R. v. Eddy Pico

Between

Regina and Eddy Pico

Ontario Court of Justice Metro North Toronto, Ontario

Before: P. Kowarsky J.P.

Heard: September 21, 2012 Judgment: September 21, 2012

Crown Counsel: Ms. S. Reid Defence Counsel: Mr. M. Quigley

JUDICIAL INTERIM RELEASE HEARING

REASONS FOR JUDGMENT

P. KOWARSKY J.P.

A. INTRODUCTION

[1] Twenty-nine year old Mr. Eddy Pico appeared before me earlier today. He was very ably represented by defence counsel, Mr. M. Quigley, in this application for judicial interim release.

[2] The accused is charged with four criminal offences, namely: Driving while disqualified times two and Failing to comply with Probation times two.

[3] He is also charged with two offences under the Ontario Highway Traffic Act, namely: Failing to Remain at the scene of an accident and Failing to report the accident.

B. THE ALLEGATIONS

[4] In brief, the allegations, as read into the record by the Crown Attorney, are as follows:

[5] On September 12, 2012 he was driving a BMW motor vehicle, Ontario Registration Number BDHD 235. He was the sole occupant of the vehicle.

[6] At about 11:15 pm, he was involved in a motor collision at the intersection of Bathurst Street and Sheppard Avenue in Toronto. There were two occupants in the second motor vehicle, a female driver and a male who was the owner of that vehicle.

[7] Upon exiting their respective vehicles the occupants of the second vehicle provided Mr. Pico with the driver's Ontario Driver's Licence as well as Ownership Registration and proof of insurance in respect of the vehicle.

[8] Mr. Pico informed them that his licence and other documents were in his home. He provided them with a telephone number, and asked them to follow him to the building in which he lived. After arriving at the building, the accused went into the building, while the other two waited outside for him to return, which he never did.

[9] They called the telephone number which Mr. Pico had given them. A female answered, but provided no information whatsoever with respect to Mr. Pico, the vehicle or the accident.

C. THE ACCUSED'S CRIMINAL HISTORY

[10] The accused has a very lengthy and troubling Criminal Record, which he admitted, and which I accepted into evidence, marked Exhibit #1.

[11] Since his first conviction six years ago on September 22, 2006, he has amassed a Criminal Record comprising 32 criminal convictions, which include:

• 10 convictions for failing to comply with recognizance
• 2 convictions for failing to comply with Probation Orders
• Numerous crimes of dishonesty
• Drug trafficking
• Operating motor vehicles while disqualified
• Dangerous operation of a motor vehicle
• Assault resisting arrest, and
• Possession of a Firearm

[12] Mr. Pico is currently serving an intermittent prison sentence.

[13] His most recent convictions were on August 2, 2012 and August 13, 2012 when he was convicted of two counts of failing to comply with probation, failing to comply with recognizance and two counts of operating a motor vehicle while disqualified.

[14] He is currently on two Probation Orders: One issued on January 4, 2012 and the second on March 8, 2012, both of which he is now alleged to have breached. And despite his convictions for driving while disqualified, he is now charged with committing the same offence.

[15] It is noteworthy that during this year alone, from January through August 2012, Mr. Pico has been convicted of 11 crimes. Although no evidence of his Provincial Offences Driving Record was presented to me during the bail hearing, I believe that I can safely assume that his record of convictions under the Ontario Highway Traffic Act is significant.

D. THE PLAN OF RELEASE

[16] With the assistance of the Tagalog interpreter, his mother testified as the prospective surety. She came across as extremely decent, hard-working, honest and willing to pledge $5000.00 of her meager assets to secure the release of her son.

[17] Mr. Pico would reside with his parents. He would be under House Arrest with exceptions permitting him to continue with his employment in the construction industry and while in the presence of either one of his parents. Alternatively, the only exception would be while in the presence of either one of his parents, both of whom are employed – his mother working during the day, and his father working at night. The plan is that there would always be one parent who would supervise the accused while he is on bail and not serving his prison sentence.

[18] The mother testified that she is aware of her son's extensive criminal record; she understands many of his convictions, but is still confident that she and her husband would be able to supervise and control her son, who has been living with them 'on and off' all his life. Under cross-examination she conceded that her son does not really reside with her and her husband.

[19] The plan of release presented by defence counsel looks very good on paper but it seems to me that in reality it is not likely to be effective.

E. THE RIGHTS OF THE ACCUSED

[20] When considering the accused's application for bail, I take into account his rights under the Canadian Charter of Rights and Freedoms:

• To the presumption of innocence;
• To reasonable bail;
• Not to be deprived of his liberty or security except in accordance with the principles of fundamental justice.

[21] Furthermore, the abundant jurisprudence with respect to these rights makes it clear that:

• Imprisonment prior to trial should be the last resort;
• Pre-trial detention is extra-ordinary in our system of criminal justice; and
• There are no categories of offences for which bail is not a possibility.

[22] However, in order to justify the accused's release on bail I am required to be persuaded, on a balance of probabilities, that the plan of release is adequate to reduce my concerns on the primary, secondary and tertiary grounds to a reasonable level.

F. THE ONUS

[23] Notwithstanding the accused's criminal history, I am satisfied that in law, the Onus rests on the Crown to convince the Court, on a balance of probabilities, that the detention of Mr. Pico is necessary on one or more of the grounds set out in section 515(10) of the Criminal Code.

G. THE GROUNDS FOR DETENTION AND RELEASE

[24] The accused has no record of failing to appear in court. His family roots are in Toronto. Consequently, I do not have concerns on the primary ground. Furthermore, I do not believe that this is a case which attracts consideration of the tertiary ground, although it could conceivably be a consideration.

[25] With respect to the secondary ground section 515(10)(b) of the Criminal Code provides that an accused may be ordered to remain in pre-trial custody 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.

[26] In order to render my decision I am compelled to consider all the circumstances including the apparent strength of the Crown's case against the accused on the charges in the case at bar.

[27] Defence counsel proffered that the Crown has a very weak case against the accused, particularly with respect to the issue of identification, and that consequently the Crown has not met its onus.

[28] I am satisfied that there are indeed triable issues, which will have to be dealt with by the Trial Judge in due course. At this stage of the criminal proceedings against the accused I am unable to determine the apparent strength of the Crown's case. Accordingly, relying on the judgment in R. v. E.T., [2006] O.J. No. 1446, a decision of MacDonell J. then of the Ontario Provincial Court, prior to his appointment to the Superior Court Bench, I will treat the apparent strength of the Crown's case as neutral.

[29] Nonetheless, the Criminal Code mandates the court to have regard to all the circumstances, including any substantial likelihood that if released, the accused would commit further criminal offences or interfere with the administration of justice, thereby putting the public safety at risk.

H. FINDINGS

[30] The accused's Criminal Record speaks for itself. It reflects a lifestyle of dishonesty, deception and a total disregard for Court Orders. In the eight months between January and August of this year alone, he has been convicted of eleven criminal offences.

[31] His behaviour has been a danger to the safety of the public at large. In my view, his criminal past is a reliable precursor of recidivism and future dangerousness. On paper, the plan of release appears to be satisfactory. However, I am convinced that his parents will never be able to control him, as they have not been able to do in the past, and he will continue to do exactly what he pleases.

I. DISPOSITION

[32] For these reasons I am satisfied that the Crown has indeed met its onus on the secondary ground. I order that the accused be detained primarily as a result of his Criminal Record, and I will endorse the Information accordingly, pursuant to section 515(9.1) of the Criminal Code.

[33] At the conclusion of my oral reasons, I informed Counsel that I would provide them and the court with my Written Reasons. These are those reasons.

Signed P. Kowarsky J.P.