R. v. Nistor, 2011 ONCJ 763

COURT FILE No.: Toronto Region - Scarborough DATE: 2011· 09 ·27 Citation: R. v. Nistor , 2011 ONCJ 763 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANISOARA NISTOR Before Justice M. Wong Heard on September 23, 2011 Reasons for Judgment on September 27, 2011 Relating to Bail Pending Sentence B. Olesko ................................................................................................................ for the Crown M.

Czuma ................................................................................... for the accused Anisoara Nistor Wong, J.: [ 1 ] On September 20, 2011, I convicted Anisoara Nistor after a two day trial on one count of Theft Over $5000. In a written ruling, I found Ms. Nistor guilty of stealing $16,000 worth of cigarettes and $4000 cash from a Hasty Market, in what was referred to by a police officer as a “distraction theft”. I found as fact that Ms. Nistor was one of 4 women and two men who entered the store on September 22, 2009, Ms.

Nistor and three of the four other women, wore floor length skirts and hijabs, which left only their faces exposed. As the two men chit chatted with the owner at the front of the store about their common backgrounds, the women in the back of the store were busy stealing the cigarettes and the money which were in a locked office at the back of the store. Surveillance cameras caught on tape, at various times, three of the women ducking and running into the back of the store and off camera. At one point, Ms.

Nistor, who entered the store originally wearing a white hijab, is seen on video tape swapping hijabs with another woman, after the other female had returned from the back room. Altogether this well coordinated group of professional thieves were in the store a total of 13 minutes. Nimeth John, the store owner was devastated by the loss for which he had insurance, but chose not to make a claim. Mr. John testified he had already had made two previous claims for theft, and if he had claimed this – his 3 rd complaint – then his insurance would be cancelled. Not only was Mr.

John out of pocket $20,000; moreover, he was insulted and hurt that they would pass themselves off as Muslims who took advantage of his trust towards this group of people. [ 2 ] After the finding of guilty, Crown counsel made an application pursuant to subparagraph 523(2) (

a) of the Criminal Code asking for a revocation of Ms. Nistor’s bail pending sentence based on concerns on the primary grounds under subparagraph 515(10)(a). [ 3 ] Crown counsel provided the court with a copy of Ms. Nistor’s criminal record. Ms.

Nistor has a lengthy record for theft including entries for Fail to Comply with Conditions and Obligations of the Immigration and Refugee Act in 2006; convictions from Windsor, Nova Scotia from October 20, 2009 for three thefts – at least two from convenience stores with offence dates of October 5 to October 7 th (hence, approximately 2 weeks after the Hasty Market theft before this court). Ms.

Nistor had been released on the Hasty Market theft on a $5000 cash bail and a $5000 recognizance with one or more sureties because she is not ordinarily a resident of Canada. [ 4 ] Crown counsel advised the Court she is seeking a jail term between 6 to 12 months of custody. [ 5 ] On September 20, 2011, I heard submissions from Crown counsel, who I believed bore the burden of showing cause why Ms. Nistor’s bail should be revoked. I asked Defence counsel, Rob MacDonald, if he wished to call any evidence. He advised the court that Ms. Nistor’s surety could attend in approximately 45 minutes.

I was not prepared to wait for the surety to attend because we had waited all day for Ms. Nistor’s case to be addressed because there was difficulty coordinating the attendance of the interpreter and someone from counsel’s office to receive judgement. It was late afternoon and I was not prepared to wait for a surety to attend. Defence counsel did not call his client and instead made submissions arguing that Ms. Nistor ought to remain out of custody pending sentence. [ 6 ] On September 20, 2011, in oral reasons I found that the Crown had met their onus and had shown cause why on the primary grounds, Ms.

Nistor ought have her bail order vacated and that she be remanded in custody pending sentence.

[ 7 ] Defence counsel asked, and he was granted, the opportunity to call Defence witnesses and readdress the issue of bail pending sentence. Defence counsel suggested Friday, September 23, 2011, and Crown cousnel Melissa Mandel agreed although she was scheduled for a trial in another courtroom and I was scheduled for our busy intake court. Ms. Nistor’s case would take precedence and it would be accommodated. [ 8 ] On September 23, 2011, the issue of bail was again addressed.

However, there were many issues with the procedure and the evidence that I found troublesome: Conduct of Counsel: [ 9 ] First, Defence counsel Rob MacDonald did not attend court, but instead sent messages through duty counsel to remand the matter straight to a sentencing date and left suggested dates. However, there were also other messages sent from at least one other counsel saying that he was attending; one or two different defence counsel had contacted the Crown and had made inquiries; and finally a message left with duty counsel from Ms.

Nistor’s husband, that counsel, Michael Czuma would be attending at 2:00 p.m. It was obvious that Ms. Nistor and/or her family had been busy calling other lawyers. [ 10 ] Ms. Nistor was brought up from the holding cells during the morning session and advised of the various messages. She indicated that she wished to have the matter held down until the afternoon, when it appeared that counsel, Mr. Czuma, was able to attend. [ 11 ] At 2:00 p.m., the court resumed and Mr. Czuma appeared and indicated he was prepared to act for Ms. Nistor in the show cause hearing. The Court asked Mr.

Czuma a series of questions relating to whether he was acting as agent for Mr. MacDonald, counsel of record: his reply, no he was not. I asked Mr. Czuma if he had contacted Mr. MacDonald to advise him that he had been contacted by a family member to represent Ms. Nistor: his reply, no, but he could “if I wanted him to”. I asked Mr. Czuma if he felt troubled by appearing for Ms. Nistor who was obviously represented by counsel and was in the middle of a trial and his professional obligation as an officer-of-the-court and a member of the Law Society of Upper Canada to contact counsel of record before proceeding: Mr.

Czuma said he felt fine going ahead with the bail hearing. [ 12 ] Mr. Czuma was clearly in breach of Rule 6 of the Law Society of Upper Canada’s Rules of Professional Ethics which states at subrule 7:

(7) Subject to subrule (8), if a person is represented by a legal practitioner in respect of a matter, a lawyer shall not, except through or with the consent of the legal practitioner, (

a) approach or communicate or deal with the person on the matter, or (

b) attempt to negotiate or compromise the matter directly with the person. [ 13 ] Mr. Czuma was obviously unaffected by any professional obligations he has to the Law Society. [ 14 ] I considered whether I should permit Mr. Czuma to act for a client who was clearly represented by counsel of record and who had sent a message to duty counsel requesting that the matter be remanded. I allowed Mr. Czuma to proceed because clearly Ms. Nistor wanted him to proceed. I stand to be corrected, but I felt it was more appropriate for the Law Society to take action rather than to go against Ms.

Nistor’s wish that the case be heard with new counsel. [ 15 ] As it turned out, Mr. Czuma had not even spoken to Ms. Nistor prior to commencing the show cause hearing nor had he spoken to the Crown. Mr. Czuma advised the court later in the proceeding that he had heard what had transpired in the case by speaking to Ms. Nistor’s husband and the court interpreter. Evidence at the Show cause hearing:

a) Calambi Papateordoru: [ 16 ] Mr. Czuma advised the court that he wished to call Ms. Nistor’s surety, Calambi Papateordoru, age 72, who Mr. Czuma introduced was someone well known to him. Mr. Papateordoru was Ms. Nistor’s current surety, wherein on November 21, 2009, he had agreed to deposit $5000 cash and signed a $5000 recognizance with conditions. [ 17 ] Mr. Papateordoru is a retired banquet hall manager, who came to Canada in 1977 and is a Canadian citizen. He lives with his wife in an apartment at #210-27 Seely Drive in North Toronto. He knew Ms. Nistor’s father back in the old country. Mr.

Papateordoru described the family as “Roma” although he is not. The witness said he knew Ms. Nistor since she was a child. [ 18 ] According to Mr. Papateordoru, Ms. Nistor lives with her husband, Stefan Chiciu and their 5 children – the eldest is age 11 and the youngest is 7 months old. Mr. Papateordoru said Ms. Nistor’s address was “75 Cosburn” but that she had moved across the street. Later he said Ms. Nistor and her family lived in the Sheppard and Keele area, which was 10-15 minutes away from his residence. I was having difficulty reconciling how Ms. Nistor could live so close to Mr.

Papateordoru who said he lived in Downsview, if Ms. Nistor lived on “Cosburn” Avenue, which I am aware is in East York. Mr. Papateordoru spelled the street name: “Cosburg”. He said he visited the family daily for a few hours. [ 19 ] Mr. Papateordoru testified that Ms. Nistor is a refugee claimant from Romania and to his knowledge, neither Ms. Nistor nor any of the children have travel documents, although he believed Ms. Nistor’s husband has travel papers. [ 20 ] Stefan Chiciu, who was present in the body of the court, is Ms. Nistor’s husband. Mr. Papateordoru, who spoke with a

heavy accent but without the aid of an interpreter, became very vague when asked if Ms. Nistor’s husband had a criminal record. Mr. Papateordoru, who was very feisty and combative during much of his testimony both in examination in chief and cross examination, suddenly pretended to have difficulty hearing the question. Eventually, Mr. Papateordoru admitted that Mr. Chiciu had a criminal record of theft and was convicted along with Ms. Nistor for a theft from the Winner’s Store. Mr. Papateordoru testified both parents are on “welfare”. [ 21 ] Besides, her husband, Mr. Papateordoru testified Ms.

Nistor has a sister, Dilarca Nistor, who lives on the Danforth in Toronto, but Mr. Papateordoru only knows her to say “hi” and “bye”. As for other relatives in Canada, Mr. Papateordoru testified Ms. Nistor does not have any other siblings although Mr. Chiciu has a brother in Canada. According to the witness, there are thousands of extended Roma family members, but he cannot be expected to remember all of their names. [ 22 ] Mr.

Papateordoru said he was prepared to sign for a higher recognizance of bail, if necessary, although he refused to disclose his assets, which counsel acknowledged to the witness that he knew that Mr. Papateordoru had extensive assets. However, Mr. Papateordoru said he would draw the line if the amount were $100,000, for example, because Ms. Nistor’s offence was not as serious as other offences. Mr. Papateordoru did not know all of the conditions of Ms. Nistor’s current bail which he had signed although he was confident she was complying with its terms. As for his own copy of the bail papers, Mr.

Papateordoru said he did not know where they were, but then changed saying he had recently looked at the conditions, but had not brought a copy of the papers to court. [ 23 ] I had a few questions of Mr. Papateordoru: the gentleman testified that he had signed as a surety for Ms. Nistor twice before. He has also paid a $1000 fine for her. Papateordoru was familiar with the phrase “distraction” theft, and he believed Ms. Nistor had 3 previous convictions for “this type of job” were his words. [ 24 ] Mr. Papateordoru’s role in Ms. Nistor’s life and this case became more apparent near the end of his testimony. Mr.

Papateordoru stated that he has been fighting for Ms. Nistor and her four children for the past 6 years. He had asked Ms. Nistor when he had signed her bail in 2009 for the offence before this court, to respect him; which Mr. Papateordoru said she had. He said he felt a moral obligation to Ms. Nistor’s mother because otherwise, he would not be coming to court. Mr. Papateordoru stated, “It cost me a lot of money” and he is just trying to have Ms. Nistor “walk straight” – to paraphrase – that she should take her kids to school, be nice, and take advantage of the opportunities of a nice country.

It is not easy said Mr. Papateordoru when Ms. Nistor and her family are illiterate, have never gone to school, and don’t know anything else but to steal. Mr. Papateordoru said they should forget their past and go straight. [ 25 ] To sum up Mr. Papateordoru’s evidence, he believed Ms. Nistor would attend court and comply with the conditions of her bail. Mr. Papateordoru said he would sign again as her surety in a larger amount if required. (

b) Anisoara Nistor: [ 26 ] Ms. Nistor testified she is 30 years old and came to Canada illegally 6 years ago. She has applied for refugee status and has no travel documents. She has 5 children ages: 10, 8, 6, 1 year and 8 months, and a baby who is 6 months old. Two of the children have been born since the commission of the offence before the court. Ms. Nistor testified she is still nursing the baby and her engorged breasts are very sore and uncomfortable. Her heart is broken because she is separated from her children. While out on her bail since November 21, 2009, with Mr. Papateordoru as surety, Ms.

Nistor testified that she has complied with all the conditions of her release, she has appeared in court as required, and she says she will come to court for her sentencing. Ms. Nistor testified that Mr. Papateordoru has encouraged her to study and that Mr. Papateordoru has taught her how to write her name. She has not enrolled in any courses and she does not appear to work outside the home. [ 27 ] Crown counsel asked Ms.

Nistor about the three convictions for theft from Nova Scotia with offence dates of October 5 to 7, 2009 – less than 2 weeks after she was involved in the distraction theft at Hasty Market, which occurred on September 22, 2009. Ms. Nistor testified she had gone to Nova Scotia with some friends from Montreal and that her children did not come with her. When asked why she would leave her children in Toronto, Ms. Nistor said she and her husband had a fight; she was so upset so she left for a few days. In addition, Ms.

Nistor said she only had one child at the time: the now 10 year old child was the only child in Canada. According to Ms. Nistor the next two younger children, now ages 8 and 6, were in Romania and they had only arrive 7 months ago. [ 28 ] Bev Olesko, for the Crown, asked Ms. Nistor a series of questions of how her two children entered Canada: according to Ms Nistor the children entered Canada via the USA. Ms. Nistor said a friend brought the children to the United States and the passports were left in the U.S. She went on to say that a friend of her brother-in-law brought the children by car to Canada.

When asked if the children were smuggled into Canada, Ms. Nistor said she did not understand the question. When the Crown asked if the children were here illegally, the question had to be repeated. Ms. Nistor said she did not know how the children were driven across the border. She did not know if they were in the trunk of a car because her sister-in-law made all the arrangements. Ms. Nistor admitted the children did not have the proper papers to come into Canada. Ms. Nistor said her sister in law’s name is Marta Chiciu. [ 29 ] When I questioned Ms.

Nistor about her children, her answers were equally as troubling. Ms. Nistor advised the two eldest children attend the local school. The 10 ½ year old boy is in grade 5 and the 8 year old girl is in grade 1. However, oddly Ms. Nistor said the 6 year old boy has not yet started school but will be starting next month in November at the same school as his siblings. When asked why it is that the child was not already in school, Ms. Nistor said the child’s birthday is not until November, and he needed to be 7 to enter school.

But that does not make sense because children in both the Toronto District and the Catholic District School Boards start school in September. Ms. Nistor said that all she knows is how it is done in Romania. However, Ms. Nistor has been in Canada for the past 6 years and presumably the now 10 year old has been in the TDSB or CDSB system since kindergarten. Something does not quite add up with Ms. Nistor’s evidence about her children attending school. [ 30 ] Ms. Nistor testified the children attend Chester School, which is located near her home at 75 Cosburn in the Pape and Danforth/O'Connor area.

However, according to Mr. Papateordoru, Ms. Nistor lives in the Sheppard and Keele area, which is 10-15 minutes away from his residence. [ 31 ] Ms. Nistor has an extensive criminal record. She admitted that the thefts from Nova Scotia were also distraction thefts. She denies that the people she committed the offences with were the same people involved with her in the Hasty Market theft.

[ 32 ] Her record is as follows: November 27, 2006 Quebec Fail to comply with conditions of Immigration and Refugee Act (section 18(1)(124-125A) $700 (13 days pre-trial) August 27, 2007 Toronto Obstruct Peace Officer Conditional discharge and 12 months probation April 10, 2008 Peel Theft under $5000 $800 fine June 19, 2008 Toronto Theft under $5000 $500 fine September 22, 2008 Toronto Theft under $5000 Absolute discharge October 20, 2009 (offence date: October 5-7, 2009 Nova Scotia Theft under $5000 (3x) 2 weeks custody October 21, 2010 (offence date – May 11, 2009) Toronto Theft under, Mischief under 60 day conditional sentence and 6 months probation [ 33 ] According to Ms.

Nistor, the offence for which she was found guilty under the Immigration and Refugee Act was because she entered the country illegally. Mr. Czuma in reply submissions advised the Court that he was prepared to give the court a little lesson on the Immigration Act because his wife practices in that field. Mr. Czuma submits that Ms. Nistor would not have been charged with an offence of entering the country illegally because that is how all refugees enter the country. When I asked then what was Ms. Nistor’s violation pursuant to

section 18 of the Immigration and Refugee Act , that resulted in a finding of guilty and a fine, Mr. Czuma advised me that I “could look it up”. Again, I was surprised by Mr. Czuma’s reply which was unhelpful and unprofessional. [ 34 ] However, I did look up

section 18 of the Act , which is under Division 3 – Entering and Remaining in Canada: 18.

(1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada. [ 35 ] Sections 124 and 125 of the same Act are the penalty sections. Conclusions: [ 36 ] I am satisfied the Crown has shown cause why Ms. Nistor’s bail ought to have been vacated and that her continued detention is necessary on the primary grounds. I am satisfied that if released, Ms. Nistor will not return to court for her sentencing. I agree with the Crown that Ms.

Nistor is facing a substantial period of custody in light of the principles of general deterrence and specific deterrence. The Crown had an overwhelmingly strong case. Ms. Nistor sentencing will be completed within the the next 2 to 3 weeks as the Court waits for a stand-down pre-sentence report that has already been ordered. Probation services are simply waiting for a return date and have already received the request for the PSR. Ms. Nistor shall not be waiting months or years for her trial: her trial has been completed and she was found guilty as charged. The presumption of innocence no longer applies. Ms.

Nistor’s rights pursuant to

section 11(

e) of the Canadian Charter of Rights and Freedoms to reasonable bail, takes on less significance now that her guilt has been determined. It is unfortunate that the timing of the trial and conviction came when Ms. Nistor is still nursing her youngest child. [ 37 ] Ms. Nistor’s lengthy criminal record is filled with offences of dishonesty including, by her own admission, at least one previous entry for a distraction theft. Mr. Papateordoru believes there were three prior theft convictions committed with the same modus operandi . One set of similar act thefts was committed in Nova Scotia.

The court documents from Nova Scotia which were entered as exhibits indicate that Ms. Nistor was of “No fixed address”. According to Ms. Nistor, she has been in Canada for 6 years and presumably was living in Toronto in 2009. [ 38 ] Ms. Nistor also was convicted of failing to report to an immigration examiner. There are obvious parallels between Ms. Nistor avoiding a meeting with an immigration examiner who could determine her ability to stay in Canada and whether she will return before this Court for sentencing. [ 39 ] In addition, Ms. Nistor and her surety gave contradictory evidence. Mr.

Czuma in his closing submissions argued that the Court would “insult” Mr. Papateordoru if he was not found to be a good and sufficient surety and Ms. Nistor continued to be detained. Again, counsel’s submission was unhelpful and perhaps was made for the benefit of the parties in court who had retained Mr. Czuma rather than to assist the court. No one is trying to insult Mr. Papateordoru. In fact, in listening to Mr. Papateordoru, who initially came across as argumentative and evasive, he ultimately appeared to be genuinely motivated to help Ms.

Nistor and frustrated by her repeated transgressions. [ 40 ] I am fully aware that Ms. Nistor has been on bail since September 22, 2009, and that she has complied with the terms of

her release and has attended court as required. The Crown has not alleged that Ms. Nistor has committed any new offences since her release. I am also mindful that Mr. Papateordoru is prepared to increase the amount of cash for deposit as well as sign as a surety in a higher amount. I also note that separation for Ms. Nistor from her family is a hardship. However, I have no confidence Ms. Nistor would return to court in three weeks for her sentence in spite her family friend’s pledge of substantial assets. In fact, I am certain of the opposite: that if Ms.

Nistor were to be released, she would not return for her sentencing. According to her own evidence, it would appear that Ms. Nistor has connections with persons who can bring her two children into Canada illegally. These same people can presumably help Ms. Nistor leave this city or this country. Also, I find Ms. Nistor’s connections to the community appears tenuous. Even though she is the mother of 5 children, I have significant doubts if any of them actually go to school. Ms.

Nistor’s evidence on her children’s education raise significant questions, which perhaps should raise an investigation by child welfare authorities. [ 41 ] On Friday, September 23, 2011, final submissions on this bail hearing finished close to 5 p.m. I advised counsel that I was not prepared to render judgment that afternoon. In choosing which date the matter ought to come back, Mr. Czuma advised the court that he would not be returning for the judgment and that counsel of record, Mr. MacDonald should be contacted and advised of the date. As cavalierly as Mr. Czuma enter this case, so too did he depart.

Perhaps, the Crown or Mr. MacDonald will consider sending a copy of these reasons to the Law Society of Upper Canada relating to Mr. Czuma’s conduct of this case. [ 42 ] To sum up, the Crown has satisfied the onus and has shown cause why the court should revoke Anisoara Nistor’s previous release order and why she ought be detained pending sentence. [ 43 ] A date shall now be chosen for sentencing and the return of the stand-down PSR. Released: September 27, 2011 Justice M. Wong