R. v. Nicolitsis, 2021 ONSC 2779

COURT FILE NO.: CR-21-RG19924 and 21-G15260

DATE: 2021/04/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

– and –

Michael Nicolitsis

Matthew Geigen-Miller for the Crown

Cedric Nahum for Mr. Nicolitsis

HEARD via Zoom: April 12, 2021

reasons for decision

o’bonsawin J.

Overview

[1] Mr. Michael Nicolitsis applies for interim release as per s. 522 of the Criminal Code, R.S.C. 1985, c. C-46 ("Code"). He seeks release to his partner, Ms. Tanya Gendron, and to her father, Mr. Christopher Waller, as his sureties, supported by a bond amount of $1,000 each. In addition, Mr. Nicolitsis proposes to abide by strict conditions. They include the following:

• Mr. Nicolitsis will reside with his sureties, Ms. Gendron and Mr. Waller;
• he cannot leave the residence unless he is with one of his sureties – he can leave for appointments and for court appearances;
• he must wear a GPS bracelet monitoring device with a limited geographical location within the perimeter of the residence and the backyard – should he have to leave, Recovery Science must be notified in advance and upon return;
• he is not to possess any weapons; and
• he is not to communicate with any of his co-accused and Ms. Nikala High-Paul, a.k.a. Ms. Nikala Paul ("Ms. Paul").

[2] The Crown seeks an order for the detention of Mr. Nicolitsis.

Allegations

[3] Mr. Nicolitsis has been charged with a series of charges that I will summarize. He is charged with attempted murder (s. 239(1)), conspiracy to commit murder (s. 465(1)(a)), discharge of a firearm with intent to wound, endanger life or prevent arrest (s. 244(1)), two counts of possession of a firearm while prohibited (s. 117.01(1)), four counts of failing to comply with a release order (s. 145(5)(a)), two counts of inappropriate use/storage of a firearm (s. 86(1)), two counts of possession of a weapon dangerous to public peace (s. 88(1)), two counts of possession of a restricted/prohibited firearm without a licence (s. 91(1)), two counts of restricted/possession of a firearm without a licence (s. 92(1)), two counts of occupying a motor vehicle with a firearm (s. 94(1)), two counts of possession of a loaded regulated firearm (s. 95(1)), and uttering threats to cause death (s. 264.1(1)(a)); all contrary to the Criminal Code.

[4] I will review the relevant facts related to the charges in question, as alleged in the Prosecution Summaries. With regards to the events of September 17, 2020, it is alleged as follows:

• Mr. Nicolitsis and Mr. Emmanuel Pinard conspired to kill Mr. Brandon Longo, following a feud between Mr. Pinard and Mr. Longo. Mr. Pinard hired Mr. Longo to kidnap Mr. Timothy Langlois and in return agreed to pay Mr. Longo $5,000 with an advancement of $2,000. Mr. Pinard received a video from the alleged kidnapping and found out that it was a hoax.
• Mr. Nicolitsis, who was in possession of a loaded handgun, had a bandana on his face, sunglasses and a hat and made a video that was sent to Mr. Longo. In the video, Mr. Nicolitsis points the firearm at the camera while saying "we're coming for you".
• Mr. Nicolitsis and Mr. Pinard left the residence and entered into Mr. Gordon Kinistino's vehicle. Mr. Kinistino was driving, Mr. Pinard was sitting in the front passenger seat and Mr. Nicolitsis was sitting in the back seat with Ms. Laly Cook. Mr. Kinistino did not want to partake in this event. Mr. Pinard threatened Mr. Kinistino with Mr. Nicolitsis' gun.
• Mr. Pinard's ex-girlfriend, Ms. Nikala Paul, was in a vehicle following them. Mr. Daniel Asselin and three other females were in Ms. Paul's vehicle. At one point, both vehicles were stopped, and Mr. Pinard instructed Mr. Nicolitsis to give him his gun and pointed it at Ms. Paul's head as she ducked down. Mr. Pinard told her that she knew what he was capable of and instructed Mr. Kinistino to drive away. They dropped off Ms. Cook at Mr. Nicolitsis' residence and made arrangements with Mr. Longo to meet under the false pretense that Mr. Pinard was going to pay Mr. Longo the remainder of the $5,000 for the kidnapping. Mr. Pinard told Mr. Nicolitsis that he was going to "body" Mr. Longo and Mr. Nicolitsis agreed because he had had previous feuds with Mr. Longo.
• Ms. Paul dropped off her passengers and picked up Mr. Longo. Mr. Pinard told Ms. Paul to meet them at the Shell gas station at 1440 Prince of Wales Drive. They met then drove to the parking lot at 600 Hogs Back Road. Both vehicles were a few feet from each other.
• As soon as Ms. Paul's vehicle was parked, Mr. Nicolitsis got out of the back of the vehicle and began screaming while shooting multiple rounds towards Mr. Longo and Ms. Paul. Mr. Longo had a loaded firearm and shot one round back at Mr. Nicolitsis. Mr. Longo ran away into the field. Mr. Nicolitsis jumped back into Mr. Kinistino's vehicle and Mr. Pinard asked Mr. Nicolitsis over and over again, "Did you body him?". Mr. Nicolitsis replied, "Yeah I think so, I think so". They fled the scene. Ms. Paul remained in her vehicle and there was a bullet strike behind her on the rear passenger's side. She was not personally hit by a bullet.

[5] With regards to the events of February 18, 2021, it is alleged as follows:

• Mr. Nicolitsis sent three threatening voicemails to Mr. Kinistino.
• Voicemail 1: "You have till three fucking o'clock bro to pick a spot or I'm coming to you bro, I'm tired of your fucking mouth, and who the fuck do you think you are, you're playing with the guy who doesn't give a fuck you, you've seen it with your own eyes. Brotha, I'm gonna fuck you up I promise you."
• Voicemail 2: "And yo, I want the satisfaction of using my fucking hands when I break your face, so understand I'm not playing no more, understand. Today by three o'clock if you don't text me and tell me where you are to meet you somewhere, I don't care if it's in a mall bro I'll smash your fucking head in no matter where the fuck you want to meet me. But brother, you play games who ever is beside me is going to make sure you get a hole in your head. I'm gonna use my hands, I'm gonna show you how good my hands are when I break your fucking mouth. Grab a drink, grab whatever you fucking need, because after I am done with you bro, you're gonna be in pain. I don't need fucking nothing but my hands. I'm gonna break your fucking skull. You're a fucking junkie bitch, little fucking cunt who I should have done it when you fucked around the first time. Yo brother. Believe me. You're a fucking piece of shit bro. I might as well just wipe you off this fucking earth. Yo. I'm gonna smash your fucking head in first with my hands and after that you'll see what happens. Open your fucking mouth bro one more time and I'm coming to that fucking house eh. You little fucking bitch. I swear to God bro, Monday, has out so expect Monday no matter what. He's coming for you."
• Voicemail 3: "Yo, when you call somebody on you better show up bro. The twice now you don't show. So listen no more. Be fucking a man, take off your fucking panties, let me know where and I'll come to you since you can't afford to come anywhere bro. And I tell you bro, don't make me be the animal that I know I can be and burn your fucking ass when you're sleeping. I'm a sick fuck eh bud."
• Mr. Nicolitsis sent five threatening text messages to Mr. Kinistino.
• Text 1 at 3:08: "Yo pussy. Queen Marie LolaNear Saint Laurent white SUV you're a bitch station waggon on the side Knigge you're lucky I know Her baby dad. I would've came in and punched both the fuck out." A photograph is attached depicting a hand holding a handgun and a loaded magazine.
• Text 2 at 3:09: A photograph is attached showing many bullets lined up on a stove. "Shit Knigge that's to know I showed you two different things I'm gonna put in your fucking mouth. Just understand within a week I will have my hands on you or you'll be kicked out of where your staying and given the demand to fight or get the fuck out I told John how are you corrupting his fucking baby mom And how you're using the house and drugs with her and the kid understand as soon as I get to go from him you're fucking dead."
• Text 3 at 3:12: "And we're going to see GOOF bitch if you even had the balls to show up bro meet me I will just use my fucking hands but because you're prolonging it pisses me off and acting like a kid I'm gonna give you a leg warmer maybe shoot you in the balls will see if I missed that was a lucky night for Nikki it won't be for you. They call me D Yes I put these nuts in your mouth."
• Text 4 at 3:18: "You don't know what yet but you're a fucking dead junkie walking boom gonna sit down there and call people junkies your people that had their own houses and can afford to live by themselves you're a step and look at a mirror you have to steal TVs from your buddy that fucking helps you fuck every woman that you can as a hooker because you can't find your own girlfriend but that's OK remember that girl wants to fuck menu you only there because she thinks you're his friend don't worry like I told buddy from the beginning people like you need to be watched because your snakes you wish you had when we had you wishYou can't even be a man you need to be watched with your kid there's a reason for that probably Text your kid that's why you need supervision you fucking did lawyer that's a good word I don't know if you don't fucking wanna fight me now then you're just the biggest bitch I've ever met but remember your job was being a bitch."
• Text 5 at 3:33: "good word I don't know if you don't fucking wanna fight me now then you're just the biggest bitch I've ever met but remember your job was being a bitch Go get me this go get me that go do this go do that bitch you're a bitch And just know that but he told Mike to late charges bro so either way you're fucked if I were you I take a beating otherwise you're going to get a fucking heavy charge breaking entering Set at salt Set a salt bro you're fucked you're fucked with the wrong person me I just want you but I like it that way to my idea to put a snake like you or we can catch you because all you're gonna do if fucking hide Anytime that you're willing to fight me let me know I'll bring two fucking guys need to watch the fight just in case go to crazy and I want to pull the trigger but I just wanna punch your Face in."

[6] It is also alleged that Mr. Nicolitsis sent a video to Mr. Kinistino where he brandished a loaded magazine with ammunition and a firearm. He said on the video: "Yo who the fuck to you scare. You think you scare me bro. Be careful who you fucking talk to ok."

Evidence

[7] Mr. Nicolitsis called two witnesses to testify, Ms. Gendron and Mr. Waller.

[8] I summarize the relevant testimony of Ms. Gendron as follows:

• She has been with Mr. Nicolitsis for thirteen years. They have five children together who are aged 14, 9, 7 and 3 years old. The twins are 7 years old. Ms. Gendron and Mr. Nicolitsis live with their children and, two weeks ago, Mr. Waller moved in with them. They reside in a four-bedroom townhome.
• She acted as Mr. Nicolistsis' surety in the past. As his surety, Ms. Gendron knows that she must make sure he abides by his conditions and, if he breaks them, she must call and report him right away to the police. Ms. Gendron acted as Mr. Nicolitsis' surety while he was on a Recognizance of Bail from December 17, 2019 to March 24, 2021. At that time, Mr. Nicolistis was charged for threatening to shoot someone. She was aware that, when she was a surety during that time period, he had a condition to reside with her at Banner Road, to not possess a weapon and to not possess or use a computer or any other device to connect to the internet. Mr. Nicolitsis does not have a cellular phone. She has one and she does not believe that he used her phone. She cannot say that he had access to only her phone from December to March because she does not know what happens when he is not with her.
• Mr. Nicolitsis has a distinctive tattoo on the top in the webbing of his left hand between his thumb and index finger.
• Mr. Nicolitsis has not had a substance abuse problem for many years.
• In the fall of 2019, Mr. Nicolitsis felt he was threatened by the Rock Machine. Ms. Gendron would be a little bit shocked if he was involved in an argument with an alleged outlaw biker gang member.
• She does not work. Mr. Nicolitsis receives $2,400 per month from the Ontario Disability Support Program ("ODSP") because of his intellectual disability and receives the child tax benefit. She does not have any assets. The family relies on his ODSP. If she could not access Mr. Nicolitsis' ODSP payment, she would go on social assistance.
• She is prepared to pledge a bond in the amount of $1,000.
• She can recognize Mr. Pinard. She does not know Mr. Kinistino and she has heard of Mr. Brandon Longo.
• While she was his surety, Mr. Nicolitsis never possessed or had access to a firearm. Anything is possible. Ms. Gendron cannot say what Mr. Nicolitsis does when he is not with her. She does not think that he leads a double life.
• She does not think that it is Mr. Nicolitsis' voice and his tattoo can be seen on the video issuing threats. Ms. Gendron does not believe that he committed the acts that he has been charged with.
• She is not aware that Mr. Nicolitsis repeatedly breached conditions in the past. Ms. Gendron was only aware he breached a couple of times. She is aware of his criminal record.
• The GPS monitoring will cost $250 to set up and $360 per month. She is prepared to pay for the cost. Her mother and Mr. Nicolitsis' older son will help them pay if required. She cannot afford to have him stay in jail.

[9] I summarize the relevant testimony of Mr. Waller as follows:

• He is Ms. Gendron's father. He has a good relationship with Mr. Nicolitsis and considers him like the son he never had. Mr. Nicolitsis respects Mr. Waller.
• He may have acted as Mr. Nicolitsis' surety in the past when they resided in Terrace Bay, Ontario. Mr. Waller understands his role as a surety is to call the police if Mr. Nicolitsis breaks one of his conditions. Mr. Waller is not concerned that there are weapons in Ms. Gendron's home. Mr. Waller does not have access to any guns or weapons.
• He is on ODSP because of orthopedic issues and he suffers from depression. He does not have any substance abuse issues. Mr. Waller's ODSP payment is $1,739 per month. He does not have any assets.
• He moved in with Ms. Gendron, Mr. Nicolitsis and their children two weeks ago. Prior to this, he rented a room for a period of fourteen months.
• He has no knowledge that Mr. Nicolitsis could lead a double life and be involved with people in serious criminal activity.
• He does not know Mr. Pinard.
• He is not aware of the incident towards the end of November 2019 when Mr. Nicolitsis got into an argument with someone from a biker gang, received threats and had to call police.
• He is aware that Mr. Nicolitsis has a criminal record.
• In his Affidavit dated April 7, 2021, he swore that he had not previously acted as a surety for Mr. Nicolitsis. However, afterwards, Ms. Gendron helped him recall that he may have done so.
• He is presenting as a surety in order to do what is best for his family and is willing to help them because the children need their father.

[10] In addition, the parties submitted into evidence the following:

• The Crown Evidence Brief includes the following:
  • the Ottawa Police Service Charge Sheet and Prosecution Summary for Information #21-RG19924;
  • the Statement Summary for Ms. Paul;
  • the Investigative Action from police officer Haggerty providing a statement summary of Mr. Kinistino;
  • the criminal record of Mr. Nicolitsis with entries from 2008-01-28 to 2018-05-15;
  • the Prohibition Order Imposed at Sentencing for Mr. Nicolitsis dated July 10, 2018;
  • the Recognizance of Bail and the Judicial Interim Release Order for Mr. Nicolitsis both dated December 17, 2019 indicating that Ms. Tanya Gendron as his surety and noting the conditions that he is not to possess any weapons and not to possess or use any computers or any other device that has access to the Internet or other digital network;
  • the Ottawa Police Service Exhibit Photographs for 20-229904 depicting three pages of various bullets;
  • the Ottawa Police Service 20-229601 Suspect Vehicle Photographs, including ten photographs of a vehicle and two photographs depicting a bullet hole on the driver side, rear passenger door;
  • the Ottawa Police Service 20-229601 Exhibits: Spent Cartridge Photographs depicting four photographs of spent cartridges;
  • the Ottawa Police Service Charge Sheet and Prosecution Summary for information #21-G15260;
  • the R7 Statement of Mr. Kinistino dated February 21, 2021;
  • an email from Mr. Kinistino to Dawn R. Neilly of the Ottawa Police Service dated February 22, 2021;
  • still images from the video that Mr. Kinistino allegedly received from Mr. Nicolitsis – one image of a left hand holding a loaded magazine cartridge on a tile floor and one image of a handgun with a magazine cartridge both lying on a tile floor;
  • six screen shots of the text messages that Mr. Kinistino allegedly received from Mr. Nicolitsis (the content is reproduced in paragraph 5 of this Decision); and
  • Ottawa Police Service Guns & Gangs Statistics from 2016-2021.
• The voicemails and video as described in paragraphs 5 and 6 of this Decision.
• Mr. Nicolitsis' Application Record that includes the Affidavits of the proposed sureties, Ms. Gendron and Mr. Waller, and the Surety Declarations of Ms. Gendron and Mr. Waller, the Charge Sheets and the Synopsis, a letter regarding GPS monitoring and the Compliance Monitoring Program for Criminal Cases from Recovery Science Corporation.
• The Ottawa Police Service Charge Sheet for Information 20-RG19927.
• The Investigative Action by police officer Haggerty regarding the December 11, 2020 warrant executed on Ms. Paul's phone.
• Text messages from Dan Fortner that state: "Mike the Greek is an idiot lol he sent me a video of him loading up a clip and and showing his gun threatening me lol…So let's do it together ill tell them about that night at hogs back, we'll say they threatened to kill us I'll say I was threatened to drive The Greek is going away too."

Analysis

[11] Section 522(1) of the Criminal Code deals with the interim release of an accused charged with conspiracy to commit murder. More specifically, section 522 states as follows:

(1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.

(2) Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

[12] Section 515(10) of the Criminal Code deals with the criteria for justification for detention in custody. It states as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(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.

[13] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R 328, the Supreme Court confirmed that the release of an accused is the cardinal rule and detention is the exception.

[14] As noted by the Supreme Court in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 66, "[p]re-trial custody 'affects the mental, social, and physical life of the accused and his family' and may have a 'substantial impact on the result of the trial itself.'"

[15] The Crown refers me to two cases regarding gun violence. The first is R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 1, where McLachlin CJ held: "Gun-related crime poses grave danger to Canadians." The second is R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77, where the Court of Appeal for Ontario emphasized the importance of protecting society from gun violence:

In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:

It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

[16] The Crown also relies on R. v. Ahmed, 2019 ONSC 5770, at paras. 48-49, regarding electronic monitoring. In Ahmed, Grace J. held that where the court lacks confidence in the surety's ability to perform her supervisory role with "unfailing dedication and effectiveness," electronic monitoring does not cure that deficient plan.

[17] I must now assess Mr. Nicolitsis' matter. I start off by noting that the right to bail is a constitutionally protected right. There is a presumption of Mr. Nicolitsis' innocence.

[18] I turn to my review of the factors listed in s. 515(10) that must be considered in this matter. Firstly, I must determine whether Mr. Nicolitsis' detention is necessary to ensure his attendance in court. This is not a relevant factor in his case.

[19] Secondly, I must determine whether the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence. I must have regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice. It is alleged that Mr. Nicolitsis sent threatening voicemails, texts and a video to Mr. Kinistino. It is likely that Mr. Kinistino will be a witness for the Crown in this matter. There is a potential that if Mr. Nicolitsis is released, he may interfere with the administration of justice.

[20] Thirdly, I must consider if Mr. Nicolitsis' detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[21] With respect to this third consideration, I find that the public may lose confidence in the administration of justice if it were aware that Ms. Gendron acted as surety for Mr. Nicolitsis while he was last on bail and when he is alleged to have committed the acts with which he has been charged. Although well-intentioned, I question whether she would be an appropriate surety for him. In addition, I also question Mr. Waller's capability to act as an appropriate surety for Mr. Nicolitsis, since he does not know much about his son-in-law's life outside of the family home and does not know any of the players involved in this matter.

[22] As for the apparent strength of the prosecution's case, I have considered the evidence provided by the Crown such as a series of voicemail messages, texts, photographs and a video to support its claim that it has a strong case against Mr. Nicolitsis. The Crown also provided statements from Ms. Paul and Mr. Kinistino. I have also considered Mr. Nicolitsis' argument that there are evidentiary issues with much of the evidence provided by the Crown at this hearing. For example, he argues the information provided by Mr. Kinistino to the police is nonsensical and contradicted by the information provided by Ms. Paul. The Dan Fortner text messages specifically refer to Mike the Greek; Mr. Nicolitsis would not write that about himself. Furthermore, the voicemails talk about making plans to meet up to fight and it is unclear who called who to fight. This could simply be bravado between two people who have consented to fight. While there may be issues with parts of the Crown's evidence regarding the shooting, I find that the Crown's case appears strong with respect to the threats.

[23] The charges that Mr. Nicolitsis faces are very serious. They include attempted murder, conspiracy to commit murder, discharging a firearm with intent to wound/endanger life, possession of a firearm while prohibited, possession of a loaded firearm and uttering threats. If Mr. Nicolitsis is convicted of these charges, he faces a potentially lengthy term of imprisonment.

[24] The Ottawa Police Service Guns & Gangs Statistics demonstrate that there are between 45-77 shootings per year. These shootings can lead to fatalities. It is alleged that shots were fired in this matter. I agree with the caselaw quoted by the Crown that gun-related crimes pose significant danger to citizens and to those of Ottawa in this case.

[25] When looking at all of the circumstances under the tertiary grounds, I must consider the proposed plan. Mr. Nicolitsis submits that he has proposed a strong plan. Ms. Gendron and Mr. Waller will both act as sureties and they are also willing to pay for a GPS monitoring device. The Crown submits that the plan is weak. Ms. Gendron acted as a surety for Mr. Nicolitsis while he was on his last Recognizance of Bail. At that time, it is alleged that Mr. Nicolitsis breached his conditions by possessing a handgun and using a device to access the internet in order to send threatening voicemails and text messages to Mr. Kinistino.

[26] It must be noted that Ms. Gendron testified she was not aware of what Mr. Nicolitsis did when he was in the community without her while on his bail conditions. It is also alleged that he breached his bail conditions while she was his surety. For his part, Mr. Waller does not know much about Mr. Nicolitsis' life outside of the latter's family life with his daughter. Both proposed sureties are well-intentioned, but I question their capacity to fully manage Mr. Nicolitsis. In addition, I find that the GPS monitoring device does not compensate for the plan's deficiencies with the proposed sureties.

[27] Mr. Nicolitsis has a lengthy criminal record, starting in January 2008, which includes, but is not limited to, convictions for theft, assault with a weapon, assault, fraud and uttering threats. He has ten convictions for breaching bail and two convictions for breaching his probation conditions. This demonstrates that he has a history of not following his bail conditions and I question his ability to follow the bail conditions that he proposes.

Conclusion

[28] I find that Mr. Nicolitsis should remain detained. There are serious secondary grounds in this case which are not satisfactorily addressed by this plan of release. Mr. Nicolitsis breached his prior plan of release with the same surety. While a new surety has now been added, I am not satisfied that Mr. Nicolitsis will follow the terms of his release based on his prior breach of his Recognizance of Bail and his criminal record. In regard to the tertiary grounds, this is a serious offence involving a firearm where Mr. Nicolitsis, if convicted, will receive a lengthy period of incarceration. The Crown's case appears strong with regards to the threats, albeit I recognize that the evidence has not yet been tested by cross-examination. I am also of the view that a well-informed member of the public, conversant with Charter values and our system of bail, would be troubled by the fact that Mr. Nicolitsis breached his bail conditions on a prior occasion with one of the sureties who is being proposed in this plan. While his prior failure to follow his terms of release with this surety is relevant to the secondary grounds, it is also a tertiary ground concern in my view. Factors relating to the secondary grounds may also be relevant to the tertiary grounds. For example, a strong plan of bail may impact the secondary grounds and public perception on the tertiary grounds. In this case, the secondary ground concerns are also an issue on the tertiary ground concerns: see Trotter J. in R. v. Dang, 2015 ONSC 4254. As indicated above, given the concerns I have raised as to both secondary and tertiary grounds and the insufficiency of the proposed plan, I find that Mr. Nicolitsis should remain detained.

Justice M. O'Bonsawin

Released: April 14, 2021

COURT FILE NO.: CR-21-RG19924 and 21-G15260

DATE: 2021/04/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Michael Nicolitsis

reasons for decision

O'Bonsawin J.

Released: April 14, 2021