R. v. Watts, 2015 QCCQ 11636

R. c. Amero 2015 QCCQ 11636 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Criminal and Penal Division No: 505-01-109175-121 DATE: November 23, 2015 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v. LARRY RONALD AMERO (AND OTHERS) Accused ______________________________________________________________________ JUDGMENT – BAIL HEARING ______________________________________________________________________ WRITTEN

SUMMARY OF THE REASONS RENDERED ORALLY ON MAY 11 TH 2015 ON THE ISSUE OF JURISDICTION . [ 1 ] This bail hearing first brought up the following question: does the Court of Quebec has jurisdiction to hear a bail hearing when the accused is awaiting trial in Superior Court? [ 2 ] The accused is detained since his arrest in the fall of 2012 in what is called “Projet Loquace”.

The accusations are mainly conspiracies to commit drug related offences [1] and participation in activities of criminal organization. [ 3 ] The accused never exercised his right to a bail hearing until now. [ 4 ] In the meantime, the file followed its course. A preliminary inquiry took place. The accused was ordered to stand trial upon its completion. He elected to stand trial before a judge and a jury, which is the exclusive jurisdiction of the Superior Court.

The trial is scheduled to start in September 2017. [ 5 ] Crown raised the jurisdiction issue in light of what Justice Cournoyer in Superior Court wrote in Tyrone-Stewart c. Centre de detention de Montréal 2007 QCCS 7015 , par. 31 : “Justice Boyer [2] was right when he decided that he was without jurisdiction to hear an original bail hearing pursuant to s. 515 of the Criminal Code after the completion of both preliminary inquiries where Mr.

Stewart had been committed to trial”. [ 6 ] Furthermore, now that the accused is awaiting trial in Superior Court, Crown proposed that the latter would have exclusive jurisdiction to hear matters related to the accused, including the bail hearing. [ 7 ] My first analysis was that the present matter was to be distinguished from Tyrone-Stewart. [ 8 ] I then reviewed Hilton c. R. 2007 QCCS 4778 ; R. c. Leventis 2009 QCCS 6532 and Meunier c.

R. 2010 QCCS 5885 , who all discussed jurisdiction issues in regard of bail hearing. [ 9 ] However, I came to the conclusion that they were all discussing the issue of jurisdiction when an accused has already had a bail hearing and was seeking review. Therefore, on the specific set of facts of the present, no guidance from binding authorities seemed to exist in this province. [ 10 ] Defence had been helpful in providing R. v. Watts 2014 ONSC 6246 . It discusses the exact question raised here.

Both parties in Watts had assumed that Superior Court had jurisdiction and presented the bail hearing in that jurisdiction. The Court ruled otherwise and remitted the hearing in Provincial Court. As the Superior Court concluded: [25] To sum up, I am of the opinion that it is the function of the Ontario Court of Justice to conduct a bail hearing, in the first

instance, where no determination of detention or release has previously been made, irrespective of whether an indictment has been filed in the Superior Court. It is the function of the Superior Court to review a detention or release order. When there is no record to review, and the accused is seeking release for the first time, as in the case at bar, the proper practice is to remit the case to the Ontario Court of Justice for a bail hearing. [ 11 ] My conclusion was to adopt the reasoning outlined in Watts as compelling and persuasive in the circumstances.

Consequently, I ruled that I had jurisdiction to hear the bail hearing of the accused. PRELIMINARY REMARKS [ 12 ] The evidence was extensive and covered direct, circumstantial or incidental evidence. Many exhibits were put on record. Both parties submitted numerous decisions in argument to illustrate or sustain their position [3] . [ 13 ] The bail hearing is not a trial. It is supposed to be an expedite process and the evidence is therefore not exhaustive. The same goes with the decision.

It is not supposed, neither expected, that the judge will examine all elements of proof presented or that he will make rulings or decision on all the question of law arising from the evidence. He has to make a choice and summarize [4] . [ 14 ] This is what guided the undersigned, even if the length of the decision might not reflect it at first glance.

It follows that not all of the testimonies, exhibits, evidence or jurisprudence will be analysed or commented. [ 15 ] Before starting, we also have to bear in mind that by the nature of the accusations, s. 510(6) of the Criminal Code operates: the accused is to be detained in custody unless he shows cause why his detention is not justified. THE BAIL HEARING [ 16 ] “Projet Loquace” started in May 2012. An informant decides to become an infiltration agent (I.C.I.) He is the right-hand man of Frederic Lavoie, a drug trafficker.

Once the investigation was in progress, Lavoie was deemed to be part of a consortium dealing mainly with cocaine that was trafficking in Quebec and the East of Ontario. [ 17 ] Crown asserts that this consortium was headed by the following individuals: ▪ Timoleon Psiharis, found murdered in Greece a few weeks after “Projet Loquace” hit the organization. ▪ Mihale Leventis, aka “Rookie” or “La Barbe”. Initially a fugitive, he was found in December 2012 hidden north of Gatineau, P.Q. and arrested. One of his specialties was to wire money. ▪ Shane Maloney, aka “Wheels” of “Buddy” arrested and awaiting trial.

Maloney is an important member of the Irish organized crime. He has extensive contacts overseas that allows him to import hundreds of kilos of cocaine. He also deals in illegal firearms. The seizures in October 2012 in the hand of “runners” associated with him allowed to seize 140 pounds of cocaine, 1200 explosives, 200 prohibited devices and 90 prohibited weapons. ▪ Frederic Lavoie, fugitive, found murdered in Columbia in 2014. Lavoie wished to become a dope-import, but his specialty was distribution. He had many clients and the capacity to move large quantities in kilos.

The investigation revealed that the I.C.I. moved for him on a 5 months period from May to November 2012 534 kilos of cocaine and 14 millions dollars. The consortium itself moved more quantities than that during that period. ▪ Rabih Alkhalil, fugitive, arrested in Greece in 2013 and extradited here since. He is one of the most important and respected member of the consortium. He was a real dope-import man, having direct access to the Mexican and Columbian cartels. He travelled a lot, lived the high life and drove expensive cars.

He had bought real estate in Greece and was under a false identity when arrested there. ▪ The accused, Larry Amero, aka “Patch” or “Birdman”. [ 18 ] Defence argues that bail should be granted mainly on the following grounds [5] : ▪ he respected his bail conditions and subsequent conditional sentence in regard of his marijuana grow conviction in 2002; ▪ his only other conviction is for impaired driving shortly before his arrest; ▪ he is proposing a strict and realistic supervision plan should he be released, involving his parents as sureties; ▪ the facts revealed at the hearing do not support Crown’s theory that he is part of an alleged drug consortium; ▪ the only real evidence against him will be challenged by Charter motions; ▪ the whole investigation in itself will be subject to constitutional challenge; ▪ he should not be denied bail simply because he is a Hell’s Angel, and he would not be the first one to be released either. [ 19 ] Crown object on all three grounds of s. 515(10) that reads as follow: 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 EVIDENCE [ 20 ] The accused bears his nicknames in relation to his Hell’s Angels membership. [ 21 ] From “hangaround” in 2002 to “prospect” in 2004, he was promoted “full patch” in 2005 in the White Rock (British Columbia) Chapter. “Patch” is therefore easily explained. “Birdman” is also easily explained once we realize that the Hell’s Angels logo has wings. [ 22 ] Needless to say, the Hell’s Angels have been recognized again and again by our courts as a criminal organization. This is not in dispute here.

However, the investigation does not reveal the presence of any other Hell’s Angels than the accused in “Projet Loquace”. [ 23 ] We now know that the accused was born and raised in B.C. He held a job as a stevedore in the Port of Vancouver for 15 years, ending around 2009. He eventually moved in Montréal around the fall of 2011.

He is 38 years old. [ 24 ] The B.C. crimes squads informed their colleague here in Quebec as to who is the accused, apart from his Hell’s Angels membership. [ 25 ] In short, B.C. has been the theater these recent years of a war between two main gangs, each a loose coalition of gangs, for the sale of drug and its control. At least 10 deaths are related to this war. [ 26 ] The Bacon brothers, well-known criminals, were already trying to move on in certain areas to control the drug-trade. Two were arrested. In 2010, another brother, Jonathan Bacon, united with the accused, James Riach, Randy Naicker and Ricky Mann.

They became the Wolfpack, one of the two main gangs at war. [ 27 ] In March 2011, the accused and James Riach were notified by police in British Columbia that their life were in danger [6] . [ 28 ] In August 2011, the accused, Jonathan Bacon and James Riach were shot outside the Grand Hotel and Casino in Kelowna, British Columbia while boarding a Porsche Cayenne. [ 29 ] It is unclear who the target was or if they all were. Bacon died. The accused survived shots in the upper part of his body. Riach was not injured.

Two women with them were also injured. [ 30 ] Shortly after, the accused and his girlfriend moved to Montreal.

He returned sporadically to British Columbia until his arrest. [ 31 ] Observations made while he was there lead investigators to believe that he was still participating in gang activity. [ 32 ] He is again warned by police in British Columbia while visiting there in January 2012 that his life is in danger. [ 33 ] It is not really necessary to narrate in detail the activities of the accused as revealed at the bail heaving from now. [ 34 ] Suffice to say that the accused once in Montréal continued his relationship with others members of organized crime or clearly identified as such. He was seen in their presence.

He was referred by others as a player in their dealings. He traveled with Mihale Leventis and James Riach to South America in May 2012. This trip was cut short, for unknown reasons. The accused was nevertheless observed going to the Buenos Aires local Hell’s Angel bunker. [ 35 ] While in Montréal, he was residing with Rabih Alkhalil in a penthouse. Alkhalil was the target of a search warrant on August 8 th 2012 in relation of a murder committed in January 2012 in Vancouver.

The penthouse was searched. [ 36 ] In the room occupied by the accused, paraphernalia associated with the Hell’s Angels was found. [ 37 ] A “book” was also found in his room with his prints on it. Its contents are described at exhibit EC-1, pages 19 and subsequent. [ 38 ] They reveal dealings for the purpose of trafficking or importing substances, delivery made, orders made, money transfer or wires, and these both for Montréal, Vancouver and even Australia. [ 39 ] The amounts of money inscribed leave no doubt that the accused is a “major league” player.

Millions of dollars are at play. [ 40 ] The accused was clearly in the “dope business” while in Montréal and on a large scale according to this evidence alone. [ 41 ] The rest of the evidence also point in the same direction: at all time, the accused associated with people in the same business, all were major players, all had connections with other players elsewhere in Canada or abroad.

[ 42 ] The evidence is clearly supporting Crown’s theory as to this “consortium” and the implication of the accused in it.

It also supports the fact that the accused was a major league player himself. [ 43 ] This is said in regard of defence argument that the “opening statement” of the investigator’s testimony, namely that the accused was an equal partner in the consortium, is not supported by the evidence. [ 44 ] Indeed, contrary to the others, his name does not appear on the PGP intercepted, save on a few occasions, and is referred elsewhere in the evidence by third parties with no indication of the reliability of the evidence proposed.

A tip from a rogue police officer that the consortium would be hit, which might explain that some fled, did not seem to reach the accused either. [ 45 ] Defence’s argument is not without merit.

We can argue at this stage that the evidence is more circumstantial than direct as to the part played by the accused in the consortium. [ 46 ] But this assumption, that could very well be proven wrong at the trial, should not occult the fact there is circumstantial evidence. [ 47 ] As already said, the accused does not seem to associate with other persons than the ones in the consortium. [ 48 ] His leisure time is with them [7] .

He travels to South America with Leventis and Riach, meets with Maloney while visiting in Vancouver, and is present at a meeting with Alkhalil, Riach, Leventis, Lavoie and two other individuals flown in from Toronto on May 24 th 2012 following a raid the previous day targeting drug in an investigation called Ink in Ontario. Nick Nero was concerned in that operation and arrested. A bug planted in his car in April 2012 hear him say that “Patch” (the accused) and “Irish” (Maloney) are his partners.

A few months before, in February, a covert entry in a warehouse related to Nero allowed the seizure of 100 kg of cocaine. [ 49 ] The accused was also sharing a penthouse with Alkhalil while in Montreal, where material evidence related to drug trade was found. Crown’s characterization of Alkhalil is not in dispute. [ 50 ] The forest should not obscure the tree. There is evidence against the accused, notwithstanding that Crown’s theory of his membership in the consortium is not maybe as strong as announced.

At this stage, this theory is supported anyway by the circumstantial evidence presented. [ 51 ] Defence also addressed the strength of the prosecution’s evidence. [ 52 ] Confident that evidence (or lack of it) will not support the theory of the accused’s membership in the consortium, they argue that the only real evidence against him will boil down to the “book” or “score sheet” found in his bedroom. [ 53 ] As previously stated, this was found following a seizure targeting Alkhalil in another matter. [ 54 ] The information to obtain (ITO) the warrant shows that it was known that the accused lived with Alkhalil and that he was not concerned with the search warrant. [ 55 ] He (and his girlfriend) should therefore have been considered “innocent third parties” and provisions to safeguard their rights in that context should have been suggested in the ITO and ordered in the search warrant. [ 56 ] The order is therefore problematic and will be challenged at trial under s. 8 of the Charter. [ 57 ] The detention of the accused during the seizure is also problematic.

He was detained just under two hours on the basis of “détenu suite à l’exécution d’un mandat de perquisition”. No such power exists for defence. He also made some statements (not in evidence) in answer to question put to him during that time. He was obviously “tricked“in doing so.

In short, these are all again violation to s. 8 and 9 of the Charter and will be subject of Charter motions at trial. [ 58 ] Finally, on a more general scope, defence will also challenge the constitutionality of s. 25.1 of the Criminal Code , arguing that the test of proportionality is not met here when investigators allow the I.C.I. to distribute more than 500 kg of cocaine of a high quality in society under the authority of the state in the course of the investigation, simply based on powers given by the Règlement d’exécution concernant la

Loi sur les drogues et autres substances. This is tantamount to abuse of process, normally remedied only by a stay of proceedings. [ 59 ] In consequence, if any or all of these arguments succeed, the evidence against the accused will either be excluded, crumble or both. [ 60 ] These arguments again might or might not be without merit.

At least, defence was aptly persuasive in trying to convince this Court to follow this path in assessing Crown’s case. [ 61 ] How should the court determine the apparent strength of the prosecution’s case? [ 62 ] The Supreme Court, in the recent St-Cloud [8] judgement, addressed this issue at par. 57 to 59 and provides guidance: [57] An interim release hearing is a

summary proceeding in which more flexible rules of evidence apply. As a result, some of the evidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess the strength of the prosecution’s case at such a hearing: “The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown” (p. 3-7). [58] Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’s case. On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the

justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability ofscientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must considerthe quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancingexercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidencemay be less reliable than direct evidence.

The existence of ample evidence may also reinforce the apparent strength of the case. [59] On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence at the initialhearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may noteven raise one before trial.

If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and ifthere appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of theprosecution’s case.

As the Quebec Court of Appeal noted in a relatively recent decision, “it would be unfair to allow the prosecution tostate its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests”: R. v.Coates, 2010 QCCA 919 , at para. 19. [63] In assessing the weakness of the case, and to give just one example where it could be a factor in favour of weakness, we are farfrom a case where Crown can only rely on a stranger who happened to be on the scene of the crime and can barely identify the accusedas the perpetrator. [64] Furthermore, Charter motions are not prima facie of the same nature as alibis, exculpatory evidence or identification issues, toname a few.

They acknowledge that the state has incriminating evidence against the accused. Voir-dire will have to be held. Witnesseshave to be heard. They will provide evidence that can just be speculation at this stage. Even if a violation is present, will the evidence beexcluded as the only remedy under s. 24(2) of the Charter? As suggested by the Supreme Court, this should remain to the trial judge todecide. [65] Therefore, in the present circumstances, one cannot conclude that Crown does not have apparent strength in its case.

THE THREE GROUNDS OF S. 515(10) [66] The accused proposed sureties for his release. [67] Both his parents testified. [68] They come across as law-abiding citizens who now enjoy their retirement. [69] The father was a stevedore at the Port of Vancouver and had his son (the accused) follow in the family tradition. [70] They are aware of his conviction for the grow operation in 2002 and did not approve at the time of such conduct. [71] They both recognize that he was also involved with the Hell’s Angels. He had not been raised that way and they tried todissuade him to join, to no avail.

They saw less of him after he joined, even though he kept in touch by phone or showed up at familyreunions. [72] Obviously, they are not privy of his activities with the Hell’s Angels and their son does not confide with them either on thesubject. When he was shot along with Mr. Bacon, they learned more about the incident and the criminal reputation of their son by whatthe media reported than by him.

The present hearing is also an eye-opener for them in regard of his activities in Montreal. [73] They kept in contact with him since his arrest and they propose themselves as sureties[9] and their residence as a place where hewould stay. [74] They would have to move, however, to get a two bedroom dwelling in order to accommodate the accused. This could be donerapidly.

They would still reside in Langley, B.C. where they are now living. [75] Both undertake to surveil him and be present with him should he leaves the house. [76] To summarize, they understand what a surety is, their son would be under the equivalent of house arrest and they would nothesitate to denounce him to the authorities should he fail to respect any condition set by the Court, however trivial or technical the breachcould be. [77] They feel a desire in him for change and they trust him to respect them and the conditions that could be imposed. [78] The father also believes that his son could get back his job as a stevedore.

His union dues are paid. [79] The accused testified. He undertakes to obey to all conditions that could be imposed. He is also confident that he could go backto his job as a stevedore, but is willing to stay home should to court decides otherwise. [80] He expresses respect and love to his parents and would not breach his conditions due to the consequences that would face them. ANALYSIS [81] Evidence was presented in regard of the contents of a cellular phone that was seized in January 2013 in the cell at Bordeaux thatthe accused shared with another detainee.

Such devices are prohibited in detention. [82] We can infer that the accused had control of that phone. Seeing the text messages that are in French, English and Spanish, wecan also infer that he “loaned” it to other detainees at certain times. This control is supported by the personal photos associated with theaccused inside the cellular phone and the very large proportion of exchanges mainly between the accused and his girlfriend in all the text

messages seized and produced. [ 83 ] Crown pointed to the fact that the accused, even when detained, does not respect conditions. On four more occasions, and as recently as March 2015, he was found in possession of communication devices or component of such. [ 84 ] Crown also pointed to some derogatory comments made by the accused against judges in Quebec as an indicator that he would not respect court orders, such as release conditions [10] . [ 85 ] This might not be conclusive in itself.

However, the accused also discussed other issues that are relevant. [ 86 ] On January 1 th 2013, he’s exchanging with a real estate agent (the realtor) who’s trying to sell his house in British Columbia. Among other things, the realtor wishes that the accused present him his “talented growing buddies” when released on bail since “real estate is slow” [11] . No indication of a refusal by the accused is present. [ 87 ] On January 5 th 2013, he contemplates marrying with his girlfriend in the south. He would see “his friends” at the same time.

He proposes that he could not be charged for breach while abroad. [ 88 ] On January 9 th 2013, concerns for his safety are expressed should he be allowed to live in British Columbia after his bail hearing [12] . [ 89 ] On January 10 th 2013, his girlfriend conveys his mother’s concern that she wished him to have a good conduct once released in order for her not to lose her deposit [13] . He answer that should he leave the country, she would lose her deposit, but if he just breached his conditions, the money would not be seized.

He would simply return in custody [14] . [ 90 ] Still on the same day, he already contemplates to modify his conditions once released.

The “tuff part” is to get out [15] . [ 91 ] He repeats his conviction that the surety or deposit is never confiscated when there is a breach [16] . [ 92 ] Finally, still in the context of being released in British Columbia, he already discusses having in mind to find legitimate reasons to change address [17] . [ 93 ] At the time, the accused was scheduled to have his bail hearing at the end of the same month. [ 94 ] One cannot conclude that, at that time, he would have been preoccupied by the surety of his mother or that the potential loss of her deposit would deter him to breach his conditions. [ 95 ] One can also infer that he had in mind that any conditions of release imposed by the Court would be subject to changes and could be manipulated to his advantage. [ 96 ] These are not strong indicators of someone who will really respect the conditions of his bail release or will fear the consequences of a breach. [ 97 ] In fairness, the accused was not questioned on these messages at the present hearing.

Has he really changed his frame of mind on these issues? Nevertheless, his testimony at the hearing that he would obey court orders is not sufficient to dissipate the concern that the Court has when looking at what the accused said in private. The good faith of his parents and the supervision plan proposed do not outweigh this conclusion [ 98 ] It also illustrates what the Supreme Court of Canada discussed in Pearson [18] : The circumstances in which bail is denied under s. 515(6)(

d) are very narrow. Section 515(6)(

d) applies only to a very small number of offences, all of which involve the distribution of narcotics. Furthermore, s. 515(6)(

d) does not deny bail for all persons who are charged with these offences, but rather denies bail only when these persons are unable to demonstrate that detention is not justified having regard to the specified primary or secondary grounds. The narrow scope of the denial of bail under s. 515(6)(

d) is essential to its validity under s. 11( e ). The basic entitlement of s. 11(

e) cannot be denied in a broad or sweeping exception. The offences which are included under s. 515(6)(

d) have specific characteristics which justify differential treatment in the bail process. (…) The unique characteristics of the offences subject to s. 515(6)(

d) suggest that those offences are committed in a very different context than most other crimes. Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour.

Special bail rules are required in order to establish a bail system which maintains the accused's right to pre-trial release while discouraging continuing criminal activity. Another specific feature of the offences subject to s. 515(6)(

d) is that there is a marked danger that an accused charged with these offences will abscond rather than appear for trial. Ensuring the appearance of the accused at trial is the primary purpose of any system of pre-trial release, and the system must be structured to minimize the risk that an accused will abscond rather than face trial. For most offences, the risk that an accused will abscond rather than face trial is minimal. It is not an easy thing to abscond from justice. The accused must remain a fugitive from justice for the rest of his or her lifetime.

The accused must flee to a country which does not have an extradition treaty with Canada (or whose extradition treaty does not cover the specific offence which the accused is alleged to have committed). Alternatively, the accused must remain in hiding. Either prospect is costly. Neither prospect is possible unless the accused is exceedingly wealthy or part of a sophisticated organization which can assist in the difficult task of absconding. Most alleged offenders are neither wealthy nor members of sophisticated organizations. Drug importers and traffickers, however, have access both to a large

amount of funds and to sophisticated organizations which can assist in a flight from justice. These offenders accordingly pose a significant risk that they will abscond rather than face trial. [ 99 ] This was also expressed in Morales [19] , rendered on the same day as Pearson : In my view, the bail system also does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour.

The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accused will not engage in criminal activity pending trial. In Pearson , the reality that persons engaged in drug trafficking tend to continue their criminal behaviour even after an arrest was one basis for concluding that there is just cause to require persons charged with certain narcotics offences to justify bail.

Similarly, if there is a substantial likelihood that the accused will engage in criminal activity pending trial, it furthers the objectives of the bail system to deny bail. [ 100 ] As to the second ground of detention at 515 (10) b), Crown directs the Court correctly that the factors identified in Rondeau [20] should be examined: 1) Nature of the infractions They are already listed. Their objective gravity and the maximum sentences associated put them in the higher scale of criminal infractions. 2) Relevant circumstances The circumstances of the infractions reveal organization and planning on a large scale.

They also infer, with the quantities and money involved, a level of sophistication and entries in the illegal world that are light years away from the reach of a small time dealer.

These players, including the accused, are major league ones. 3) Likelihood of a condemnation This factor has been addressed with the apparent strength of the accusations and applies here. 4) Degree of involvement At this stage of proceeding, the evidence reveals a high degree of involvement by the accused, as with other prominent members of organized crime with whom he associates, in regard with importation, distribution and traffic of drugs. They are the core of their daily activities and goals. 5) The relation of the accused with the victim The crime is not without victims.

Human misery of customers who become addicts and the high price of drugs leading these same customers to steal, defraud or deal drugs themselves to afford their dependency, is well documented in jurisprudence. As illustrated here, violence and firearms are also present between rival gang.

What better example for a victim than one of the two woman who was shot along with the accused and Bacon outside the Casino, now crippled and in a wheelchair for the rest of her life. 6) Profile of the accused He is a member of a well known criminal organization and his lifestyle when in Montreal is to associate with other people of the same disposition. By his own admission, he is not working as a stevedore since 2009. No real detail is given as to his vending machine business or his service as a personal trainer from which he would generate income.

No indications of such activities seem to be present in Montréal. He nevertheless can afford to travel with his girlfriend and share a nice apartment. His discussion in January 2013 from his cell with the realtor and his girlfriend are inconsistent with just being a tenant [21] . References made to the fish tank, a striking feature of the house on the video shown, leaves no doubt as to what house is concerned and discussed. This property is out of reach for someone earning between forty to sixty thousand dollars a years, as is the rest of his lifestyle.

Clearly, the realtor was talking to the real owner, namely the accused. We can infer that a “front” had real been used for the official records. His ties to the Hell’s Angel continue, even detained. He sponsored as recently as last spring (2015) another member of the B.C. Hell’s Angel to obtain a job as a stevedore in Vancouver. When questioned about his membership, there is no clear indication that he wishes to resign or quit. His priors, at least the grow operation in 2002, is relevant. It did not deter him to gravitate in the some type of criminality later on.

The impaired driving conviction is almost anecdotal in light of all the rest. However, standing alone, both would not justify detention. Let’s just say that the accused is not rooted in the mainstay of society. Neither is he a citizen who, on the spur of the moment, suddenly went astray by bad choice or misfortune by committing a crime out of character. Simply but, his lifestyle is revolving around illegal activities and associating with people like him. 7) Post offence conduct Like already mentioned, the offence was ongoing and continuous for quite a while and is a lifestyle.

The only inference from the evidence and his testimony is that we have no indication that the accused wishes to modify radically his values or activities, save his intent to respect conditions imposed if bail is granted. We are far from an accused who had retired or been evicted from the Hell’s Angels for many years with no real ties to criminal activities and illegal income since, as some in SharQc. This played, among other factors, for their release in the cases submitted. It is not the case here.

Finally, the accused’s profile and his membership with the Hell’s Angels are relevant as an aggravating factor to be added to the Rondeau ’s list [22] . 8) The danger the he poses to society This factor has been discussed. The accused fits the profile of drug dealers discussed in Morales and Pearson.

In light of all the evidence, and with the analysis of the combined factors of Rondeau now factored in, the risk to reoffend or interfere with the administration of justice is present. [ 101 ] It flows that in regard of all the circumstances, the accused did not meet his burden on the first two grounds. [ 102 ] We can also add that recently, on May 1st 2015, the Court of Appeal in I.S. c.

R 2015 QCCA 770 stated that the evidence of being a member of a criminal organization and the high place in its hierarchy the accused occupies, along with the participation in the crime alleged, are deemed sufficient in themselves to establish that the accused did not satisfy his burden to show cause why he should not be detained. [ 103 ] As for what is commonly referred to as the “third ground” of s. 515 (10), the Supreme Court of Canada has recently revisited s. 515 (10)(

c) in St-Cloud [23] . [ 104 ] Even though the decision in St-Cloud was in the context of a bail review, the principles nevertheless apply here. [ 105 ] The first thing to consider is that s. 515 (10)(

c) is worded clearly and does not require exceptional or rare circumstances to apply. [ 106 ] As for its components, they are: 1) The apparent strength of the prosecution’s case. The quality of the evidence is present. It sustains the accusation against the accused and Crown’s theory that he is a major player in the drug business, it not part of the alleged consortium as previously discussed. In addition, we can also factor in that this evidence has now been presented and weighted at the preliminary inquiry.

Not only did the accused was ordered to stand trial on all charges, but for a longer period than the one in the original indictment. This is not conclusive to guilt. The Court is well aware, as pleaded by defence, that the burden of proof is quite low to meet the threshold sufficient for an order to stand trial at the preliminary inquiry. On the other hand, one cannot find in the justice’s decision any comment or conclusion pointing to weaknesses in the evidence that could trigger a different analysis than the one in the present judgment.

Regardless, the present analysis at the bail hearing stands on its own and was not dictated or influenced by the order to stand trial. 2) The objective gravity of the offences. Importing cocaine (s. 6 (1)(3)

a) Controlled Drugs and Substances Act) is liable to imprisonment for life with a minimum punishment of imprisonment for a term of one year, with the same applying to conspiracy to commit the same crime. Commission of offence for criminal organization (s. 467.12) is liable to imprisonment for a term not exceeding fourteen years. Trafficking in cocaine (s. 5.

(1) Controlled Drugs and Substances Act) and conspiracy to do so are liable to imprisonment for life, with a minimum imprisonment of one year. Trafficking in property obtained by crime (s. 355.2 and 355.5 (

a) is liable to imprisonment for a term of not more that fourteen years. In comparison with other offence in the Criminal Code , we can only conclude that the objective gravity of the offence is therefore present. 3) The circumstance surrounding the commission of the offence The Supreme Court has specifically listed as relevant among other factors that

a) the offence was committed in the context of a criminal gang and

b) that if it had been committed by several people, the extent to which the accused participated in it is also relevant [24] . These factors are present here. The accused is definitely not a small fry. 4) That the accused is liable for a potentially lengthy term of imprisonment. The reasoning is explained at paragraphs 62 to 65 in St-Cloud . Applied here, the facts of the case, at this stage of proceedings, have sufficient merit to a claim of much more aggravating than mitigating circumstances. This can only tip the balance of sentencing in the upper scale of appropriate sentences for similar offences [25] .

Considering these principles and the nature of the accusations, we can conclude that the accused is liable for a potentially lengthy term of imprisonment. The list of sentences given to numerous other accused in this Project, all deemed to be lower than the accused in the organization, also illustrates that factor. [ 107 ] In sum, all of the four listed components specifically identified by the Supreme Court at 515 (10) (

c) as part of all the circumstances apply her. The conclusion is that detention of the accused (notwithstanding the reversal of burden) is necessary to maintain confidence in the administration of justice, having regard to these components as well as to all the circumstances.

[108] Lastly, a few words in regard of additional issues raised by the accused:

a) that he has a 7 years old son living in British Columbia and is deprived of him while detained in Montréal; the food served indetention is bad and far from his normal health conscious diet and he spends 14 hours a day in his cell: they are all regrettable but cannotimpact the decision;

b) the delay until his trial starts[26]: we are not in the circumstances discussed in jurisprudence where it could impact the decision.Many of the cases submitted by defence are in relation with “Projet SharQc” in Montréal, both on the subject of delay as with interimrelease. Neither Crown’s theory here nor the projected delay until the trial starts can be compared;

c) the proposal to be subject to electronic monitoring (ankle bracelet) while on bail in B.C.: we only have as evidence on record for thatmatter a letter from a B.C. criminal defence’s attorney. We learn that this program in more in relation to probation than bail. We have noidea if it will apply to a court order emanating from another province and neither if the accused will qualify anyway to the program. Thisis far from conclusive that it is available. Even if it was, it would not change the outcome of the decision.

CONCLUSION [109] For all these reasons, bail is denied and the accused will be detained in custody on all charges. [110] This decision is not ordered primarily because of a previous conviction of the accused as per s.515 (9.1). [111] The Court is indebted to both counsel for their able arguments and their irreproachable conduct during the proceeding.

The latteralso applies to all witnesses who were heard, including the accused. __________________________________ RICHARD MARLEAU, J.C.Q Me Philippe Vallières-RolandMe Mark Philippe (assisting )Counsel for criminal and penal prosecutionsFor the Prosecutor Me Christian GauthierFor the accused Date of hearing: May 11th, May 12, June 12 and October 1st, 2015. [20] R. v. Rondeau, (QC CA).