R. v. Buczel, 2014 ONCJ 473

Citation: R. v. Buczel , 2014 ONCJ 473 Case Name: R. v. Piotr Buczel Between Regina, and Piotr Buczel Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: September 8th and 12th 2014 Judgment: September 12th 2014 Counsel: Crown Counsel: Mr. B. Cohen Defence Counsel: Mr. T. Hicks JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. Kowarsky J.P. A. INTRODUCTION 1 . On Monday, September 8 th 2014 Piotr Buczel appeared before me seeking an order for judicial interim release. After hearing all the evidence, the matter was adjourned to today for submissions and judgment. 2 .

The accused is a 38-year-old man, one of 9 people who are charged on a 109-count Information with various charges under the criminal code. He is facing 27 of these charges. 3 . Section 515 (6) (a) (ii) of the Criminal Code provides that when considering an accused’s application for bail, the onus of persuasion is reversed if it is a serious offence, as defined in

section 467.1 of the Criminal Code, which is alleged to have been

committed in association with a criminal organization. Having regard to the fact that the accused is charged with committing indictable offences in association with a criminal organization, the onus of persuasion is reversed. 4 . Furthermore, the onus is reversed by virtue of the fact that the accused is currently on bail with respect to allegations of having committed two indictable offences. 5 . Accordingly, in order to be granted bail, the onus is on the accused to satisfy the Court, that he should be released. B. THE MILTON CHARGES 6 .

The accused is on two recognizances in relation to two indictable offences that he is alleged to have committed on July 12, 2014 in the City of Burlington, Ontario as follows:

a) Possession of Brake and Enter Tools contrary to section 351 (1) of the Criminal Code ; and

b) Possession of a motor vehicle of a value exceeding $5,000.00, knowing that it was obtained by the commission of an indictable offence contrary to section 354(1) (

a) of the Criminal Code . 7 . On July 12, 2014, with respect to the charge of possession of break and enter tools, the accused was released on a recognizance of $2,000.00 without deposit, with the following sureties, each pledging $1,000.00:

i) his mother, Krystyna Buczel; and ii) his wife, Magdalena Lejawa. 8 . Henceforth, I will refer to these two charges as the “Milton Charges”. 9 . On July 18, 2014, with respect to the theft over $5,000.00 charge, he was again released on a further recognizance of $2,000.00 without deposit, on the same terms and conditions as the previous recognizance, with the same sureties. 10 . One of the conditions of each recognizance was that the accused was to continue to reside with his wife, Magdalena Lejawa at Unit 6, 5202(Block 55) Angel Stone Drive, Mississauga, Ontario. C. APPLICATION UNDER

SECTION 524 OF THE CRIMINAL CODE 11 . At the outset of these proceedings, Defence Counsel Hicks informed me that the Crown had agreed that I be asked to cancel the recognizances with respect to the Milton Charges so that the current Bail Application would include the Milton Charges. I acceded to that request. 12 . Certified copies of the Informations and recognizances were submitted to me. Consequently, I cancel the two recognizances, and I will sign the certificates of default pursuant to

Section 770 of the Criminal Code . 13 . There is no evidence before me as to whether the accused does or does not have a criminal record.

D. THE NEW CHARGES 14 . The 27 new charges against the accused include that during the period between December 20, 2013 and August 28, 2014, in Toronto and elsewhere in Ontario, Piotr Buczel, in association with a criminal organization, committed indictable offences of Break and Enter and Theft of a motor vehicle of a value exceeding $5,000.00.

In addition, the accused is facing further charges of breaking and entering numerous dwelling houses, stealing motor vehicles and possession of motor vehicles of values exceeding $5,000.00 as well as multiple charges of conspiring to commit theft of numerous motor vehicles of values exceeding $5,000.00. E. THE EVIDENCE FOR THE CROWN 15 . Detective David Zajac #2014 of 32 Division in Toronto, testified on behalf of the Crown. His evidence may be summarized as follows: a.

He is the lead investigator in the entire case, which the police have named “Operation Yellowbird,” and he has overseen the investigation from its inception. b. Although he has been investigating the criminal activities of most of the accused since 2002, the material stages of the investigation actually commenced on December 22, 2013. c. Detective Zajac testified that numerous Break and Enters had been taking place for many years in areas policed by Divisions 23, 32 and 52 in Toronto. The break-ins mainly occurred at high-end homes in high-end areas of the city. d.

Several individuals were breaking into homes, stealing car keys and fobs for expensive motor vehicles, which they stole, in addition to watches, jewellery and many other items of value. Homes were ransacked during these break-ins. Although there were some arrests made in relation to such activities over the years, there had been “no significant convictions” in relation thereto. e. When one or more of the members of this “criminal organization” was in custody the break-ins appeared to stop, but began again, after their release from custody. f.

One of the accused, arrested on August 28 in this police “take-down” told him that “it was easy to commit (B&

E) entries in Toronto because there’s not enough money to stop them.” In other words, this group was convinced that the police did not have enough money to dedicate to the investigation of such a major project. g. Since December 22, 2013, when a Porsche and Audi were stolen, there were about 60 or 70 break-ins that the police are aware of. In fact, the police have determined that of the 44 break-ins, which occurred in June and July 2014, 43 motor vehicles were stolen. h. Numerous Search Warrants, General Warrants, Production Orders, Number Recorder Warrants and Tracking Device Warrants were granted.

The police executed Warrants and Orders and conducted video and other ongoing surveillance of the accused persons. They followed many of the accused who were driving what police knew to be stolen motor vehicles. i. On July 12, 2014, police officers stopped a black 2009 Lexus RX3 motor vehicle being driven in the Burlington area. The driver identified himself as Piotr Buczel. However, he was unable to provide a driver’s licence or proof of ownership or proof of insurance with respect to that vehicle. The police investigation revealed that Mr.

Buczel’s driver’s licence was under suspension due to unpaid child support, and the vehicle had been stolen. The accused was arrested, and the vehicle was impounded. When the police searched the vehicle, they located the following: a black bag 2 pairs of black gloves 2 screw drivers a ratchet set wire snips electrical accessory kit black electrical tape 3 black rubber gloves 2 balaclavas an address book reflecting addresses and makes and models of stolen motor vehicles or ones which they apparently planned

to steal. j. On July 18, 2014, the accused was released on bail with respect to the Milton Charges . k. The accused’s role in the ongoing criminal scheme was that he was a wheelman, second to Mr. Niezurawski, who was the main wheelman. The police observed both Mr. Buczel and Mr. Niezurawski together in stolen vehicles. Mr. Buzcel was also observed in numerous surveillance videos going to the doors of houses and carrying out the stolen items. He was also a “look-out guy” and in control of the burglar tools. l. Prior to the break-ins, Mr.

Buczel’s phone would go off line, and come back on thereafter, when he called his wife (Magdalena Lejawa) and other members of the organization. His cell phone was located at homes which had been broken into. m.

The modus operandi of the accused and his alleged co-perpetrators was to select a similar type of motor vehicle to one stolen, use the plate to make a licence plate out of paper, and then place a tinted cover over it so that “it would appear normal.” They would then place the fake licence plate on the stolen vehicle, and drive the stolen vehicles in those neighbourhoods so that they would be unlikely to be detected by neighbours or the police. n. On one particular evening, officers who were conducting surveillance, observed two males walk across a lawn to the rear of the home.

The upstairs lights were then turned on; the garage doors were opened, and an Audi S.5 motor vehicle was reversed out by one of the two people seen. It was followed by a black Audi RS 5, which had been parked near the house when it was broken into. o. The police followed the vehicles to the accused’s home in Mississauga, and observed a female drive away in a Lexus SUV. The police followed, and saw Mr. Buczel standing at the roadside near the QEW and Erin Mills. He had a backpack and a suitcase. After he got into the Lexus, the officers followed the Lexus, which returned to the accused’s home in Mississauga. p.

The accused was observed on numerous occasions attending at various storage lockers. When the police executed the search warrants at those storage lockers, most of which had been rented by co-accused Mykhaylo Antinov in whose company the accused was often seen by the police, they located high-end motor vehicles, which had been reported stolen, as well as other stolen property and jewellery. 16 . Detective Zajac testified that on August 28, 2014, a search warrant was executed at the home of Mr. Buczel and Magdalena Lejawa at 6 – 5202 Angel Stone Drive (Block 55), Mississauga, Ontario. 17 .

An extremely large quantity of all kinds of goods which had been reported stolen, was seized, and the items are presently being documented and matched with the homes from which they are alleged to have been stolen. 18 . The Officer told the court that police executed another search warrant at a jewellery store called Five Star Exchange. The owner, Mr. Abelev, informed the police that during July and August 2014, Mr. Buczel brought him various items of jewellery, coins and watches which he offered to sell to Mr. Abelev. Some of these watches were matched to addresses from which they had been reported stolen. 19 .

According to Detective Zajac, these individuals have been together since the 1990’s, although Mr. Buczel was brought into the group “in the last few years.” He testified that the group is “very sophisticated and very organized.” 20 . Four of the stolen vehicles have been located overseas in places such as Lithuania and Germany, and are being returned to Canada, he said.

F. THE REVERSE ONUS PROVISIONS 21 . The reverse onus provisions of the Criminal Code effectively create a rebuttable presumption of pre-trial detention in that the court must order detention unless the accused is able to show cause, on a balance of probabilities, that his pre-trial detention is not justified. There has to be a sound discharge of that burden on the primary, secondary and tertiary grounds. G. THE RIGHTS OF THE ACCUSED 22 . The function of the bail court is not to punish the accused for the crimes which he is alleged to have committed but rather to determine whether pre-trial custody is necessary having regard to the provisions of section 515(10) (a), (

b) and (

c) of the Criminal Code . 23 . I take into account the rights of the accused under the Canadian Charter of Rights and Freedoms to the presumption of innocence, his right to be granted reasonable bail as well as his right not to be deprived of his liberty and security except in accordance with the principles of fundamental justice. 24 . The abundant jurisprudence with respect to these rights clearly clarifies that – 1. Imprisonment prior to trial is a last resort; 2. Pre-trial detention is extra-ordinary in our system of criminal justice; 3.

There are no categories of offences for which bail is not a possibility; and 4. Bail will be denied only in a narrow set of circumstances H. THE PROPOSED SURETIES 25 . The following two sureties were proposed by the accused: his uncle, Andrzej Buczel and his aunt, Barbara Buczel. 26 . Sixty-one-year-old Andrzej is the brother of the accused’s late father who died approximately five years ago. He immigrated to Canada from Poland in 1989, and is a Canadian citizen, who has no criminal record nor is he facing any criminal charges. 27 .

He has been employed as a building machine operator for 15 years, and works from 7:00 am to 3:00 pm Mondays through Fridays. 28 . He and his wife Barbara have been married for more than 30 years. They live in a house in Richmond Hill, Ontario. The value of that house is about $750,000.00, and they have no mortgage. 29 . He and his wife are prepared to pledge a maximum of $15,000.00 to secure the release of the accused. He will be permitted to reside with them, and they will supervise him. 30 .

While in court at this hearing, the uncle first heard the very serious charges which his nephew is facing, but, as he expressed it: “I don’t think it’s all true.” 31 . Barbara Buczel was presented to the court as the proposed second surety. Essentially, she provided similar evidence to that of her husband. She told the court that since the death of Piotr’s father, her contact with him “slowed down.” It was Piotr’s mother, who contacted her recently, and asked her and her husband to come forward and present themselves as sureties for Piotr, which they agreed to do because of their long-standing family connection.

I. THE INTERACTION BETWEEN THE ACCUSED AND THE PROPOSED SURETIES

32 . Although the uncle has known the accused since birth, he testified that following the death of Piotr’s father some 5 years ago, there has been no contact or communication between them at all for about the last four years. Piotr had been very close to his father. Despite the uncle’s numerous attempts to communicate with Piotr during that time, he was unsuccessful in doing so.

He told the court that Piotr “wasn’t responding to my attempts.” He has not even spoken to the accused since he was arrested, nor was he aware, until he came to court for these proceedings, that Piotr had been arrested and released on bail in July, and that Piotr’s sureties were his mother and his wife. He told the court that Piotr had been busy and worked long hours, but he had no idea what type of work Piotr was doing or where he was working.

He testified that as far as he knows Piotr “has not had an honest job for the past two years….I think he should go back to what he did before” which is installation of ceramic tiles. 33 . He testified that he has very rarely been in touch with Piotr’s mother, Krystyna Buczel in the last number of years, although she told him that Piotr was “doing tire installation” and working “as a car mechanic.” He has no idea where Krystyna lives. He thinks its somewhere in Mississauga. He met Piotr’s current wife, Magdalena, once prior to the death of Piotr’s father.

He was not even aware that Piotr’s wife Magdalena was one of the 9 accused in this case. Regarding his relationship with Piotr, he told the court that “before my brother died, we talked and went fishing sometimes.” Although he has not even spoken with Piotr since his recent arrest, “I hope he’ll follow the rules.” J. THE CROWN’S CONCERNS 34 . The onus is on the accused to satisfy the Court on all three grounds that he should be released. However, the Crown’s concerns are only on the secondary ground.

Although I do believe that the primary and tertiary grounds do warrant some consideration, I am prepared to concede that the accused has met his onus on those grounds. 35 . The secondary ground is set out in section 515(10) (

b) of the Criminal Code . It provides as follows: “For the purposes of this section, the detention of an accused in custody is justified only…where the detention is necessary for the protection or safety of the public, including any victim 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.” 36 . It is not the role of the bail Justice to punish the accused.

Rather, the overwhelming jurisprudence mandates that no matter how serious the allegations are, if a plan of release can reasonably be crafted so as to reduce the Court’s concerns on the secondary ground to an acceptable level, the accused must be released on bail. K. THE PLAN OF RELEASE 37 . The accused’s uncle and aunt will be his sureties. Defence Counsel suggests that they will pledge a total of $10,000.00 to secure his release. 38 .

He will live with his sureties at their home in Richmond Hill, and be bound by bail conditions including a curfew which Defence Counsel suggests should be from 10:00 pm to 6:00 am with certain exceptions, although the plan actually envisages that the accused would virtually be under 24 hours a day supervision. 39 . His sureties will supervise him, and use their best endeavours to ensure that he complies with all the conditions of his release. 40 . If he does not comply with any of the conditions, they are prepared to call the police and report the breach. 41 .

Defence Counsel proffers that the release plan is one which could provide confidence to the court with respect to the safety of the

public. L. THE ADEQUACY OF THE PLAN OF RELEASE 42. The Crown submits that in light of the accused’s behaviour subsequent to his release on the Milton Charges, coupled with the scantknowledge which the proposed sureties have regarding the accused’s lifestyle, they cannot engender any trust to the court. As the Crownexpressed it: “All the sureties can do is hearken back to the days of old.” 43.

In R. v Morales (1992) (SCC), 77 C.C.C. (3d) 91 S.C.C. the Supreme Court of Canada explained that inevaluating the question of whether or not there is a “substantial likelihood” that if released, the accused would commit a criminal offenceor interfere with the administration of justice, the bail Justice must consider that: “While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exactpredictability of future dangerousness is not constitutionally mandated.” M. “ALL THE CIRCUMSTANCES” 44.

When considering public safety under Section 515(10) (b), the court is required to examine “all the circumstances.” 45. In R. v. Venneri,2012 SCC 33 , [2012] S.C.J. No. 33, the Supreme Court of Canada gave considerable guidance withrespect to the definition of a ‘criminal organization’ as envisaged in

Section 467.12 of the Criminal Code. The Court held that thedefinition of a criminal organization under

section 467.1 must be applied flexibly, but that some form of structure and continuity arerequired. Care should be taken not to transform the shared attributes of one criminal organization into a checklist that needs to besatisfied in every case. It is preferable to focus on the goal of the legislation which is to identify and undermine groups of three or morepeople who pose an elevated threat to society due to the ongoing and organized association of their members.

The purpose of the phrases“in association with”, “at the direction of” and “for the benefit of” all have a common objective, namely to suppress organized crime. 46. From the evidence which I have heard at this early stage of the proceedings against the accused, the Crown’s case with respect to theaccused’s having committed criminal offences in association with a criminal organization, appears to be very strong. In essence, theevidence against Mr. Piotr Buczel is that: (

a) The members of the organization have been associated with one another for many years. (

b) Since 2002, they have been involved in an ongoing series of criminal activity, centered around breaking and entering high-end homeslocated in high-end areas, and stealing expensive motor vehicles, jewellery, watches and many other valuable items. (

c) Piotr Buczel is alleged to have become entrenched in the organization several years ago, and has developed an integral role in itscriminal activity. The execution of the numerous search warrants and production orders, and the surveillance videos appear to be strongindicators of the operation of a criminal organization, and of Piotr’s involvement in its ongoing criminal activities. (

d) On July 12, 2014, while driving a stolen motor vehicle, he was stopped by the police, and was unable to produce his Driver’sLicence nor any documentation with respect to the vehicle. (

e) The police ascertained that his Driver’s Licence was under suspension for failing to pay child support for his two children who wereliving with their mother.

(

f) After seizing the motor vehicle, the police located numerous items, including burglary tools consistent with ongoing breaking and entering and theft. In addition, the police located an address book with addresses of vehicles which had been stolen or were apparently designated to be the targets of their future criminal activity. (

g) On July 12 and 18, 2014, he was released on bail with respect to these charges (The Milton Charges), and ordered to continue to reside with his current wife at an address in Mississauga. (

h) About six weeks later, on August 28, 2014, the police executed a search warrant at the accused’s home, and located a myriad of stolen items which they are presently documenting and endeavouring to match to the victims from whom they were stolen. (

i) The accused attended a jewellery store on several occasions, and tendered various stolen jewellery and watches for sale. (

j) Four of the stolen motor vehicles, which had been shipped overseas, have been located, and are being returned to Canada. (

k) Crown Counsel Cohen submits that the evidence suggests that the accused’s behaviour after the court had placed its trust in him by releasing him in July, is such that he can no longer be trusted. The Crown notes that there is compelling evidence that even since his recent release, he attempted to sell some of the stolen jewellery. N. FINDINGS 47 . Having regard to the aforegoing, the case against Mr. Piotr Buczel appears to be rooted in a very strong evidentiary foundation. 48 . In R. v. Cornel, [2011] O.J.

No. 6262 (O.S.C.) the court made the following comments at paragraph 32: “For a surety to be sufficiently reliable one must be willing to make a very significant commitment to alter ones personal life on behalf of another person. In order to accept a surety, the Court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time.” 49 . Both proposed sureties impressed me. They testified honestly and candidly.

Even though they have had virtually no contact or communication with the accused for the last four years, when his mother asked them to come forward and present themselves as sureties, they agreed. 50 . They are prepared to do their best to supervise him, and they both testified that they believe that he will comply with his bail conditions and stay out of trouble. 51 . The uncle works during the day, while the aunt works night shift, so that one of them will always be at home to supervise Piotr.

However, every couple of weeks, the aunt works different hours, so that there will be times when neither of them will be at home, although their 31-year-old son who currently resides with them, will be willing to assist with supervision at such times. 52 . Neither of the proposed sureties knows anything about what the accused has been doing for the last four years. They do not know any of his friends or associates. Other than having had a brief introduction to her, they do not know his current wife or where she and the accused live. 53 .

The accused rejected all attempts by them to communicate with him over the last four years. Yet they come forward to assist, despite having virtually no knowledge about Piotr, his life or his activities.

54 . Interestingly, although they own their home, mortgage free, worth $750,000.00 they are only prepared to risk a total of $15,000.00. This fact, I find, is a clear indicator that their confidence in the accused’s willingness or ability to stay out of trouble is minimal. 55 .

The ongoing criminal activity with which the accused is alleged to have been involved, together with his strong association with his co-accused, leads me to the conclusion that he will not listen to his uncle or aunt, and will in all likelihood, continue with his lucrative criminal activity in one way or another, which is easily achievable through the use of cell phones and other such communication devices. 56 . Antecedent criminal behaviour generally portends future criminal behaviour.

In my view, the most determinative element of “all the circumstances” is the fact that after his release on bail on July 18, 2014, on serious charges where he was so to speak, caught red handed, he continued his criminal activity and stored a multitude of stolen goods in his own home. By so doing, the accused has shown no regard whatsoever for the law or for his obligations to society. 57 . It is noteworthy that on January 15, 2014, the Ontario Superior Court denied bail on review in a case remarkably similar to the one at bar. In R. v. Sharma, [2014] O.J.

No. 176 , the accused was facing charges of participating in a criminal organization, fraud, theft of a motor vehicle, and possession of property obtained by crime. At the time of his arrest, although the accused had no criminal record, he was on bail with respect to charges of fraud, conspiracy to launder and laundering the proceeds of crime, possession of the proceeds of crime, and public mischief. A. Mullins J. found that the plan of release proposed was inadequate given the sureties’ relationship to the accused, which appeared devoid of any real knowledge or mutual respect.

The learned judge found that the|accused’s detention was necessary for the protection of the public in light of the substantial likelihood that he would continue to commit criminal offences, given his alleged conduct following his release on earlier charges. 58 . In my view, the facts and circumstances in Sharma appear closely to resemble the situation in the case now before me, and the reasons for bail denial in that case apply mutatis mutandis to this one. M. DISPOSITION 59 .

For all of these reasons, I am not satisfied, on a balance of probabilities, that the proposed plan of release is sufficient to attenuate my concerns on the secondary ground, and to reduce them to a reasonably acceptable level. I am not persuaded that the two proposed sureties, notwithstanding their willingness to supervise the accused, would succeed in protecting the welfare and safety of the public. Ultimately, it is the responsibility of the accused himself to comply with his bail conditions and to cease and desist from his alleged criminal behaviour. I am not satisfied that he will do so. 60 .

Therefore, I am not persuaded that Piotr Buczel has met his onus on the secondary ground. Consequently, there will be a Detention Order requiring him to remain in custody until he has been dealt with according to law. P. Kowarsky, J.P.