COURT FILE NO.: CR-21-60000264-00BR
DATE: 20211006
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEFANI KONGOLO
Alan Spiegel, for the Crown
Ryan Handlarski, for Mr. Kongolo
HEARD: October 1, 2021
Pursuant to section 517(1) of the Criminal Code, the publication in any document, broadcast or transmission of the evidence taken, the information given, the representations made, and the reasons issued on this application is prohibited. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition does not apply to publication in a law report or other legal publication; to a lawyer circulating these reasons to another lawyer; or a lawyer relying on them before any court.
REASONS FOR JUDGMENT ON BAIL REVIEW AND MYERS REVIEW
R.F. GOLDSTEIN J.
[1] Stefani Kongolo is 21 years old. He has no criminal record. He is currently incarcerated at the Toronto South Detention Centre on a global detention order on a series of alleged offences. He was living at home with his mother and stepfather at the time of the first and second offences. There is something of a tangled procedural history to this matter.
The First Set Of Offences – Uttering Threats And Criminal Harassment; May 24, 2020
[2] On May 13, 2020 Mr. Kongolo allegedly had a confrontation with a 13 year old boy over a bicycle. Mr. Kongolo allegedly threatened to beat him up and slapped him on the head. The police arrived on scene and gave Mr. Kongolo a caution. On May 24, 2020 Mr. Kongolo went to the complainant’s home. He allegedly warned the complainant to move from the neighbourhood. The complainant’s mother called the police. The police searched for Mr. Kongolo. While the police searched, Mr. Kongolo went back to the complainant’s house and threatened him. The police then arrested Mr. Kongolo and took him before a justice of the peace. The justice of the peace released Mr. Kongolo on his own bail. One of the bail conditions was that he was not to possess any weapons.
The Second Set Of Offences: Possession Of A Loaded Prohibited Firearm, Ammunition, And An Over-Capacity Magazine; Fail To Comply With Recognizance; August 7, 2020
[3] On August 7, 2020, Mr. Kongolo’s mother, Marta Da Silva Ignacio, was cleaning Mr. Kongolo’s room. She found a handgun and ammunition in his backpack. The gun was a loaded .40 SigSauer handgun with the serial number filed off. The gun had an over-capacity magazine with six rounds in it. The backpack also had 31 loose rounds of .40 ammunition, and 94 loose rounds of .22 ammunition. Ms. Da Silva and her husband – Mr. Kongolo’s stepfather – confronted Mr. Kongolo. Mr. Kongolo claimed he was holding the gun for someone else. He then punched his stepfather in the face and ran off. Ms. Da Silva Ignacio told him she was calling the police. She did. The police arrived and seized the weapon and ammunition. They issued a warrant for Mr. Kongolo’s arrest. On February 25, 2021 – more than six months later – Mr. Kongolo turned himself in to the police.
The Third Offence: Fail To Attend Court – January 8, 2021
[4] Mr. Kongolo had a court date on January 8, 2021, in relation to his criminal harassment and uttering threats charges. He did not appear. A bench warrant was issued.
Mr. Kongolo Is Released – March 1, 2021
[5] After turning himself in on February 25, Mr. Kongolo had a contested bail hearing. The Crown applied to revoke his previous release order under s. 524 of the Criminal Code. The Crown also sought his detention. Justice of the Peace Dresher released Mr. Kongolo to two sureties: his mother, Ms. Da Silva; and his aunt, Luzia Rodriguez. Justice of the Peace Dresher ordered that Mr. Kongolo was to reside with his aunt. She also ordered that Mr. Kongolo be in the direct and continuous presence of one or both sureties at all times. Finally, she ordered that Mr. Kongolo was to wear a GPS monitor at all times.
[6] Justice of the Peace Dresher had a message for Mr. Kongolo:
THE COURT: In other words, Mr. Kongolo, you have no other choices other than to be detained. If you are incapable of following the terms of this release, I cannot imagine another chance that you would have to be able to be released. I hope you understand that, and I want to make sure that you understand…
MR. KONGOLO: Okay.
THE COURT: … the release. You are nodding…
MR. KONGOLO: I understand.
THE COURT: … your head. Good.
[7] Justice of the Peace Dresher also had a message for Ms. Rodriguez and Ms. Da Silva:
THE COURT… Some of the testimony that I had before indicated to me that perhaps these two individuals were a little too soft and compliant, trying to urge the accused “to do the right thing”. The Court is telling the sureties that they are not in a position to urge or ask the accused to do the right thing. They are there to enforce that. If he is not listening to their rules and doing as he is told, their obligation is to pull bail. Now, I am somewhat satisfied that his mother did tell the police when she found the loaded gun. She did inform the police, but there was a period of several months where, in my view, there was a wishy washy attempt to try to convince the accused to come in and turn himself in. That is not good enough… so he will not be left alone while they go to work. I have limited faith right now that this person can be left alone. I want everybody to understand the gravity of the situation and he fact that Mr. Kongolo does not have a lot of options here. Are the sureties hearing me?
MS. RODRIGUEZ: Yes.
MS. DA SILVA: Yes.
The Fourth Offence: Fail To Comply With Recognizance – March 24, 2021
[8] Justice of the Peace Dresher delivered a strong message to Mr. Kongolo, Ms. Da Silva, and Ms. Rodriguez. That message, as it turns out, was not received.
[9] On March 24, 2021, the email address stefanikongolo@gmail.com sent an email to the Ontario Safetracks Program at ontario@safetracksgps.ca. The email was sent at 3:27 pm. The email stated:
Hello this is Luiza Rodrigues I am the surety for Stafani Konglolo, me and Stefani will be leaving the houe again from 6 pm to 11 pm.
We will be at 137 Sears Street from 6 pm to 11 pm.
[10] At 3:28 pm the email address jade@safetracksgps.ca responded:
Hello
This is set up
Thanks
[11] As an aside, it does seem rather remarkable that Safetracks acted on an email from the address of the accused person, rather than the surety. That does not inspire confidence in the competence of the Safetracks operators.
[12] The police attended at Ms. Rodriguez’s residence at 6:00 on March 24. Both sureties were present. Mr. Kongolo was not. Neither surety knew where he was. Neither surety had called the police. The police checked with Safetracks. Safetracks told the police that Ms. Rodriguez had sent an email with the address that they would be visiting. The sureties informed the police that they had not sent the email. Safetracks determined the address using the GPS technology and gave the police the address.
[13] Although Safetracks was able to give the police the address to which they had tracked Mr. Kongolo, they did not know the unit. The police asked Safetracks to find out. Apparently each GPS bracelet has the capability for two-way communication. Safetracks actually broadcast to Mr. Kongolo and asked which unit he was in. He refused to tell them. He did, however, exit the building and surrender to the police.
Mr. Kongolo Is Detained – June 27, 2021
[14] A contested bail hearing was held before Justice of the Peace Battacharjee. The justice of the peace, in a lengthy and detailed ruling, detained Mr. Kongolo on the tertiary ground. Although he was presented with a very detailed plan involving five sureties, he found that there were several fatal flaws in that plan. Briefly, those flaws included Mr. Kongolo’s ungovernable behaviour: he allegedly threatened the original 13-year old complainant despite being warned not to; he disregarded the no-weapons condition of his first release by bringing a loaded handgun and ammunition into his parent’s house; despite the clear warning of Justice of the Peace Dresher he apparently sent a fraudulent email to Safetracks. The other flaws included the following: the mother and step-father’s “idealized view” of their relationship with Mr. Kongolo and their assertion that he would listen to them “flies in the face of everything that has happened in the past year”; the mother and father were clearly unsuitable as their evidence on key points was inconsistent; and there was conflict between Mr. Kongolo and his mother. Justice of the Peace Battacharjee concluded:
To sum up, I find that there are significant tertiary ground concerns, it is highly likely that the accused will breach a condition of his bail if he is released again, and, from a tertiary ground perspective, his parents are problematic sureties.
[15] Although the justice of the peace was satisfied that the proposed plan could meet the primary and secondary ground concerns, he found that it could not meet the tertiary ground concerns. He issued a detention order.
ANALYSIS
[16] There are currently two proceedings before me: the first is a review under s. 525 of the Criminal Code, colloquially known as a “Myers” review or a 90-day review: R. v. Myers, 2019 SCC 18. The second is an application under s. 520 of the Criminal Code to review Mr. Kongoli’s bail. The two proceedings are separate, have different onuses, and have different tests.
[17] The purpose of a hearing under s. 525 of the Criminal Code is to “prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial”: R. v. Myers, at para. 24. A Myers review, as I will call it, does not depend on an application by either the Crown or the defence. It is an independent review by a judge. The judge must consider whether the continued detention of the accused is justified: Myers, at para. 4. I agree with those judges who have taken the view that there is no onus on the accused or the Crown: R. v. Pescon, an unreported decision of Coroza J. of the Superior Court dated March 16, 202; R. v. G.F., 2020 ONSC 3389 at paras. 17-18. I agree with the views of my colleague Schreck J. in G.F. at the even where the accused has been detained at an initial bail hearing he or she bears no onus (see paras. 20-21). The review is triggered automatically. There is no need to show that there has been unreasonable delay. The judge must determine whether the continued detention is justified, but may consider whether there has been unreasonable delay: Myers at paras. 29, 32. As Wagner C.J. put it at paras. 45 and 46:
The overarching question at the s. 525 hearing is clear from the words of the provision. Section 525(1) explicitly states that the judge's role is "to determine whether or not the accused should be released from custody"…
The question that the judge must answer at a s. 525 hearing is therefore as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.
[18] In contrast, an accused bears the onus on a bail review under s. 520 of the Criminal Code. While a Myers review is a review of the detention itself, the review under s. 520 is a review of the prior order. A judge may only intervene to conduct a bail hearing de novo where there has been a material change in circumstances; an error of law by the justice of the peace; or the decision was clearly unreasonable: St-Cloud, 2015 SCC 27 at para. 121; Criminal Code, s. 520.
[19] Ultimately, the two matters proceeded in a blended fashion. Mr. Handlarski, for the defence, argued that Mr. Kongolo’s detention is no longer justified because of the lapse of time; and that the justice of the peace erred by failing to apply s. 493.2 of the Criminal Code. I must therefore answer the following questions:
- Is detention still justified (the Myers review)?
- Did the justice of the peace err in law (the bail review)?
- If there was an error of law, should Mr. Kongolo be released?
The Myers Review: Is Detention Still Justified?
[20] Mr. Handlarski argues that Mr. Kongolo’s detention in custody is no longer justified simply because he has already served a significant portion of his sentence, if he is found guilty. Mr. Kongolo will eventually be released from custody. The principle of proportionality requires that he be released on bail.
[21] I disagree. The principle of proportionality applies, but not yet. When I assess the tertiary ground, I find that all of the criteria applied by Justice of the Peace Battacharjee still apply.
[22] In Myers, Chief Justice Wagner noted that judges must “be alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted.” The Chief Justice also pointed to the need to reduce the risk of induced guilty pleas: Myers at para. 51.
[23] At this point, Mr. Kongolo has spent about 6 months in custody. Mr. Handlarski points to a comment by Justice of the Peace Battacharjee that if convicted, Mr. Kongolo faced at least a penitentiary term on the gun charge. With credit for pre-sentence custody credited at 1.5:1, that works out to a sentence of about 9 months. If Mr. Kongolo receives extra credit for lockdown conditions at the Toronto South Detention Centre, it could work out to a sentence of about a year. That is not far from the two-year sentence mentioned by Justice of the Peace Battarcharjee. Thus, he is not that far from a time-served position.
[24] With respect, I do not agree with that assessment. Of course, I am well aware that Mr. Kongolo still enjoys the presumption of innocence and may not be convicted of anything. But if he were to be convicted of all charges, not just the gun charges, he is certainly not yet in time served position. To start, that offhand comment by the justice of the peace is in no way binding on a future sentencing court, if there is one. As well, I do not read the justice of the peace’s reasons as suggesting that Mr. Kongolo actually would receive a sentence of two years. The justice of the peace merely pointed out that he would receive a penitentiary sentence, and it would be two years at the very lowest end of the range.
[25] In my view, the range of sentence for a first offender who possesses a loaded, prohibited handgun with an overcapacity magazine starts at 3 to 3 ½ years, as the Court of Appeal recently confirmed: R. v. Mohiadin, 2021 ONCA 122. A two year sentence is possible, but unrealistic in the event he is convicted. That means he is nowhere near a time-served position at this point.
[26] That is especially so when the other charges are taken into account: criminal harassment, fail to appear court, and breach of recognizance. The breach of recognizance a deliberate and calculated attempt to mislead on Safetracks. No doubt, if Mr. Kongolo is convicted, he will receive a sentence at the high end of the range.
[27] Section 525(5) of the Criminal Code requires a judge on a Myers review to determine whether detention is still justified within the meaning of 515(10)(c). Thus, I must consider whether detention is required to maintain confidence 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 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.
[28] The four circumstances are not exhaustive: R. v. St-Cloud, paras. 66-71. A judge must balance all of the relevant circumstances in order to determine whether detention is justified: R. v. Valade, [2016] O.J. No. 2140 (Sup.Ct.). The overarching question is whether detention is required to maintain confidence in the administration of justice. The court must adopt the perspective of an informed member of the public who is familiar with the basic tenets of our legal system, including the presumption of innocence: St-Cloud, at paras. 79-80.
[29] In my view, the prosecution case appears very strong on the weapons possession charges. The gun and ammunition were found in Mr. Kongolo’s room, in his backpack, by a non-state actor who called the police. He failed to surrender for some six months. There appears to be no viable Charter motion. Regarding the breach of recognizance charge, Mr. Kongolo was found in the very place that the email to Safetracks said he would be found. The surety who purportedly sent the email knew nothing about it. The email was sent from what appears to be Mr. Kongolo’s email address. It is clearly a strong case.
[30] The possession of a gun charge – while on bail for criminal harassment – is also quite grave. I need not repeat everything that has been said about the havoc wreaked on our community by illegal handguns – especially guns with over-capacity magazines with their serial numbers filed off. That pattern, unfortunately, has accelerated. Courts have traditionally taken a very dim view of the possession of these weapons. The breach of recognizance charge is hardly the gravest charge in our law. The manner of the breach, however, was egregious. There is, as discussed, the potential for a lengthy term of imprisonment.
[31] As to the fourth criteria, there may not have been a firearm used, but the subject matter of the charge involves a firearm. The circumstances of the breach charge, as I have noted, are particularly serious.
[32] One circumstance that a judge may take into account is the quality of the plan. Confidence in the administration of justice can be maintained where a strong plan is presented. A strong plan would give a reasonable member of the public confidence that the accused will not commit further offences, pose a danger to public safety, or breach his bail. The plan that has been presented will not do that. It is woefully inadequate. It is essentially the same plan that was presented to Justice of the Peace Battacharjee. Instead of shoring up the weakness of the plan – Ms. Da Silva – it puts her front and centre and gives her primary responsibility. It also features the stepfather, who was allegedly a victim of violence by Mr. Kongolo. Moreover, as both justices of the peace recognized, there is a very real threat to the integrity of the proceedings: both the mother and stepfather are central Crown witnesses on the gun charge. It is problematic, to say the least, that they are also the proposed primary sureties.
[33] There is yet another problem with the proposed sureties, identified by Justice of the Peace Battacharjee in his reasons:
I was also troubled by the significant inconsistencies in Ms. Inacio’s testimony and Mr. Casimiro’s testimony about what happened on March 24, 2021, when the accused breached the condition of his bail to remain in the direct and continuous presence of one or both sureties at all times. Mr. Inacio testified that she was at her sister’s house, and had an argument with the accused about the pay for work issue, and the accused then left the residence without either of them. By contrast, Mr. Casimiro testified that Ms. Ignacio told him that she was not at her sister’s residence when the accused left. He stated that she told him that her sister called and told her that the accused had left the residence while she was asleep. It is unclear whether Ms. Inacio was lying to the court, Mr. Casimiro was lying to the court, or Ms. Inacio was lying to her husband, but whatever happened, it does not bode well, from a tertiary ground perspective, for being suitable primary sureties.
[34] The justice of the peace’s point, which I agree with, is that the proposed sureties were not suitable. The sureties do not have to be perfect. They can be flawed. Perfection is not the standard. The problem is not that the proposed sureties are imperfect. The problem is that they are inadequate. They were not adequate when presented at the last bail hearing, and they are no more adequate now. Ms. Da Silva is especially unsuitable. Even if I thought detention was no longer justified, I would not permit her to be a surety again. I simply do not believe she can be trusted with this important responsibility.
[35] The reason that a better surety is required is that Mr. Kongolo himself cannot be trusted. Mr. Kongolo’s breach was not technical. He did not arrive home half an hour after his curfew because the subway was delayed. This was a deliberate, devious act designed to fool the Safetracks program. Although there is no direct evidence that Mr. Kongolo forged his aunt’s email and impersonated her, it is obvious that is exactly what he did. Most bail violations occur because an accused person did some other criminal act that also violated bail, or did something foolish. In this case, Mr. Kongolo deliberately engaged in a scheme to fool Safetracks – and took advantage of sureties who were simply too lax. It is also very troubling that when confronted by Safetracks and ordered to divulge his exact location, he refused.
[36] As for the notion that this time Mr. Kongolo and his mother have learned their lesson, there is no evidence of that, other than a bare assertion. In any event, I would apply the maxim “fool me once shame on you, fool me twice, shame on me.” Implementing the same plan with the same surety and the same GPS monitoring and believing it will work this time would be a triumph of hope over experience.
[37] Even if detention was no longer justified simply in terms of passage of time – which is not the case – I would not release Mr. Kongolo on the basis of the plan that has been presented. Mr. Kongolo would have to come up with a much better plan with better sureties.
[38] I turn to the Covid-19 pandemic. Mr. Kongolo’s affidavit stated that an inmate on his range contracted the infection. He was required to quarantine with everyone else on his range. He was afraid he might also become infected. It is an understandable fear. Mr. Kongolo indicated in his evidence that he has been offered a Covid-19 vaccine while in custody. He has not taken it. His explanation is that he claims to know some people have taken it and still become infected.
[39] In my view, a person who claims to be fearful of becoming infected with Covid-19 but refuses to be vaccinated is not credible (unless, of course, there is a valid medical reason for refusing). Such a person is refusing the most effective means of preventing transmission of the virus. Where an accused person has sought bail on the basis of fear of Covid 19, but refused vaccination a Court should simply not take the pandemic into account.
[40] I am aware that some populations are suspicious of health authorities based on experiments carried out in the past, such as the horrifying Tuskegee Syphilis Study. I am also aware that there is much misinformation today about the Covid-19 vaccines, some of which is spread maliciously and deliberately.
[41] That said, I take judicial notice that all responsible medical authorities, without exception, have urged people to become inoculated. In the recent case of R. v. Frampton, 2020 ONSC 5733, my colleague Phillips J. potential jurors who were not vaccinated. I adopt his observations at para. 6:
Data accumulated from around the world appears to show that the available vaccines are very effective. While preventive measures like plexiglass, distancing, masks, et cetera, likely have some salutary effect in reducing Covid-19 spread, it has become clear that the best available method to reduce the risk of transmission and the development of serious illness (or worse) is vaccination.
[42] I also take judicial notice that the federal government has mandated that all federal public servants and members of the armed forces must be vaccinated – and that those who are medically ineligible must be frequently tested. I also take judicial notice that the federal government plans the same mandate for federally regulated industries, such as banking and air transport. The Ontario government has also mandated vaccination in many sectors. Private employers in Canada and around the world are also mandating vaccination. More than 80% of Ontarians are now fully vaccinated.
[43] I make one other point: releasing accused people because they fear becoming infected with Covid-19 but have refused to be vaccinated would give exactly the wrong incentive and send exactly the wrong message.
The Bail Review: Did The JP Err In Law? If there was an error of law, should Mr. Kongolo be released?
[44] Mr. Handlarski argues that the justice of the peace was required to weigh the fact that Mr. Kongolo, as a young Black man, is part of a group that has suffered from over-representation in the criminal justice system. Justice of the Peace Dresher did so. Justice of the Peace Battacharjee did not. His failure to weigh this factor constituted an error of law.
[45] I agree that the Justice of the Peace erred in law, but I find that the error made no difference to the result. Mr. Kongolo would have been detained even if Justice of the Peace Battacharjee did properly weigh it.
[46] Section 493.2 of the Criminal Code states:
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[47] I agree with Mr. Handlarski that the section is mandatory. The use of the term “shall” means that a justice or a judge has no discretion and must consider this factor. There is also no question that Black people are a disadvantaged group and that young Black men are over-represented in our custodial institutions: R. v. Jackson, 2018 ONSC 2527; R. v. E.B., 2020 ONSC 4383. I agree with Schreck J.’s observation in E.B. that the section is intended to be remedial. In an otherwise thoughtful and detailed decision, Justice of the Peace Battacharjee did not appear to give this factor any weight. It is certainly true that a judge or justice need not address every argument and flesh out every principle in a case. Judges and justices are assumed to know the law. This section, however, has particular salience in a large, multicultural city like Toronto and it should be given consideration. Worldwide events in the last year or two have brought that home.
[48] That said, s. 493.2 was only one factor of many that the justice of the peace was required to weigh. Given the offences at issue here, and especially the manner of the breach of recognizance, I do not see how a proper application would have affected the final outcome. The result would have been the same even if the justice of the peace had weighed that factor. Too many factors militate against release; and the plan proposed is utterly inadequate.
[49] A reviewing judge does not have an open-ended discretion to review a bail order: St-Cloud at para. 96. I do not believe that St-Cloud mandates that a judge must review the bail on the basis of an error of law where that error could not possibly have affected the result.
CONCLUSION
[50] The application under s. 520 is dismissed. The result on the Myers review is that Mr. Kongolo’s detention in custody continues to be justified.
R.F. Goldstein J.
Released: October 6, 2021
COURT FILE NO.: CR-21-60000264-00BR
DATE: 20211006
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEFANI KONGOLO
REASONS FOR JUDGMENTON 90-DAY REVIEW AND BAIL REVIEW
R.F. Goldstein J.