was wiretap evidence of the accused engaging in the sale of the firearms and “his further involvement in that criminal enterprise.” In Abdullahi, however, that evidence was relevant to the strength of the Crown’s case because the accused was also charged with participating in a criminal organization and conspiracy to traffic in weapons. The Justice of the Peace nonetheless declined to follow Abdullahi because there was no additional evidence before or her of Mr. Dubajic selling the firearms to anyone.

[49] With respect, the Justice of the Peace erred in failing to apply this court’s interpretation of s. 515(10)(c)(iii). The Justice of the Peace did not simply distinguish Abdullahi on its facts, rather, she failed to consider whether use as it is employed in that provision could include possessing a large volume of firearms for the purpose of trafficking them or to protect a drug supply. She did not engage in this analysis. She found only that there was no evidence that Mr. Dubajic had pointed or attempted to sell a firearm, which was not the interpretation of s. 515(10)(c)(iii) being relied upon by the Crown.

[50] As a result, the Justice of the Peace’s assessment of the circumstances surrounding the commission of the offence was flawed in a manner similar to her assessment of the preceding two factors. Having found that the circumstances were not violent and that no firearm was used within the meaning of s. 515(10)(c)(iii), she did not then engage in an evaluation of the impact of this factor on whether detention was necessary to maintain confidence in the administration of justice.

Potential for a Lengthy Period of Imprisonment

[51] The Crown submits that the Justice of the Peace grossly underestimated the potential sentence Mr. Dubajic faces if he is found guilty, which she estimated to be four to twelve years. The Crown is seeking a sentence of at least 25 years. The Crown’s position is that if Mr. Dubajic is convicted on both the drug and firearm charges, those sentences would run consecutively as opposed to concurrently.

[52] I agree that the Justice of the Peace erred in law in her assessment of the potential sentence faced by Mr. Dubajic.

[53] In the sentencing decision of Latimer J. of the Ontario Court of Justice, R. v. Fuller, 2019 ONCJ 643, he examined the range of sentences imposed on individuals found guilty of trafficking in large quantities of fentanyl and methamphetamine. It is clear from Latimer J.’s survey of the case law that possession of smaller amounts of fentanyl than the amount at issue here have resulted in sentences ranging from 11 to 15 years, including for individuals with no prior criminal history:

• R. v. Yu (McMahon J., unreported, September 21, 2017) - 232 grams of fentanyl, 620 grams of heroin, 983 grams of cocaine, 250 grams of methamphetamine, 1149 grams of MDMA, 1262 grams of ketamine and 3557 grams of marijuana - a total sentence of 13 years (no prior criminal history)
• R. v. Shaheen, 2018 ONCJ 150 (Wadden J.) - 5000 fentanyl patches - 14 years (no prior criminal history)
• R v. Olvedi, 2018 ONSC 6330 (Petersen J.) - 0.5 kilograms of 100 percent pure fentanyl citrate valued at $14 to $20 million – 12 years (no prior criminal history)
• R. v. Imeson & Murphy (McKay J., April 10, 2019) - 434 grams carfentanil, 176 grams of fentanyl, one kilogram of methamphetamine - 12 years for possession of carfentanil for purposes of trafficking, concurrent sentences of 10 and 6 years for the fentanyl and methamphetamine
• R. v. Vezina (Sopinka J., November 10, 2017) - 111.9 grams of fentanyl and 372.14 grams of methamphetamine – 11 years for the fentanyl and 5 years concurrent for the methamphetamine, one year consecutive for a firearm
• R. v. Broderick, 2018 ONCJ 6273 (O.C.J.) - 13 years for jointly possessing 3 kilograms of poor quality fentanyl

[54] In R. v. Loor, 2017 ONCA 696, at para. 50, the Court of Appeal stated as follows:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a [sentencing] range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[55] In R. v. Bains, 2013 ONCA 789, at para. 192, Watt J.A. noted that the range for possession of one kilogram of heroin was nine to twelve years. In that case, the Court of Appeal upheld a sentence of nine years for possession of one kilogram of heroin, where the accused had no prior criminal history.

[56] The Crown further submits that sentences for possession of cocaine for the purpose of trafficking range from five to six years for one kilogram and eight to twelve years for multiple kilograms. In this case, 106 kilograms of cocaine were seized.

[57] The Justice of the Peace erred in law in significantly underestimating the potential sentence faced by Mr. Dubajic in the event of a conviction. There does not appear to be any case law supporting a range of four to twelve years for the quantity of drugs seized in this case. Indeed, based on the above cases, which involve much smaller quantities of fentanyl and less harmful drugs, the range would begin at approximately twelve years.

[58] The Justice of the Peace’s underestimating of a potential sentence is relevant for a couple of reasons. First, the length of the potential sentence would impact how the public would perceive Mr. Dubajic’s release and whether it would diminish confidence in the administration of justice. Second, the potential sentence is relevant in considering whether the length of pre-trial custody might be disproportionate in relation to the sentence that might ultimately be ordered. Third, because a lengthy sentence carries an increased risk that an accused might abscond (R. v. Pearson, [1992] 3 S.C.R. 665, at para. 64), it would impact the assessment of the primary ground and whether detention would be necessary to secure Mr. Dubajic’s attendance in court.

The Proposed Release Plan

[59] Having considered the four criteria under s. 515(10)(c) of the Criminal Code, the Justice of the Peace then assessed the proposed release plan. She found that the proposed release plan was “strict” in that Mr. Dubajic would be under the direct and constant supervision of one of his sureties. The Justice of the Peace accepted the sureties’ statements that Mr. Dubajic was an “honest” and “spiritual” person and that the alleged offences were out of character. She accepted that Mirko and Mr. Fuentes would be able to supervise him and that they would call the police if they believed that he breached the conditions or committed an offence.

[60] In my view, the Justice of the Peace’s acceptance of the proposed released plan is inextricably tied to her errors in assessing the tertiary ground factors. Because she discounted the impact of each of those factors, she found that the proposed release plan was sufficient to maintain public confidence in the administration of justice.

[61] Moreover, while I defer to the Justice of the Peace’s findings on the credibility of the sureties’ testimony, the Justice of the Peace’s confidence in the sureties’ ability to supervise Mr. Dubajic is nonetheless misplaced. There was a lack of evidence before her to support that either Mirko or Mr. Fuentes has any authority over him. Mirko is four and a half years younger than Mr. Dubajic and testified that Mr. Dubajic was a father figure to him after their father passed away. Mr. Fuentes is Mr. Dubajic’s friend. Moreover, despite the seizure and the evidence before them, both sureties expressed with certainty that they did not believe that Mr. Dubajic was involved with drugs or firearms. The quantity of drugs and firearms found in Mr. Dubajic’s apartment, where the sureties visited frequently and had not seen any roommate for years, ought to cause them to question what they know about his activities. The sureties’ unquestioning faith in Mr. Dubajic does not weigh in his favour, rather, it weighs against them as sureties because it raises concerns about how well they know him and their ability to adequately supervise him.

[62] In addition, the amount pledged by the sureties, $50,000, was wholly inadequate in the circumstances of this case. In Nguyen, 2018 ONSC 678 at para. 50, Clark J. found that the Justice of the Peace erred in placing inordinate weight on what the amount represented to the sureties and ignored the question of whether it was a sufficient sum to constitute a meaningful incentive for the accused to attend at trial. See also: Nguyen, 2018 ONSC 4470, at para. 45. In this case, a loss of $50,000 would be inconsequential to someone who allegedly had access to $18 million of contraband. This discrepancy would also significantly undermine the public’s confidence in the administration of justice: Nguyen, 2018 ONSC 687, at para. 52.

[63] Moreover, it is clear from the evidence that Mr. Dubajic’s bail could have been set at a higher amount. While Mirko pledged his entire savings of $30,000, Mr. Fuentes pledged $20,000 that he had available in cash. It was clear from the record that Mr. Fuentes also has substantial equity in a property jointly owned with his siblings and mother. In the circumstances, the amount of $50,000 was insufficient.

Summary

[64] As noted above, the tertiary ground is concerned with maintaining public confidence in the administration of justice. While the Justice of the Peace addressed each of the four criteria under the tertiary ground, she erred in her assessment of those factors when she found that “they’re not all at their highest.” To the contrary, the enumerated grounds all pointed toward detention. The Justice of the Peace understated the strength of the Crown’s case, the gravity of the offences and the potential for a lengthy term of imprisonment. She did not take into consideration that the circumstances involved the use of firearms. As a result, she disregarded the Crown’s strong showing on each of those factors, when it was Mr. Dubajic who did not meet his onus. The result was an unacceptably high standard of proof or a reversal of the onus. More importantly, she failed to consider the enumerated factors within the context of their underlying concern, whether detention is necessary to maintain public confidence in the administration of justice.

[65] Against the minimal weight accorded to the factors under s. 515(10)(c) of the Criminal Code, the Justice of the Peace gave disproportionate significance to Mr. Dubajic’s lack of a criminal record and the proposed release plan. Had she given sufficient weight to the tertiary ground factors, it would have been clear that the release plan was inadequate to maintain public confidence in the administration of justice. In my view, in addition to the errors of law identified above, the result was a decision that was clearly inappropriate.

The Secondary Ground

[66] Given my finding that the Justice of the Peace erred in assessing the tertiary ground, I need not determine whether she erred on the secondary ground. I make the following brief observations.

[67] Under the secondary ground, the court must consider whether detention is necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that the defendant will commit a criminal offence that would endanger the protection and safety of the public, if released from custody: s. 515(10)(b) of the Criminal Code.

[68] In my view, in considering the secondary ground, the Justice of the Peace erred in law in focusing narrowly on the question of whether there was a substantial likelihood that Mr. Dubajic would reoffend. As indicated by the language “having regard to all the circumstances, including any substantial likelihood that the defendant will commit a criminal offence” the substantial likelihood that an accused will reoffend is only one aspect of the secondary ground. Because of her focus on the likelihood that Mr. Dubajic would reoffend, the Justice of the Peace failed to adequately consider the other aspects of the secondary ground, including whether detention was necessary for the protection or safety of the public, “having regard to all the circumstances[.]”

[69] Those circumstances include the gravity of the offence and the strength of the Crown’s case, which the court examines under the tertiary ground, but are also “important considerations” on the secondary ground: R. v. Williams, 2020 ONSC 2237, at para. 113. As detailed above, the Justice of the Peace misapprehended the gravity of the offences and the strength of the Crown’s case, causing her to minimize the risk to public safety posed by Mr. Dubajic’s release.

[70] Moreover, as Watt J.A. explained in R. v. Manasseri, 2017 ONCA 226, where there is a reverse onus, “the accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.” Given the significant public safety concerns raised by the grave nature of the charges and strength of the Crown’s case, in my view, Mr. Dubajic’s lack of a criminal record and the proposed release plan were not sufficient to meet his onus.

The Primary Ground

[71] The Crown submits that the Justice of the Peace misapprehended the extent of Mr. Dubajic’s connections to Serbia and erred in finding that he was not a flight risk.

[72] The Crown also relies on the Supreme Court’s analysis in Pearson, at para. 64, where the court stated that unlike most accused, for whom absconding from the jurisdiction is an unrealistic proposition, drug importers and traffickers “have access both to large amounts of funds and sophisticated organizations which can assist in flight from justice.”

[73] The Crown submits that despite having been born and raised in Ontario, Mr. Dubajic does not have strong ties to the jurisdiction because he has no spouse or children and owns no property. The Crown highlights Mr. Dubajic’s connections to Serbia, including extended family and the fact that he has travelled there over the years. The Crown also notes that in his testimony before the Justice of the Peace, Mirko referred to Mr. Dubajic travelling “back home” to family. At the time of the bail hearing, their mother had been in Serbia for a few months. The Crown also notes the absence of an extradition treaty between Serbia and Canada.

[74] On the evidence before the Justice of the Peace, it was open to her to find that detention was not justified on the primary ground. While the Justice of the Peace could have found that Mr. Dubajic posed a flight risk, Mr. Dubajic’s links to Serbia are not particularly strong. He no longer has a Serbian passport and does not own any property there. The last time he had been to Serbia was over three years ago. Both of his parents live in Canada. Mr. Dubajic’s residence has been stable; he has lived in the same apartment for at least 14 years. In my view, Mr. Dubajic’s ties to Serbia are no stronger than many individual’s ties to their parents’ country of origin. Mr. Dubajic’s passport shows approximately two to three trips out of the country each year, which is not an excessive amount of travel. Given his lack of a criminal record, there has been no previous failure to comply. In my view, the Justice of the Peace did not err in her analysis of the primary ground.

Does a De Novo Review Lead to a Finding that Mr. Dubajic’s Detention Justified?

[75] Because I have found that the Justice of the Peace erred in law, this court may repeat the analysis under s. 515(10) of the Criminal Code as if it were the initial decision-maker. The reviewing court must consider all the circumstances of the case and undertake a balancing exercise to determine, from the perspective of the public, whether the detention of the accused is justified: St-Cloud, at paras. 128-38.

[76] In assessing the grounds for detention under s. 515(10) of the Criminal Code, a court must apply the principle of restraint, and not detain a defendant unless less restrictive options will not address the concerns set out in s. 515(10): R. v. Zora, 2020 SCC 14 at para. 20-21, 24-25; R. v. Myers, 2019 SCC 18 at paras. 25-26. Moreover, in assessing both the secondary and tertiary grounds, I must bear in mind that Mr. Dubajic is presumed innocent.

[77] The Crown takes the position that detention is justified on all three grounds.

New Evidence

[78] Given that this is a de novo review, I am required to consider evidence that has been provided on this application.

[79] Since the bail hearing, the Crown has disclosed, and relies on, the following new evidence:

• A search of Ministry of Transportation records revealed that Mr. Dubajic’s driver’s licence and vehicle have been registered to the address since January 2004;
• The superintendent of Mr. Dubajic’s apartment building told police that Mr. Dubajic has been living there for 14 to 18 years and that he has lived alone in the unit for the last six years;
• Police surveillance observed a suspected drug trafficker entering Mr. Dubajic’s car on November 4, 2020. The suspect remained in the vehicle for one minute and then left clutching a dark, plastic bag. On November 14, 2020, a search warrant was executed at the suspect’s residence, leading to the seizure of powder cocaine, crack cocaine, and oxycodone;
• On November 12, 2020, a Dodge Caravan registered to Mr. Dubajic was parked in the lot of the address of his apartment building;
• On November 18, 2020, one of the firearms seized from Mr. Dubajic was traced to a break and enter in Toronto;
• The items seized from Mr. Dubajic’s apartment include items used in the distribution of drugs such as a scale and baggies, which were found in his bedroom;
• The seized firearms were traced to 12 different states in the United States, as well as Canada, and were sold over the course of 11 years. Seven of the firearms were purchased less than one year before their seizure;
• The seized devices included high-capacity magazines and prohibited devices that convert semi-automatic pistols into automatic, with the ability to discharge 50 rounds; and
• The guns seized from Mr. Dubajic’s apartment represent one quarter of the guns seized in Toronto in 2020.

The Tertiary Ground

[80] Based on my analysis of the Justice of the Peace’s errors, the record before her, and the new evidence, I find that Mr. Dubajic has failed to satisfy me that his detention is not justified on the tertiary ground.

[81] On the record before the Justice of the Peace, the Crown made a strong showing on all four factors. When weighed against the relevant factors, the release plan was inadequate to maintain public confidence in the administration of justice. For the reasons give above, the decision to release was clearly inappropriate.

[82] The new evidence weighs in favour of detention because it enhances the Crown’s case; links Mr. Dubajic to alleged drug trafficking activity; and shows that one of the firearms was used in the commission of a criminal offence.

[83] Before me, the defence argued that even though Mr. Dubajic was paying the rent for the apartment, he was not occupying the room where the firearms and drugs were found. The defence further suggested that Mr. Dubajic “might not have full control over” what was happening in certain rooms. This suggestion, for which no evidentiary support was provided, is not sufficient to overcome the inference that as the sole occupant of the apartment, Mr. Dubajic would have had knowledge and control over the drugs and guns. The fact that the door of the second bedroom was locked does not, without more, establish anything. The superintendent of the building, who also lives there and at one point shared an apartment with Mr. Dubajic, confirmed that no one else has been living in the apartment for at least six years. On the record before me, the Crown’s case is close to overwhelming.

[84] The COVID-19 pandemic is a factor to consider in assessing the tertiary grounds. In that respect, the Justice of the Peace found that, given that the charges were laid in November 2020, as opposed to the beginning of the pandemic, it could not be said that there would be a lengthy delay in bringing the matter to trial. As a result, and despite the higher risk of contracting COVID-19 pandemic in a congregate setting, she did not find that the pandemic was a “huge factor” weighing in Mr. Dubajic’s favour. I would agree that while the pandemic is a consideration under the tertiary ground, the potential impact of the pandemic on Mr. Dubajic does not outweigh the enumerated factors.

[85] I have previously addressed the weaknesses in the release plan and will not repeat that analysis here. A recognizance of $50,000 and the direct and constant supervision of Mr. Dubajic’s younger brother and friend are insufficient to reduce the likelihood that he will reoffend or to maintain public confidence in the administration of justice. Needless to say, the new evidence serves to underscore those deficiencies. The surveillance evidence connects Mr. Dubajic to a suspected drug trafficker. In view of this evidence, doubts arise regarding the sureties’ unquestioning faith in Mr. Dubajic’s honesty and their ability to supervise him.

[86] In assessing the tertiary ground, the court must consider not only each of the four factors but the totality of the circumstances. Having done so, I have little difficulty in finding that the public confidence in the administration of justice supports a detention order. The offences are serious, the Crown’s case is strong, and Mr. Dubajic faces a lengthy prison term if found guilty. To a reasonable and well-informed member of the public, familiar with the basics of the rule of law, and the fundamental values of our criminal justice system, releasing Mr. Dubajic would undermine confidence in the administration of justice.

The Secondary Ground

[87] As discussed above, the Justice of the Peace significantly underestimated both the gravity of the offences at issue and the strength of the Crown’s case, leading her to find that detention was not justified on the secondary ground.

[88] Even on the evidence before the Justice of the Peace, Mr. Dubajic was found in apartment with an unprecedented amount of firearms and drugs, including 106 kilograms of cocaine and 5 kilograms of fentanyl. The sheer quantity would be capable of doing sufficient harm to the safety and protection of the public. Releasing an individual who allegedly had access to that quantity of drugs and firearms raises significant concerns regarding the protection and safety of the public.

[89] The Crown now has evidence connecting Mr. Dubajic to alleged drug activity. One of the seized firearms was in fact used in the commission of an offence. The origins of the firearms have now been traced revealing multiple sources in the United States over a course of 11 years, suggesting a sophisticated enterprise.

[90] Moreover, a person who is alleged to have had $18 million worth of drugs in his possession is unlikely to be dissuaded from committing further offences by the potential loss of $50,000 pledged by his sureties: Nguyen, 2018 ONSC 687, at para. 47.

[91] Case law makes clear that even where there are secondary ground concerns, the court must consider whether a suitable plan of release can mitigate those concerns. I have identified the weaknesses in the release plan, when considered in the context of the offences at issue here. In the circumstances, Mr. Dubajic’s lack of a criminal record does not sufficiently mitigate concerns regarding the safety and protection of the public. Mr. Dubajic has not met his onus, and his detention would also be justified on the secondary ground.

The Primary Ground

[92] The Crown takes the position that Mr. Dubajic is a flight risk because of his ties to Serbia. As noted above, I am not satisfied that the Justice of the Peace erred in her analysis of the primary ground. The new evidence does not alter my analysis. Detention would not be justified on the primary ground.

Conclusion

[93] For the foregoing reasons, I find that the Justice of the Peace erred in law and the Crown’s application is granted. Mr. Dubajic’s detention is justified on the secondary and tertiary grounds.

[94] Mr. Dubajic is ordered detained until trial or further order of this court.

Nishikawa J.

Date: February 24, 2021

[1] While Clark J. found that the Justice of the Peace had erred, on a further bail review application, Schreck J. found that the Justice of the Peace had not erred: R. v. Nguyen, 2018 ONSC 4470.