ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-99
DATE: 2013-01-03
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Williams, for the Crown, Respondent
- and -
Philip Biczok
Ryan Amy, for the Defendant, Applicant
Accused
HEARD: December 31, 2012
at Kenora,, Ontario
Mr. Justice J.S. Fregeau
Reasons on Application for Detention Order Review
Introduction
[1] This is an application by the accused, Philip Biczok, pursuant to s. 520 of the Criminal Code of Canada for a review of a detention order made by Justice of the Peace R. McCraw on May 9, 2012.
[2] Due to the nature of the charges which the accused is facing, the onus was on him at the original bail hearing to show cause why his detention in custody was not justified on any of the three grounds set out in s. 515 (10) of the Criminal Code. The Justice of the Peace held that the accused had failed to show cause that his detention was not justified on both the primary ground, to ensure his attendance in court, and on the secondary ground, that detention is necessary for the protection or safety of the public.
[3] Mr. Amy, on behalf of the accused, submits that there is additional evidence in the record before this court as to the accused’s background circumstances that was not before Justice of the Peace on the initial bail hearing and that is germane to the primary ground of detention. Mr. Amy also suggests that the bail plan placed before this court by the accused on this application is materially different from that placed before the Ontario Court of Justice on May 9, 2012. The Crown has not strenuously disputed these submissions. As a result, I find that I have jurisdiction pursuant to s. 520 of the Criminal Code to conduct this review of the detention order of May 9, 2012 and to exercise my discretion based on the complete record before me today.
Background
[4] The accused was born in Kenora, Ontario on September 18, 1974 and is 38 years old. The accused has lived in Dryden, Ontario on and off for the last 25 years. Apparently, when he is residing in Dryden, he resides with his mother Rose Biczok, who has also resided in Dryden on a long term basis, owns a home there and is employed on a full time basis as a custodian at a local school.
[5] For the last three years, and at the time of his arrest in Kenora, Ontario, the accused was residing in Fort St. John, British Columbia with his common law spouse and infant daughter. There is no evidence as to the accused being employed while living in Fort St. John and in fact virtually no evidence about the employment history of the accused.
[6] The criminal record of the accused is as follows:
1992-08-07
Kenora, Ont
Driving while ability impaired Sec 253(A) CC
$500 plus probation 1 yr & proh dri 1 yr
1994-05-16
Kenora, Ont
Poss of Narcotic Sec 3(1) NC Act
$100 I-D 10 days
2003-07-14
Dryden, Ont
1)Fail to Comply with undertaking Sec 145(3) CC
2)Fail to Attend Court Sec 145(2)(B) CC
Susp sent & probation 18 mos on each chg conc
2004-11-10
Winnipeg, Man
- Theft under $5000 Sec 334(B) CC
- Poss of Credit Card Sec 342(1) (C) (I) CC
- Fail to Comply with undertaking Sec 145(3) CC
1 – 3 90 days on each chg conc
2008-05-27
Winnipeg, Man
Robbery Sec 344(B) CC
1 day (with credit for the equivalent of 2 yrs pre-sentence custody) & mandatory prohibition order Sec 109 CC
2009-01-12
Utter Threats Sec 264.1 CC
9 month suspended sentence and 3 year weapon prohibition
[7] In addition, exhibit 2 filed on this application is a copy of an arrest warrant currently outstanding for the accused for the offence of Break and Enter contrary to s. 348(1)(b) of the Criminal Code. This warrant allegedly issued as a result of the accused being implicated in a break in to a pharmacy in Fort St. John during which a large quantity of prescription drugs was stolen. The radius of this warrant is British Columbia.
[8] The accused, together with a co-accused, was arrested in Kenora, Ontario on March 22, 2012 and charged with the following offences:
did possess a loaded restricted firearm contrary to Section 95(a) of the Criminal Code of Canada.
did possess a firearm, to wit a Glock Model 22 .40 calibre knowing that he was not the holder of a licence under which he may possess it, contrary to Section 92(a) of the Criminal Code of Canada
did store a restricted firearm to wit a Glock handgun that was not unloaded thereby contravening Section 6(a) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations contrary to section 86(2) of the Criminal Code.
that Phillip Ashley Biczok on or about the 22nd day of March in the year 2012 at the City of Kenora in the said Region, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to a conviction of robbery with theft contrary to Section 117.01(1) of the Criminal Code of Canada.
[9] On this date, police, together with an EMS crew, attended a local motel in response to a 911 call. The accused had called 911 after entering the motel room in the morning and seeing the co-accused unconscious and non-responsive. The EMS crew transported the co-accused to the hospital and the police conducted a preliminary interview of the accused. The accused advised officers that he and the co-accused were travelling from British Columbia in a truck rented for the accused by his mother.
[10] In plain sight of the officers in the motel room were prescription drugs and drug paraphernalia. A cursory search of the room by one of the officers revealed a loaded .40 calibre handgun sticking out from between the mattress and the box spring of one of the two beds in the room. At this point the accused was arrested and charged with the offences noted above. It is alleged that further investigation has linked drugs found in this hotel room with those stolen from the pharmacy in Fort St. John.
[11] The accused has elected trial before a Superior Court judge without a jury. The preliminary inquiry has begun but requires a further day to complete. The continuation of the preliminary inquiry is scheduled for January 31, 2013. It is estimated that the trial will take four to five days, should committal occur. It is submitted that Charter arguments pertaining to the search will be made and that the issue of possession of the loaded handgun will be highly contested.
Position of the Applicant
[12] The accused submits that his detention is not justified on any of the three grounds set out in s. 515 (10) of the Criminal Code and that he should be released on a recognizance. The terms proposed are as follows:
That the accused reside at 164 Casimir Avenue, Dryden, Ontario with his mother Rose Biczok and not move from this residence without prior approval of this court;
That the accused post a cash deposit of $3,000.00;
That Rose Biczok sign as a surety for the accused in the amount of $20,000.00 without deposit;
That the accused be subject to a curfew and consent to curfew checks by local police in Dryden;
That the accused report to police in Dryden as required;
That the accused have no contact with any witnesses;
That the accused abstain from the possession or consumption of alcohol or non-prescription drugs.
[13] The accused has filed a letter from the Crisis Response Services in Dryden. This is submitted to be a non-residential substance abuse recovery and counselling service. The letter indicates that the accused has been accepted for admission to the Addiction Recovery Group at the Integrated Community Stabilization Unit. This is said to be an eight week program. Given Mr. Biczok’s current circumstances, no start date for this program has yet been established.
[14] The affidavit of the accused, filed in support of the application, suggests that the accused has possible future employment with his brother Adrian, who is apparently “planning to start an auto detailing shop in Dryden”. This was not expanded upon in submissions. The accused also proposes to renew his Class 1 driver’s license in the hopes of improving his employability.
[15] Rose Biczok, mother of the accused and his proposed surety, testified at the hearing of this application. Ms. Biczok is employed as a custodian at a local school and works from 3:00 PM to 11:00 PM Monday to Friday. This would require her to be out of her home from 2:45 PM to 11:45 PM Monday to Friday. Ms. Biczok owns her home which she estimates has a market value of approximately $150,000.00 and is subject to a first mortgage with a current balance of approximately $105,000.00.
[16] Ms. Biczok testified that her son Adrian, approximately 37 years of age, resides with her in her home. The court was told that Adrian has recently been released from custody after completing a lengthy period of incarceration for drug and weapons convictions. Adrian is not employed and is in receipt of some form of disability income as a result of a motorcycle accident.
[17] Ms. Biczok was unaware of her son Philip’s convictions for Fail to Comply with Undertaking and Fail to Attend court in 2003, despite the fact that he would have been living with her at the time. She was also unaware of her son’s 2004 conviction for Fail to Comply with Undertaking in Winnipeg, Manitoba.
[18] Mr. Amy, on behalf of the accused, submits that the accused, who admittedly has a long standing substance abuse issue, has been clean and sober for almost a year while in custody. It is submitted that the accused has a treatment program in place, accessible on an out- patient basis while residing with his mother in Dryden. It is further submitted that he can be trusted to abide by strict conditions, reinforced by the supervision of his surety, his mother Rose Boczok. The imposition of a curfew is suggested to allow police to curfew check him on a regular basis.
[19] The defence submits that the Crown’s case is not overly strong, the salient issue for this accused being whether the Crown can establish the necessary elements of possession of the loaded restricted handgun as against him beyond a reasonable doubt.
[20] In all of the circumstances, the accused submits that he has shown cause that his detention is not justified on either the primary, secondary or tertiary grounds and that he should be released.
Position of the Crown
[21] The Crown submits that the accused has failed to show cause why his detention in custody is not justified. The Crown submits that the continued detention of the accused is justified on each of the primary, secondary and tertiary grounds.
[22] As to the primary ground, the Crown submits that the accused has a lengthy and serious criminal record, including convictions in 2003 for Fail to Comply with Undertaking and Failing to Attend Court, and in 2004 for Fail to Comply with Undertaking. When the accused was arrested in Kenora on March 22, 2012, he was subject to two separate weapons prohibitions, resulting from a 2008 Robbery conviction and a 2009 conviction for Uttering threats. The firearm which is the subject matter of the four charges the accused is now facing was a .40 calibre handgun, found loaded and dangerously hidden between a mattress and box spring in a local hotel room. This handgun has now been linked to a Fort St. John crime scene. The accused is now the subject of an arrest warrant for a Break and Enter into a pharmacy in Fort St. John and drugs seized from the accused’s hotel room in Kenora are also linked to that Break and Enter.
[23] Considering all of these circumstances, the Crown suggests that the accused, if convicted, will be subject to very serious penal consequences. While his mother resides in Dryden, it is submitted that the accused has no ties of any significance with Dryden. The Crown suggests that there are legitimate concerns that the accused may simply abscond if released.
[24] The Crown further submits that detention is necessary for the protection or safety of the public because, having regard to all the circumstances, there is in fact a substantial likelihood that the accused will reoffend if released from custody.
[25] The Crown submits that the accused has a long standing substance abuse issue. Further, and significant for the purposes of this application, the Crown asks the court to draw the inference that the criminal record of the accused is directly linked to his drug addiction and an uncontrolled need to commit crimes to fuel his addiction. In support of this submission, the Crown points to the Fort St. John pharmacy Break and Enter in which it is alleged the accused stole a large quantity of prescription drugs. At the time of his Kenora arrest, the accused was in the company of a known drug dealer and was allegedly in possession of the spoils of the Fort St. John Break and Enter and a loaded restricted weapon while prohibited from possessing any weapon.
[26] The Crown submits that the accused has been shown to be an individual without any regard for the law and that such an individual cannot be trusted to abide by even the strictest conditions. There is suggested to be a substantial likelihood of the accused reoffending if released.
[27] The Crown submits that detention is also justified on the tertiary ground in order to maintain public confidence in the administration of justice. The Crown submits that the facts before the court fall squarely within the factors a court must considering in addressing the tertiary ground, namely the gravity of the offences, the circumstances surrounding the commission of the offence, including whether a firearm was used and the potential penal consequences to the accused.
[28] In support of this latter submission, the Crown again points to the criminal record of the accused, including the Fail to Comply convictions and the Fail to Attend court conviction. The accused is presently the subject of an arrest warrant for the Fort St. John Break and Enter and was travelling cross country with a known drug dealer, with one or both in possession of a restricted loaded .40 calibre handgun. It is further noted that drugs, a balaclava and numerous cell phones were found in the motel room occupied by the accused and co-accused. All of these circumstances suggest to the Crown that detention is required to maintain confidence in the administration of justice.
Discussion
[29] As noted by counsel for the accused, Mr. Biczok is presumed innocent of all charges until his guilt has been proved by the Crown beyond a reasonable doubt. The issue before me today is whether the accused has shown cause why his continued detention is not justified on any of the three grounds set out in s. 515(10) of the Criminal Code, given that the Crown is seeking continued detention on all three grounds. As Mr. Amy has framed the issue, can the accused be trusted to abide by a set of strict release conditions, reinforced by potential monetary penalties if he does not and with the additional security of supervision by his proposed surety.
[30] I have come to the conclusion that the accused has not shown cause that his continued detention is not justified. I find that the continued detention of the accused is in fact justified on each of the primary, secondary and tertiary grounds and my reasons for this decision follow.
[31] Section 515(10)(a) of the Criminal Code provides that the detention of an accused in custody is justified if the detention is necessary to ensure his attendance in court. The accused has proposed being released to reside with his mother in Dryden, with his mother acting as his surety to monitor his compliance with conditions and to help ensure his attendance in court.
[32] The accused has not resided with his mother or in north western Ontario for three years. He has no ties to Dryden, such as employment or physical assets, other than his mother and two brothers. The court is advised that he has a common law spouse and child in B.C. who will travel to Ontario to reside with him if released. There is no evidence that he has any significant ties to his former place of residence in Fort St. John, B.C.
[33] The criminal record of the accused includes a prior conviction for Failing to Attend court in 2003 and two prior convictions for Failing to Comply with Undertaking, in 2003 and 2004. It concerns me that his mother, a proposed surety, had no knowledge of these convictions. As noted by the Crown, the accused is subject to very serious penal consequences, if convicted of one or more of the offences he is now facing. In addition, the accused is now the subject of an arrest warrant issued in B.C. for an alleged Break and Enter in Fort St. John.
[34] In all these circumstances, I find that there is a legitimate concern that the accused is a flight risk and that his detention in justified to ensure his future court appearances.
[35] The secondary ground for detention involves an analysis as to whether detention is necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that the accused will reoffend if released.
[36] It is established that the accused has a long standing substance abuse issue. I accept the submission of the Crown that the accused’s addiction has been a primary cause of his criminal record. The accused has now been linked to a serious Break and Enter to a pharmacy in B.C., and there is evidence before the court that, when arrested in Kenora on March 22, 2012, he and his co-accused were on a cross country trip disposing of the stolen drugs. While the accused has provided evidence that he has been accepted into an eight week non-residential substance abuse clinic in Dryden, I am not persuaded this represents a serious commitment on the part of the accused to deal with his issues.
[37] I am not persuaded that the additional level of supervision purportedly to be provided by the surety, even with a $20,000.00 cash deposit by the surety, alleviates what I find to be a substantial likelihood that the accused will reoffend if released. Rose Biczok is the mother of the accused and the proposed surety. She was deceived and manipulated, either directly or indirectly, by the accused, into renting a vehicle for him. This was the vehicle used by the accused and co-accused to transport drugs and a loaded restricted weapon across the country. The surety is employed and out of the home from 2:45 PM to 11:15 PM Monday to Friday such that she is simply not, despite her best intentions, able to supervise her son. In addition, when the accused completes his non-residential treatment program, or if he is expelled from same, he has no employment and no realistic employment prospects. While he is residing in his mother’s home, he will be residing with his brother Adrian. Adrian, 37 years of age, is also not employed, has a recent record for drug and weapons offences and was released from prison within the last year.
[38] The accused’s addiction, his criminal record which includes two prior Fail to Comply convictions, the fact that he was allegedly in possession of a loaded restricted firearm while subject to two separate weapon prohibitions, together with a problematic residential environment at his mother’s home in Dryden, lead me to the conclusion that detention is also justified on the secondary ground.
[39] The tertiary ground involves a determination as to whether detention is necessary to maintain confidence in the administration of justice, having regard to all circumstances, including the strength of the Crown’s case, the seriousness of the charges, the circumstances surrounding the commission of the offences, including whether a firearm was used and the potential penal consequences to the accused.
[40] In considering the effect of release on public confidence in the administration of justice, it must be borne in mind that the public confidence perspective refers to a reasonable, informed and dispassionate public.
[41] There are obviously triable issues to be resolved in the Crown’s case against the accused. A court is not to attempt to resolve those issues at this stage of the proceedings. This is but one factor to consider among all the circumstances.
[42] The accused is facing very serious charges which will, in all likelihood, result in a significant period of incarceration for the accused if he is convicted. The circumstances surrounding the alleged commission of the offences are egregious. The accused is alleged to have been in possession of a loaded .40 calibre handgun, a restricted weapon, while subject to two separate weapons prohibitions.
[43] Considering all of the circumstances of this case, detention is justified in order to maintain public confidence in the administration of justice.
[44] The application of the accused is dismissed. The accused is ordered detained in custody.
The Hon. Mr. Justice J.S. Fregeau
Released: January 3, 2013
COURT FILE NO.: CR-12-099
DATE: 2013-01-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Philip Biczok
REASONS ON APPLICATION FOR DETENTION ORDER REVIEW
Fregeau J.
Released: January 3, 2013
/sf