Lawyers in the Igor Kenk stolen-bicycles saga are discussing a possible deal to resolve the massive criminal case and head off a trial for the 50-year-old bike repairman, a Toronto court heard yesterday.
Mr. Kenk, 50, was charged with more than 80 counts involving 2,865 used bicycles and a large quantity of illegal drugs seized in police raids in the summer of 2008, and has been awaiting trial in the Don Jail for almost a year since his bail was revoked last December.
Mr. Kenk appeared yesterday at the Ontario Superior Court of Justice, where he was to make a bid to have bail restored. Instead, his lawyer, Lon Rose, told Mr. Justice John Hamilton that "a proposed resolution to most if not all" of Mr. Kenk's charges is in the works as a result of pre-trial talks with Crown officials and lower-court Justice Kathleen Caldwell.
"We may be on the cusp of resolving a number of matters," Mr. Rose said, asking for a one-week adjournment for the bail review. "They've certainly given us a lot to chew on."
Judge Hamilton granted the delay, although he appeared more than ready to deal favourably with Mr. Kenk's request for release from the Don, where he has spent 11 months.
"Are you a gambling man, Mr. Rose?" he asked. "Because you've got the right judge for this case."
Mr. Rose said he appreciated the judge's comments but needed time to consult with Mr. Kenk on the proposed resolution, which will be discussed with the Crown and Judge Caldwell again next Tuesday. A deal could negate the need for a bail review. Mr. Rose declined to elaborate on talks toward a deal outside court. An end to criminal proceedings would solve a large and growing headache for the Crown and Toronto police, not just Mr. Kenk.
The sheer size of the case, which involved raids on 12 properties, about 100 police officers and more than 80 charges, created a mountain of evidence to be gathered, sorted, assessed and disclosed to Mr. Kenk's defence before any trial could proceed.
Court filings obtained by The Globe and Mail, including Mr. Rose's Nov. 12 notice of application for yesterday's bail review, suggest that disclosure has been slow and sporadic. Mr. Rose only recently received, for example, statements from 70 police officers who worked on the case. Dozens more pieces of evidence have also been slow to materialize.
Meanwhile, earlier this month in pre-trial sessions, the provincial Crown indicated 28 of the several dozen charges of possession of stolen property against Mr. Kenk would be withdrawn, but "was unable to advise as to which charges will be withdrawn and which will be prosecuted," Mr. Rose wrote in the notice.
He also noted that the Crown advised him on Oct. 29 that it has changed its approach in a way that suggests it "is treating the case ... less seriously in terms of potential sentence than it had until this time."
Disclosure delays, especially when an accused is awaiting trial in custody, can lead judges to throw out cases.
Regardless of any deal in the offing, Mr. Kenk still faces a lawsuit brought by the Ontario Ministry of the Attorney-General to seize his bike shop, two pickup trucks and 2,292 bicycles as proceeds of crime. Even though Mr. Kenk has not been convicted criminally, the province can use the Civil Remedies Act to seize and sell off his property if it can prove that it was used for a criminal purpose or obtained by crime.
In such cases, proof of a link to crime need only be established on a balance of probabilities, not beyond a reasonable doubt as required by the criminal courts.
Toronto police are particularly eager to liquidate the 2,292 bicycles, which went unclaimed during a series of public open houses after the 2008 police raids, at which 573 bikes were returned to their owners.