Her Majesty the Queen ) Elizabeth Atkin ) for the Federal Crown ) v. ), 2015 MBPC 57

R. v. Genik Citation No. 2015 MBPC 57 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Elizabeth Atkin ) for the Federal Crown ) and ) ) GENIK, Kevin James ) ) Sheldon Pinx ) for the Accused ) ) ) Reasons for Decision delivered: ) November 13, 2015 Publication Ban: Pursuant to s. 517(1) of the Criminal Code , the evidence taken, the information given or the representations made and the reason, if any, given or to be given by the justice shall not be published in any documents, or broadcast or transmitted in any way before such time as (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (

b) if the accused in respect of whom the proceedings are held is tried or committed for trial, the trial is ended.

MOAR, P.J. [ 1 ] Kevin James Genik (“accused”) appears before the Court on a twenty-count information that arose as a result of the execution of a Controlled Drugs and Substances Act (“CDSA”) search warrant at his residence here in the City of Winnipeg. [ 2 ] I will remind everyone that these proceedings are subjected to a section 517(1) publication ban that I granted at the outset of this matter. [ 3 ] The accused seeks his judicial interim release on these matters which the Crown opposes on both the secondary and tertiary grounds. [ 4 ] This is my decision on that application.

FACTS [ 5 ] On October 29, 2015 the Winnipeg Police Service (“WPS”) received what I believe was source information that the accused was stashing or storing large amounts of cocaine and marihuana at a particular address. On the basis of that information, the WPS were granted a CDSA search warrant and promptly set up surveillance at the target residence. [ 6 ] After some period of time the accused was observed to exit his residence, enter the driver side of a vehicle and drive away.

Police were aware the accused was a suspended driver as they began to follow him. The accused drove to the area of a Triple B Billiards establishment where the WPS conducted a high risk take down of the vehicle. [ 7 ] The accused was removed from the vehicle and during a subsequent search of his person police located a dime bag containing 4.02 grams of cocaine as well as a small Ziploc bag that contained 2 forty gram oxycodone pills. Police also located a cellular phone that they described was receiving text messages which were consistent with trafficking.

He was provided with his legal rights and transported to the West District station at 4:30 p.m. [ 8 ] The search warrant was subsequently executed at 8:22 p.m. and in total the police located and seized one kilogram of cocaine, 13.8 pounds of marihuana, two pounds of magic mushrooms, two pounds of hash oil, 6.17 ounces of MDMA, 284 forty-gram oxycodone pills and 74 sixty milligram hydromorphone pills. [ 9 ] In addition there were 4.78 kilograms of benzocaine and 9.28 ounces of procaine, both of which are described as being common cutting agents found in drug seizures. [ 10 ] In terms of money, police located a bundle containing $8800 in the master bedroom, $720 in the wallet of the accused, $220 in a pair of pants that were hanging on the master bedroom door, $200 in the wallet of a co-accused Amber Sylvester (“Sylvester”) and $100 on the person of another co-accused, Brett LeBleu (“LeBleu”). [ 11 ] Police also located packaging materials, cooking equipment as well as a black cocaine press and a blender, both of which were contaminated with cocaine. [ 12 ] In terms of weapons, police located one brass knuckle, a can of bear spray wrapped in electrical tape and three firearms.

The firearms were identified as a Ruger SR45 handgun, a Mossberg twelve gauge pump action shotgun and a black assault rifle. The rifle and handgun had both been reported as stolen here in Manitoba. Police also located loaded magazines, including prohibited magazines, with the guns. [ 13 ] As a result of the investigation, it is suggested that LeBleu was resident in the basement of this residence and within that area police located his passport and driver’s license.

Also, located in the basement were three bags that contained multiple chucks of cocaine, dime baggies and two Ziploc baggies containing an unknown cutting agent. A black safe was located behind a couch and within it there was a bag of MDMA and a second bag that had a mixture of cocaine and MDMA. Within a black gym, bag police found a black cocaine press. On a table police located a blender that was noted to be contaminated with cocaine residue as well as the driver license of LeBleu. [ 14 ] On the main floor of the residence, police seized a can of bear mace from the hallway closet.

In the kitchen police located a container that was about ¾ filled with pills, surmised to be hydromorphone, as well as the purse of the co-accused Sylvester who is described as being the girlfriend of the accused now before the Court. [ 15 ] In the garage, police located cooking and production paraphernalia that they suggest was used to make what is called shatter marihuana. In that regard, there were four clear glass baking pans found with razor blades that had shatter residue on them. [ 16 ] In a red toolbox, police located a Ziploc bag of marihuana and two glass tubes containing marihuana.

In a hockey bag, there were four vacuum sealed bags containing magic mushrooms, two Ziploc bags with an unknown white powder and a vacuum sealed bag that contained two separate Ziploc baggies of marihuana buds. [ 17 ] In a covered container, police located another vacuum sealed bag of marihuana buds, as well as two bricks of hash oil. [ 18 ] The last noted item found in the garage was a food saver vacuum sealer machine along with bags. [ 19 ] In an upstairs laundry room, police located the pump action shotgun in a case. [ 20 ] In the second floor hallway, police located a box containing various personal documents in the name of the accused. [ 21 ] Within the master bedroom, police located various pieces of identification in the name of the accused that included his wallet and passport. [ 22 ] On a table in the bedroom, there were multiple items of interest including what is described as a score sheet in a coil bound book which the Crown suggests is evidence this location was more than just a stash house. [ 23 ] On that same table, there were also five Ziploc bags containing marihuana buds, two Ziploc bags of marihuana, a Ziploc bag containing red apple dime baggies, a pill container that contained shaker weed and two scales that were noted to be contaminated with cocaine residue.

There was also a folded plastic card, in the name of the accused, that was contaminated with cocaine. [ 24 ] A wallet containing various identification of the accused was found on a night stand next to a bundle of cash that totalled $8800.

Also on the night stand, police noted a box of Ziploc bags, two Ziploc bags containing cocaine chunks, one bag with hash oil chunks, one with marihuana bud, three with marihuana, one with MDMA powder and one with Magic mushrooms. [ 25 ] The handgun was located on the box-spring in the master bedroom. [ 26 ] In the closet of the master bedroom, police located fifteen bags of marihuana bud that weighed about thirteen pounds.

There were also two bags of an unknown white powder, 208 oxycodone pills, a black bag that contained chunks of cocaine, as well as a gun case that contained the previously mentioned assault rifle. [ 27 ] Also, located in this closet were various tax documents in the name of the accused, his passport as well as the passport of Sylvester, who police suggest shared the master bedroom with this accused.

[28] In a drawer within the closet, police located a bag of MDMA powder. [29] Upon his arrest, the accused declined the opportunity to speak with counsel and provided police with a statement in which hetook ownership of the three firearms. He told police that he had purchased two of the guns over the internet from someone in Ontario. [30] He also claimed ownership of the drugs and contents of the master bedroom, including the score sheets that were previouslymentioned.

He denied trafficking in narcotics and suggested that he got better prices for the drugs if he bought in bulk. [31] The co-accused LeBleu was described as essentially a tenant who paid rent to the accused and his girlfriend.

The accusedindicated to police that he and LeBleu and smoked drugs together and that LeBleu knew a little about the other drugs in the home. [32] As for his brother Glen Genik (“Genik”), the accused indicated he was resident in the remaining two upstairs bedrooms.Although he also smoked drugs with his brother, the accused suggested his brother did not know of the guns or the amount of drugs thatwere actually in the home. [33] In terms of Sylvester, the accused stated that she did not know of the guns or the drugs.

CO-ACCUSED [34] All four individuals were arrested by the Winnipeg Police with Lebleu and this accused being detained in custody. [35] I am advised that Genik and Sylvester did not possess criminal records and both were released by police on Promises to Appear. [36] LeBleu made application for release days before this accused and was granted release with a surety. The reasons for his releasewere not before this Court but I was made aware that he did possess a related criminal record and the tertiary ground was not advanced inthat application.

CROWN POSITION [37] The Crown has opposed the release of the accused on both the secondary and tertiary grounds. She notes the items that wereseized by police and suggests they indicate a high degree of involvement by this accused. The Crown suggests the discovery of the scoresheets indicates this was more than a stash house for the drugs. The discovery of the firearms, and the fact this home was in a residentialarea, raises police safety concerns. [38] The Crown went through the tertiary ground considerations and suggested the continued detention of the accused is alsowarranted on this ground.

BACKGROUND AND PLAN [39] I was advised the accused is twenty-six years of age and has been a life-long resident of Winnipeg. He and his two siblingswere raised by parents who counsel described as being hard working people. The father of the accused is now retired while his mothercontinues to work for a property management company. [40] At the time of his arrest, the accused was living with the three others, one of whom was his brother. He had previousemployment with an electrical company for about nine months prior to being laid off.

That period of employment had followed a similarperiod of nine months employment with a different electrical company. [41] Both parents, as well as the sister of the accused, were present for the proceedings and in support of the release of the accused. [42] I am told the parents own the family home and are prepared to post a substantial surety for their son if he is released.

Counseladvised that he had the opportunity to speak with the mother of the accused about her obligations as a surety and she is aware of the needto report any breach of a condition, if that did occur. [43] The remainder of the plan put forth was for the accused to reside with his parents while this matter remains before the Court.Although his brother is currently residing in the family home, the parents have arranged for him to move in with his sister immediately. [44] Counsel suggested that a curfew, up to an absolute curfew, can be imposed by the Court which the parents have indicated theywill monitor and enforce.

The parents are also prepared to agree to a condition that will permit police the opportunity to search theirresidence without the existence of any reasonable and probable grounds. [45] I did allow the mother of the accused to address the Court and there is no doubt in my mind that she is sincere in her desire tohave her son returned home and in her commitment to supervise him until this matter is ultimately concluded. [46] Counsel reminded the Court that this accused is cloaked with the presumption of innocence and he has the right to reasonablebail.

He acknowledged the existence of the tertiary ground and suggested that based on the case of R. v. St. Cloud 2015 SCC 27 ,[2015] S.C.J. No. 27, the mere existence of the factors does not in itself result in the automatic denial of bail. [47] Counsel asks that the Court consider the fact this accused has no prior criminal record and there is no evidence that he wouldflee the jurisdiction or obstruct the justice system if he were to be released.

[ 48 ] In terms of the case, counsel recognized that on paper the strength of the case against his client is different than that of LeBleu, who was released in a contested application. The idea that police believed this was a stash house is consistent with the statement of the accused. The discovery of the guns was not expected by police and it is the position of defence counsel that they were being held passively in that they were not being brandished or pointed at others.

Counsel also notes that they were not loaded, although he acknowledged that there was ammunition readily available. [ 49 ] It is the position of counsel that the parents home will not be a stash house for drugs or anything else that is illegal. He asks the Court to weigh the presence of the parents in court and suggests any concerns of the Court will be addressed by way of conditions that the parents will enforce. [ 50 ] It is on this basis that counsel suggests the accused is a candidate for release on the conditions proposed.

ANALYSIS [ 51 ] Although the case before the Court contains a serious set of allegations, I do recognize and acknowledge the right of the accused to be presumed innocent is a fundamental principle of justice. I also note the constitutionally entrenched right of the accused not to be denied reasonable bail without just cause (s. 11(

e) of the Charter) . [ 52 ] Given the nature of the charges before the Court, by operation of s. 515(6) (

d) of the Criminal Code of Canada (“ Code ”), it is the accused who has the onus to satisfy the Court that he is a candidate for release. [ 53 ] When considering an Application for release, the Court is to be guided by s. 515 of the Code and more specifically, s. 515(10) which sets out the justification for the continued detention of an individual, as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to the law; (

b) 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; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.” [ 54 ] The Application before is a difficult one given the serious factual foundation that has been laid by the Crown concerning an accused who has no prior criminal record and presents with a very strong bail plan.

In my view, the bail plan can be no stronger than that offered of a very large surety by the parents coupled with the accused living at their residence under a 24 hour curfew and the parents consenting to random searches of the home. [ 55 ] That being stated I will deal with each of the grounds of contention that has been put forward by crown counsel. Section 515(10)(a) – PRIMARY GROUND [ 56 ] The Crown has not opposed the release of the accused on this ground.

That being stated, I will note the large surety that has been offered would have been sufficient to dispel any concerns about the accused attending future court dates. Section 515(10)(b) – SECONDARY GROUND [ 57 ] The Crown seeks the continued detention of the accused on the secondary ground and suggests the factual foundation put forth demonstrates that this accused is highly involved in the drug subculture.

She points to the presence of the large quantity of drugs coupled with the discovery of score sheets as a basis for this Court to conclude this was more than a stash house. [ 58 ] In addition, Crown counsel points out the fact that three guns were located in a home that is located within a residential area raises serious concerns for public safety that warrants the continued detention of the accused. [ 59 ] Defence counsel takes the position that based on the statement given by the accused; the residence is at best a stash house.

As for the firearms, he points out that there appears to have been no concern about firearms raised by police in the application for the

warrant and there is no evidence the guns were ever used in a manner that put others at risk. Essentially, he takes the position theaccused may have simply been in passive possession of the guns. [60] Cases that involve drugs have long been recognized as presenting their own set of considerations that are not generally prevalentin other types of offences. In the case of R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, the Supreme Court of Canada wasasked to consider the constitutionality of s. 515(6)(

d) of the Code. In doing so, the Court considered the rationale for a special set of rulesfor bail involving those that are charged with offences involving drugs. [61] The Supreme Court of Canada recognized the unique circumstances of the offences enumerated under s. 515(6)(

d) with thefollowing comment at paragraph 61: “Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highlysophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender tocontinue criminal behavior even after arrest and release on bail. In these circumstances, the normal process of arrest and bail willnormally not be effective in bringing an end to criminal behavior.

Special bail rules are required in order to establish a bail system whichmaintains the accused's right to pre-trial release while discouraging continuing criminal activity.” [62] With that observation, I note the Court did not go so far as to suggest or override the basic principles that an accused ispresumed to be innocent and is entitled to reasonable bail. In other words, the Court did not intend for the automatic denial of bail forthose that are charged with these types of drug related offences.

Rather what I take from the Courts comment is those concerns should bein the mind of a Court and the proper adjudication of an application for release requires the Court to give consideration to thecircumstances of the offence as well as the background of the individual accused person. [63] In consideration of the Courts comments in Pearson, supra, the facts before this Court raise serious concerns. I note the largequantity of drugs that were located throughout the house for which the accused has accepted ownership.

It would seem reasonable toconsider that this quantity of drugs in the home would suggest the accused is either well trusted by those involved or well entrenched inthe sale of narcotics.

In this regard, I note that upon the arrest of the accused he was found to be in possession of four ounces of cocainewhich seems like a rather large amount to be carrying for personal use as he asserts in his statement to the police. [64] I also note, just for the record, that this accused was found to be operating the motor vehicle prior to the high risk take downoccurring despite the fact that he had been a suspended driver since the beginning of the year. I appreciate that is not the most egregiousoffence but it is still in breach of his suspension.

Section 515(d) – TERTIARY GROUND [65] As I had indicated to counsel at the close of their submissions, this was a ground that I wanted to take some time to consider. Ileft it open for counsel to forward any additional cases they wished for me to consider and to date I received none. [66] The tertiary ground was the subject of the Supreme Court of Canada in the case of R. v. St. Cloud 2015 SCC 27 ,[2015] S.C.J. No. 27. Prior to this decision being pronounced, there had been a number of

interpretations given of the Courts priordecision in the case of R. v. Hall 2002 SCC 64 , [2002] 3 S.C.R. 309, in which it was presumed that its application as a groundof detention was to be very limited. [67] The Court adopted the reasoning of McLachlin C.J., who wrote for the Court in Hall, that in a particular set of circumstances anaccused may be denied bail even where a Court has concluded that there are no primary or secondary ground concerns. That scenariowill generally be in rare circumstances solely as a result of a consideration of the criteria set out for its applicability.

Essentially what willbecome evident is that the release of an accused back into the community will raise questions with reference to public confidence in theadministration of justice. [68] The Court, at paragraph 33 of the St. Cloud decision, noted the importance of public confidence in the comments of McLachlinC.J., from the Hall decision as follows: “…public confidence is essential to the proper functioning of the bail system and the justice system as a whole”. [69] The Court in St. Cloud reaffirmed that s. 515(10)(

c) is a ground that can be relied upon for the continued detention of anaccused person only after the consideration of the four enumerated factors, with the Court arriving at the conclusion that the continueddetention is necessary to maintain confidence in the administration of justice. Conversely, as was pointed out by defence counsel, thecontinued detention of an accused person for reasons that are not justified will also offend the public confidence in the administration ofjustice. [70] Finally regardless of the result obtained from the analysis conducted it must consider that an accused person is still entitled tobe presumed innocent and is entitled to reasonable bail.

(

i) Apparent Strength of the Prosecution Case [ 71 ] There is no doubt the case for the Crown is often the strongest at the outset of the proceedings.

It may remain so until the evidence is tested in a hearing or additional evidence comes to the light. [ 72 ] In the case at bar, it is difficult not to agree with the Crown that the case presented against this accused appears to be a very strong case at this time. [ 73 ] The investigation undertaken by WPS was done so with this accused being named as the designated target and as the resident of the house that was the subject of the search warrant. [ 74 ] The majority of the drugs located within the home were located in a bedroom that has been identified as being that of the accused.

Within that bedroom police located numerous pieces of government issued identification, as well as other documents, in the name of the accused which would tend to support the contention that was his bedroom. [ 75 ] The accused also gave a statement to police wherein he not only confirms he is resident at the specified address but that he alone is the owner of the drugs located by police, as well as everything that was located in the bedroom; that would include the three firearms and ammunition that were located in the upstairs location of the home. [ 76 ] Defence counsel fairly outlined they have not yet been granted access to the Information to Obtain, that is the basis for the search warrant, and therefore are not in a position to offer any comment on that issue at this hearing. (ii) Gravity of the Offence [ 77 ] As was noted in St.

Cloud , this ground deals with the objective gravity of the offence(

s) charged in comparison to other Code offences. [ 78 ] For many of the offences charged, there is a maximum sentence of life imprisonment. \(iii) Circumstances Surrounding the Commission of the Offence, including whether a Firearm was used. [ 79 ] I agree with counsel for the accused that in this case there is no evidence of actual violence having been perpetuated by this accused.

Accepting that, I do take note of the Courts comments at paragraph 60 of Pearson wherein the Court speaks of the mistaken view taken of drug trafficking as follows: [TRANSLATION] Unlike robbery, sexual assault and murder, drug trafficking is often wrongly regarded as a non-violent crime: there is accordingly a certain tolerance of traffickers who give the illusion of being anonymous businessmen, hidden among those who are engaged in lawful business.

Such an impression is far from the reality, however, when one considers the fierce battles for control of territory and violent action to obtain the money needed to purchase drugs; equally, when one thinks of the personal brutality and social dramas that result. [Emphasis in original.] [ 80 ] The fact that this drug house was located within what has been described as being a residential neighborhood brings into play the reasonable expectation that there would be children present and about.

The drugs were located throughout the house and were generally described as being openly visible and available to whoever may have been in that home. [ 81 ] There were three firearms located in the house that were, based on the statement of the accused, illegally possessed by him. None of them were properly stored and none of them had trigger lock mechanisms to prevent their use.

Although none of the guns were loaded, they were located next to readily accessible ammunition which included prohibited magazines of ammunition. [ 82 ] Two of the guns were bought by the accused over the internet and were described as having been previously stolen from their lawful owner.

There is no reasonable or lawful basis before this Court for this accused to have been in possession of the firearms. [ 83 ] Essentially the guns were ready for use by whoever may have obtained possession of them without any safety checks being conducted or public safety concerns being considered. [ 84 ] Based on the statement of the accused it is he who is solely responsible for the drugs and guns that were located by police. (iv) Fact that the Accused is Liable for a Potentially Lengthy term of Imprisonment [ 85 ] Although this

section makes note of the minimum punishment for the possession of a firearm, I do note those sections have been recently struck down as being unconstitutional. [ 86 ] Should the accused be convicted of the offences now before the Court, the presiding judge will have to give serious consideration to the fact that this accused presents with no prior criminal record.

The Court will also have to consider the personal circumstances of this accused along with both the aggravating and mitigating circumstances that may be present. [ 87 ] That being said there can be no doubt that given the quantity of drugs located as well as the stolen firearms, a lengthy penitentiary sentence well beyond the minimum appears to be a likely sentence. [ 88 ] As I noted at the outset, release of an accused person is and should be the general rule.

That is particularly so where the Court is not satisfied the continued detention of an accused person is warranted on either the primary or secondary grounds.

[ 89 ] With that, the tertiary ground is a separate and distinct basis to order the continued detention of an accused person. In order to do so, the Court must look at each of the enumerated grounds from the eye of a reasonable person. When doing so, the Court must be able to come to the conclusion that the detention of the accused is necessary in order to maintain confidence in the administration of justice.

It is a high standard that is achieved through a consideration of all of the factors in a very delicate balancing act by the judge. [ 90 ] In my view, the allegations before the Court paint a portrait of serious criminal activity occurring. The case, at this stage of the proceedings, encompasses not only physical evidence obtained via the execution of a search warrant but is also supported by the statement the accused gave to police wherein he admits that it is all his. [ 91 ] The accused was illegally in possession of various firearms.

Two of them had been previously stolen and it is individuals such as this accused who permit a market for the sale of stolen items. The potential for danger and harm was real given the brazen manner that the firearms were being stored and the fact that there was readily available ammunition with the firearms. [ 92 ] As has been noted by many of the Courts, the presence of guns with drugs is a toxic mixture and a recipe for disaster. [ 93 ] As I commented upon at the outset, this is a difficult application given a young man with no prior record who presents with a strong plan and a caring family.

However upon my review of the submissions, although there may be some secondary ground concerns, it is my view there is a strong tertiary ground basis for the continued detention of this accused. [ 94 ] It is my view that this case is one of those cases where the Crown has satisfied me the release of this accused in these circumstances would undermine the public confidence in the administration of justice. [ 95 ] As such his detention will continue on the tertiary ground. Original Signed by MOAR, P.J.