2020 QCCQ 6681, 2020 QCCQ 6681

R. c. Dritsas 2020 QCCQ 6681 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal Division» No: 500-01-210394-208 DATE: November 11, 2020 ____________________________________________________________________ Her Majesty the Queen Plaintiff v.

DRITSAS, George MARTIN, Taylor Lawrence Defendant ______________________________________________________________________ RESTRICTION ON PUBLICATION Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the evidence taken, the information given or the representations made and the reasons given shall not be published in any document, or broadcast or transmitted in any way before such time as (

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

b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended pursuant to

Section s.517(1) of the Criminal Code of Canada . JUDGMENT ON INTERIM RELEASE ______________________________________________________________________ BACKGROUND [ 1 ] On September 27, 2020, between 10:00 p.m. and 10:30 p.m., James and Sandra Helm are abducted by two men who broke into their residence of Moira, in the United States. English speaking, the kidnappers tell the couple that their grandson stole from them and that the Mafia is waiting outside. One of those men is holding some tie wraps but apparently decide not to use them. [ 2 ] After being forced to follow their kidnappers and hide their faces, Mr.

Helm with a mask, and Mrs. Helm with a pillowcase, they get in a black truck; two different men are waiting on board. They all travel by vehicle to the shore where they embark in a boat along with the same two men who broke into their house. [ 3 ] The kidnappers will make a first stop in order to get a “ catheter ” to handle Mrs. Helm’s incontinence. The couple remains on board with one man while the other left for about 45 minutes. The medical instrument he brought back was not functioning.

They all leave again by boat. [ 4 ] Upon arrival at a dock, a vehicle awaits them with two other men, later identified as Franco D’Onofrio and Kosmas Dritsas. Those individuals will drive the couple to a house located in the city of Magog, where George Dritsas is already present.

Along the way, they stopped on an unlit path made of gravel where a pick-up truck crossed their route to give them another “ catheter ”. [ 5 ] It is at that same address in Magog, after two whole days of intense search, involving different police squads from the United States of America and from Canada, that the elderly couple is found alive. [ 6 ] More precisely, on September 29, 2020 at around 5:00 p.m., Franco D’Onofrio, Kosmas Dritsas and his father, George Dritsas are seen leaving 270 Grande-Allée, Magog, in the presence of Mr. and Mrs. Helm.

The three accomplices are immediately put under arrest. [ 7 ] Upon investigation, five accomplices now stand charged in relation to these crimes: Franco D’Onofrio, Gary Arnold, George Dritsas, Kosmas Dritsas and Taylor Lawrence Martin. The information includes counts described as follows: 1. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, did kidnap

Sandra Helm with intent to cause her to be confined or imprisoned against her will, committing thereby the indictable offense provided by section 279(1)a)(1.1)

b) of the criminal code. 2. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, did confine, imprison or forcibly seize Sandra Helm, committing thereby the indictable offense provided by section 279(2)

a) of the criminal code. 3. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, did kidnap James Helm with intent to cause her to be confined or imprisoned against her will, committing thereby the indictable offense provided by section 279(1)a)(1.1)

b) of the criminal code. 4. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, did confine, imprison or forcibly seize James Helm, committing thereby the indictable offense provided by section 279(2)

a) of the criminal code. 5. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, without reasonable justification or excuse and with intent to obtain anything, did induce or attempt to induce James Helm and his family by threats, accusations, menaces or violence to do or cause to be done something to wit to obtain an amount of money or someone, committing thereby the indictable offense provided by section 346(1)(1.1)

b) of the criminal code. 6. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, without reasonable justification or excuse and with intent to obtain anything, did induce or attempt to induce Sandra Helm and his family by threats, accusations, menaces or violence to do or cause to be done something to wit to obtain an amount of money or someone, committing thereby the indictable offense provided by section 346(1)(1.1)

b) of the criminal code. 7. Between September 27, 2020 and September 29, 2020, in Montreal, district of Montréal and elsewhere in Quebec, did conspire together to commit an indictable offense, to wit: kidnapping, committing thereby the indictable offense provided by section 465(1)

c) of the criminal code. [ 8 ] Franco D’Onofrio and Kosmas Dritsas are presently detained awaiting their trial after they withdrew from the bail hearing process admitting that the prosecution would meet its burden of evidence. Gary Arnold was granted a postponement. [ 9 ] I am therefore presiding the bail hearing of George Dritsas and Taylor Lawrence Martin.

THE EVIDENCE S/D Guillaume Poirier [ 10 ] This is an International kidnapping investigation which started on the American side in collaboration with the New York State Police Department, the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). [ 11 ] For the sake of understanding and to summarize the evidence, S/D Guillaume Poirier elaborated a PowerPoint introduced into evidence as Exhibit ECP-3 on which he was called to testify. [ 12 ] On Monday September 28, 2020 at around 6:20 a.m., New York State Police receives a call from Michael Helm reporting a possible break in at his parents’ home and a possible disappearance of both Sandra Helm, 70 years old, and James Helm, 76 years old. [ 13 ] Upon arrival at 436 State Route 95 in the city of Moira, Franklin’s county, the police notices the presence of vehicles in the driveway belonging to the residents.

There are burglary marks on the door frame and a mess in the master bedroom. Mr. and Mrs. Helm are nowhere to be found.

Apparently, one of the victims didn’t show up at work. [ 14 ] An emergency cell location evidence reveals that James Helm’s cellular phone was pinpointed on Sunday night, September 27, 2020 at 22:54 p.m. at the intersection of State Route 37 and State Route 95 in the city of Bombay. [ 15 ] Another cell location evidence situates the same cellular phone near North Bangor, New York on September 28, 2020 at 1:03 a.m. [ 16 ] We understand from the whole evidence that Mackenzie Helm, the victims’ grandson, has been working in the past for Rocky Skidders Sr. and Rocky Skidders Jr., alias “Beans Skidders”, transporting money related to drug trafficking.

He did three trips for them in the past in exchange of 4000$ for each trip. [ 17 ] Mackenzie’s last delivery is made around September 21, 2020; he claims that he didn’t know the content of the package but presumed that it was money once more. [ 18 ] When he got to the merchandise collection point, he was arrested by the DEA.

Mackenzie had in his possession 50 kg of cocaine worth more than 3 million dollars. [ 19 ] Believing to have been cheated by Mackenzie, the people he owes money to, kidnapped his grand-parents and asked for a ransom up to 3,4 million dollars for their lost. [ 20 ] On September 28, 2020 at 9:30 a.m., Michael Helm, the victim’s son, receives a first phone call and is able to talk to his father just a few moments before an unknown man takes the phone back.

He mentions that he wants Mackenzie or what Mackenzie had stolen from them. [ 21 ] At 9:32 a.m., Michael Helm receives a second call from the same number; his mother Sandra Helm is on the phone. She mentions that she and her husband have guns pointed at them. An unknown man then takes the phone and tells him that if they get Michelle, Mackenzie’s mother, or if they retrieve what belongs to them, they will release his parents.

[ 22 ] Around 9:44 a.m., the same man calls again and says: “your brother stole a lot of stuff from me, 50 keys”. The man then explains that the information suggesting that Mackenzie was arrested by the police, is false. [ 23 ] Michael Helm will receive five more calls coming from the same cellular phone number ((438) [...9]). [ 24 ] Later in the day of September 28, 2020, the RCMP and the SQ get involved in the investigation.

The police forces think the elderly couple might be held hostage in Canada. [ 25 ] The emergency investigation of BELL and ROGERS suppliers will establish communications between the cellular phone used by Taylor Lawrence Martin and the number (438) [...0]. The same number will be located in the city of Magog. [ 26 ] The address of 270 Grande-Allée in Magog is identified as a residence of interest and so is a Black Nissan Rogue. [ 27 ] The police initiates a surveillance operation. [ 28 ] Two men are observed inside the vehicle of interest.

They will be later identified as Franco D’Onofrio and Kosmas Dritsas, co- accused in the file. [ 29 ] The officers are also able to observe that when the vehicle moves, the cellular location data of the (438) [...0] confirms that the device is also in motion. [ 30 ] Later that evening, at around 8:43 p.m., Michael Helm exchanges text messages with a new cellular phone number ((438) [...8]), associated to Taylor Lawrence Martin.

Here is the conversation between them, IN (unknown at that time) et MH (Michael Helm) [1] : IN -Parents are sleepin. 12PM tomorrow trade for Mackenzie MH -I don’t know where Mac is my brother and I have looked everywhere. What if I can’t find him Please dont hurt my mom and dad.

IN -K I’ll stay up I want to help MH (Michael sends a photo of the cocaine seizure receipt by the DEA) MH -We found this at Michelle’s house shows they have your shit in Burlington Vermont [ 31 ] Between 8:30 p.m. and 8:54 p.m., during the kidnapping and confinement of the victims, the number (438) [...0] is in contact with the one used by Taylor Lawrence Martin and the one used by the co-accused Gary Arnold ((438) [...80]). [ 32 ] At around 9:21 p.m., the FBI informs the SQ that a text message, coming from the cellular phone used by Taylor Lawrence Martin, was received in regards of a ransom demand. [ 33 ] At 9:59 p.m., an emergency cell phone geolocation for the (438) [...8], shows that the device is at [address 1], Akwesasne, Taylor Lawrence Martin’s residence.

The user account is under the name of Susan Zeiger and related to an address in Montreal where no one is living under that name. [ 34 ] At 11:00 p.m., the SQ communicates with the FBI; the investigators are informed that during the ransom demand, the kidnappers threatened the lives of the hostages on several occasions if their drug or their money was not retrieved. [ 35 ] Taylor Lawrence Martin communicates twice again with Michael Helm; at 00:16 a.m. and at 00:19 a.m.

Michael Helm asks him if he received the copy of the document he found at Mackenzie’s, proving that the drug has been seized by the DEA. [ 36 ] On September 29, 2020 between 7:23 a.m. and 7:26 a.m., Taylor Lawrence Martin is in contact with Franco D’Onofrio and Gary Arnold. During those phone calls, he realizes that the police is surrounding his house and that he needs to flee; we can hear him laughing while he says that [2] .

He makes a comment to Gary Arnold that the victim’s family is working with the police; he’s obviously not happy with the situation. [ 37 ] Around 7:30 a.m., Taylor Lawrence Martin is observed leaving [address 1], Akwesasne, throwing an object in a woodland behind the house and returning inside afterwards. [ 38 ] At 7:40 a.m., Taylor Lawrence Martin is apprehended while he is going to his vehicle. He is immediately arrested and brought in for questioning. [ 39 ] Police locates and seizes the object thrown away by Martin.

It was in fact the cellular associated to (438) [...8]. [ 40 ] Later on, at around 5:00 p.m., Franco D’Onofrio, Kosmas Dritsas and his father, George Dritsas are observed leaving 270 Grande-Allée, Magog, in the presence of Mr. and Mrs. Helm. The three accomplices are immediately put under arrest. [ 41 ] Gary Arnold is arrested later that evening at 11:00 p.m., while driving his red F-350 pick-up truck. Prior to his arrest, at around 5:20 p.m., the cellular phone he was using was found near an agricultural machine, in the middle of a field in St-Isidore.

[ 42 ] It is to be noted that both phones used by Martin and Arnold were associated to the same account address in Westmount, but under two different fake names. [ 43 ] Guylaine Beaudoin is met as a witness.

She is the sole owner of 270 Grande-Allée, in Magog. [ 44 ] Franco D’Onofrio is her ex-boyfriend. [ 45 ] She states that on September 23 or 24, 2020, Franco D’Onofrio asks her if he can have access to the chalet in Magog during the week-end of September 26 and 27, 2020. [ 46 ] For her, that request was rather unusual as Franco D’Onofrio never asked that in the past and didn’t really like to go the countryside. [ 47 ] Mrs. Beaudoin said she knew that Kosmas Dritsas was a friend of Mr. D’Onofrio but never heard of George Dritsas.

TAYLOR LAWRENCE MARTIN’S IMPLICATION [ 48 ] Questioned by police, Taylor Lawrence Martin reveals the following information: • he goes under the surname “Beans”; • he was coerced and threatened to act as a messenger; • Mackenzie has transported marihuana on his behalf; • he is the one that presented Mackenzie to those guys; • he is the one who gave the kidnappers Mackenzie’s address as well as his grand-parents’ address; • about a week ago, those guys gave him a cellular phone, the one that he threw away before he got arrested; • he knows that the kidnappers used a boat; • even though he said the victims were not brought to his house, he indicates that those guys use his property to get access to the river; • he admits talking to Michael Helm and having send a photo of the victims to their family; • he explains that the picture was taken at the location where the victims were held hostages; • he doesn’t know the kidnappers but he is aware that they are asking for a 3 million dollars ransom; • he is frequently in contact with a man that he calls the farmer. [ 49 ] Gary Arnold is known to be working in the field of agriculture.

As mentioned earlier, the phone he’s using was located in a field in St.-Isidore. [ 50 ] Following the execution of a search warrant to extract the contents of Taylor Lawrence Martin’s cellular ((438) [...8]), we learned that between September 24, 2020 and September 29, 2020, Taylor Lawrence Martin was in contact with the phone used by Gary Arnold on 56 occasions and 86 times with the one associated to Franco D’Onofrio. [ 51 ] On September 26 and September 27, 2020, Taylor Lawrence Martin received information by text messages from a woman named Marianne Frazier, in regards of Mackenzie’s location and that of his family. [ 52 ] Taylor Lawrence Martin then asked Marianne Frazier to contact Greg and request that he picks up Mackenzie for him in return of $5000.

A certain Greg Browns was arrested by the US authorities in connection with the kidnapping; he would’ve been the driver of the pick-up that brought the victims to the boat. [ 53 ] On September 27, 2020 at 10:34 p.m., during the first moments of the kidnapping, Taylor Lawrence Martin is contacted by Franco D’Onofrio. [ 54 ] On September 28, 2020 at 5:48 p.m., Franco D’Onofrio sends him a photo of the two victims while they were confined in Magog. [ 55 ] Taylor Lawrence Martin retransmits that picture to Marianne Frazier at 5:51 p.m. [ 56 ] Again on September 28, 2020 at 6:28 p.m., he asks Marianne Frazier to transfer the picture to Michael Helm.

In fact, she relays the picture to Brandon Helm, James Helm’s grandson. [ 57 ] Taylor Lawrence Martin enters in contact on several occasions with Michael Helm acting as a third party between the victims’ family and the kidnappers. GEORGE DRITSAS’ IMPLICATION [ 58 ] George Dritsas is the father of Kosmas Dritsas, alias “Mickael” or “Mike the greek”.

[ 59 ] The evidence demonstrates that George Dritsas was already at 270 Grande-Allée in Magog when the victims were brought there during the night of September 27 to 28, 2020. [ 60 ] Both victims relate that they were kept in the basement of the chalet.

Although they said no violence was used against them, they explained they could not leave because there was always someone to watch them; that includes George Dritsas. [ 61 ] As a matter of fact, during the time the residence was under police surveillance, George Dritsas was left alone with the victims at least on two different occasions while Franco D’Onofrio and Kosmas Dritsas were observed leaving the premises. [ 62 ] James Helm mentioned in his statement that if he had the intention to leave the chalet, he didn’t think that George Dritsas would have stopped him. [ 63 ] James Helm and Sandra Helm both said that they were under the impression that George Dritsas was not involved; it seemed like he didn’t know why they were there. [ 64 ] For S/D Poirier, it emerges from both statements that James Helm was less scared or fearful than his wife was, as he was allowed to go outside to smoke accompanied by one of the kidnappers.

The evidence was silent on who was with him at those times. [ 65 ] George Dritsas was in the presence of the two victims, along with his son Kosmas and the co-accused Franco D’Onofrio when the police arrested the three of them while they were all exiting the Magog residence. [ 66 ] During his interrogation, George Dritsas will exercise his right to silence except to say that he has nothing “ to do with this” .

ANALYSIS [ 67 ] For both accused, the Crown opposes bail upon the three grounds of 515 (10) of the Criminal Code . [ 68 ] At the outset of my analysis, it should be reminded that an accused has the right not to be denied reasonable bail without just cause pursuant to

section 11e) of the Charter . This is inextricably linked to the presumption of innocence. [ 69 ] The Supreme Court recently re-affirmed its commitment to the Charter values in St-Cloud [3] by reiterating that the release of accused persons is the cardinal rule and detention, the exception (see also R . v. Antic , 2017 SCC 27 and R . v.

Myers , 2019 SCC 18 ). [ 70 ] The presumption of release also flows from the wording of ss. 515(1) and 515(10) of the Criminal Code , which provides that the detention of an accused in custody will be justified only in one of the three cases listed, that is: -515(10)( a ) – first ground: detention is necessary to ensure the accused’s attendance in court; -515(10)( b ) – second ground: detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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; -515(10)( c ) – third ground: detention is necessary to maintain confidence in the administration of justice. [ 71 ] The Court is obviously on guard to fully consider the latest amendments to the Criminal code which provide: Principle of restraint 493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10) , as the case may be.

Aboriginal accused or vulnerable populations 493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of • (

a) Aboriginal accused; and • (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part. THE TERTIARY GROUND [ 72 ] As several criteria overlap, I will begin my analysis with the third ground. [ 73 ] Concerning the third ground in s. 515(10)(

c) C.C., precisely whether the accused’s detention is necessary to maintain confidence in the administration of justice, the Court must assess the situation objectively in light of the four factors set out by Parliament: 1 ) The apparent strength of the prosecution’s case;

2) The gravity of the offence; 3) The circumstances surrounding the commission of the offence, including whether a firearm was used; and 4) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. [ 74 ] Recently, in R . v. St-Cloud [4] , the Supreme Court of Canada summarized the basic principles that should guide judges when applying s. 515(10)(c). [ 75 ] This tertiary ground is a separate ground which, on its own, allows pre-trial detention to be ordered. Moreover, ground “(c)” is not a residual ground to be used only when grounds “(a)” and “(b)” have failed.

Recourse to this ground for detention is not limited to exceptional circumstances, unimaginable crimes, the most heinous crimes, or even to certain categories of crimes. In this regard, the wording of s. 515(10) (

c) C.C. is clear and does not require exceptional or rare circumstances. 1) The apparent strength of the prosecution’s case [ 76 ] 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. In that sense, the Court must be careful not to play the role of the trial judge but also needs to assess the quality of the evidence and evaluate if there is some basis for any potential defense raised by the accused. [ 77 ] Here, both accused plead that police acquired and acted on several information from other sources including cellular companies without obtaining warrants first.

They had no judicial authorization either when they proceeded to retrieve physical evidence on Taylor Lawrence Martin’s property. [ 78 ] For them, this considerably weakens the strength of the evidence since its admissibility will eventually be the object of motions debated at trial. [ 79 ] In answer to that, S/D Poirier explained that they were acting on emergency circumstances and that the priority was to find the victims as soon as possible and alive. [ 80 ] In cases of kidnapping, it is literally a race against time. [ 81 ] It should be reminded that the kidnappers threatened the lives of the hostages.

During the first calls placed on the morning of September 28, 2020, Mrs. Helm told her son Michael, that guns were pointed at them. [ 82 ] Listening to the recordings, the Court can hear the stress and the fear in Mrs. Helm’s voice as she is crying on the phone while trying the best she can to reassure her son about their condition. Mr. and Mrs. Helm’s calls were monitored and controlled by the kidnappers [5] .

These calls were made on September 28, 2020 at 5:48 p.m., almost 24 hours after the kidnapping began. [ 83 ] The Court can’t neglect the fact that the accused used different phones during the kidnapping; those phones were also registered under false names, connected to fake addresses which made it more difficult for the police to trace them. [ 84 ] The evidence also showed that the police obtained authorizations in emergency allowing them to proceed to the interception of private communications. [ 85 ] They also had a warrant before getting in Taylor Lawrence Martin’s residence.

The accused was himself arrested outside his house while he was about to enter his car. In the moments prior to his arrest, he was observed by police getting rid of the phone that would incriminate him. [ 86 ] This well-planned and deliberate kidnapping leaves no doubt about the implication of both Taylor Lawrence Martin and George Dritsas. [ 87 ] Taylor Lawrence Martin gave a statement incriminating himself on different levels. [ 88 ] Without repeating all the evidence stated previously, here are some highlights: ➢ Mr. Martin is the one who made it possible for the accomplices to kidnap Mr. and Mrs.

Helm by giving them their home address. ➢ He acted as a direct intermediary and relayed crucial information to the kidnappers. ➢ He was part of the extortion by giving instructions to Michael Helm on what he needed to do if he wanted to see his parents again. ➢ He declared that Mackenzie had worked for him in the past to transport marihuana. In fact, he is the person who introduced Mackenzie to the organisation. ➢ Mackenzie was arrested by the DEA with 50 kg of cocaine worth more than 3 million dollars.

This drug was to be delivered to Taylor Lawrence Martin’s father, Rocky Skidders. ➢ The wiretap evidence demonstrates his link with the accomplices and the fact he was trying to locate Mackenzie in order to deliver him to the organisation. ➢ Moreover, he asked Marianne Frazier to get in touch with Greg Browns and have him pick up Mackenzie in exchange of $5000.

➢ He asked Marianne Frazier (US resident still under investigation) to relay the picture of the hostages to the Helm’s family. He knew that the picture was taken at the place of confinement. ➢ He was in possession of the phone (438) [...8] seized on his property after police saw him throwing it away.

He was given this phone by the organisation almost a week before the kidnapping. ➢ This phone was used to send a text message for a ransom. ➢ He declared being aware that the kidnappers were asking for Mackenzie, the 50 kg of cocaine or 3 million dollars in return. ➢ He admitted letting the organisation have access to the shore through his property. ➢ He was frequently in contact with Gary Arnold and Franco D’Onofrio during the course of events. ➢ Gary Arnold reveals in his statement that: • He introduced Lawrence Taylor Martin to Franco D’Onofrio. • He went to Taylor Lawrence Martin’s residence to hand him a phone while mentioning that a friend needed help and was ready to pay $10 000 for services rendered. [ 89 ] The evidence in support of crimes shows Taylor Lawrence Martin’s involvement in the kidnapping, confinement and extortion of Mr. and Mrs.

Helm, before, during and up until his arrest. [ 90 ] The Court gives little weight to the accused statement regarding an eventual defense of duress. The wiretap evidence showed otherwise, particularly when the Court heard him laughing while talking with Franco D’Onofrio and Gary Arnold at the time he realized the police was surrounding his house [6] .

In the different recordings, the accused doesn’t seem coerced or panicked in any way. [ 91 ] His lawyer admits that the coercion, if retained, might play a stronger role on an eventual sentencing aspect. [ 92 ] George Dritsas’ involvement may be different but nevertheless just as substantial. [ 93 ] His lawyer argues that his “mere presence” on the scene of a crime is not sufficient to bring a conviction upon him, that nothing George Dritsas did or didn’t do, went beyond passive acquiescence [7] . [ 94 ] Even if the principle is correctly asserted, some facts bring the Court to conclude otherwise: ➢ From Mrs.

Kouzaras’ testimony, we learned that Kosmas asked his father to come with him and his friend to spend the week-end in Magog, just to relax. George Dritsas would have said to his wife he didn’t want to go and preferred staying with her. She apparently convinced him to go invoking the pandemic situation.

The Court concludes that this conversation had to take place before the week-end of September 26 (Saturday) and 27 (Sunday), 2020 began. ➢ However, the evidence shows that George Dritsas was already at the chalet at 270 Grande-Allée, Magog when his son Kosmas Dritsas and Franco D’Onofrio arrived in the middle of the night with an elderly couple, unknown to him. ➢ The circumstantial evidence indicates that George Dritsas is present when the first phone calls (9:30 a.m. - 9:32a.m. - 9:44 a.m.) are made to Michael Helm on the morning of September 28, 2020. The victims are handed the phone to speak to their son.

It is during those calls that they asked for Mackenzie’s mother, Michelle, or what was stolen from them, an essential condition for the release of hostages. ➢ During the kidnapping (September 28, 2020 at 12:11 p.m.), Michael Helm receives a call from an unknown man using the phone associated to (438) [...9] and telling him that his parents are ok. He adds: “ They’re actually with another elderly man.

Their age, you know what I mean? ” [8] This information refers clearly to George Dritsas. ➢ According to the evidence, it is reasonable to infer that George Dritsas is also present at the time of the call placed at 5:58 p.m. that same day: this is when we hear Mrs. Helm crying over the phone. ➢ The victims were kept in the basement. This leaves no room for

interpretation; the couple is not on a friendly visit. ➢ Even if both victims were under the general impression that George Dritsas was less implicated than the others or that he didn’t know what the couple was doing there, that he was nice and didn’t use any violence against them, the evidence also reveals that he watched them. ➢ George Dritsas was left alone with the victims at least on two different occasions while Franco D’Onofrio and Kosmas Dritsas left.

He was in their presence the whole time their confinement lasted in Magog, which was more than two whole days. ➢ Furthermore, the facts of this case reveal the kidnapping occurred around 10 p.m. on Sunday September 27, 2020. The victims were brought to the chalet in Magog in the middle of the night of Sunday to Monday September 28, 2020 and were found at the end of the day on Tuesday, September 29, 2020. ➢ This story of getting away for the week-end to simply relax, makes no sense when assessed with the rest of the evidence.

We were not even on the week-end anymore. ➢ George Dritsas was about to leave the chalet with Kosmas, Franco D’Onofrio and the victims when apprehended by police.

[ 95 ] In all the circumstances, this is not what we call a “mere presence” or a “passive acquiescence”. [ 96 ] As reminded by the Supreme Court in R. v. Vu [9] , “ kidnapping is a continuing offense that includes the victim’s ensuing confinement. So long as the victim of the kidnapping remains unlawfully confined, the crime of kidnapping continues” . [ 97 ] In the words of the trial judge again in R. v. Vu [10] , after he assessed the whole evidence , “ the accidental appearance of such a combination of events and items would require a confluence of coincidences to fantastic to be reasonably possible.

There is no rational inference that can be drawn from the evidence other than that [George Dritsas] was involved with full knowledge in the wrongdoing against [Mr. and Mrs.

Helm]”. [ 98 ] Even if I don’t need to be convinced beyond a reasonable doubt at the stage of the bail hearing, I there conclude that George Dritsas’ responsibility as party of the offences can well be established by the evidence tendered before me. [ 99 ] The Court was informed that the investigation is still ongoing. [ 100 ] In considering all the facts alleged, I am satisfied the prosecution has a very strong case. 2) The gravity of the offence [ 101 ] Assessing the gravity of an offence under this ground is based on the maximum sentence, and minimum sentence if any, provided for in the Criminal Code [11] . [ 102 ] The offences of kidnapping and extortion carry a maximum sentence of life imprisonment (counts # 1, 3, 5 and 6) as confinement provides for a maximum penalty of ten years (counts # 2 and 4).

Finally, every person who commits the indictable offence of conspiracy for kidnapping is liable to imprisonment for life (count #7). [ 103 ] In the present case, the accused are not subject to any minimum punishment. [ 104 ] I accept that these are serious offences and that is reflected by Parliament’s decision to make these crimes potentially punishable by the most severe punishment - life imprisonment. 3) The circumstances surrounding the commission of the offence, including whether a firearm was used [ 105 ] The planning of this kidnapping is beyond doubt as it involves at least five accomplices who were ready to do anything to reach their goal: retrieve the 50 kg of cocaine that they lost or the equivalent in cash.

Who knows what they were ready to do to Mackenzie or his mother, if Michael Helm had delivered them. [ 106 ] The background behind these kidnapping and forcible confinement offenses is drug trafficking. Both accused have a history related to those illegal activities. Suffice to look at their priors and refer to their testimony at this bail hearing. [ 107 ] Convinced that Mackenzie cheated on them, the group broke into his grandparents’ house, hide the face of their victims and kidnapped them.

That was the start of a long journey into the unknown for this innocent and vulnerable elderly couple. [ 108 ] In the middle of the night, Mr. and Mrs. Helm were transported by car, by boat and then again by car, by people they had never seen. They were kept hostages in a basement of a hidden place also unknown to them. [ 109 ] Several accomplices involved, means of transport ready at every meeting point, the use of different cellular phones registered under false names and addresses, an awaiting place for forcible confinement, in short, a plan at the “state-of-the-art”. [ 110 ] Let’s not forget that Mrs.

Helm has a particular health condition; she is on medication. It was said she had a small accident during the long lasting trip. The kidnappers stopped twice to get medical supply; they even went to a hospital in Valleyfield to get a “ catheter ” for her. [ 111 ] In addition to attacking Mrs. Helm’s security, they attacked her dignity. [ 112 ] The couple was kidnapped in the Unites States and finally found in Canada. On this element of movement, the Supreme Court said in R. v. Vu [12] : [32] Movement is insidious because it removes the victim from his or her normal surroundings.

Locating the victim becomes that much more difficult. The police are deprived of the clues about the victim’s whereabouts that are generally available in straightforward cases of unlawful confinement. When a kidnapping occurs, the range of possible locations where the victim might be held captive increases exponentially and the likelihood that the victim will be found and rescued diminishes accordingly.

In that sense, movement is tied to the ensuing confinement and the eventual location where the victim is secreted and held captive. [ 113 ] Fortunately, the hostages suffered no violence. [ 114 ] But threats were made to their lives, and extortion was used in the ransom demand. [ 115 ] In their ransom demand, the accomplices were not only playing with the lives of the hostages, but with the ones of others as well: Mackenzie and Michelle Helm. [ 116 ] The kidnappers never surrendered. It was thanks to the effort and collaboration of the various police forces that we were able to find the victims alive.

4) The fact that the accused are liable, on conviction, for a potentially lengthy term of imprisonment [ 117 ] This is assessed subjectively on a case-by-case basis including all the circumstances of the case as well as the usual principles for determining a sentence for the specific offender. Kindly refer to R . v. St. Cloud [13] . [ 118 ] The liability of both accused may be different but nonetheless complete, significant and serious. [ 119 ] Each of the accomplices had his role to play.

It’s with the combination of each action, and the help of every conspirator this whole plan was executed. [ 120 ] Out of the seven counts both accused stand charged for five counts carrying a sentence of life imprisonment.

In the circumstances described above, with their priors, they are liable, on conviction, for a potentially lengthy term of imprisonment. [ 121 ] Keeping in mind “ the perspective of the “public” that is the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case ” [14] , and at the end of this balancing exercise of all the relevant circumstances, the Court determines that detention for both accused is necessary to maintain confidence in the administration of justice.

THE SECONDARY GROUND [ 122 ] On the secondary ground, the primary considerations for the Court are the protection and the safety of the public and any victim or witness. TAYLOR LAWRENCE MARTIN’S PROFILE [ 123 ] Taylor Lawrence Martin is 36 years old. [ 124 ] While being sworn in, the accused gave the address of [address 2], Akwesasne. He is renting this house from a friend, Mr. Johnny Adams’s girlfriend. [ 125 ] He is the father of seven children who live with their mother, Christal Peters, from whom he has been separated for the last 5 or 6 months.

The children are aged between 2 and 17 years old. [ 126 ] His wife is not employed and lives at her mother’s house at [address 1], Akwesasne. [ 127 ] Taylor Lawrence Martin is a construction worker and the sole provider for his family. [ 128 ] He has no pending case. His priors [15] are the following: Date and Place Offence Sentence 2015-02-12 Valleyfield

(1) Flight 249.1 CC

(2) Possession for the purpose of trafficking

(3) Possession of substances 90 days + Probation of 1 year 90 days + Probation of 1 year 90 days + Probation of 1 year 2016-10-12 Valleyfield Driving while prohibited 7 days [ 129 ] Regarding the conviction of 2015, the charges were related to a possession of six pounds of marihuana for the purpose of trafficking. He also had a small quantity of cocaine when arrested. TAYLOR LAWRENCE MARTIN’S PLAN OF RELEASE [ 130 ] Taylor Lawrence Martin is offering a monetary pledge without deposit for an amount of $10 000. He is willing to engage himself not to apply for the issuance of a passport.

He would not leave the province of Quebec nor Ontario and would agree to report to a police station once a week as well as obeying to a curfew. He would not communicate with any accomplices, victims and witnesses. [ 131 ] Marion Skidders Thompson is Taylor Lawrence Martin’s aunt. She testifies on his behalf in order to act as a surety. [ 132 ] She confirms that her nephew’s nickname is “Beans”. [ 133 ] Mrs. Thompson has just retired from teaching after a career of 23 years. [ 134 ] She lives with her husband and her grandson at [address 3], Akwesasne. This address is at a five minute drive to Mr.

Martin’s house ([address 2]). [ 135 ] She is willing to deposit up to a maximum of $20 000 to guaranty that Mr. Martin will respect the conditions imposed by the Court.

[ 136 ] This money comes from her retirement found. She is also the owner of three full paid houses. [ 137 ] Mrs. Thompson confirms that the accused is working for her sister landscaping company. He has been working for the last 20 years. [ 138 ] She is aware of Mr. Martin’s priors. [ 139 ] She says she would be able to supervise, visit and check up on him. She would contact Akwesasne Mohawk police in case of any breach of condition. [ 140 ] Called to explain what “supervising the accused” means to her, Mrs.

Thompson replied she could stop at his place when she passes by, which she does frequently. [ 141 ] The cross examination allowed the Court to learn that Mrs. Thompson didn’t talk to the accused since his arrest. She first learned what happened on the news and by reading the newspapers. [ 142 ] She was not aware of her nephew’s illegal activities or that he let a certain organisation use his land to get access to the river.

She doesn’t know if he owns a phone since she just does not call him. [ 143 ] Basically, as a former full time working teacher, she is used to stay in her area, at her house, with her inter immediate family. She claims not to mingle with a lot of people. [ 144 ] She sometimes bumps into Mr. Martin when they happen to be at her daughter’s place at the same time. [ 145 ] The last time she saw him was on September 22, 2020, at her grandson’s birthday party. [ 146 ] She doesn’t know any of his friends. GEORGE DRITSAS’ PROFILE [ 147 ] George Dritsas is 75 years old. [ 148 ] He is married with Mrs.

Efthimia Kouzaras with whom he had one child, Demosthenis, who is presently living in Florida. His other son, Kosmas, was born from a previous relationship. [ 149 ] George Dritsas is living at [address 4], Mount Royal, for the last 15 years, with his wife and son, Kosmas. [ 150 ] He is a retired cook since 2015. [ 151 ] He has no pending case. His priors [16] are the following: Date and Place Offence Sentence 1988-01-25 Montreal

(1) Trafficking of substances

(2) Possession for the purpose of trafficking

(3) Possession for the purpose of trafficking $400 A-D 6 months $400 A-D 6 months $200 A-D 6 months 1995-02-22 Winnipeg

(1) Trafficking of substances

(2) Possession for the purpose of trafficking (1) 4 years (2) 2 years conc. 1997-08-29 Winnipeg Contravening parole Reincarcerated Date and Place Offence Sentence 1998-12-23 Winnipeg

(1) Conspiracy for trafficking of substances of

Annexe 1

(2) Possession of property obtained by crime(3 counts (1) 6 years (2) 2 years on each count conc. and conc. 2002-06-12 Winnipeg Parole 2012-05-09 Winnipeg Conspiracy for trafficking of substances of Annexes 5 months (19 months and 14 days of preventive custody) and Mandatory prohibition order

section 109 CC [ 152 ] The accused explained that he was reincarcerated in 1997 because he reoffended for another drug trafficking offence.

[ 153 ] The conviction of 2012 in Winnipeg was in regards of conspiracy for trafficking marihuana; Kosmas Dritsas was one of the conspirators. He received his sentence in 2013 for a total period of 11 years of imprisonment [17] .

GEORGE DRITSAS’ PLAN OF RELEASE [ 154 ] Mrs Efthimia Kouzaras, George Dritsas’ wife, testified as a surety. [ 155 ] They have been married for the last 47 years. [ 156 ] Kosmas Dritsas is her stepson. [ 157 ] Three years ago, Kosmas Dritsas came to live with them after he got release on parole. [ 158 ] She is aware of her husband’s priors but has difficulty situating the dates of his different convictions. Each time she learned about her husband’s criminal activities once arrested. [ 159 ] It’s the first time she acts as a surety.

She is willing to make a deposit of $7000 and contract a monetary pledge of $3000 without deposit. The $7000 represents all their household she has been saving on their behalf. [ 160 ] She would report her husband to the police if he was to break any condition. [ 161 ] Mrs. Kouzaras relates that after her husband’s conviction in 1998, she told him she would leave him if it was to ever happen again.

She stayed for the children’s sake. [ 162 ] She reports that for the last seven years, they became very close and spent a lot of time together. [ 163 ] She learned about the facts of the present file by assisting at the bail hearing. [ 164 ] To her recollection, Kosmas asked his father to join him and his friend for a week-end in Magog. Kosmas said that his friend needed a break. Mrs. Kouzaras doesn’t know Franco D’Onofrio very well; she may have seen him before in a bar. [ 165 ] At first, George Dritsas didn’t want to go in Magog but she insisted considering the pandemic situation.

She thought he would have a good time and relax for the week-end. [ 166 ] Mrs. Kouzaras doesn’t remember the day the three men left. She didn’t actually see them leave as she didn’t go outside. They did not use the family car. [ 167 ] While George Dritsas was in Magog, they talked a few times, once on Facetime.

Kosmas called her once using his own cellular phone. [ 168 ] At some point, her husband was not answering his phone anymore and she got worried. [ 169 ] George Dritsas’ lawyer is the one who got in contact with her after his husband’s arrest. [ 170 ] George Dritsas is offering a monetary pledge without deposit for an amount of 5000$. He is willing to deposit his passport and engage himself not to apply for the issuance of a new one. He would not leave the province and would agree to report to a police station twice a week as well as obeying to a curfew.

He would not communicate with any accomplices or victims and witnesses. The protection and the safety of the public [ 171 ] While it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated, and even less required by s. 515(10) of the Criminal Code .

Rather, establishing the probability of dangerousness is sufficient to deny bail to those likely to be dangerous. [ 172 ] That being said, the accused will be detained only if there is a substantial likelihood that he will commit a criminal offence and only where this substantial likelihood endangers the safety of the public [18] . [ 173 ] The mere possibility that the accused will reoffend is insufficient. [ 174 ] From a logical standpoint, past misconduct of an accused is highly probative of likelihood of re-offence. [ 175 ] Without systematically leading to a detention order, the presence of prior convictions, pending cases or applicable probation orders at the time of the alleged offence are very important factors in determining an accused’s dangerousness. [ 176 ] Also in applying s. 515(10) (

b) C.C. , for assessing the dangerousness of an accused, in R. c . Rondeau [19] , the Quebec Court of Appeal set out a non-exhaustive list of factors for the Court to consider: ➢ The nature of the offence; ➢ The relevant circumstances of the offence, including prior and subsequent events; ➢ The likelihood of a conviction; ➢ The accused’s profile, i.e. , occupation, lifestyle, criminal record, family environment and mental state;

➢ The danger that the accused's interim release represents for the community, notably that part of the community affected by the case. [ 177 ] On this ground, it is the combined effect of these factors that is determinative.

Again, none of these factors is predominant and an overall balancing of the circumstances must be conducted. [ 178 ] In the light of the danger the accused’s interim release represents for the community, it requires that I assess whether there are conditions, and ones that they will obey and which will reduce this risk to an acceptable level. [ 179 ] The Court will not repeat what was previously explained at length and in details in regards of the nature and circumstances of the offences.

The likelihood of conviction has been addressed as well. [ 180 ] The present accusations have been committed in the context of an important but unsuccessful cocaine trafficking transaction. [ 181 ] George Dritsas has been in the drug business much of his life. He has been sentenced to lengthy terms of imprisonment. He has been reincarcerated after reoffending in similar matter while on parole [20] .

His son, Kosmas, was his partner in crime in the past, as he was in the present file according to the evidence. [ 182 ] Among his priors, which include drug offences, Taylor Lawrence Martin has been convicted on a charge of “flight” following a police chase.

He didn’t want to be caught because he was in possession of six pounds of marihuana and a small quantity of cocaine. [ 183 ] In the case at bar, it is important to note that he tried to get rid of some evidence by throwing his phone away. [ 184 ] Among everything else that has been said, these behaviors suggest that he could harm the administration of justice. [ 185 ] Again, after this difficult and delicate exercise of balancing all the factors, the Court concludes that there is a substantial likelihood that both accused will commit a criminal offence and this substantial likelihood endangers the safety of the Helm’s family and of the general public.

The surety [ 186 ] Despite the ups and downs that we find in any marital relationship, Mrs. Efthimia Kouzaras and George Dritsas have been married for 47 years. In her testimony, Mrs. Kouzaras described that she and her husband have grown closer in the last seven years. [ 187 ] With all her love, she offered to deposit the totality of her retiring found ($7000) as a guarantee for the respect of the conditions that would be imposed to her husband by the Court. She is also ready to pledge for an additional amount of $3000 on her signature. [ 188 ] Mrs.

Marion Skidders Thompson did the same for an amount of $20 000 to support the release of her nephew. [ 189 ] Both sureties said they were ready to report the accused to the police in case of breach of conditions. [ 190 ] When people offered themselves as surety, they must be able to ensure the presence of an accused in court during the proceedings, but they must also be able to ensure the good conduct of the latter.

As justice Prowse said, « The duty of the surety is to ensure the good behaviour of the accused while on bail and render him if he does not appear to be keeping the peace and being of good behaviour ». [21] [ 191 ] In his book « The Law of Bail in Canada », justice Gary J. Trotter says : « While the constructive jailer model, in its literal sense, may be anachronistic, requiring the surety to provide some measure of supervision over the accused’s daily activities is both realistic and desirable.

This does not require the surety to become responsible for every aspect of the accused’s life: instead, he /she need only be required to ensure that the specific conditions of release (the imposition of which is restricted to achieving the aims of the primary, secondary and tertiary grounds) are observed ». [22] [ 192 ] What the Court is looking for from the people proposed as surety, is their ability to positively influence the accused. As once said by justice Boilard : « Être caution comporte, il me semble, deux qualités.

Il faut d’abord avoir une certaine solvabilité pour assurer, de façon tangible, le respect des obligations contractées par le détenu. Il faut également avoir ce que j’appellerai une qualité morale, c’est-à-dire la capacité de s’assurer que la personne remise en liberté respectera ses conditions ». [23] [ 193 ] Even if Mrs. Kouzaras is aware of her husband’s priors, each time she learned about his criminal activities after his arrest.

This is what happened again in relation to the present file. [ 194 ] George Dritsas obviously doesn’t share everything with his wife, especially when it comes to his illegal activities. [ 195 ] Mrs. Thompson didn’t talk to her nephew since his arrest. The last time she saw him was a month before this hearing. [ 196 ] She admitted she doesn’t see the accused regularly, nor does she call him. She even doesn’t know if he owns a phone. We understand they bump into each other from time to time. [ 197 ] Taylor Lawrence Martin’s testimony was silent on his relationship with Mrs.

Thompson. [ 198 ] That being said without any reproach, the Court does not believe, despite all their good will, that these women have the necessary qualities to act as surety as they have no influence or power of supervision on the accused. [ 199 ] Therefore, the detention of both accused is also justified on the second ground.

THE PRIMARY GROUND [ 200 ] Ensuring the attendance of the accused at trial is the primary purpose of any system of pre-trial release. The Court must evaluate the risk of an accused absconding rather than facing trial and potential sanctions.

Incidentally, the test is not whether it would be possible to find an accused who has fled, but rather whether the accused’s detention is necessary to ensure his or her presence before the court when required [24] . [ 201 ] Drawing on the facts of the present case, the prosecution argues that both accused have several means, despite the pandemic situation, to pursue their illegal activities outside the province and even outside the country. [ 202 ] Following the Court’s previous conclusions, it finds unnecessary to elaborate on that specific ground.

Suffice to say the Court would not have detained them on that ground alone. THE PANDEMIC SITUATION [ 203 ] Among all his arguments, George Dritsas invokes the relevance of current COVID-19 outbreak in regards of the three factors of s. 515 C.C. [ 204 ] The superior courts have indeed established recently that the pandemic situation is a factor that can be taken into account. This does not mean that bail will be granted in any case where COVID-19 is raised as an issue. “ The weight played by that factor depends upon the particular circumstances of each case.

For example, it might play a role where an applicant’s known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v . Kazman, 2020 ONCA 251 , par. 17 . Other examples can be found in some of the cases helpfully summarized and reviewed in R. v . Paramsothy, 2020 ONSC 2314 , par. 45-60 ”. [ 205 ] The Court have not been instructed in any manner as to the accused’s health condition.

Apart from the reference related to the age of the accused, no other evidence was tendered to support this argument and no demonstration was made as to the presence of such a risk for him specifically. [ 206 ] The conclusions of the Court remain unchanged. FOR ALL THESE REASONS, THE COURT orders the detention of George Dritsas and Taylor Lawrence Martin. ORDERS following s. 515(12) C.C. that both accused abstain from communicating, directly, indirectly with James Helm, Sandra Helm, Mackenzie Helm, Brandon J. Helm, Michelle D.

Helm, Marianne Frazier and Greg Browns. __________________________________ MYLÈNE GRÉGOIRE, JCQ M e Marie-France Drolet Attorney for prosecutor M e Sevag Abrahamian Attorney for George Dritsas M e Phillip Schneider Attorney for Taylor L. Martin Dates of hearing: October 20, 21 and 22, 2020