



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stojanovski, 2020 ONCA 285

DATE: 20200430

DOCKET: M51509 (C67754) &

M51510 (C67755)

Brown
    J.A. (Motions Judge)

M51509
    (C67754)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Darko
    Stojanovski

Appellant (Applicant)

M51510 (C67755)

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Daniel
    Stojanovski

Appellant (Applicant)

Geoff Haskell
, for
    the applicants

Charmaine M. Wong, for the respondent

Heard by Teleconference: April 24, 2020

REASONS
    FOR DECISION

I.        OVERVIEW

[1]

The applicants, Darko and Daniel Stojanovksi, are 36-year twin brothers
    who are applying for bail pending appeal.

[2]

On May 30, 2018, following a jury trial, they were convicted of
    attempted murder and discharging a firearm with intent to endanger the life of
    Nassundu Williams, contrary to ss. 239(1)(a) and 244(2)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46
. On July 6, 2018, they were
    sentenced to 18 years imprisonment:
R. v. Daniel
    Stojanovski and Darko Stojanovski
, 2018 ONSC 4243, at para. 34.
    They are presently incarcerated at the Beaver Creek Institution.

[3]

The Crown opposes their applications for bail pending appeal, taking the
    position that they have not met any of the criteria in s. 679(3) of the
Criminal Code
.

[4]

For the reasons set out below, I dismiss the applications.

II.       BACKGROUND FACTS

[5]

At trial,
Mr. Williams testified that when he was
    sitting in his car in a parking lot listening to music, both applicants
    arrived. A heated argument ensued. Mr. Williams said that Darko Stojanovski
    attacked him and forced him to the ground. They rolled around, wrestling on the
    grass, each trying to punch the other. A bystander separated them. Mr. Williams
    admitted he pulled out a knife as he stood up and as the applicants were walking
    to their car. He said that the applicants jumped into their car, drove by him,
    and both then shot at him. He was shot five times, twice in the shoulder and
    three times in the back as he was trying to run away. The evidence of a
    bystander who testified at the preliminary inquiry supported Mr. Williams'
    evidence.

[6]

Darko Stojanovski testified at trial. He
    described the initial skirmish leading to the wrestling match. He said that
    after they were separated, Mr. Williams came after him with a knife. As the two
    sides continued to exchange insults, Darko got into the car with his brother. As
    Darko drove them out of the parking lot, he heard gunshots but did not know
    where the shots were coming from and just kept driving.

[7]

The Crown presented alternate theories of
    liability to the jury: both Daniel and Darko shot Mr. Williams, or Daniel was
    the shooter with Darko liable as an aider or abettor. The trial judge
    instructed the jury on both theories of liability.

[8]

Following their convictions and sentencing, the applicants filed inmate
    notices of appeal in November 2018 (C66249 and C66251).

[9]

In August 2019, both applicants applied for orders appointing legal
    counsel to represent them on their appeals, pursuant to s. 684(1) of the
Criminal Code
. Pardu J.A. dismissed the applications.

[10]

The
    applicants filed solicitors notices of appeal in December 2019. According to
    counsel, the transcripts are at the printers and he hopes to have the appeals
    perfected in a few months.

[11]

Since
    the Crown takes the position that the applicants have not met any of the
    criteria in s. 679(3) of the
Criminal Code
, I
    shall consider each in turn.

III.      WHETHER THE APPEALS ARE NOT FRIVOLOUS:
CRIMINAL CODE
s. 679(3)(a)

[12]

The
    applicants notices of appeal advance two grounds of appeal: (i) the trial
    judge erred by not taking reasonable steps to mitigate the trial confusion and
    prejudice caused by the Crown injecting a new basis of liability  Darko as an
    aider; and (ii) the trial judge failed to provide an adequate jury instruction
    regarding party liability.

[13]

The
    record of the proceedings below that was before Pardu J.A. on the s. 684(1)
    application is essentially the same as that on these bail applications. The
    grounds of appeal advanced at that time were slightly broader than those in the
    solicitors notices of appeal, yet Pardu J.A. characterized them as weakly
    arguable.

[14]

The
    not frivolous test sets a very low bar:
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. I am satisfied that the
    applicants have established that their appeals are not frivolous.

IV.     WHETHER THE APPLICANTS WILL SURRENDER INTO CUSTODY:
CRIMINAL CODE
s. 679(3)(b)

[15]

The
    applicants do not have any record of breaches of recognizance or court orders.
    Although the Crown expressed some concerns about whether the applicants would
    surrender into custody, largely based on the applicants flight from the scene
    of the shooting, ultimately the Crown advised that it would not press the
    second ground. Consequently, I conclude that the applicants have satisfied s.
    679(3)(b).

V.      WHETHER DETENTION IS NECESSARY IN THE PUBLIC INTEREST:
CRIMINAL CODE
s. 679(3)(c)

[16]

The
    focus of the Crowns opposition to these applications is the third ground set
    out in s. 679(3)(c) of the
Criminal Code
. The
    Crown submits that detaining the applicants is necessary in the public
    interest.

[17]

The
    public interest criterion has two components: public safety and public
    confidence in the administration justice. Courts are not to treat the two
    components as silos. Even where the public safety threshold has been met,
    residual public safety concerns, or their absence, should be considered in the
    public confidence analysis:
Oland
, paras. 23
    and 27.

A.

P
ublic safety component

[18]

The
    public safety component of s. 679(3)(c) of the
Criminal
    Code
essentially tracks the requirements of s. 515(10)(b) governing
    an accuseds release pending trial:
Oland
, at
    para. 24. Bail is denied only for those who pose a "substantial
    likelihood" of committing an offence or interfering with the
    administration of justice, where this "substantial likelihood"
    endangers "the protection or safety of the public" and when it is
    "necessary" for public safety:
R. v. Morales
,
    [1992] 3 S.C.R. 711, at p. 737.

[19]

The
    applicants sought but were denied interim release pending their trial.

[20]

Neither
    has a record for failing to comply with a recognizance or probation order.
    Darko has no prior record. Daniel has a youth record for dangerous operation of
    a motor vehicle and failure to stop at the scene of an accident (2002). As an
    adult, he was convicted of criminal negligence causing bodily harm for which he
    received a 15-month conditional sentence, one years probation, and a 7-year
    driving prohibition (2004).

[21]

The
    sentencing judge remarked that the applicants took positive rehabilitative
    steps while detained: at para. 31.

[22]

The
    applicants plan of release contains the following main components:

·

They will reside with their parents at their condominium;

·

They will remain at the residence except for medical emergencies,
    attending court, meeting their lawyer, or travelling to and from work. They
    plan to work for a friend in his home renovation business;

·

In their affidavits they state that they are willing to wear GPS
    tracking ankle-bracelets and pay for the cost of the monitoring service,
    although their draft release order does not contain such a term;

·

Each applicant is prepared to pledge $3,500, although both
    acknowledge that their financial resources are slim;

·

Their mother, Suzana Stojanovski, and step-father, Mario Tennina,
    are prepared to act as sureties, supervise their sons if they are required to
    remain in the residence under house arrest, and each is prepared to pledge
    $10,000. In her affidavit, Suzana did not mention her 1990 convictions for
    theft under $1,000 and possession of property obtained by crime.

[23]

Darkos
    lack of a criminal record, when combined with the dated nature of Daniels
    record and the absence in his record of any convictions for failure to comply
    with recognizance or probation orders, leads me to conclude that the applicants
    have met the public safety threshold.

[24]

However,
    I am still left with significant public safety concerns. In particular, the
    applicants propose a very weak release plan: (i) the lack of any requirement
    that they be in the presence of a surety when they leave the residence is
    troubling; (ii) although the applicants are the registered owner of firearms,
    the draft release order does not propose any prohibition on the possession of
    firearms; (iii) the evidence does not indicate that the applicants have
    contacted a bail monitoring company that is prepared to monitor their release;
    and (iv) GPS ankle bracelets have their limits. They are not designed to
    prevent violations or ensure an immediate police response; they function more
    as a risk management tool:
R. v. Jesso
, 2020
    ONCA 280, at paras. 24-25. GPS monitoring reveals where a person is, not what
    he is doing, and focuses more on gathering evidence of compliance rather than
    preventing non-compliance:
R. v. Fleming
,
    [2015] O.J. No. 4380 (S.C.J.), at para. 18;
R. v. Palijan
,
    [2012] O.J. No. 6549 (S.C.J.), at para. 25.

[25]

I
    will consider these residual public safety concerns when dealing with the
    public confidence component of the public interest criterion.

B.

Public confidence component

The enforceability interest

[26]

Dealing
    first with the enforceability interest, the offences for which the applicants
    were convicted are very serious. The sentencing judge observed that the
    circumstances involved gun violence that is far too prevalent on the streets of
    Toronto and that it is pure luck that one bullet or a combination of bullets
    did not kill Mr. Williams: at paras. 1 and 8. As well, the applicants fired
    their guns in a residential neighbourhood filled with families and children
    and, before opening fire, they yelled at others to get out of the way: at para.
    20. The applicants convictions attracted a very long penitentiary sentence of
    18 years, less credit for pre-sentencing custody.

[27]

The
    residual public safety concerns come into play here. As I explained in para. 24
    above, the bail release plan proposed by the applicants is unacceptably weak.

The reviewability interest

[28]

Considering
    the reviewability interest requires undertaking a more pointed assessment of
    the strength of an appeal than that performed in respect of the not frivolous
    criterion, with an eye to the general legal plausibility of the grounds
    identified in the notice of appeal and their foundation in the record:
Oland
, at para. 44.

[29]

The
    key elements of the record that were before Pardu J.A. on the s. 684(1)
    application are also before me: the charge to the jury; the Crowns closing
    submissions; counsels submissions on sentencing; and the reasons for
    sentence.

[30]

As
    mentioned, the notices of appeal advance two grounds of appeal: (i) the trial
    judge erred by not taking reasonable steps to mitigate the trial confusion and
    prejudice caused by the Crown injecting a new basis of liability  Darko as an
    aider; and (ii) the trial judge failed to provide an adequate jury instruction
    regarding party liability. The joint notice of application for bail pending
    appeal elaborates on these grounds. As I understand the applicants main
    critique of the charge, it misled the jury because it did not provide adequate
    instructions on the alternative theory of liability of Darko as an aider or
    abettor and conflated the applicants into a single entity.

[31]

This
    court has considered the adequacy of charges dealing with party liability as an
    aider or abettor in several recent decisions:
R. v. Saleh
,
    2019 ONCA 819, 380 C.C.C. (3d) 445;
R. v. Josipovic
,
    2019 ONCA 633, 147 O.R. (3d) 346;
R. v. Zoldi
,
    2018 ONCA 384, 360 C.C.C. (3d) 476. I have reviewed the record in the light of
    these decisions.

[32]

The
    legal adequacy of the trial judges charge must be assessed in the context of
    the entire charge and the trial as a whole, including objections to the charge made
    by counsel during pre-charge conferences and the closing submissions of
    counsel:
R. v. Araya
, 2015 SCC 11, [2015] 1
    S.C.R. 581, at paras. 39-51. I lack the transcripts of the pre-charge
    conference and the closing submissions of defence counsel. From the written
    charge included in the record, the trial judge instructed the jury on the issue
    of aiding or abetting twice: once before and once after her discussion of the
    elements of each offence. This was not a complex fact situation. Given the
    limits of the record before me, I agree with the assessment of Pardu J.A. in
    her s. 684(1) reasons that the grounds of appeal are weakly arguable.

[33]

The
    joint notice of application for bail pending appeal also advances an argument
    that the evidence allowed for many different scenarios, some of which did not
    lead to guilt. Without the transcripts of the evidence at trial, I cannot
    assess those arguments.

[34]

The
    applicants advance one additional factor that they submit should be balanced
    against the enforceability factor. Both are incarcerated in the Beaver Creek
    Institution. In their affidavits, they state that it is not possible to
    practice social distancing in the institutional environment, staff and inmates
    have not been given personal protective equipment, and they spend 22.5 hours of
    each day locked in their units. Although there were not any cases of COVID-19
    at Beaver Creek when they swore their affidavits on April 17, 2020, there is a
    great deal of anxiety about it getting introduced into the prison.

[35]

The
    current COVID-19 outbreak in Ontario is a factor that can be taken into account
    in considering the public interest criterion:
R. v.
    Omitiran
, 2020 ONCA 261, at para. 26. The weight played by that
    factor depends upon the particular circumstances of each case. For example, it
    might play a role where an applicants known or documented health conditions,
    including his age, place him within a vulnerable group that is more likely to
    suffer complications and require hospitalization if he contracts the virus:
R. v. Kazman
, 2020 ONCA 251, at para. 17. Other examples
    can be found in some of the cases helpfully summarized and reviewed in
R. v. Paramsothy
, 2020 ONSC 2314, at paras. 45-60.

[36]

In
    the present case, the applicants are 36 years old. Neither deposed to having a
    medical condition that would increase his vulnerability to the virus. The Crown
    filed a Correctional Services Canada document reporting on inmate COVID-19
    testing in federal correctional institutions as of April 21, 2020. It recorded
    that two tests of Beaver Creek inmates had been taken. One returned negative;
    the other result was pending. As of April 21, 2020, no positive tests of
    inmates at the institution had been recorded.

Balancing the interests

[37]

Public
    confidence is to be measured through the eyes of a reasonable member of the
    public:
Oland
, at para. 47. A categorial
    approach must not be taken; the assessment must be qualitative and contextual: at
    para. 49.

[38]

In
    the present case, the applicants have been convicted of very grave offences. A
    gun or guns were used in a residential area during daylight hours, a factor
    that plays a significant role in the public confidence analysis: see the
    comments made by Trotter J. (as he then was) in
R. v.
    McGowan
, 2009 CanLII 46439 (S.C.J.), at paras. 11-12, in the
    context of a s. 515(10)(c) analysis. Lengthy terms of imprisonment have been
    imposed. Their release plan is unacceptably weak, as specified in para. 24
    above. The grounds of appeal appear to be weak. The applicants are not members
    of a group especially vulnerable to COVID-19 nor are they incarcerated in an
    institution that has a significant outbreak of the virus. I conclude that the
    enforceability interest significantly outweighs the reviewability and virus
    exposure interests:
Oland
, at para. 50.

VI.     DISPOSITION

[39]

Consequently, for these reasons I
    dismiss the applicants applications for bail pending appeal.

David
    Brown J.A.


