COURT FILE NO.: 144/12
DATE: 20121009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PIERRE KALATA
HEARD: October 5, 2012
BAIL REVIEW APPLICATION
MILLER, J.
[1] Pierre Kalata is charged with, between April 9, 2012 and June 11, 2012 Trafficking in Cocaine; Possession of Cocaine for the Purpose of Trafficking; on June 12, 2012 Possession of Cocaine for the Purpose of Trafficking; between June 1 and June 11, 2012 Conspiracy to Import Cocaine; and four counts of Breach of Recognizance. After a bail hearing held August 3 and 8, 2012, on August 15, 2012 Mr. Kalata was detained on the secondary grounds. He brings an application for bail review on the basis that the learned justice of the peace erred in law in detaining him and that there has been a material change in circumstances.
Error in Law
[2] Mr. Kalata argues that the learned justice of the peace erred in detaining him on the secondary grounds because had the justice of the peace correctly applied the law he would have released Mr. Kalata. I do not find this to be the case. The learned justice of the peace thoroughly analyzed the proposed plan of release and found that it failed due the unreliability of Mr. Kalata himself. I do not find that on the evidence before the learned justice of the peace that he made any error in law.
Material Change in Circumstances
[3] Mr. Kalata takes the position that his circumstances have changed because he is no longer facing the November 2011 and April 2012 outstanding charges, because the proposed electronic monitoring system now allows for GPS tracking and because his proposed plan for release now does not involve a request that he be permitted to work at his job as a salesman but would involve complete “house arrest” apart from attending at medical appointments and counselling sessions.
[4] The Crown concedes that the reduction of outstanding charges is a change but does not agree that the GPS feature in the electronic monitoring plan is a change as the learned justice of the peace was aware that that technology was likely to be available in the near future although not fully in place at the time of the August bail hearing. The Crown argues that the change of proposed plan of release to eliminate any plan for Mr. Kalata to work is concerning because of how the change came about.
[5] I agree that the withdrawal of some of the outstanding charges is a material change warranting a fresh look at Mr. Kalata’s circumstances.
[6] There is evidence from Stephen Tan that the proposed electronic monitoring system now allows for GPS tracking once per minute which will ascertain reasonably accurately where the accused is at any given time. Mr. Tan testified that the system can be set to restrict Mr. Kalata’s position to his residence with any exceptions as authorized by the Court in the release conditions. For example, the GPS system can be reprogrammed for Mr. Kalata to attend at medical or counselling appointments as long as RSC is informed in advance. Mr. Tan advises that a pre-programmed change in the subject’s location can be made by someone authorized to do so by the Court, for example the surety. In this case it would be most logical that changes to Mr. Kalata’s location due to medical and counselling appointments would be made by his surety.
[7] The now proposed plan is that Mr. Kalata would remain at his father’s residence except when attending medical or counselling appointments and that these could be done in the presence of one of his sureties. He is no longer seeking an exception to allow him to continue his employment.
[8] The change of plan is concerning because it came about when the Crown became aware and advised Mr. Kalata’s counsel that Mr. Kalata’s employer, Michael Annis, was facing charges similar to those faced by Mr. Kalata and that Mr. Kalata is aware of those charges. A copy of the indictment against Mr. Annis and the transcript of an intercepted telephone call between Mr. Kalata and Mr. Annis were filed by the Crown.
[9] It became apparent during Jerry Kalata’s testimony during the bail review hearing that he, Adam Kalata and Mr. Kalata’s counsel discussed Mr. Annis’s outstanding charges some weeks ago, but did not view them as being concerning. The plan to have Mr. Kalata continue to work for Mr. Annis only changed when they became aware that the Crown knew of those outstanding charges. This raises very grave concerns about the judgment of the proposed sureties.
Secondary Grounds
[10] The Supreme Court of Canada in R. v. Morales 1992 53 (SCC), [1992] S.C.J. No. 98 upheld the constitutionality of s.515(10)(b) of the Criminal Code (the secondary grounds) on the basis that on those grounds, bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice where this substantial likelihood endangers the protection and safety of the public and where detention is necessary for public safety. (at paragraph 39) Gans, J. in R. v. Walton [2005] O.J. No. 48 held that the test under s. 515(10(b) is one which admits of reasonable management of risk. (at paragraph 11)
[11] The allegations in relation to the charges on which Mr. Kalata is detained are of multiple drug transactions in which Mr. Kalata is suspected of being the supplier of cocaine to a street drug dealer. The evidence involves police surveillance and wiretaps which led to further evidence of Mr. Kalata’s involvement in a plan to import cocaine from the Dominican Republic. There are allegations that Mr. Kalata used a number of other people in his business, including having Adam Kalata, his surety at the time, drive him to various locations where he was involved in criminal activity, apparently without Adam Kalata’s knowledge. There is also evidence that Mr. Kalata was in possession of some of the subject cocaine at the home of his surety Jerry Kalata. The allegations of Breach of Recognizance arise from observations made by police during the drug investigation.
[12] Counsel for Mr. Kalata concedes that the case against Mr. Kalata on the four counts of Breach Recognizance is strong. She argues, however, that there is no evidence in support of the other charges apart, potentially, for the included offence of Possession of Cocaine for the small amount found at Mr. Kalata’s residence although the substance seized has not yet been analyzed.
[13] Pierre Kalata has an extensive criminal record beginning with youth entries in 1997. He was found guilty in 1997 of Robbery and sentenced to four months of secure custody and 18 months probation; in 1998 he was found guilty of Assault and two counts of Failing to Comply with his disposition and sentenced to 55 days of secure custody on top of 25 days time served; in 2000 he was found guilty of Possession of a Controlled Substance for the Purpose of Trafficking, Escaping Custody, Failing to Comply with his disposition and Failing to Comply with an Undertaking for which he received 24 months probation;.
[14] As an adult he was in 2000 convicted of Assault with a Weapon, Failing to Comply with his disposition, Failing to Comply with a recognizance and Attempting to Obstruct Justice for which he was sentenced to 90 days in addition to 54 days of pre-sentence custody and three years probation; in 2001 of Breach of Probation for which he received 15 days and two counts of Assault for which he received a total of 20 days in addition to 17 days of pre-sentence custody and 18 months probation. In 2002 he was convicted of Breach Probation for which he was sentenced to 14 days in addition to 8 days pre-sentence custody and Robbery, Using an Imitation firearm, two counts of Possession of Counterfeit Money, Failing to comply with his disposition and being Disguised with Intent for which he was sentenced to a total of 42 months penitentiary time in addition to 134 days of pre-sentence custody.
[15] In 2005 Mr. Kalata was convicted of Assault, Uttering Threats and Being Unlawfully in a Dwelling House for which he received a total sentence of 8 months and three years’ probation; in 2008 he received 4 months for a conviction for Assault. He was also convicted that year of Possession of a Prohibited or Restricted Weapon with Ammunition, Breach of his Firearms Prohibition order and Breach of Recognizance for which he was sentenced to 28 months in addition to 34 days of pre-sentence custody and in 2009 he was convicted of Assault for which he received an additional two months of custody.
[16] At the time of his bail hearing Mr. Kalata had outstanding charges of two counts of Domestic Assault and one of Forcible Confinement. Those charges were withdrawn by the Crown in September 2012. He has remaining charges of Trafficking, Possession of Cocaine for the Purpose of Trafficking and Possession of Proceeds of Crime for which he has a judicial interim release order with his father as surety in the amount of $2,000.
[17] In Pierre Kalata’s affidavits of September 17, 2012, and October 1, 2012, sworn in support of his bail review application, he fails to mention that his outstanding charges also included allegations of being unlawfully in a dwelling house, and additional charge of assault, theft under and two counts of failing to comply with a recognizance. He describes his outstanding charges, arising in March 2011, as “a drug related allegation”. He does not mention that the charges are Trafficking in Cocaine, Possession of Cocaine for the purpose of trafficking and Possession of Proceeds of Crime. He does not mention that those charges also involve allegations of an attempt to flee from police and struggling with police on his arrest for those charges.
[18] This attempt to minimize the seriousness of the outstanding charges gives me great pause. It supports the concern voiced by the detaining justice of the peace that despite the best intentions of the proposed sureties that the proposed plan of release is doomed to failure based on Pierre Kalata’s historical and alleged current lack of respect for any court imposed order. This concern is bolstered by the concession that the case against Mr. Kalata on the four counts of Breach of Recognizance he currently faces is strong.
[19] I also have concerns in relation to the affidavit of the proposed surety Jerry Kalata. Jerry Kalata deposes that while he was surety for Pierre Kalata from May 2012 in relation to his “domestic allegations” in the amount of $27,000 “Pierre abided by all of his bail conditions without any issue”. Jerry Kalata does not advert to the fact that Pierre Kalata is currently facing four counts of breaching that recognizance.
[20] Similarly the proposed surety Adam Kalata who was a surety for Pierre Kalata at the same time in the amount of $7,000 deposes that “he followed all the conditions”. Adam Kalata does not advert to the fact that Pierre Kalata is currently facing four counts of breaching that recognizance.
[21] The proposed plan for release is not significantly different from that presented to the justice of the peace in August 2012. The proposal that Mr. Kalata’s activities could be monitored by way of an electronic bracelet continues to fail to address the concern that while the electronic bracelet can assist in monitoring where Mr. Kalata is it does nothing to monitor what he is doing. It does not effectively address the secondary grounds, particularly as here, the allegations are that Mr. Kalata was conducting his illegal activity under the noses of and apparently with the inadvertent assistance of his sureties – the same sureties who are proposed now. Unlike the learned justice of the peace, I have significant concerns about the judgment of the proposed sureties particularly where Mr. Kalata’s counsel concedes that the evidence in support of the alleged breaches is very strong.
[22] I have considered the submission that the case on the drug charges is not very strong. These are submissions. I cannot rely on counsel’s indications about what is or is not contained in disclosure. Taking into account the apparent weaknesses revealed in the transcript from Mr. Kalata’s bail hearing, I am nonetheless of the view that the evidence establishes that there is a substantial likelihood that Mr. Kalata will continue to committing offences in a manner that endangers the protection and safety of the public and that the proposed plan does not sufficiently reduce that risk. I am satisfied that detention is necessary for public safety.
MILLER, J.
Released: October 9, 2012
R. v. Kalata, 2012 ONSC 5679
COURT FILE NO.: 144/12
DATE: 20121009
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PIERRE KALATA
REASONS FOR JUDGMENT
MILLER, J.
Released: October 9, 2012