RULING ON A BAIL VARIATION APPLICATION

COURT FILE NO.: CR-22-600000066-00BR DATE: 2022-04-25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – MAX YAKUBOVSKY-ROSITSAN, Applicant

COUNSEL: Thomas Surmanski, for the Crown Dennis Morris, for the Applicant

HEARD: March 15 and April 7, 2022

BEFORE: B.P. O’Marra J.

[1] On December 14, 2021, the applicant was granted judicial interim release in the Ontario Court of Justice (OCJ) after a contested reverse onus bail hearing. He had been arrested and charged with a series of offences that were alleged to have occurred in the evening of December 5, 2021 and the early hours of December 6, 2021. Those offences included driving with excess blood alcohol, failing to comply with an Undertaking and a series of firearm offences. The latter related to possession and storage of an illegal firearm and ammunition.

[2] At approximately 7:15p.m. on December 5, 2021 the applicant was the driver of a car that was stopped at a RIDE spot check operated by members of the Toronto Police Service (TPS). His wife was a passenger. He later provided two samples of his breath that revealed blood alcohol readings of 157 and 147. The applicant had an outstanding charge of assault with an offence date of May 25, 2021. He had been released on an Undertaking on that charge that included a term that he not have contact with his wife who was the complainant. He was arrested on the charge of driving with excess blood alcohol and breach of Undertaking. He was later released from the police station on an Undertaking that included a term that he not attend at the home where he resided with his wife.

[3] In the early hours of December 6, 2021 members of the TPS attended at the wife’s address to check on her safety. Two young women were there. They identified themselves as daughters of the applicant. His wife was not present but the applicant was found hiding in a closet naked from the waist down. While in the residence the police observed and seized a firearm and ammunition. The applicant was then arrested in regard to those items and held for a show cause hearing.

[4] The applicant’s criminal record is as follows:

• 2010- Possession of a scheduled substance under the Controlled Drugs and Substances Act. He received a conditional sentence of two years less a day.
• 2012- Excess blood alcohol while operating a motor vehicle and drive while disqualified. He was fined a total of $2500 on those two offenses along with the mandatory suspension of his driver’s license.

[5] The terms of the release on December 14, 2021 included the following:

• Two named sureties. Leeza Tartakovski was the residential surety and Victoriya Cherkashyna was the other;
• House arrest except when in the presence of one of the sureties or a medical emergency;
• No communication or contact with his wife;
• Not to possess weapons as defined in the Criminal Code;
• Not be in the front seat of a motor vehicle; and
• Attend any counselling suggested by the sureties.

[6] On December 21, 2021, the outstanding charge of assault related to May 25, 2021 was withdrawn. The applicant entered a peace bond with no terms other than to keep the peace. That resolution position had been proposed by the Crown in June 2021.

[7] The applicant filed materials in support of a variation of the release terms. The terms requested included the addition of his wife as a surety and deletion of the non-contact term related to her.

[8] After this application had been filed the Crown advised that a further charge would be laid alleging that the applicant had assaulted his wife on December 5, 2021. That incident allegedly occurred shortly before the applicant was stopped at the spot check.

[9] The applicant submits there has been a material change in circumstances since the bail order of December 14, 2021. The respondent opposes the application on the basis there has been no material change in circumstances. In the alternative, the respondent asserts that any changes since the release order do not justify the variations requested. The respondent also submits that on any view the applicant’s wife is not a suitable surety since she has been the victim of two alleged incidents of assault by the applicant.

THE ALLEGED ASSAULT ON DECEMBER 5, 2021

[10] The incident and the circumstances related to the timing of the charge occupied most of the attention of the parties on this application. The applicant’s wife has denied under oath that she was assaulted by the applicant. She has never provided a statement to the contrary. It is not uncommon for victims of spousal abuse to deny it happened or not wish to participate in the prosecution of the charge. However, there are some unusual aspects of this alleged incident that I have considered.

[11] At approximately 7:00p.m. on December 5, 2021, (some 15 minutes before the applicant was stopped at the police spot check) a citizen called 911 to report what appeared to be an incident between a man and a woman near a car. It was later determined that it was the applicant and his wife. There is some brief video of the incident of inconsistent quality. There is no audio. There appears to be some kind of an argument between the woman who was outside the front passenger window and the man who was in the car. There are gaps in the video. At some stage the woman is laying on the ground outside the passenger side of the car. The man gets out of the car, walks behind the car to the passenger side and picks the woman up and puts her into the car. The video does not show how the woman went to the ground. It specifically does not show the man pushing or hitting her to cause her to fall.

[12] Counsel for the applicant claims that there have been unsatisfactory delays in obtaining full disclosure of what the citizen who called 911 actually saw aside from what is, and is not, apparent on the video. I understand at this stage that the citizen who called 911 did not in fact see any physical act by the man that caused the woman to fall to the ground.

[13] The applicant’s wife has denied she was assaulted then or at any other time by the applicant.

[14] The citizen who called 911 was absolutely right to do so. The woman on the ground appeared to be unconscious. However at this stage, long before trial, there is no direct evidence that the applicant assaulted his wife. The Crown’s case at this stage is circumstantial.

MATERIAL CHANGE IN CIRCUMSTANCES

[15] The justice in the OCJ released the applicant on appropriately strict terms. The resolution of the outstanding assault charge from May 25, 2021 by way of a peace bond without conditions is a significant change from the situation at the original bail hearing. The respondent submits that even if that is so, the new assault charge related to December 5, 2021 offsets that aspect. I agree I should consider the circumstances and timing of the later assault charge. However, that does not detract from the material change in circumstances that merits consideration of the variations requested.

SUITABILITY OF THE APPLICANT’S WIFE AS AN ADDITIONAL SURETY AND DELETION OF THE NON-CONTACT TERM

[16] There is no statutory or common law prohibition on the victim of an alleged assault acting as a surety for the accused. In R. v. K.K., 2021 ONCA 929 at para. 25 the court held that:

Generally, a victim of a bail applicant’s violence should not serve as surety. Each case must be judged on its own facts.

[17] In cases of alleged assaults in a domestic context it is most unlikely that the alleged victim would ever be accepted as the sole surety. That is not what is proposed in this case. The applicant seeks to add his wife as an additional surety along with two others who were approved in the OCJ and whose suitability was not challenged on this application.

[18] The respondent persisted on this application to refer to the allegations related to the alleged assault of May 25, 2021. The applicant was and remains presumed innocent of those allegations. The Crown chose to withdraw that charge with the applicant entering a peace bond with no conditions. That unproven allegation cannot be considered in any way adverse to the applicant.

[19] The applicant and his wife want to resume living together in the family unit. They wish to engage in counseling together to address issues in their relationship. On the allegation of assault dated December 5, 2021, the Crown will not have a recanting complainant. She has never claimed to be a victim. There are sound public policy reasons for the Crown to proceed on certain allegations of domestic abuse even if the alleged victim denies she was assaulted. An assault can be proven even if the alleged victim is not called to testify: R. v. Cook. I am not the trial judge. I am not saying the charge is unprovable. I am saying that the Crown faces significant challenges in proving that charge.

[20] I am satisfied that in the particular circumstances it is appropriate to add the applicant’s wife as an additional surety to the other two already named and approved at the OCJ and not challenged on this application. I am also satisfied that it is appropriate to delete the non-contact term of the current release related to the applicant’s wife. When and if she is called to testify as to the alleged assault of December 5, 2021, she will be expected and required to tell the truth, the whole truth and nothing but the truth.

RESULT

[21] The application is allowed and a new global release order will be made with the following modifications to the existing release order:

• The two current sureties will remain. The amount pledged by Leeza Tartakovski will be increased to $25,000 without deposit. The applicant’s wife will be added as a surety in the amount of $15,000 without deposit;
• The non-contact term related to the applicant’s wife is deleted;
• The applicant will be subject to house arrest except when in the presence of one of his sureties or in a medical emergency; and
• The applicant is not to operate or have the care or control of a motor vehicle.

B.P. O’MARRA J. Released: April 25, 2022