R. v. Kalonji, 2016 ONCJ 706

Date: November 24, 2016 CITATION: R. v. Kalonji , 2016 ONCJ 706 ONTARIO COURT OF JUSTICE Toronto Region B E T W E E N: HER MAJESTY THE QUEEN v. HERVE KALONJI REASONS FOR JUDGMENT: JUDICIAL INTERIM RELEASE HEARING Hearing Date: November 16, 2016 Judgment: November 24, 2016 Before: Her Worship Mary A. Ross Hendriks Counsel: Mrs. Grace Hession David, Crown Counsel, Special Fraud Prosecutions and Organized Crime, MAG Mr. Ravin Pillay, Barrister & Solicitor, Defence Counsel INTRODUCTION: [ 1 ] The accused is Herve Kalonji, a 32-year old man, who has been implicated in "Project Sizzle".

According to one of his proposed sureties who is a member of his extended family, Nenunjinge Lussambo, he came to Canada many years ago with his brother from the Democratic Republic of the Congo. Crown counsel alleges that he made a claim as a refugee at Niagara Falls, Ontario on November 1, 2001, which was denied by the Immigration and Refugee Board ("IRB") on October 2, 2003. The IRB has no information on how he arrived in Canada. There is no dispute that Mr. Kalonji has no legal status in Canada. Based on the information provided by Ms. Lussambo, to her knowledge, he has always resided in Toronto.

Crown counsel, however, asserted that he has no fixed address, and that at one point, was associated with four different addresses. [ 2 ] Originally, Crown counsel argued the primary ground of detention quite forcefully. By the end of the hearing, she stated that she had "resiled somewhat" from her insistence that he be detained on the primary ground, conceding that he had never failed to attend court while on his last bail. [ 3 ] Crown counsel strenuously sought his detention on the secondary and tertiary grounds, throughout the bail hearing.

Since he has been charged under count #1 with fraud over $5000 in association with a criminal organization, contrary to sections 380(1) and 467.13 of the Criminal Code , R.S.C. 1985, c. C-46 (the " Criminal Code "), this is a reverse onus bail hearing by virtue of the provisions of section 515(6) (a)(ii) of the Criminal Code , and thus it is incumbent on him to show cause why he should be released. His charges are summarized below.

[ 4 ] Defence counsel has put forward two sureties, one of whom would be a residential surety, a plan that includes house arrest, and an electronic monitoring bracelet on his ankle. Mr. Kalonji has no criminal record. THE CHARGES: [ 5 ] Mr. Kelonji has been charged with the following offences: (

a) commission of an offence for a criminal organization - fraud,

section 467.12 Criminal Code ; (

b) participate in a criminal organization - fraud,

section 467.11 Criminal Code ; (

c) commission of an offence for criminal organization - trafficking in identity information,

section 467.11 Criminal Code ; (

d) instruct commission of offence for criminal organization - fraud,

section 467.13 Criminal Code ; (

e) participate in a criminal organization - trafficking in cocaine,

section 467.11 Criminal Code ; (

f) conspiracy to commit indictable offence - trafficking in cocaine, section 465(1) (

c) Criminal Code ; (

g) conspiracy to commit indictable offence - firearms trafficking, section 465(1) (

c) Criminal Code ; (

h) possession of proceeds of crime under $5000,

section 355 (

b) Criminal Code ; and (

i) fail to comply with recognizance, to wit, not to communicate directly or indirectly with Bambous-Prisca Munyenga, contrary to section 145(3) of the Criminal Code . THE ALLEGATIONS: [ 6 ] "Project Sizzle" is an investigation that began in the fall of 2015. As the result of police investigation which included intercepted private communications authorized under

Part VI of the Criminal Code ("the wiretaps"), about 65 people were arrested, whom the Crown purports are members and associates of the "Heart of a King", also known as "HOK". The Crown asserts that HOK is a criminal organization, with no set turf. According to the Crown, HOK operates a number of sophisticated illegal activities, including fraud. [ 7 ] Crown counsel alleges that Mr. Kalonji is one of the controlling members of HOK. He has been charged in Group 1 of Project Sizzle with criminal organization fraud, and one count of trafficking in a firearm.

He has also been charged in Group 2 with one count of trafficking in controlled substances. The Fraud on Various Bank Accounts at Major Canadian Banks: [ 8 ] Crown counsel alleges that Mr. Kalonji worked closely with Edinho Bouriquot, who has yet to be arrested, in instructing their subordinates, who in turn accessed bank accounts at various major Canadian banks. Mr. Bouriquot's nickname is allegedly "Benzy" (see: session 9793, dated March 6, 2016). In a nutshell, they obtained this access through their moles who work at the major banks in various cities (e.g.

Montreal, Ottawa, Calgary), and through computer hacking techniques. At least one of the computer hackers resides in Africa, since there was some clear discussion on a wiretap about not paying him his percentage once they had the transfer link, because "they are in Africa so they can't really do shit", see: session 26461, call between Mr. Kalonji and Mr.

Simmons McKenzie. [ 9 ] Allegedly, money was withdrawn, items were purchased online, funds were moved from the real account holder to a subordinate's account for later withdrawal, statements were redirected, and additional credit or debit cards were requested. [ 10 ] To back up these very serious assertions, Crown counsel provided me with detailed charts that summarize the fruits of the wiretaps. Chart 1 corresponds to count #1, chart 2 corresponds to count #2, and chart 3 corresponds to count #3. During these various wiretap sessions, Mr.

Kalonji is indeed frequently and in plain and clear language instructing subordinates (as itemized sessions in Charts 1 and 3), discussing quantities of funds available, having extra "plastics" on standby, and making profit-sharing arrangements with them. [ 11 ] Based on the evidence before me in these three Charts, which I have read in detail, Mr. Kalonji and others have infiltrated the major Canadian banks. In session 841, February 9, 2016, Mr. Kalonji told Mr. Boursiquot that he had just received a call that his "boy had cracked RBC", because his boy had great hackers. At the end of this same call, Mr.

Kalonji told Mr. Boursiquot that they had to do at least six accounts tomorrow, and that it will be "a bad day for RBC". Similarly, in session 82978 as per 86964 (last page of tab 17 of Crown’s brief), Mr. Kalonji and an unknown male have the following discussion about RBC, TD and BMO: Unknown Male tells Kalonji that he forgot to show him that he has a transfer link now. Kalonji says oh yes, Unknown Male tells him the percentage is not the best, but we could do couple with them and then we could (unintelligible) still.

Kalonji asks which one Unknown Male tells him the other (unintelligible) in Africa, cause they can’t really do shit. Kalonji asks how much you talking about and Unknown Male says they can do like twenty. Kalonji asks on what and Unknown Male says RB is the best, but they said they could do TD. Unknown Male says he think everything except BMO he think. Kalonji tells Unknown Male that he is going to send him some stubs and then ask what’s the percentage. Unknown Male tells him they get forty, Kalonji says it is workable and Unknown Male says that is what he was saying.

Unknown Male says they could do a one/two and he knows they could dip them. Kalonji says he is going to send some stubs later on tonight. Unknown Male says all right cool, Kalonji ask how soon they do it and Unknown Male tells him ASAP. Kalonji asks if today is too late and Unknown Male says yes because they got to do it before six.

Unknown Male says if they don’t do it before six it is going to be the next day. Kalonji says it is going to be rushed. Unknown Male tells him to collect it and he will give it to the person tomorrow. [ 12 ]When the true account holder was too close to his or her limit, Mr.

Kalonji would instruct a subordinate to increase the limit, and have the subordinate report back when that had been achieved, presumably to prevent their intended transactions from being halted (sessions 5076, 5098, 5102). [ 13 ] Once the limits were increased and the money had been “loaded”, it is abundantly clear from the fruits of these wiretaps that they planned to access it. (See: session 10251, March 7, 2016, Mr. Kalonji planned to go to Ottawa to access the money and avoid being robbed.

His planned trip to Ottawa is discussed below with respect to the allegation of breach of his prior recognizance. ) Conspiracy to Traffic a Firearm: [ 14 ] Crown counsel alleges that on March 20, 2016 (session 15377), Mr. Kalonji asked Kyle Henry to have "Little Josh... hook him up with a girl", which the Crown argues meant obtain a firearm for him. In particular, the Crown alleges that Mr. Kalonji wanted Mr. Henry to deal with it during this same call, because Mr.

Kalonji was "not going down there without those fucking fat ass bitches." [ 15 ] Crown counsel also argued strenuously about the meaning of session 15644, in which Mr. Kalonji called "Trini", on March 21, 2016, and told him to speak to Felly, because Felly was Trini's boy, and Felly pushed Mr. Kalonji. Session 15644 was reproduced in full at tab 18 of Crown counsel's brief of materials, and was played during this bail hearing. In this call, Mr. Kalonji was very angry about being disrespected when he went into a club by a "stupid girl". He claimed to have beaten her up.

He also said all this HOK shit , when he goes off he's different. Trini replied that he was sure that B-Hound would call him tomorrow. Towards the end of this conversation, Mr. Kalonji said that he is on charges he doesn't want to have to worry about people. Trini said he didn't see it going anywhere. Mr. Kalonji said that he doesn't leave his house and when he does he is not playing games. Mr.

Kalonji said that if they don't call him within 2 or 3 days, they have a problem, and there is no family when there's a problem ....[emphasis added] Conspiracy to Traffic Cocaine: [ 16 ] Crown counsel also alleges that between May 10 to 12, 2016, Dejan Mitrovic and Petar Mihailovic conspired to buy $3500 worth of powdered cocaine from Mr. Kalonji. She based this assertion on six calls and surveillance that demonstrates that Mr. Kalonji went to Mr. Mitrovic's address, and then to Mr. Mihailovic's apartment building. In one of these calls, Mr.

Kalonji said that he knew it was "not going to be all sticky or funny" because Mr. Mitrovic was looking out for him (session 1053, May 12, 2016). In a much later wiretap, dated May 21, 2016, Mr. Mihailovic confirmed to Mr. Mitrovic that it was good quality. They allegedly discussed the price as beiing "fourteen five per". Rap Video as Evidence of Gang Affiliation: [ 17 ] Crown counsel played a rap video, posted on Youtube, entitled, "My Clique - Big Ros$en ft.

Eazyano." The lyrics for this video were included in her brief under tab 14. [ 18 ] In these lyrics, Rapper #2 (purportedly Gamal Joseph) stated, "HOK I rep that shit, HOK that be the clique...". Towards the end of the video, a man who is purportedly Jahmal Richardson and Mr. Kalonji appeared together and referred to pimping across Canada. Mr. Richardson has been charged with first degree murder. Mr. Kalonji then said that he has been pimping since 2003, when he was 17 years old.

Throughout the video, the chorus of their song is, "I said my clique, my clique, you can't fuck around my clique, fuck around my clique you gonna end up in a ditch, I said my clique, my clique, you can't fuck around my clique." Crown counsel identified Mr. Kalonji in this video. During the cross-examination of one of his sureties who saw the video, Ms. Gayle identified Mr. Kalonji in this video, as well. [ 19 ] During the video, the person identified as Mr. Kalonji was wearing a prominent necklace with the initials, "DC" on it. In some of the wiretaps, Mr.

Kalonji was referred to as "DC", see: wiretap of call between Mr. Kalonji and Mr. Henry, dated February 20, 2016, session 3843; and call between Mr. Kalonji and Mr. Boursiquot, dated March 6, 2016, session 9797; and a call between Mr. Kalonji and an unknown male, dated March 7, 2016, session 9950 (in which unknown male 9 asks DC if he is doing online transfers and DC says yes. DC tells unknown male 9 that the percentage breakdown is 60/40). Purported Breach of Prior Recognizance: [ 20 ] Mr.

Kalonji was given a prior recognizance on April 24, 2014, at the City of Toronto, for firearms charges that have since been dismissed. One of the conditions of that bail was to not contact or communicate directly or indirectly with Bambous-Prisca Munyenga. [ 21 ] Crown counsel said that Mr. Kalonji was with Ms. Munyenga at the time of their arrest on June 2, 2016, at 1909-90 Park Lawn Road, Toronto. Her name was on the lease for this condominium unit, but police found a wire transfer of money between them for Reise Bank, in the amount of 1000 Euros (Crown's brief, tab 9).

Thus, both of them were charged with breaching their recognizances. [ 22 ] Defence counsel pointed out that Ms. Munyenga received her own bail, dated June 3, 2016, on consent of the Crown, for possession of proceeds of crime, failing to comply with her recognizance, commission of an offence for criminal organization and participate in criminal organization (Exhibit 2). [ 23 ] Although he has not been charged with a second count of breach of recognizance, there was wiretap evidence of a call between Mr. Kalonji and Ms. Munyenga, dated March 7, 2016, 6:16 pm, session 10191, in which Mr.

Kalonji told her that he was going to Ottawa and leaving at 7 pm. She reminded him of his conditions, but he told her that he needed to be there. There was another call between Mr. Kalonji and Mr. Boursiquot that indicated Mr. Kalonji planned to travel to Ottawa despite his bail conditions, and that Mr. Kalonji said it was worth it to him to go to Ottawa and his conditions were $44,000 (session 10153). His bail at that time named two sureties, and the

total amount pledged was $40,000 (tab 11 of Crown's brief). There is no surveillance evidence to demonstrate whether or not he actually went to Ottawa. [ 24 ] Again, while there is not a third count of breach of recognizance before me, Mr. Kalonji’s discussion with Trini, which was described above in detail in paragraph 15 of this judgment, was confirmed by the testimony of his proposed surety, Ms. Gayle, who is the common law spouse of Franklyn Clarke, whose nickname she confirmed is “Trini”, see paragraphs 47 to 49. She explained to the court that her spouse was trying to be a peacemaker, since he knew both Mr.

Kalonji and the other party in this dispute. The dispute occurred in a nightclub, while he was on house arrest bail conditions. During this particular wiretap, Mr. Kalonji told Trini that he is on charges and doesn’t want to have to worry about people, thus acknowledging the bail. THE PROPOSED PLAN OF RELEASE: [ 25 ] Defence counsel called two sureties, and also called evidence with respect to the electronic monitoring device which would form part of the plan of release. Evidence of Nenunjinge Lussambo: [ 26 ] Ms.

Lussambo testified that she is 29 years old, and that she came to Canada from the Democratic Republic of the Congo when she was 13 years old. She completed high school and three years at the University of Ottawa, where she studied a double major in Criminology and Women's Studies. She is a Canadian citizen. She has no criminal record, no outstanding charges, and she has never acted as a surety in the past. [ 27 ] Ms. Lussambo resides in Rockland, which is 15 minutes outside of Ottawa, with her husband and three children, ages 6, 5 and 4 months.

She is currently on her maternity leave until July 2017 from her employment with Public Works and Government Services Canada, and the Parliament of Canada. In her role, she assists both offices with scheduling interpreters. Because of her role, she has a security clearance. She earns about $50,000 per year. She has about $15,000 to $20,000 of equity in her home. [ 28 ] Ms. Lussambo's husband is a programmer with the RCMP, and she testified that he has a top secret clearance. [ 29 ] When asked how she knew Mr. Kalonji, she explained that her sister, Cathy Lussambo, is married to his brother, Patrick Kalonji.

Her sister married him in 2006, but they were together since 2002, and thus she has known Mr. Kalonji since around 2002. She lived with him and her sister in Ottawa from 2004 to 2006. Her sister and her husband now reside in the United Kingdom. [ 30 ] She testified that she views Mr. Kalonji as a brother, explaining that when you are African, your in-laws are your family. Moreover, Mr. Kalonji's siblings are in the United States, the United Kingdom, or the Democratic Republic of the Congo, and none of them are in Canada. Thus, she is his closest family in Canada. [ 31 ] Ms. Lussambo said that Mr.

Kalonji completed his high school education in the west end of Toronto. He is not married and does not have any children. She said that he works at a gym as a personal trainer. [ 32 ] She testified that prior to his arrest, she saw him two or three times per month, particularly for birthdays and holidays. She said that they speak on the phone about five times per week. [ 33 ] Her role in this plan of release is to have Mr. Kalonji reside with the other proposed surety in Toronto, and that she would phone him three times per day, and also speak with the other surety regularly.

She would also come to Toronto once per month to visit him. She wants him to wear the electronic monitoring bracelet. [ 34 ] Part of the plan that she proposes is that Mr. Kalonji would have no access to either the internet or to WIFI. They would provide him with a phone to use for them to contact him, that did not have any access to online data.

They would also require him to provide his monthly phone records to the police. [ 35 ] When cross-examined and confronted with the allegations that he has been instructing a criminal organization's fraudulent activities, and that he has been trafficking in a firearm and in cocaine, and that the maximum penalty if convicted would be life imprisonment, she was clearly taken aback. She admitted that she was shocked by these allegations. [ 36 ] Nevertheless, she wants to be his surety, and believes that she can monitor him effectively by phoning him three times per day.

She said that she would call in the morning while her baby was sleeping, phone again later in the afternoon, and at night when her children are in bed. She testified that she is very organized and that she can assist with his supervision. [ 37 ] In terms of her knowledge of his life, she knew that he filed as a refugee in Niagara Falls and that claim was denied in 2003. She said she didn't know why he was denied refugee status. She said that he came to Canada with his brother in 2002, but that his brother was no longer in Canada.

She also knew that he had worked as a personal trainer in 2014, earning $17 per hour. She was aware of his previous firearms charges. However, during cross-examination, it became apparent that she only learned of his previous firearms charges when counsel told her.

He did not tell her at the time, but her view of his previous omission was that she wasn't his surety then. [ 38 ] When asked who would pay for the ankle bracelet, she said that she would contribute about $250 per month, and that his older brother in the United Kingdom would also assist in paying for it. [ 39 ] When asked about her knowledge of Kia Robinson or Bambous-Prisca Munyenga, she replied that she only "knew them from Facebook." She has no knowledge of Angela Galbraith. She was shocked when Crown counsel accused them of being prostitutes and Mr.

Kalonji of being their pimp. [ 40 ] Crown counsel asked her if she was shocked when she watched the rap video played in court, in which Mr. Kalonji and Mr. Richardson both claim to have been pimps for 10 years? She replied that she was not shocked. She said that he was a family member.

While the video causes her concern, "boys act foolishly" and she said that his appearance in this video was a "foolish thing he did." [ 41 ] When asked by Crown counsel if the video was "silliness", she replied, "yes." [ 42 ] When asked about the conversation played in court between Mr. Kalonji and Trini and the statement made about not caring if he punched out a boy or girl, and whether or not that concerned her that he appeared to disrespect women, she replied that she had taken Women's Studies, and that she was "disappointed but not concerned." Evidence of Grace Gayle: [ 43 ] Ms.

Grace Gayle testified as the proposed residential surety for Mr. Kalonji. She is 38 years old, born in Toronto, and has no record and no outstanding charges. She resides in an apartment in North York with her common law spouse, Franklyn Clarke. She has two children, ages 10 and 12 years, who reside with her mother. [ 44 ] She graduated from Seneca College in 2000 with her ECE, did one semester at York University, and subsequently studied Jazz Vocal at Humber College. [ 45 ] Since she completed her education, she has been working. Her current position is Office Manager, at the Kingsway Community Life Centre.

She explained that she works in her church's office. She works Monday to Friday, 9 am to 5 pm, and earns about $40,000 per year. She also sings in a choir, and is a recording artist. She also has a small business on the side, running a basketball league for children, training them and putting their basketball teams together. Her basketball league occupies her time Mondays and Wednesdays, from 6 to 8 pm. She has about $7700 in savings in her bank account. [ 46 ] She testified that she has known Mr. Kalonji for about six years, and that she met him through her common law spouse.

She has been with her spouse for about 10 years. She said that they are very close to Mr. Kalonji, and that prior to his arrest, she saw him about twice per month. She testified that Mr. Kalonji worked as a fitness trainer. During cross-examination, when pressed, she admitted that while she knew he was working as a fitness trainer in 2014, she didn't know whether he ever really held a steady job. [ 47 ] In terms of the proposed plan of release, Mr. Kalonji would reside with her and her common law spouse.

He would not be permitted contact with his co-accused, and would be on house arrest, with an electronic monitoring device on his ankle. She understands that this would mean that she would have to be given a code and that she would have to call the monitoring service and advise them of when he would be out of the home in her company. He would have no access to phones or the internet, except for one "flip" cell phone, and he would have to provide the monthly statements from those phone records to police. She also said that she is in the process of obtaining a landline.

She also plans to bring him with her on Sundays for church services. [ 48 ] When she was asked about the lengthy audio recording of Mr. Kalonji's discussion with "Trini" about the incident at the club, she replied that "I didn't know about it prior to hearing it." When asked about the voice identified as "Trini", she said that was her partner, Franklyn Clarke. She said that Mr. Clarke "knew both parties" and was trying to diffuse the situation, trying to stop it. During cross- examination, she explained that while his nickname is "Trini", she refers to him as "Babes." [ 49 ] She also testified that Mr.

Clarke was outside of the court room in the hallway. When asked by Crown counsel why not present him as a surety, the response was that he didn't have any assets to pledge. Because she is working, she can pledge $10,000. [ 50 ] Ms. Gayle testified during cross-examination that she knows Kia Robinson, but does not know Ms. Galbraith or Ms. Munyenga . When asked if she was shocked to hear that they are allegedly prostitutes and that Mr. Kalonji is their pimp, she replied, "yes." She was also shocked to hear Mr. Kalonji say that he didn't care if he punched a girl or boy.

She knows "Felly", but doesn' t know his given name. She does not know "Reds" or "Squaddy". She does know Kyle Henry, and admitted that she was shocked by the allegation that Mr. Kalonji asked Mr. Henry to find him a firearm. [ 51 ] In terms of the rap video, during cross-examination, she agreed with Crown counsel that Mr. Joseph, aka Easyano, appeared in the video. She also clearly identified Mr. Kalonji as being in this video, as well. She admitted that she was concerned to hear Mr.

Kalonji brag about pimping for the last 10 years. [ 52 ] Her choir rehearses every Friday night, and they sing whenever they are called, which could be one to three nights per week. Her basketball league runs two nights per week, as well, from 6 to 8 pm. She visits her children at her mother's house on weekends, and also visits them during the week to assist with homework, and stays two to three hours. [ 53 ] Although she had some concerns, she was committed to offering herself as a surety. She believes that she is a positive influence, that she has a positive attitude and is a positive person.

Moreover, she said that because all the alleged fraud activity was over the phone, whether he was given a flip cell phone or a landline to use, she did not need to be concerned. [ 54 ] With respect to the electronic monitoring device, she was not sure of the cost, but testified that she would not be contributing to its cost. The device had not been tested in her apartment yet. [ 55 ] During re-direct, she testified that she would be willing to take him with her to her basketball league two nights per week, and that he could assist by running the statistics for the players and taking care of the score clock.

Evidence of Stephen Tan: [ 56 ] Mr. Stephen Tan testified that he is the founder of and partner at Recovery Science Corporation. It is a private corporation founded in 2009. They run compliance monitoring programs, using both GPS and alcohol monitoring devices, for matters in the Family and Criminal Courts. [ 57 ] He testified that he could install an ankle bracelet on Mr. Kalonji that would include a GPS system, and is based on inclusion and

exclusion zones. If an accused enters an exclusion zone, and the accused is not present at the residence, his corporation calls the police. The corporation becomes aware of the breach within 10 minutes of it occurring, and they call the police within the second period of time, which he said is between 10 and 30 minutes. All accused who enter into an agreement with his corporation sign a confidentiality waiver, as well as agreeing to make payment, and agreeing to charge the battery.

If an accused claims to have a bail variation, the corporation will not change its monitoring practices until the variation has been confirmed to them by police or Crown counsel. [ 58 ] Although he has not been to the apartment in North York where Ms.

Gayle resides, which is a high rise at Yonge and Finch, he is confident that he could successfully monitor him at that location. [ 59 ] The police can use this system to monitor an accused by tracking weekly reports, monitoring all movements as they take place in "real time", and can do so without the accused knowing of this sharing of information. [ 60 ] If an accused is permitted out of the house in the company of a surety, the surety creates a voiceprint, and then the surety can call a toll-free number.

Other variations can be programmed as well, to permit an accused to enter into a zone to travel to and from work. [ 61 ] Currently, his corporation is monitoring 90 people on bail, 87 with GPS, 2 with radio frequency, and one for alcohol. Moreover, of their current files, 9 of these individuals face serious charges including murder, drug trafficking, gun charges, attempt murder, fraud and domestic violence. [ 62 ] During cross-examination, Mr.

Tan agreed that his service, whether it be GPS or radio frequency, is not meant to prevent a breach, but is a risk management tool. [ 63 ] In this case, since the plan is for the accused to reside in a high rise building, the GPS device would work from satellites. It would provide a "bird's eye view", but be unable to identify which floor the accused was on, but if they added radio frequency, then they could identify the floor of the building. The beacon system that GPS uses is accurate within plus or minus 50 feet. [ 64 ] Whether they install GPS or GPS with radio frequency, the cost is the same.

It is $540 plus HST per month, for a total cost of $610 per month. [ 65 ] Mr. Tan has not been to this apartment, and he does not know whom would pay for his services in this case. However, he stressed that he can make his part of the plan work without a surety, or independent of the strength of any surety named.

There have been instances when they have identified sureties who have been complicit with the accused and reported it to police, for example. [ 66 ] When asked during cross-examination if his system would stop anyone from visiting an accused, bringing him a different phone or firearm, for example, he agreed, that his system would not prevent this from happening. [ 67 ] Mr. Tan added in re-direct that the technology is so sophisticated now, they don't need to inspect an apartment beforehand. He has no concern that this technology wouldn't work within these parameters.

FINAL SUBMISSIONS: Submissions by Defence Counsel: [ 68 ] Defence counsel provided me with his proposed conditions of release, which included the two sureties who testified, reside with Ms.

Gayle, electronic monitoring, house arrest, presenting himself at the door within 5 minutes of a knock by police, remaining in the Province of Ontario, surrendering all travel documents and passports, no weapons, not to access a computer or internet except for the purpose of preparing a trial, not to have possession of a cell phone, pager or other wireless communication device except for one cell phone that cannot access the internet provided that you provide the number of the phone and the detailed billing records showing all calls made and received to your sureties and the OIC each month, not to have possession of any identification or credit or debit cards not in your own name, and not to have contact with any co-accused. [ 69 ] He described this plan as exceptionally tight, and akin to a conditional sentence, for a 32-year old man with no record.

He highlighted the speed with which Recovery Science Corporation could report any breaches. [ 70 ] Defence counsel argued that the allegations do not present any violence to any specific individual. The most serious charges are the fraud charges. He submitted that the firearm and cocaine charges lack any reasonable prospect of conviction, given the lack of evidence to date. The wiretap conversation between his client and "Trini", at tab 18 of the Crown's brief, which was played in court, did not result in any new additional charges, and there is no identifiable victim. Ms.

Gayle testified about the nature of the dispute, and that her partner was trying to encourage him to step away from it. The only issue that conversation raises in his mind is the issue of breach of bail. There is no evidence seized to corroborate the charges which are supported by wiretaps. He submits that the Crown's case against his client is based on circumstantial evidence. [ 71 ] Defence counsel asserted that the most serious charges were the fraud charges, and that the evidence was very circumstantial.

He submitted that the Crown could not prove actual deprivation had occurred from these bank accounts, since it only had "bantering" on the wiretaps. He asserted that the Crown lacked actual victims, actual amounts lost, or anything particularly concrete, and that it was "far from a slam dunk" that his client would ever be convicted on the fraud charges. [ 72 ] He relied upon the Supreme Court of Canada's judgment in R. v. St.Cloud , 2015, SCC 27 , at paragraph 70 , where they highlighted that release is the cardinal rule and detention is the exception.

This is the thread running through all governing authorities on bail in Canada. He also emphasized his client's constitutional right to a reasonable bail, and noted that his client's earlier charges had been dismissed. He has two excellent sureties, and noted that Ms. Gayle would pledge $10,000 and Ms. Lussambo was willing to pledge at least $10,000, up to $15,000. He also referred to United States v. Robertson , 2013 BCCA 284 , at paragraph 22 , which stands for the proposition that the quantum of bail should not be fixed so high that it amounts to a detention order.

[73] Defence counsel also relied upon the Court of Appeal’s judgment in R. v. Garciacruz, 2015 ONCA 27, at paragraph 68, which hesaid stands for the proposition that in order to infer guilt based on circumstantial evidence, the trier of fact must be satisfied beyond areasonable doubt that the only rational inference that can be drawn is that the accused is guilty, which is a high standard that requiresalternative explanations to be excluded because the mere existence of any rational, non-guilty inference is sufficient to raise a reasonabledoubt.

While the Crown may have wiretap evidence that supports the allegation of fraud and criminal organization, other than bantering,they lack any evidence to show that any bank accounts were actually compromised. He argued that the Crown will need bank records,computer data, actual victims, and evidence of actual losses. So far, what the Crown is relying upon is in his view, "very dry." [74] In terms of the allegation of firearms trafficking, while two of the wiretaps are close in time, other calls are separated by about onemonth's time.

No firearms were ever seized, and references were to a "girl", so no explicit language was used. There is no surveillanceevidence to support this allegation. He argued that this evidence is too weak to survive a Preliminary Inquiry. [75] Defence counsel also argued that there were only two brief calls between his client and Mr. Mitrovic to set up a meeting. His clientwas not involved in the third call, and so the Crown will have to prove that he is part of this conspiracy, or else it is hearsay. Moreover,there was nothing from this series of calls that identifies what they are discussing.

It is speculative to say that "35" means $3500 forcocaine. Moreover, his client is not alleged to be discussing cocaine anywhere else in the wiretaps. Defence counsel said it would beoffensive to detain his client when the evidence is so weak. [76] In terms of the allegation against his client that he is a member of a criminal organization, he submitted that this will be hotlylitigated at trial. Does this organization even exist?

Is it a criminal organization? [77] His client was on bail from March 2014 to June 2016, when he was arrested, and while on release, there is no evidence that he failedto attend court as required. While his address did change, that was permitted by the bail, and there was no evidence that he didn't livethere. Thus, he submitted that the primary ground was not engaged. [78] Given the tight plan proposed, he asked me to rely on R. v.

Morales (1992) (SCC), 77 C.C.C. (3d) 91 at page 98,which addresses the secondary ground and speaks not only of substantial likelihood of an offence being committed while on bail, but “inaddition, only when that substantial likelihood imperils the protection or safety of the public,” In this case, there are no allegations ofviolence, and no victim.

The strongest case for the Crown is based on the fraud charges, which do not endanger the safety of the public. [79] He urged me not to take a rap video too seriously, since violence in rap videos is part of the musical genre, and many celebratedartists have similar lyrics. He asked that it not be taken too seriously without some other evidence to support it. [80] In terms of the tertiary ground, the circumstances listed in the Criminal Code are not exhaustive, as per paragraph 66 of St.

Cloud.While a member of the public could be alarmed that they allegedly cracked RBC's computer system, when considering the impact of thison society, versus the time it will take to go to trial, with a target date for the Preliminary Inquiry being the summer of 2017, the publicwould lose confidence in the administration of justice if he were to be detained. [81] Defence counsel summed up by relying upon the use of the GPS monitoring equipment, and its approval by the courts in R. v. Dang2015 ONSC 4254 , [2015] O.J. No. 3552, and R. v. Inclima [2012] O.J. No. 6677. Ms.

Gayle is prepared to have him residewith her, and her common law spouse is not related to any of the alleged offences before the court. Crown Counsel's Submissions: [82] Crown counsel disagreed with the submission made by defence counsel that all of the evidence would be circumstantial. Sheargued that she does not have to have her entire case ready by the bail hearing, and that there will be Production Orders and otherevidence from the banks, which will support the allegations of fraud, by the time this matter reaches a Preliminary Inquiry. She referredme to the wiretap results, session 184, in which Ms.

Galbraith provided Mr. Kalonji with a transit number to a TD Bank account. Sheargued that she will corroborate the wiretaps with actual losses and proof of deprivation. [83] Crown counsel asserted that she is not required at a bail hearing to have her entire case ready. She stated that when they are at thePreliminary Inquiry, she will produce Production Orders from banks that corroborate the losses and prove the deprivation as alleged. Forexample, she referred me to sessions 178, 179, 181, 183 and 184, dated February 7, 2016, in which Mr.

Kalonji asks Angela Galbraith ifthe TD is still open, she replies with the address and states that it is open until 4 pm, and he asks her to text him the transit number andthe name of the person. In session 184, she sent him a transit number and noted that it was his name on the account. [84] In terms of the allegation that he trafficked cocaine, she referred to the surveillance that saw Mr. Kalonji go to a house, whichaddress corroborated the discussions found on the wiretap evidence, and noted the reference to not being "sticky or funny" which sheargued is a reference to powdered cocaine.

In wiretap session 157, the reference to "35" means $3500, and so she argued that theallegation of trafficking cocaine was "not completely dry." [85] Again, while she argued that Mr. Kalonji and others were cagey on the wiretaps, when he asked Mr. Henry to get him a "girl", andlater on when he said to Trini that he wouldn't go out without taking those "fucking fat ass bitches" with him, he was referring tofirearms, and not to women. In support of that stance, she referred me to the judgment of Mr. Justice Hill in R. v.

Kahsay [2015] O.J.No. 1383, where he made a distinction at paragraph 11 between “slim girls”, being handguns, and “fat/big batty girls”, meaning rifles. [86] In response to defence counsel's argument that no firearm was ever seen or recovered, that the conspiracy to traffic a firearm wasvery "dry" and would be problematic for the Crown to ever prove, Crown counsel suggested that Mr.

Kalonji was not seeking thecompany of ladies with large derrieres when he said that he was "not going down there without those fucking fat ass bitches", and that heclosely identified himself with the HOK. [87] She also took issue with the idea that this phone call with Trini was benign, and that Trini was simply assuming the role of apeacemaker. She saw Mr. Kalonji's statements in that call as being an implied threat. Crown counsel noted the wiretap evidence thatindicated that Mr. Kalonji wanted firearms, and submitted that the evidence assembled needs to be considered as a whole.

[88] Not only did he breach his last bail, but his last surety was Ms. Galbraith, who is now a co-accused on the new charges. While onhis last bail, he was explicit on a wiretap that he planned to go to Ottawa for business, even though the other caller reminded him that hewas "on conditions". [89] She referred to the analysis in R. v.

Pearson [1982] 3 S.C.R. 665, at paragraph 61, about how sophisticated drug dealing is a way oflife, and said that highly sophisticated fraud is also a way of life. [90] In terms of the electronic monitoring system proposed, Crown counsel suggested that so far, we have only heard one surety offer topay for half of the monthly costs. Since we don't know where the bulk of the cost of this system will come from, she asked me toconclude that it would be coming from the accused himself.

If he is really just a personal trainer, he would not be able to afford thissystem. [91] Crown counsel referred to the three fraud cases that she provided to the court. At the last page of tab 26 of her materials, she notedthat of all the wiretaps assembled, there remain 13 males on these wiretaps who are unknown to police. All he needs is a telephone to beback in business. [92] With respect to the tertiary ground, Crown counsel argued that while his two proposed sureties were lovely ladies, both of themwere very busy, and one of them is out of town.

She stated that she relied on her written submissions with respect to the tertiary ground,and did not need to repeat them. Reply: [93] Defence counsel noted that Trini was not on the list of people that the Crown identified as of concern, in their list at the end of tab26 of their materials. [94] Defence counsel said that Mr. Kalonji's brother will cover the other half of the cost of the electronic monitoring. [95] When considering Mr. Justice Hill's

interpretation of "girls" as firearms in R. v. Kahsay, he pointed out that in that judgment, thefirearms were found, and tested. Thus, Mr. Justice Hill's inference was based on substantial physical evidence. [96] Finally, he asked me to consider that Ms. Munyenga, received her own bail, for $1000, on consent, for very similar charges. ANALYSIS: The Right to Bail: [97] The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, enacted as

Schedule B to the Canada Act,1982, (U.K.) 1982, c.11, which came into force on April 17, 1982 (the "Charter"), provides that any person charged with an offence hasthe right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartialtribunal, as per

section 11(d); and not to be denied reasonable bail without just cause, as per

section 11(e). [98] Moreover, in R. v. Pearson, at paragraph 43, the Supreme Court of Canada held that sections 11(

d) and 11(

e) of the Charter are"parallel rights". More recently, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483 , at paragraph 41 as follows: All accused, including those charged with serious crimes are constitutionally entitled under s.11(

e) of the Charter of Rights andFreedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule anddetention is the exception. A claim for detention of an accused under s.515(10(

c) must be approached in this context. Grounds for Detention: [99] Section 515(10) of the Criminal Code provides that detention is only justified when one or more of three separate grounds havebeen established. Crown counsel is seeking Mr. Kalonji's detention on the primary, secondary and tertiary grounds, which are set outunder subsections 515(10)(a), (

b) and (

c) of the Criminal Code. [100] The Criminal Code explicitly permits hearsay to be considered at a bail hearing, see:

section 518.(1)(e), which directs that, “thejustice may receive and based his decision on evidence considered credible or trustworthy by him in the circumstances of each case.” Primary Ground: [101] There is no dispute based on the information provided by Crown counsel and by his proposed surety, Ms. Lussambo, that Mr.Kalonji has no legal status in Canada, that his refugee claim failed in 2003, and that he has spent his adult life here illegally. He has nospouse nor any children, and all members of his immediate family reside in the United Kingdom, the United States, or the DemocraticRepublic of Congo.

Although he worked as a fitness instructor at a gym in 2014, no one has any current information that ties him to aparticular career, or even a particular address, although he has always lived in Toronto. [102] Crown counsel has provided me with information that linked Mr. Kalonji to four different addresses at the time of his arrest,although some of those addresses were explained satisfactorily by defence counsel, with respect to his previous bail. [103] Defence counsel pointed out that Mr. Kalonji never missed a court date on his previous charges, which were dismissed.

Moreover,the plan of release proposed includes an electronic monitoring device, which would track his location with a GPS device, and include acondition of house arrest, which would tie him to Ms. Gayle’s apartment. His other proposed surety, Ms. Lussambo, will call him threetimes per day at that location. A further proposed condition of his release is that he present himself at the door of Ms. Gayle’s residenceat the request of the police.

[104] Based on his attendance at all of his prior court appearances which were for serious firearms charges that have since beendismissed, his lack of a criminal record, and the combination of house arrest, a GPS tracking device, calls from both sureties, andpresenting himself at the door of the residence for police under this new plan, I am satisfied that Mr. Kalonji has met his onus on theprimary ground. Secondary Ground: [105] Mr. Kalonji comes to court with no criminal record, but faces one count of breaching his prior recognizance.

However, based onthe additional wiretap evidence before me, I find for the purpose of this bail hearing that he has committed at least two if not threebreaches of his prior bail, and not one. [106] At the time of his arrest on June 2, 2016, he was in the direct company of Ms. Munyenga, at her condominium in Toronto, whichwas a clear breach of his recognizance, for which he has been charged. [107] Secondly, he was recorded on two different wiretaps discussing a business trip to Ottawa, on March 7, 2016, and in bothconversations, one with Ms. Munyenga and the other with Mr.

Bourisquot, his bail conditions were discussed. He told Mr. Bourisquotthat it was worth it for him to go to Ottawa, and that his conditions were $44,000, when in fact, they actually added up to $40,000. Whilethere is no surveillance to demonstrate that he actually made the trip, nevertheless, I find it very troubling that he is planning to pay thecost of a breach of recognizance himself, which is also illegal, as a cost of doing business. Moreover, one of the sureties on this prior bailwas Ms. Galbraith, with whom he has been charged now.

This fails to inspire any confidence in me, to say the least. [108] Thirdly, although it is hearsay, I find it both credible and reliable, that Ms. Gayle was able to confirm that he did indeed attend anight club in Toronto, and find himself in a dispute. He discussed the incident at the nightclub with Ms. Gayle’s partner in a telephonecall made on March 21, 2016. In that call, Mr. Kalonji admitted that he beat up a woman who disrespected him, and that he was still veryangry with Felly, since Felly had pushed him. He wanted Ms. Gayle’s partner to know how he felt, since he said that Felly was herpartner’s boy.

Towards the end of this conversation, he told her partner that he is on charges, and doesn’t want to have to worry aboutpeople, adding that he doesn’t leave his house and when he does, he is not playing games. His comment at the end of the call wasmenacing, stating that if they didn’t call him within 2 or 3 days, they had a problem, and there is no family when there’s a problem. [109] During the same time period, March 20, 2016, session 15377 (Crown’s brief tab 6), Mr.

Kalonji was recorded asking Kyle Henry,with whom he has had many fraud-related discussions as evinced on a number of other wiretaps, to arrange for “Little Josh” to “hookhim up with a girl.” In this same conversation, he says that once he has the girl, he can take the girl over there, and asks Mr. Henry toconfirm that he understands what he is talking about. Mr. Henry replies that Little Josh is in the east dealing with shit at the moment, andthen Mr. Henry says he will call Little Josh to see if he can deal with it. Mr. Kalonji told Mr. Henry to see if he can deal with thatbecause Mr.

Kalonji was “not going down there without those fucking fat ass bitches.” [110] The first request to be “hooked up with a girl” could have several meanings, including a date with a woman, although quaere whyhe would need to have Mr. Henry confirm that he knew what he was talking about if it were really a woman. Nevertheless, by the end ofthis conversation, I am prepared to infer that he means that he doesn’t want to go to a certain unknown location unless he is armed withsignificant firearms. In doing so, I am relying on Mr. Justice Hill’s analysis of the meaning of “girl” and “fat girl” in R. v.

Kahsay, atparagraph 11, and Mr. Justice Quigley’s analysis in R. v. Abdullahi, 2013 ONSC 4873 , at paragraph 21, that “the wiretapevidence must simply be accepted as it is for what it evidently says and for the inferences it reasonably points to be drawn when it isbeing considered.” [111] With respect to the plan of release proposed, the most significant difficulty is that both proposed sureties are not able to be withhim with sufficient regularity to monitor him adequately. One proposed surety resides in the suburbs of Ottawa, and plans to phone himthree times a day and visit him once per month.

The second proposed surety, who would be the residential surety with most of the day-to-day responsibility for him, is at work during the week and out in the evenings two nights a week with a basketball league, and one tothree nights at week with her choir, as well as visiting her children several times during the week, and on weekends, to assist them withtheir homework. She only offered to take him with her to the basketball matches two nights per week. If I were to release him to the careof these two sureties, he would be alone most of the time.

While both proposed sureties said that they would call him regularly duringthe day, much of the plan rests on the GPS tracking device, to ensure that he remains in Ms. Gayle’s apartment while on house arrest.The plan is to take away most of his electronics, save for one flip cell phone (or perhaps a landline), which was meant to curtail the riskof him committing any new fraud-related offences, by limiting his use of the telephone and providing the police with monthly reports ofhis phone records. The GPS device does not prevent anyone from visiting him at Ms.

Gayle’s apartment, and bringing with them otherelectronics equipment or firearms, and this activity would go on undetected. In making this finding, I rely upon Mr. Justice Broad’sjudgment in R. v. Binag [2013] O.J. No. 3296, at paragraph 24, as follows: In this case, all that an electronic monitoring device is capable of doing is to alert the service provider Jemtec, Inc. should the accusedleave the residence. It does not otherwise provide the degree of supervision and control which a capable surety is obliged to exerciseover the activities of the accused.

Given the degree of sophistication involved in the offenses alleged against the accused in this case,including the use of accomplices, it is not difficult to see that the accused would have the ability to engage in criminal activity throughthe use of various modes of communication, including personal attendance of accomplices at his residence and by cell phonecommunication, in spite of the existence of electronic monitoring. The offer to disable the family’s internet service does not amelioratethe risk… [112] As defence counsel ably noted, it is clear from R. v.

Morales, at page 98, that detention on the secondary ground should not onlydeal with a substantial likelihood of an offence being committed while on bail, but “in addition, only when that substantial likelihoodimperils the protection or safety of the public.” [113] Based on the totality of the evidence before me, I am prepared to infer that he asked one of his associates to find him firearmswhile he was on his last recognizance. I have already found that he repeatedly breached his last house arrest recognizance at least two if

not three different times, and thus I lack any confidence in him to abide by any house arrest bail conditions that I might set, particularlysince his proposed sureties are not normally available to supervise him. Moreover, based on the wiretap conversation with Trini,confirmed by Ms. Gayle, in which he referred to “all this HOK shit” and his appearance in the rap video, wearing the initials, “DC” on anecklace, in which Mr.

Joseph sang, “HOK that be the clique…”, there is credible evidence before me that he is a member of HOK,since he said so himself on the wiretap, and sang about it in a video that the group created themselves. Taking the Crown’s case as awhole, there is a substantial likelihood that if released, Mr. Kalonji will commit new offences, and that his conduct will imperil thesafety of the public. Mr. Kalonji has not met his onus on the secondary ground.

Tertiary Ground: [114] In assessing the tertiary ground, if detention is necessary to maintain confidence in the administration of justice, four factors havebeen enumerated under section 515(10)(

c) of the Criminal Code. I will deal with each of those factors in order. The Apparent Strength of the Prosecution’s Case: [115] In terms of the three counts of conspiracy to commit fraud, Crown counsel has an overwhelming collection of wiretaps. There are55 sessions that support count #1, and Mr. Kalonji was very involved in many of those sessions. There are 34 and 28 other sessionsassociated with count #2, but Mr. Kalonji does not appear on any of them. Finally, there are 60 sessions for count #3, and Mr.

Kalonjiwas very involved throughout those sessions. [116] Although Crown counsel said that she would have Production Orders by the time of the Preliminary Inquiry to demonstratecorresponding losses and deprivation to bank account holders, they are not before me at this bail hearing, and I can give that commentlittle if any weight. What is before me is a dry conspiracy to commit fraud through a criminal organization. [117] Applying the standard set in R. v.

Garciacruz with respect to circumstantial evidence, and acknowledging that the test is very high,nevertheless, after reviewing all of the wiretaps, I find no evidence of any other competing inferences for counts #1 and #3 against Mr.Kalonji. The only logical inference before me is fraud on the part of Mr. Kalonji, in concert with others, some named and someunknown.

While this is obviously a premature conclusion, nevertheless, since I am tasked with the role of assessing the strength of theCrown’s case, I find that the Crown’s wiretap evidence of fraud in concert with others to be crystal clear, and voluminous, even in theface of the Supreme Court of Canada’s finding in R. v. St. Cloud, 2015 SCC 27, at paragraph 58 that “circumstantial evidence may beless reliable than direct evidence.” [118] The Crown’s evidence with respect to trafficking a firearm is also based solely on wiretaps. Nevertheless, I am prepared to makethe inference that Mr.

Kalonji wanted his associate to find him a firearm to take to an event. [119] This is a "dry conspiracy" case, meaning that there is no evidence that a firearm changed hands. Mr. Justice Morgan in R. v. Khiar,2015 ONSC 352 had a similar case in which the accused was charged with conspiracy to traffic weapons, contrary tos.465(1)(

c) of the Criminal Code, where no firearm was located. His Honour accepted the intercepted communications as evidence ofthe fact of the agreement in paragraph 6, noting that the agreement itself forms the actus reus of the conspiracy, as per R. v. Papalia; R.v. Cotroni, (SCC), [1979] 2 SCR 256. [120] Mr. Justice Morgan describes all the elements of this offence in paragraph 26 of Khiar, as follows: In R. v. Carter, (SCC), [1982] 1 SCR 938, the Supreme Court held that for a conspiracy charge the Crown must showthat there was (

a) a conspiracy, (

b) to traffic in [weapons], and (

c) that the Defendant was a member of that conspiracy in the sense thathe shared in the common design with his co-conspirators. To put it another way, the elements of conspiracy include "an intention toagree; completion of the agreement; and a common (unlawful) design": R. v. Root (2008), 2008 ONCA 869 , 241 CCC (3d)125, at para 66 (Ont CA), citing USA v. Dynar, (SCC), [1997] 2 SCR 462, at para 86. [121] After a careful review, I am satisfied that the essential elements of the offences contained in counts #1 and #3 could be proven attrial by the Crown against Mr.

Kalonji, based entirely on the intercepted communications, particularly given the explicit discussions thatinvolved RBC, TD, and BMO, and text messages that included transit numbers of accounts, amounts involved, and discussions ofchanging limits to load up accounts prior to making withdrawals. [122] With respect to the charge of trafficking cocaine, however, I agree with defence counsel that there is no reasonable prospect ofconviction on this charge. The wiretaps involve too much conjecture, in my view, for them to sustain this charge going forward. The Gravity of the Offence: [123] According to St.

Cloud, paragraph 60, the justice at a bail hearing needs to determine the objective gravity of the offence incomparison with other offences in the Criminal Code. The Supreme Court indicates that this should be assessed based on the maximumand minimum sentences, if any, provided for the offence. [124] If he were to be convicted of fraud over $5000, his maximum sentence would be 14 years, as per section 380(1) of the CriminalCode. If he were to be convicted under

section 476.13 of the Criminal Code, instruct the commission of an offence for the benefit of, atthe direction of or in association with a criminal organization, the maximum penalty is life imprisonment. I also anticipate he will receivea penitentiary sentence for the dry conspiracy to traffic a firearm, but that the trafficking cocaine charge will be dismissed. In addition, hehas clearly breached his prior bail. The Circumstances of the Offence:

[125] At paragraph 61 of St. Cloud, the Supreme Court of Canada specifically referred to offences that were violent, heinous or hateful,involved domestic violence, a criminal gang or terrorist organization, a victim who is a vulnerable person, and if the offence wascommitted by several people, the extent to which the accused participated. [126] There is reliable wiretap evidence before me that Mr. Kalonji is a member of the HOK, which the Crown alleges is a criminalorganization.

He was very involved in many of the sessions that support count #1 and count #3, and subordinates regularly phone himfor direction, or to discuss profit-sharing arrangements. I am satisfied that he asked one of his subordinates to obtain a firearm for himwhile he was on his previous house arrest bail, as well. [127] The circumstances of this case are quite troubling based on the fraud alone, because they indicate that a group of people believedto be a criminal organization were able to jeopardize the public’s trust in the Canadian banking industry, see: R. v. Piccinini, 2011 ONSC2524 , [2011] O.J. 2191.

Fact that the Accused is Liable for a Potentially Lengthy Term of Imprisonment: [128] For the reasons outlined above in paragraph 124, I believe that upon conviction, Mr. Kalonji will receive a penitentiary sentencebetween 7 and 10 years, and that is taking into account the fact that he comes to court with no criminal record, and that no violence hasdirectly resulted from his actions to date. [129] An informed member of the public, who understood the Charter right to a reasonable bail, would in my view, lose confidence inthe administration of justice if Mr.

Kalonji, who clearly breached his last house arrest bail, were to be released on another weak housearrest bail, given the overwhelming wiretap evidence that the Crown has amassed against him on serious charges. Mr. Kalonji has notshown cause why he should be released on the tertiary ground. ORDER: [130] For all of the above-noted reasons, Mr. Kalonji is hereby detained on the secondary and tertiary grounds. Dated at Toronto, this 24th day of November, 2016. ____________________________ Mary A. Ross Hendriks, J.P.