Her Majesty the Queen - v. -, 2011 SKPC 195

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 195 Date: Decemb er 23, 2011 Information: 24360481, 24360470, 24360462 & 24360465 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - William Bruce Larsen Ms. Jodie A. Lacelle For the Crown Mr.

Robert Dick For the Accused Note: An Order has been made pursuant to s. 517(1) of the Criminal Code that the evidence taken, the information given or the representations made and the reasons given or to be given shall not be published in any document or broadcast or transmitted in any way before such time as, if a preliminary inquiry is held, the accused is discharged or, if the accused is tried or ordered to stand trial, the trial has ended. DECISION AS TO JUDICIAL INTERIM RELEASE L.A. MATSALLA , J [ 1 ] The bail hearing in this case commenced on December 9, last, and was adjourned to December 16 for completion.

This is the decision arising from that hearing. [ 2 ] William Bruce Larsen faces numerous charges under the Controlled Drugs and Substances Act (“ CDSA ”) and under the Criminal

Code (“ CC ” ) that the Crown alleges were committed in British Columbia, Saskatchewan and elsewhere in Canada. He is jointly charged with one Brock Ernest Palfrey, that he did, between April 1, 2010 and October 2, 2011: (

a) import cocaine into Canada [s. 6(1) CDSA ], (

b) possess cocaine for the purpose of trafficking [s. 5(2) CDSA ], (

c) as a member of a criminal organization, import cocaine into Canada (s. 467.13 CC ), and (

d) conspire with others to import cocaine into Canada [s.465(1)(

c) CC ]. He is also charged in information number 24360470 that: (

a) between March 26, 2010 and May 3, 2011 and on May 3, 2011 and on May 9, 2011, he did import into Canada [s. 6(1) CDSA ] and possess cocaine for the purpose of trafficking [s. 5(2) CDSA ], and (

b) on September 30, 2011 he did import cocaine into and export MDMA (also known as ecstasy) out of Canada [s. 6(1) CDSA ]. In addition, he is charged in information number 24360462 that between December 15, 2009 and September 30, 2011, as a member of a criminal organization, he did import cocaine into Canada (s. 467.13 CC). Finally, he is charged in information number 24360465 that, between September 19, 2011, and September 30, 2011, he did conspire with others to import cocaine into and export MDMA out of Canada. [ 3 ] Sections 515(6) (a)(ii) and (

d) of the Criminal Code requires that an accused be detained in custody until dealt with according to law unless that accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified. Section 515(10) sets out the grounds upon which the issue of detention is to be determined and the

section reads as follows: 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 law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of 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. The accused bears the onus on the balance of probabilities [1] . Submission of the Defence [ 4 ] Mr. Larsen is 51 years of age and he has a spouse who has children of her own.

He has worked as a carpenter and he has completed renovation work. References have stated that work is available for him if he is released. His spouse is also employed and together they maintain a residence in British Columbia. A stepchild has said that he has been a good father and teacher. He does not have a criminal record and when arrested he had $500.00 on his person. A search of the residence uncovered $3,000.00 in cash which consisted of funds that had been paid by her children as rent.

The Defence suggests that the accused does not have any funds that could be used to avoid his Court obligations although he received the sum of $50,000.00 for transporting the drugs. Mr. Larsen was a courier and nothing more. Some other persons, including Mr. Palfrey, were the controlling minds behind the operation. [ 5 ] The Defence has suggested that Indictments filed in the U.S. against Mr. Palfrey and Mr. Larsen seek lengthy periods of imprisonment if convictions are entered. The U.S. is not an attractive place for them to go. [ 6 ] Mr.

Larsen has been ill since his arrest, but no diagnosis of his condition has been made. Counsel suggests that he may be suffering from a serious illness, but to so conclude would be speculative. [ 7 ] It is submitted that the Crown’s evidence against the accused is not strong in that, Mr. Larsen may not have been the person involved in communications with other persons, he may not have hired a driver to assist in the commission of the offences, and that he may not have modified the vehicles that were used to carry the loads. He simply joked when he said that Canada was a country that enabled a person to run away.

Only Mr. Palfrey referred to leaving Canada to go to another country, while he continued in the illegal operation, even after he was arrested and released. Mr. Larsen was not involved before these incidents. Submission of the Crown [ 8 ] The Crown advises that on April 26, 2011, one Tyler Alvin Nicholson was arrested in the state of Montana in the United States and thereafter he became a police agent while he continued to participate in a criminal operation.

He advised the police that he was part of a group that imported many kilograms of cocaine into Canada from the United States and exported MDMA and cannabis marihuana into the United States. He further advised that one Mr. Palfrey directed the organization by making arrangements to obtain the cocaine in the United States and then arranging for its transportation to the border with Canada and finally arranging to move the drug across the border and, thereafter, directing the cocaine to British Columbia. Specifically, it was Mr. Nicholson’s responsibility to pick up the drug and then meet with one “Cowboy”, Mr.

Swanson, Mr. Palfrey and the accused, at a prearranged border point in a secluded area of Saskatchewan. It was the responsibility of Mr. Palfrey, Mr. Swanson and the accused to handle the cocaine in Canada. Mr. Nicholson was provided with cannabis marihuana and MDMA in large amounts for transport to locations in the United States. [ 9 ] A significant amount of the Crown’s case is based upon information provided by Mr. Nicholson. However, after he became a police agent, the authorities monitored the communications between the participants. These communication devices utilized data

encryption and decryption software known as PGP (commonly referred to as “pretty good privacy”) however the authorities were able to monitor the conversations between the participants. Police operations included surveillance, audio and video recording, the entry and search of premises and the installation of tracking devices. [ 10 ] It is the Crown’s position that there were thirteen separate incidents involving the transport of cocaine and other illegal drugs that had been arranged by Mr. Palfrey.

I will refer to each incident as a “load”. [ 11 ] The Crown has evidence to indicate that the accused became involved in January of 2011. I am satisfied on the information before me that, at that time, Mr. Larsen would have known that Mr. Palfrey and Mr. Swanson had been arrested and were on bail in relation to charges respecting the trafficking of cocaine and the conspiracy to traffic in cocaine, that had previously arisen, and that those charges relate to the same operation in which Mr. Larsen was participating.

It is very likely that he was aware that the arrests took place in March of 2010, and that they were released by the latter part of April of 2010. [ 12 ] Mr. Nicholson has advised the Crown that he was involved in load 10. In late February of 2011, at the direction of Mr. Palfrey, he took delivery of 100 kilograms of cocaine and delivered the drug across the border to the accused who gave him 600,000 MDMA pills. He took the 200 pound bag of pills to the United States. The remote area along the border at which the transaction took place was south of Val Marie, Saskatchewan. [ 13 ] On April 7, Mr.

Nicholson, at the direction of Mr. Palfrey, picked up 30 kilograms of cocaine in Seattle, Washington. This has been called load 11. The drug was placed in a false compartment in a truck and between April 9 and April 10, he delivered the cocaine to the accused in Canada. Mr. Palfrey and Mr. Nicholson communicated by way of PGP messages to confirm the delivery. [ 14 ] Later in the same month, Mr. Palfrey directed Mr. Nicholson to pick up load 12 (which consisted of 150 kilograms of cocaine) from an individual in the United Sates.

On April 11, he received a PGP message from the accused referring to the load and, using the same method of communication, Mr. Nicholson told Mr. Palfrey that the cocaine was hidden in his 1999 Dodge truck. The two spoke of the amount of money that each of them owed to other parties. On April 14, Mr. Nicholson, Mr. Palfrey and the accused, once again, discussed the load and Mr. Larsen told Mr. Nicholson that he would be transporting 40 pounds of cannabis and 500,000 MDMA pills back to the United States. Both Mr. Nicholson and Mr. Larsen discussed details of the load and they arranged for a meet along the border.

On April 16, at the direction of Mr. Palfrey, Mr. Nicholson purchased an all-terrain vehicle in Montana and he used the vehicle to transport the cocaine across the border to the accused who then provided Mr. Nicholson with the marihuana and the pills. After disposing of his load, Mr. Palfrey contacted Mr. Nicholson to discuss a complaint about the way in which the drugs from Canada had been packaged. Reference was made to the pills as “vits” and Mr. Larsen confirmed that all packaging had been sealed. [ 15 ] In the latter part of the month, load 13 was transported. Mr. Palfrey directed Mr.

Nicholson to pick up 147 kilograms of cocaine from California and, after picking up the drugs, he transported them in the false bottom of his Dodge truck. In the early hours of April 26, he crossed the border to deliver the cocaine to the accused. The U.S. Border Patrol became aware of the crossing into Canada at 2:44 a.m. and noted a vehicle returning at 4:49 a.m. Mr. Nicholson was subsequently taken into custody and thereafter became a police agent. From that point, any cocaine that was picked up by Mr.

Nicholson was substituted with a placebo and 10 grams of cocaine. [ 16 ] Load 14 was transported in late April and early May. Mr. Palfrey directed Mr. Nicholson to pick up 35 kilograms in Los Angeles. Mr. Nicholson was under surveillance. After the cocaine was obtained, it was replaced with a substitute. On May 1, Mr. Nicholson and the accused communicated using PGP to confirm that Mr. Nicholson was carrying 35 kilograms of the drug although the accused expected it to be 60 kilograms.

Warrants were obtained and tracking devices were installed on the ATV and arrangements were made to install listening devices so that the conversation between Mr. Nicholson and the accused could be monitored. During the early hours of May 2, Mr. Larsen was observed operating his vehicle south of Climax, Saskatchewan and at 3:00 a.m. Mr. Nicholson, using the ATV, proceeded in a northerly direction from the United States. Mr. Larsen was operating a white Chevrolet crew cab truck when he met Mr. Nicholson and the two of them loaded the cocaine into a false propane tank in the box of the truck.

The conversation was monitored. It was during this conversation that Mr. Larsen advised Mr. Nicholson that he would be sending bank numbers to him for a person named “Med Alert” who is evidently an individual involved in the financial side of the operation. He went on to refer to the purchase of a cash machine which he used to count out “180 K” (or $180,000.00). Mr. Larsen referred to the trips that he was involved in in the past. He said that they owed “Billy” (an apparent reference to Mr. Palfrey) over $210,000.00. Mr. Larsen referred to starting “their own thing”, which I believe to be a reference to Mr.

Nicholson and Mr. Larsen commencing a similar drug running operation. Mr. Larsen told Mr. Nicholson that he knew a Russian who could collect for them. He said that people can walk the drugs over the border at their meeting place in Saskatchewan. He went on to say that they could run the drugs up the Columbia River to British Columbia. Mr. Larsen referred to him earning $8,000.00 “a run” and that Med was providing him with another driver to train. He even referred to a border guard who he thought could help him out. Near the end of the conversation Mr. Larsen said this:

We’re his friends. We’re his closest f... people, we’re the ones who could put him in f... jail forever, so he better learn to f... trust us. Mr. Larsen left the scene to proceed to British Columbia. In Kamloops he was stopped for speeding and given a ticket. After spending the night in that city he drove to a warehouse in Richmond, British Columbia into which he drove his truck. He left the warehouse in a different truck and then returned with a car and entered the warehouse. He returned to the car with a backpack and he placed three bags in the trunk.

He then parked the car at a Home Depot parking lot and ten minutes later another vehicle stopped alongside the car and a person entered the vehicle and left the parking lot. The vehicle was subsequently seized and 5 kilograms of substitute cocaine was discovered along with three cardboard boxes containing 7, 11 and 12 kilograms of substitute cocaine. The accused was noted to have returned to the warehouse and he left in the truck in which he had first arrived. He drove to Vernon, British Columbia, where he rented a room. Mr.

Palfrey entered the room and left with a black bag. [ 17 ] The police executed warrants and placed tracking devices on two white trucks and Mr. Palfrey’s vehicle. On May 8, they executed a general warrant to search and to enter and install tracking devices on Mr. Larsen’s vehicle at the warehouse. In the warehouse they discovered completed score sheets, a money counter, a propane tank, and envelopes and car tools however no cocaine or wrapping material was discovered. [ 18 ] On May 3, Mr. Palfrey directed Mr. Nicholson to pick up 149 kilograms of cocaine in Los Angeles, California.

The Crown has called this load 15. On May 5, he received five duffle bags of drugs and then on May 8 the bags were taken across the border to Mr. Larsen by all-terrain vehicle. At the time a conversation took place between the two in which Mr. Larsen said that “they don’t want us to take any time off”. They then discussed the demanding nature of the people for whom they worked. Mr. Larsen was concerned that he could be arrested because “they” could report him to the authorities. He goes on to say that he was helping his friend (who I understand to be Mr. Palfrey) until Mr.

Palfrey’s debt was paid and he said that payment from Mr. Palfrey of $10,000.00 a load was not sufficient compensation. He stated that Mr. Palfrey was providing cash to the grow operators. They proceeded to talk about how Mr. Palfrey was making between $170,000.00 and $300,000.00 and Mr. Larsen indicated that he had been paid out of a fund in Vancouver. Mr. Larsen mentioned that his contacts wanted a further load by the end of the week and he mentioned the speeding ticket that he had received in Kamloops. [ 19 ] During the discussion, Mr.

Larsen acknowledged that an exchange had taken place in the Home Depot parking lot after he had pre-packaged the drugs. Mr. Larsen acknowledged that Med is the “money guy from Vancouver”. Both persons discussed Mr. Palfrey’s earlier arrest for the 151 kilogram load and that, on that occasion, they were to use a vehicle with a compartment but ended up using Swanson’s car. They talk about Med having inadequate funds to “disappear”. Mr. Larsen spoke of swapping VINs (which I take to be Vehicle Identification Numbers) and went on to talk about the difficulty of packaging the drugs.

They then talked about the possibility of getting caught and Mr. Larsen told Mr. Nicholson that he would not “rat [him] out” or anyone else for that matter and they talked about the consequences of a conviction in the United States as opposed to the consequences in Canada. In Mr. Larsen’s view Canada is more humane and a person is given “an option to run away”. At the end of their conversation Mr. Larsen indicated that he would like to speak to Mr. Nicholson about the “farm thing” and Mr. Larsen mentioned two people who may be interested.

Given the context of the conversation along with other discussions, it appears that they were, once again, talking about commencing their own illegal operation. [ 20 ] On May 9, Mr. Larsen attended at the warehouse in Richmond and he then proceeded to the parking lot of a Princess Auto Store where he left his truck after meeting with another male person. He then used another truck to leave the lot and the male left with Mr. Larsen’s truck. He drove to another storage unit. The police subsequently gained access to the storage unit where 149 kilograms of cocaine substitute was obtained - some of it in Mr.

Larsen’s vehicle. Two male persons were arrested. [ 21 ] About two months later, that is on July 6, Mr. Palfrey, Mr. Nicholson and Mr. Larsen met in Vernon, British Columbia. The meeting was recorded on audio and video apparatus. Mr. Palfrey stated that another vehicle must be built and that they “gotta get cooking again”. Mr. Larsen agreed to build it. Mr. Larsen commented that after 15 trips they would all be retired and Mr. Larsen and Mr. Palfrey talked about how they started with 3 kilograms of cocaine and borrowed another 3 kilograms from the “Mexican Cartel”.

They referred to transporting loads of 50 kilograms of cocaine until they made 15 trips and then they would retire with 3.5 million dollars each. Mr. Larsen commented that he is waiting “for the boss to tell me to get f... cooking here” and Mr. Palfrey stated that Mr. Larsen could get a vehicle built in a week. Mr. Larsen went on to say that he had retained another driver and Mr. Palfrey spoke of 30 kilograms of cocaine available in Los Angeles. Mr. Palfrey was in favour of avoiding “those weird problems” and he was unhappy when they were out of business for two months.

They went on to talk about using a computer and a global positioning system to arrange for the transfer of the load and they talked about buying a mini-van that, Mr. Larsen suggested, he could disguise by adding religious stickers. Mr. Larsen asked Mr. Palfrey when he would like to start “pushing” and asked Mr. Palfrey to provide him with the “f... bundles” and

“we’ll look after it”. Mr. Larsen estimated that he would need $25,000.00 for the van and that he would have to re-work the back end in order to get the hidden compartment installed. Mr. Larsen told Mr. Palfrey that he spent $40,000.00 on the white truck. Mr. Larsen said that Mr. Palfrey would have to “crawl under a rock here in the next year” to which Mr. Palfrey responded that he was going to Malta which Mr. Larsen acknowledged is in the Mediterranean. Mr. Palfrey says that “there’s no extradition laws there I guess”. Then Mr. Palfrey and Mr. Nicholson talked about buying drugs with their own money. Mr.

Palfrey commented that they could obtain 4.5 million dollars each as a result. [ 22 ] Load 16 consisted of 30 kilograms of cocaine and 100,000 MDMA pills. On September 19, Mr. Palfrey arranged for Mr. Nicholson to pick up the cocaine and he was to bring 500,000 pills to the exchange point. Mr. Larsen had prepared the new vehicle with the concealed compartment and Mr. Palfrey and Mr. Nicholson talked about the new driver (a Mr. Learning). On September 27, Mr. Nicholson was seen operating a van with another occupant. On September 30, Mr.

Learning drove the van to Medicine Hat and then, on October 1, he drove to a location on the border where he received 30 kilograms of cocaine substitute from Mr. Nicholson and where he provided the latter with 100,000 pills and the sum of $10,000.00 in cash. Prior to the exchange, Mr. Palfrey and Mr. Larsen communicated by PGP messages. Mr. Larsen commented about training the new guy. Mr. Nicholson and Mr. Larsen talked about the drug squad from Vancouver that had visited Mr. Larsen’s residence to speak to his wife. They expressed concern about developments but Mr.

Larsen commented that transporting the load would continue in any event. He talked about sending $10,000.00 to Mr. Nicholson however Mr. Nicholson said that he needed to have the $10,000.00 delivered to him “tonight” and Mr. Larsen assured him that if Mr. Nicholson needed the money that he would send some to him quickly. As it turned out, Mr. Larsen was able to promptly obtain such a significant amount and it was provided to Mr. Nicholson at the time of the exchange. [ 23 ] Mr.

Larsen was arrested and the record indicates that he made his first appearance in Regina on October 3, to answer the conspiracy charges set out in information 24360465. Argument of the Defence [ 24 ] Counsel asserts that Mr. Larsen has ties to Vernon, British Columbia, and there is no reason to expect that he would be a flight risk, in that the United States is the closest jurisdiction to which he could travel, and that country would like to take him into custody. He has little in the way of financial resources and he would not get far without a passport.

Any talk of flight between the parties was said in jest. [ 25 ] Mr. Palfrey decided to return to criminal activity after he was released on bail. Such is not the case with Mr. Larsen. The time that he spent in custody has had a significant impact upon him and he is not inclined to become involved in illegal conduct. [ 26 ] Mr. Larsen’s involvement is not inexplicable and it is not horrific. The Crown’s case is not especially strong because proof that Mr. Larsen was involved in a criminal organization will be difficult to prove and much of the evidence upon which the Crown relies is that of an accomplice.

This is not a case in which his detention in custody is necessary to maintain confidence in the administration of justice. [ 27 ] He can be released on cash bail. Mr. Larsen’s family (including his 86 year old father) can post $40,000.00 of cash bail. The funds are all that they can raise. Argument of the Crown [ 28 ] Even though Mr. Larsen does not have a criminal record, the Crown is of the view that he has not shown that he ought to be released on any of the three grounds.

He is not a “small fry” in this activity but rather he is part of a much larger operation and he was directly involved in picking up the drugs and returning them to British Columbia. Mr. Nicholson picked up 511 kilograms of cocaine (loads 12-16) including the substitute cocaine that was exchanged in the last load for delivery to Mr. Larsen. The market value of the cocaine could be as much as $25,000,000.00 (at $50,000.00 per kilogram). The 1.1 million pills that Mr. Larsen provided to Mr. Nicholson would be worth $10.00 to $20.00 each for a total of $11,000.000.00 to $22,000,000.00. Mr.

Larsen hired and trained Mr. Learning. He modified the vehicles to transport the drugs. He was actively involved in handling the drugs and arranging to provide the drugs to other persons. He was paid a significant amount of money to handle the cocaine and pills.

[ 29 ] Mr. Larsen was no stranger to travelling across provincial boundaries and he has shown little respect for the U.S./Canada border. It is clear that he saw an opportunity to take advantage of a lightly defended border in a sparsely populated area of rural Saskatchewan. They had given thought to leaving the country and he had given some thought to establishing his own illegal organization. [ 30 ] Mr. Larsen has been in custody since October and there is no evidence that he has maintained contact with those persons with whom he was previously associated. [ 31 ] The Crown’s evidence is strong. Mr.

Nicholson’s evidence is supported in large part by evidence gathered by the authorities from other sources. The amount of cocaine that Mr. Larsen was to have transported after the intervention of the police was 214 kilograms (loads 14 - 16 inclusive) and, in addition, he handled a very significant number of MDMA pills. It was suggested by the Crown that cases involving a fraction of the above quantities of drugs have resulted jail sentences averaging eight years. The participants were prepared to accept the risk of apprehension without regard for their families.

This case is very significant in Saskatchewan and so the detention of Mr. Larsen in custody is necessary to maintain confidence in the administration of justice. Analysis Whether the detention is necessary to ensure his attendance in Court in order to be dealt with according to law. [ 32 ] Clearly there is no evidence that Mr. Larsen has committed any criminal offences in the past or that he has failed to attend Court. The primary ground requires a consideration of a number of other factors including the nature of the offence and the potential penalty. [ 33 ] The Supreme Court of Canada in R. v.

Smith [2] , pointed out the impact that hard drugs have on society. The Court made this observation: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. The Court of Appeal in this province has recognized the deleterious effect of hard drugs when it said: This Court and many others have long since taken judicial notice of the fact that cocaine is a pernicious drug with an insidious effect on society.

Those who permit the drug to circulate in our communities cause untold hardships. [3] The offences in this case are serious. Mr. Justice Cameron said this: Possession of drugs such as these for the purpose of trafficking constitutes a grave offence. This and other courts have repeatedly and consistently remarked upon its gravity over the years, given the extensive societal harm associated with the distribution and consumption of such drugs.

Some appreciation of how serious Parliament views offences of this kind may be had from the fact it has provided for up to life imprisonment for such offences, when involving cocaine, and up to five years, when involving marijuana in an amount under three kilograms. Over that amount, Parliament has again provided for punishment of up to life imprisonment. While always a grave offence, the manner of its commission may vary, of course, thus affecting its relative gravity and the degree of responsibility of the offender. [4]

In that case, the accused, who had a significant substance abuse problem, received an 11 month jail sentence for purchasing small amounts of cannabis worth $6,000.00 to $12,800.00 and a small amount of cocaine worth between $5,700.00 and $8,400.00. [ 34 ] Our Court of Appeal has dealt with an appeal from a sentence of six years imposed upon a 40 year old man who, as of that date, had taken

part in “the most extensive scheme for the trafficking and exporting of marihuana that this province has yet encountered.”. [5] The accused was associated with a criminal organization and yet he was a husband and father who enjoyed an affluent lifestyle and who otherwise operated a legitimate business. The Court noted that his sole motivation for criminal activity on such a large scale was greed. In that case 10-13 van loads of drugs worth millions of dollars were transported from British Columbia and exchanged across the Saskatchewan border with the United States.

On two of the occasions the loads contained cocaine although the drug was not taken into account in the sentencing. For his part, Smith received nearly $1,000,000.00. The Court concluded that a six year jail sentence was demonstrably unfit without additional terms. The case is useful in that Wilkinson J.A. canvassed the sentencing ranges for such offences. The accused was given credit for remand time. [ 35 ] The strength of the Crown’s case should also be examined.

Until the end of April of 2011, the Crown relied primarily on the evidence of an accomplice - evidence that must be closely examined, however, thereafter, the evidence is supported by evidence of the PGB messages. Then, evidence by way of property searches, recordings, monitored communications, vehicle tracking information and surveillance support Mr. Nicholson’s evidence. In this case I believe overall the Crown’s case is particularly cogent. [ 36 ] Evidence of the accused’s intentions is relevant. There is evidence that on a number of occasions Mr. Larsen participated in discussions about leaving Canada.

On May 3, he and Mr. Nicholson speculated that Med did not have enough money to disappear. Mr. Larsen thought that in Canada a person had the option to run away. On July 6, Mr. Palfrey, Mr. Nicholson and Mr. Larsen talked about retiring with a fortune and that Mr. Palfrey might go to Malta where there are no extradition laws. Despite letters of reference referring to him as a good father and employee, it seems clear that over almost a year he made a conscious effort to commit himself to obtaining money in huge amounts by way of handling illegal drugs.

It seems unlikely that his community and family ties are of much consequence. He does not have a criminal record however, he was able to distance his criminal involvement from his family and work life. As Mr. Justice Fuerst pointed out in a case that dealt with a criminal organization - the Hells Angels Motorcycle Club: There is a firewall between the public face of the organization , and the private side, meaning the criminal activity. The corporate face of the organization does not direct members’ criminal activities. There are partnerships and groupings of members participating in criminal activities.

It is a networking model reminiscent of patron/client relationships, and similar to the American Mafia...Some individuals are more successful at eluding conviction than others. [6] In any event, Mr. Larsen and the others had put their minds to the possibility of avoiding the authorities. If he were to flee, it is unlikely that Mr. Larsen would use legal means to leave the country, or enter some other country, in order to avoid his obligations in Court. Lamer C.J.C. in R. v.

Pearson [7] pointed out that drug importers and traffickers have access to large amounts of cash and an intricate network that can assist in the flight from justice. [ 37 ] After reviewing the submissions carefully, I cannot conclude that Mr. Larsen has established that his detention is not necessary to ensure his attendance in Court. For the purposes of this hearing, that ends the matter, however, I propose to consider the submissions of counsel in respect of the two remaining grounds.

Whether detention is necessary for the protection or safety of the public having regard to the circumstances including any substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice . [ 38 ] It has been suggested that Mr. Larsen was a simple courier and that Mr. Palfrey was the directing mind of the operation. The information before me points to a different conclusion. [ 39 ] Mr. Larsen’s involvement was not limited to a single incident. He participated actively in the organization and transportation of loads from February to October.

He, Mr. Palfrey and Mr. Nicholson had many discussions about the details of the exchanges, about Mr.

Larsen helping Mr. Palfrey pay his debt and about how he and Mr. Palfrey had started the illegal transportation of cocaine with 6 kilograms of the drug. He said that he owed Mr. Palfrey $210,000.00. It cannot be said that he was a courier, but it is more likely that he was Mr. Palfrey’s partner. [ 40 ] There is evidence that Mr. Larsen personally picked up many loads himself and he trained the driver to pick up and deliver illegal drugs as well. He was involved in the packaging of the cannabis marihuana. He was familiar with the financial side of the operation when he proposed to send Mr.

Nicholson bank numbers which I take to be bank account numbers or transit numbers permitting the transfer of cash. He purchased a cash counting machine and on at least one occasion counted out $180,000.00. He was so familiar with the operation of a criminal organization that he proposed to Mr. Nicholson that they start their own illegal operation for which he had already co-opted two other persons. He was paid $8,000.00 to $10,000.00 to handle each load of illegal drugs. He had trained a driver to haul loads for him.

He apparently assisted in the distribution of drugs and he arranged for pick ups to take place in parking lots. He met with Mr. Palfrey in a motel room. He claimed to have been in contact with other parties who also directed the illegal activity of the organization. He agreed to buy a van for the purpose of hauling cocaine and he agreed to install hidden compartments in the vehicles. [ 41 ] Throughout he was aware that Mr. Palfrey was on bail for charges arising out of the earlier days of the operation. He was not concerned about continuing to handle and transport the drugs.

He was under pressure to do so but he was eager to continue. The financial incentive to resume the operation just as Mr. Palfrey had done after his arrest was irresistible for Mr. Larsen. Just as the operation continued after Mr. Palfrey was arrested and released, it seems likely that the operation will continue if Mr. Larsen were to be released. [ 42 ] I have no doubt that there is a substantial risk that Mr. Larsen will commit a criminal offence if released. He has not shown that his detention in custody is not necessary for the protection and safety of the public.

Whether his detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances including : (

a) the apparent strength of the prosecution ’ s case, (

b) the gravity of the offence, (

c) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (

d) the fact that the accused is liable on conviction for a potentially lengthy term of imprisonment. [ 43 ] In R. v. Hall the Supreme Court of Canada examined s. 515(10)(

c) and in doing so explained how the

section is to be applied. Madam Justice McLachlin C.J.C. said this: Section 515(10)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice.

Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) – the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.

Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose. [8] and the Court outlined the issue that must be resolved at paragraph 41: At the end of the day, the judge can only deny bail if satisfied that in view of these factors [the factors identified in s. 515(10)(c)] and related circumstances a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

[44] Mr. Dick has submitted that the offences in this case are neither horrific or inexplicable, so that detention is not justified,however those descriptors are unique to the facts in Hall - a case in which a particularly heinous murder had been committed. Thetertiary ground can be considered in all cases. Mr. Justice Hill has more recently set out the principles that should be applied to an examination of the applicability of the tertiary ground when he said [9]: The guiding principles informing application of the tertiary ground may be summarized as follows:

(1) The tertiary ground continues to apply to all persons seeking judicial interim release: R. v. B.S., 2007 ONCA 560 at para. 10.

(2) That said, the circumstances in which recourse is made to the tertiary ground to deny bail “may not arise frequently”: R. v. Hall(2002), 2002 SCC 64 , 167 C.C.C. (3d) 449 (S.C.C.) At 463 – with denial of bail on this ground only in limited circumstances:R. v. Heyden (2009), 2009 ONCA 494 , 252 C.C.C. (3d) 167 (Ont. C.A.) at para. 21; R. v. LaFromboise (2005), (ON CA), 203 C.C.C.(3d) 492 (Ont. C.A.) at para. 23.

(3) The overarching consideration in applying s. 515(10)(

c) of the Code is the effect of release on public confidence in the administration of justice: R. v. Mordue (2006), (ON CA), 41 C.R. (6th) 259 (Ont. C.A.) at para. 25.

(4) The public confidence perspective ignores the excitable and irrational citizen (R. v. White (2007), 2007 ABQB 359 , 221C.C.C. (3d) 393 (Alta. C.A.) at para. 18) but rather the confidence of a reasonable, informed and dispassionate public: R. v. Dhillon,[2002] O.J. No. 3451 (C.A.) at para. 28. The reasonable member of the community is one properly informed of the philosophy of therelevant legislative provisions, Charter values, and the actual circumstances of the case: Hall, at 466; White, at para. 17-8. Awareness ofthe presumption of innocence (B.S., at para. 16) and the prohibition against punishment through pre-trial custody before a fair trial(White, at para. 17) are required.

(5) No one of the four enumerated factors in s. 515(10)(

c) is determinative: Mordue, at para. 31. The court is obliged to consider thecombined effect of the factors in the context of all the circumstances: Mordue, at para. 31; B.S., at para. 10,16. (

a) The apparent strength of the prosecution’s case [45] I have already concluded that the Crown’s case is strong. The evidence points to a highly organized and sophisticated drugrunning and distribution operation, with many contacts in the United States and Canada, supported by significant amounts of money, inwhich the accused played a very prominent role. The efforts by the authorities in the United States, British Columbia and Saskatchewanto investigate the criminal organization was also significant. Court process was utilized to further the investigation. All indications arethat the evidence obtained in the case strongly implicates Mr. Larsen. (

b) The gravity of the offence [46] Undoubtedly, the importation into this country and into this province of a noxious, habit forming drug such as cocaine, in verylarge quantities, in unprecedented amounts, has given rise to very serious charges. The involvement of a criminal organization withcontacts in the United States to facilitate the acquisition and distribution of cocaine and cannabis marihuana and to obtain and see to theexchange of significant amounts of cannabis marihuana and MDMA is a serious concern. The offences are very grave - so grave in fact,that Parliament has provided that convictions on the offences can result in a maximum period of life in prison. (

c) The circumstances surrounding the commission of the offences [47] There is no evidence that any firearms were used in the alleged commission of the offences.

[48] Mr. Larsen knew that his friend, Mr. Palfrey (who appears to be a directing mind behind the criminal operation) was on bail forcharges that arose out of the same criminal organization, yet he chose to play a prominent and an apparent indispensable role, in thecontinuation of the illegal venture. Although he does not appear to be a user of the drugs, he must be taken to have known of theaddictive nature of the drug and yet he was eager to make more runs so that he could retire with significant amounts of money in hishands. He even thought about starting his own drug running operation. There can be no doubt that this man was not a small player in thisventure. (

d) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment [49] There are few cases in this province for which a Court has imposed a sentence in similar circumstances. Suffice it to say that ifconvicted, the accused would likely receive a much longer sentence than the 6 year sentence that was imposed in Smith, supra. In R. v.

Agecoutay[10] the Court of Appeal dealt with an appeal from sentences of 6, 5 ½ and 3 ½ years imposed upon three persons who hadbeen charged in relation to a significant “grow op” that yielded 1,100 pounds of cannabis marihuana and that generated proceeds of$3,000,000.00. The sentence was upheld except for credit that was provided for remand time.

The case, however, did not involve theimportation of cocaine. [50] I have considered the submissions of Defence counsel and the submissions of the Crown and, after considering the factors in s.515(10) and the combined effect of those factors in relation to the circumstances in this case, I have concluded that even though bail isusually denied in few cases on the basis of the third ground, a reasonable, dispassionate and informed public, aware of the nature of thecharges, the presumption behind the bail provisions of the Code and the appreciation of Charter values and the presumption ofinnocence, would lose confidence in the administration of justice if Mr.

Larsen was to be released. Conclusion [51] As I have set out, Mr. Larsen shall be detained on the primary ground. ____________________________ L.A. Matsalla, J [1] R. v. Bray (1983), (ON CA), 2 C.C.C.(3d) 325 (Ont.C.A.) [2] (SCC), [1987] 1 S.C.R. 1045 at para. 2 [3] R. v. K.J.P., 2002 SKCA 7 at para. 40 [4] R. v. Patryluk (2002), 2002 SKCA 33 , 217 Sask. R 309 at para. 13 [5] R. v. Smith, 2008 SKCA 20 , [2008] S.J. No. 97 [6] R. v. Lindsay (ON SC), [2005] O.J. 2870 at para. 870 [7] (SCC), [1992] 3 S.C.R. 665 at para. 64 [8] 2002 SCC 64 , [2002] 3 S.C.R. 309 at para. 40 [9] R. v.

James, [2010] O.J.No. 2262 [10] [2009] S.J. No. 523