WARNING

The Court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued by Justice of the Peace G. Griffith on October 17, 2012 under subsection 517(1) of the Criminal Code.

This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. Order directing matters not to be published for specified period.—(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as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.

(2) Failure to comply. — Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Oshawa, Durham Region, Central East Region

COURT FILE No.: 12-RA25278

DATE: 2013·03·14

Citation: R. v. Lutczyk, 2013 ONCJ 127

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Robert Lubowieski Lutczyk

Before Justice of the Peace R.J. Le Blanc

Evidence heard on March 6, submissions on March 14, 2013

Reasons for Judgment released on March 14, 2013

Ngai on Young .......................................................................... for the Crown

Savag Yeghoyan ............................................ for the accused Robert Lutczyk

JUSTICE OF THE PEACE LE BLANC:

1. The allegations in R. v. Robert Lutczyk bring to mind two quotes: “Desperate times call for desperate measures,” a proverb of unknown origin, and “He who dares wins,” which is the British Special Air Service (SAS) motto.

2. It was, the Crown alleges in a 13-page synopsis, a desperate time for Robert Lutczyk whose life was on a downward spiral of seemingly epic proportions.

3. Robert Lutczyk lost his Oshawa council seat in 2010; his second marriage was on the rocks; he’d racked up an estimated $500,000 in debt; he’d unsuccessfully pursued a civil decision - as far as the Supreme Court - which saw his wages garnisheed; and he’d lost his employment and was unsuccessful at finding another job.

4. Robert Lutczyk would tell a psychiatrist conducting a mental health assessment to determine fitness to stand trial that his stress level was ‘500’ on a scale of 0 to 100” at the time leading up to the alleged offences.

5. The Crown alleges Robert Lutczyk laid blame for his personal misfortunes at the feet of Oshawa city lawyer, David Potts.

6. Robert Lutczyk, in a February 6, 2013 Ontario Shores Centre for Health Sciences assessment report alleges Potts “conspired” against him and was persecuting him (page 12) while acting toward him in a “personal and malicious behaviour.” (page 11).

7. Robert Lutczyk, the Crown alleges, formulated a daring plan that would wipe out a good portion of his recent financial losses without jail time. The plan was, according to friends and family quoted in the psychiatric assessment, typical Robert Lutczyk – either grandiose or controversial or the stuff of pipe dreams.

8. It is alleged Robert Lutczyk carried out that plan by waiting outside Potts’ home at 11 p.m. on October 15, 2012, kidnapping the city official at gunpoint, chaining and padlocking him to prevent escape while waiting for the city to reimburse him for his financial losses.

9. Mrs. Potts, waiting for her husband to arrive home from a council session, saw her spouse’s empty vehicle in the driveway and - suspicions aroused- called police. Durham Regional Police would spot Robert Lutczyk’s vehicle at a local Tim Horton’s and gave chase to an industrial lock-up. Potts would escape. Robert Lutczyk would eventually surrender to police after a 26-hour armed stand-off.

10. The Crown tendered colour photos of Robert Lutczyk’s arsenal of weapons, ammunition, grenades, and a crude but effective explosive device – which he referred to as part of a ‘doomsday plan’ – that he was relying upon to keep police from storming his position.

11. Police would also find a cube van that Robert Lutczyk – a ‘prepper’ or survivalist - was converting into a mobile armoured shelter, and a ‘hiding hole’ in which to place provisions in the event of societal breakdown. Robert Lutczyk would tell a psychiatrist he believed bullets would become more valuable than cash in such times.

Bail Considerations

12. It is generally advisable –given an accused has one opportunity at a bail hearing – that they present their best possible surety or sureties and the best possible plan of supervision. The reason being that were they to be unsuccessful in securing their release they could remain detained until the completion of all proceedings against them. In this jurisdiction it would likely be three to four months before an in-custody trial is reached.

13. The Crown says the onus is reversed in this matter – that is to say the onus lies with the accused to show he should be released – by way of the firearms charges. The Crown is seeking detention on the primary, secondary and tertiary grounds.

14. The Court recognizes that according to s 11 (d) of the Canadian Charter of Rights and Freedoms that any person charged with an offence is innocent until proven guilty according to law and under s. 11 (e) that they are not to be denied bail without just cause.

15. The Court is cognizant of the fact that the Canadian Charter of Rights and Freedoms calls on it to consider pre-trial release as the norm, rather than the exception.

16. Pre-trial detention is only to be considered in those circumstances where the balance has tipped in favour of society’s rights, and the rights of the complainant, thereby overriding an accused’s fundamental rights and freedoms.

17. It would appear the Crown’s case is strong, and that the allegations - resulting in 26 charges essentially comprising kidnapping, utter threat to cause bodily harm, unlawful confinement, fail to stop for police, dangerous driving, use of a firearm to commit an indictable offence, point a firearm, possession of loaded prohibited firearm (.22 calibre Armi Jager rifle, 7.65 calibre Langenhan handgun, .22 calibre Colt revolver) without the proper authorization, possess prohibited device (large .22 calibre magazine containing 27 rounds; small .22 calibre magazine containing 15 rounds; three 7.62 x 39 calibre magazines with 11, 18 and 19-round capacities respectively; possession and delivery of an explosive device and an explosive substance; and four counts of possession of stolen licence plates - appear serious.

18. Bear in mind this court is not a trier of fact on the charges, but is tasked with determining whether the accused may be released from pre-trial custody.

19. The Court acknowledges defence submissions that there may be mitigating factors by way of medication the accused was on which may have had an adverse effect on his mental state at the time of the allegations.

20. Mitigating factors in the defendant’s favour include lack of a criminal record and no outstanding charges.

21. Factors in the defendant’s favour include sureties and plan of release which calls for house arrest and mental health counselling.

22. Factors working against him include a delusional obsession with the complainant and an obsession with weapons.

Defendant to Show Cause for Release

23. As a reverse onus matter it’s up to the defendant to prove why he should be released.

24. R. v. Laframboise 2005 63758 (ON CA), [2005] O.J. No. 5785 (C.A.). determined that even individuals facing a murder charge are eligible for bail. In that matter, Laframboise, an Oshawa-area resident, demonstrated his detention pending trial was not necessary in order to maintain confidence in the administration of justice.

25. R. v. Piccinini, 2011 ONSC 2524, [2011] O.J. No. 2191 (Ont. S.C.) says it is open to a bail court to weigh evidence to assess the strength of the Crown’s case, including all reasonable inferences that may be drawn from circumstantial evidence. Such is the case in R. v. Robert Lutczyk.

26. The circumstantial evidence is that certain firearms had trigger locks on them or were not loaded; that there wasn’t gunpowder in two grenades nor was there a detonating device installed in the ‘doomsday device’ or shrapnel in the PVC tubing surrounding it.

27. It is open to the Court however to draw a reasonable inference that these weapons and explosives were none-the-less useable for their intended purpose given police found in the garage more than 3,000 rounds of ammunition either ‘loose’ or in clips and that there was readily available gunpowder to activate explosive devices.

28. It is open to the Court to draw a reasonable inference that Robert Lutczyk considered using these weapons in his stand-off with police.

29. The Crown is seeking detention on the primary, secondary and tertiary grounds.

Primary Grounds s. 515 (10) (a)

30. The primary ground according to s. 515 (10) (a) is a concern that the defendant will fail to attend future court dates should he be released. The Court does not share that concern, having taken into consideration the nature of the offence and potential penalty, the strength of the Crown’s case, the defendant’s ties to the community including fixed address, family and close friends. There are no prior convictions for failing to comply with court orders or failing to attend court.

31. The Court acknowledges the Crown’s concern Robert Lutczyk may be tempted to flee the country, given he has ties to Poland, but this concern may be addressed by the surrender of his passport and any travel documents.

Secondary Grounds s. 515(10) (b)

32. The secondary ground according to s. 515 (10) (b) is “where 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 if released from custody, the accused will commit a criminal offence or interfere with the administration of justice.”

33. The Court has taken into consideration the seriousness of the offence and severity of penalty, the strength of the Crown’s case, the character of the accused and his risk to re-offend, and whether his release would endanger the safety and protection of the complainant or the public. Mitigating factors include the fact the accused does not have a criminal record, there is no history of violence, that he has never violated court orders and that he does not appear to have any alcohol or substance abuse addictions. It remains to be determined whether his release would interfere with the administration of justice.

34. The Court turns to several decisions which are reasonably on point with regard to a reverse onus matter involving firearms or kidnapping, in which the Crown sought detention under the secondary grounds.

35. R. v. Glasgow, 2011 ONCJ 434 notes the basic philosophy of judicial interim release is such that individuals who will attend court and are not a danger to the complainant or public ought to be ‘free’ prior to trial. Where the onus is reversed it is to the defendant to convince the Court on a balance of probabilities he or she should be released from pre-trial custody.

36. Glasgow (supra) says secondary grounds include an attempt to predict – based on court-developed guidelines – whether there is a substantial likelihood the defendant will, if released, reoffend or interfere with the administration of justice. Both primary and secondary grounds place emphasis on future actions while tertiary ground concerns concentrate on maintaining public confidence in the administration of justice.

37. In Glasgow (supra) as in R. v. Robert Lutczyk, there aren’t any drug or alcohol addictions and both defendants are charged with possession of a loaded firearm. In Glasgow (supra) as in R. v. Robert Lutczyk, there are concerns by the Court about the ability of the defendant’s family, acting as surety, to have “any real measure of control,” despite having “honestly come to court with the best interests of this defendant and … they have the best interests of the public in mind.”

38. R. v. Singh, 2011 ONCJ 18 cites former Chief Justice Lamer in R. v. Morales, 1992 53 (S.C.C.), [1992] 3 S.C.R. 711, as saying, “...Bail is not denied for all individuals who pose a risk of committing another offence or interfering with the administration of justice while on bail...Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would be merely convenient or advantageous.

39. In R. v. Singh as in R. v. Robert Lutczyk, the presiding justice had “very grave concerns for the safety” of the complainant, given the strength of the Crown's case, the seriousness of the allegations, and the element of premeditation.

40. In Singh (supra) the presiding justice found, as this court finds in R. v. Robert Lutczyk, that the Crown's case is overwhelmingly strong, given there was the potential for extreme violence motivated by money which “weigh heavily” against the defendant on secondary ground concerns in terms of the safety of the complainant.

41. R. v. Clauzel, 2010 ONSC 5115 like R. v. Robert Lutczyk, involves charges of kidnapping while using a firearm, forcible confinement, and uttering a threat to cause bodily harm. It was a reverse onus on the defendant because of the firearm.

42. R. v. Clauzel (supra) speaks to the standard of reasons for continued detention. The Criminal Code (s. 515 (5)) requires a Justice of the Peace to give reasons – at minimum the ground(s) for detention) taking into account the principles contained in s. 515 (10) (a), (b), and (c). Failure to do so is considered an error in principle. Conversely R. v. Reid, [2000] O.J. No. 3603 suggests a contested bail hearing decision should be a “well-crafted judgement” that indicates “intensive and thoughtful study of the record, the briefs and the law.”

43. R. v. Clauzel (supra) contains similarities to R. v. Robert Lutczyk in that both contain allegations of the defendant’s involvement –absent drug or alcohol addiction – in a “cold, calculated and planned act with a loaded gun which he used to terrorize the victims,” and a plan of release that “is totally flawed,” given an inappropriate lack of supervision.

44. The Court is cognizant of case law which requires a two-step analysis of the secondary ground: the first step being evidence from which the jurist can conclude ongoing criminal lifestyle; and if so, with the onus on the accused is there a plan of supervision and sureties that will ensure the defendant will probably not engage in further criminal activity or interfere with the administration of justice. The secondary ground involves prediction of future conduct which requires an examination of the accused, the sureties, the amount pledged and the proposed plan of release.

45. The Court is also cognizant of R. v. Budge, [2012] O.J. No. 2538 which says factors to consider on the secondary ground include whether an accused has a criminal record or is currently subject to court orders or if there are outstanding charges. It also says the Court must analyze the strength of the evidence and balance its weight against the accused’s legitimate employment, plan for release, sureties and amounts pledged.

46. The Court is cognizant as per R. v. Budge (supra) that very few individuals are unreleasable under any terms of release. Generally the issue of release and the appropriateness of the plan of release have to be determined at the same time. The justice of the peace has to take the proposed plan of release into consideration.

47. R. v. Jenkins [2011] O.J. No. 3517 (Ont. S.C.) stands for the principle that there is no requirement violence is a precursor to detention on the secondary ground. Detention can be ordered on the secondary ground if there is a substantial likelihood the accused would, if released, commit a further criminal offence or interfere with the administration of justice.

48. In R. v. Jenkins (supra), the accused was charged with eight counts of forcible confinement, assault, and threats. While the secondary ground does not speak specifically of an assessment of the Crown’s case as does the tertiary ground, it imports the notion that all of the circumstances have to be considered in determining a substantial likelihood that other offences will be committed. This involves assessing the merits of a case and there has to be such evidence for the secondary ground to be invoked, though it need not be as strong as under tertiary ground.

49. In this matter the Court finds there are concerns that there is a ‘substantial’ likelihood - with regard to all the circumstances, particularly the defendant’s decade-long obsession with the complainant, and with his obsession with weapons and explosives-- that he would re-offend if released.

50. These are serious allegations. The arsenal the defendant gathered – largely without any knowledge of his family or friends -- carries with it the potential to be a danger both to the complainant and to the general public. A conviction for firearms offences carries a mandatory minimum penalty of three years in custody.

Tertiary Grounds s. 515(10) (c)

51. The tertiary ground under s. 515 (10) (c) is to be considered were the public to lose confidence in the administration of justice, were Robert Lutczyk to be released, taking into account all the circumstances from the apparent strength of the Crown’s case to the gravity of the nature of the offence, the circumstances surrounding its commission including whether a firearm was used, and the potential for a lengthy term of imprisonment. The statutory minimum penalty upon conviction for an offence involving a firearm is three-years.

52. The Court is cognizant of R. v. Barber, 2013 ONSC 652 O.J. No. 378 (Ont. S.C.) which quotes R. v. R.D. 2010 ONCA 899 (Ont. C.A.) in that detention on tertiary grounds is to be used ‘sparingly’ and only then after being satisfied a reasonable member of the community would think it necessary to do so. This case law also stands for the proposition that it is not necessary to invoke tertiary grounds if a defendant is to be detained on either primary or secondary grounds.

53. Were it open to this court it would have found the tertiary grounds met based on all four enumerated tests, citing R. v. Ellis, 2013 ONSC 908 where detention was necessary under the tertiary grounds to maintain confidence in the administration of justice despite the fact the accused was not involved in any actual violence against others.

54. R. v. Ellis (supra) supports the proposition that firearms offences are serious and indeed illegal firearms one of the most serious problems facing Ontario, producing tragic results at immeasurable human cost.

55. R. v. Ellis (supra) holds that well-informed, fair-minded, reasonable members of the community who are fully knowledgeable about the facts of a case and applicable legal and constitutional principles are increasingly concerned as such, and that, without pandering to public opinion, must maintain their confidence in the administration of justice.

56. A reasonably informed member of the community who is knowledgeable of the allegations, the principles of justice and of the Charter of Rights and Freedoms, would rightly be concerned were the Court to release an individual – absent an exceptional plan of round-the clock supervision -- accused of kidnapping, armed stand-off with police, and possessing an explosive device to deter police from carrying out their duties.

57. The Court is cognizant, given the allegations of an obsession with the defendant, that this ‘prepper’ or survivalist may have other weapons secreted in ‘hiding holes,’ yet to be discovered by authorities. The ‘hiding hole’ thus discovered in a secluded area is one the defendant’s daughter informed police of.

The Proposed Plan and Sureties

58. Release is possible, as per R. v. Laframboise (supra) with good sureties and an excellent plan of supervision which would address the Court’s concerns expressed thus far. Such supervision would essentially be ‘jail in the community’ with round-the-clock supervision.

59. The Court has heard from sureties Elizabeth Fratczak, and Mitchell Lutczyk; a family friend and the accused’s father respectively. Both understood their respective roles as surety as per Canada (Attorney General) v. Horvath, 2009 ONCA 732.

60. Ms. Fratczak offers occasional supervisory support and assets ranging from between $35,000 to $50,000.

61. Mitchell Lutczyk pledges a 2005 Chev Uplander van which he estimates to be worth $15,000. A Canadian Black Book search states this vehicle to be worth only $7,500 to $9,000 were it in mint condition with low mileage, and even then only as a trade-in on a new vehicle.

62. The Court notes he receives about $4,000 a month in pensions. The home he resides in is owned by the defendant.

63. The Court finds the proposed sureties acceptable but their plan of release falls far short of the necessary round-the-clock house arrest supervision required for an individual obsessed with the complainant and weapons; an individual who being a self-confessed ‘prepper’ or survivalist, may have access to other as yet undiscovered weapons secreted away in a ‘hiding hole’.

64. With all due respect to Mitchell Lutczyk -- a Polish-Canadian Second World War hero honoured by the Polish, French, British, Belgian and Dutch governments -- the plan of release at its best calls for the accused to reside in a weapons-free home with his 94-year-old or nearly 94-year-old father who is hard of hearing and whose mobility is limited.

65. The Court has grave concerns with Mitchell Lutczyk’s ability to properly supervise his son, once again given his obsession with the complainant and with firearms and explosives.

66. Ms. Fratczak admitted she is unwilling to act in a full-time ‘jailer in the community’ capacity should the plan for the accused to reside with his aging father fall short of the Court’s supervisory expectations.

Submissions

67. The Court heard lengthy submissions from both parties.

68. Defence counsel Mr. Yeghoyan - admitting the seriousness of the allegations -points to a presumption of innocence, and submits the accused is not a flight risk given his family and friends in the community, and therefore should not be detained on a primary grounds concern.

69. Defence counsel points to bail being available to an accused individual since 1482 under King Richard III of England, and more recently, to the decision of a South African court to release Olympic athlete Oscar Pistorius on bail.

70. This, Mr. Yeghoyan submits, shows a reasonably-informed member of the public is open to the concept of pre-trial release of an accused as long as strict bail conditions are in place. Defence counsel submits - given the proposed plan of release contains strict bail conditions - that there are no tertiary ground concerns with regard to R. v. Robert Lutczyk.

71. He points out the accused surrendered to police and no one was hurt during this “bizarre and desperate cry for help.”

72. Mr. Yeghoyan says the Crown has overstated its case, and points to the barbecue propane explosive device as “some sort of bizarre science project.”

73. There is no doubt Robert Lutczyk requires further diagnosis of an adjustment disorder which could be carried out under his surety’s supervision, he adds.

74. Mr. Yeghoyan paints the proposed sureties as being strong of character, capable of the job, and suggests the Court should not dismiss Mitchell Lutczyk out of hand because of his age.

75. Crown, Mr. Young, notes that as a reverse onus matter it is to Robert Lutczyk to show the Court he can be released.

76. Mr. Young says the Crown’s case is strong “to the point of compelling,” and that on the primary grounds Robert Lutczyk is a flight risk given he faces perhaps upward of eight years on the kidnapping charge; three years on a weapons charge; and perhaps a total of 15 years on all charges combined on a finding of guilt.

77. Mr. Young suggested Robert Lutczyk may “exact some revenge’ before fleeing the jurisdiction should he be released.

78. He pointed to the need to detain the accused on the secondary grounds to protect the complainant given Robert Lutczyk’s pre-meditated plan which was months in the making, and which only fell apart “because of good police work.”

79. He suggests the proposed sureties unable to properly supervise the accused because “his thought process is unpredictable,” and that as a ‘prepper’ or survivalist it is unclear whether police have recovered all of the weapons Robert Lutczyk may have. “He’s not someone who can be controlled by his sureties.”

80. Mr. Young filed a book of authorities on tertiary ground detention and made reference to case law in submissions including R. v. Harutyunyan, 2009 ONCJ 116, [2009] O.J. No. 1117 (O.C.J.); R. v. Smikle, 2010 ONSC 5311 (Sup. C.J.); R. v. Whervin, [2006] O.J. No. 443 (Sup. C.J.); R. v. Baba, [2006] O.J. No. 5387 (Sup. C.J.); R. v. Beason, [2005] O.J. No. 5706 (Sup. C.J.); and R. v. Browne, [2012] O.J. No. 4973 (Sup. C.J.). The Court was cognizant of the first three decisions and has read the synopsis of the remaining matters prior to writing this decision.

The Court’s Decision

81. The Court has heard evidence and submissions from both the Crown and defence counsel including a book of authorities on tertiary ground case law, has heard concerns expressed on the primary, secondary, and tertiary grounds, and has heard from sureties about a proposed plan of release. It is cognizant of a presumption of innocence and that pre-trial release is considered the norm rather than the exception.

82. Based on all of the above the Court, having considered the evidence in its totality, finds that while the proposed sureties are well meaning, there remain serious concerns about proper supervision of the accused in the community.

83. The defendant has been in pre-trial custody five months, has respected legal counsel, and has had ample opportunity to put forward his best possible sureties and best possible plan of supervision.

84. This is of those instances where the balance has tipped in favour of the safety of the complainant and the community thereby overriding an accused’s fundamental rights and freedoms.

85. The plan as put forward is far from adequate to address the Court’s concerns on the totality of the evidence before it. As such the defendant has failed, on a balance of probabilities, to put forward a satisfactory plan to secure his release pending trial.

86. Detention is ordered on the secondary grounds.

87. As such it is unnecessary as per R. v. Barber (supra) to rule on the Crown’s request to detain under the tertiary grounds. Were it to become an issue at a bail review the Court notes it also would have detained on the tertiary grounds were it not for R. v. Barber (supra).

Released: March 14, 2013

Signed: “Justice of the Peace R. J. Le Blanc”