ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1329/14
DATE: 20140925
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT NORMAN PAMMETT
L. Wannamaker, for the Crown
David McFadden, for the accused
HEARD: September 25, 2014
Bale J.
REASONS FOR DECISION
[1] Robert Pammett is charged with perjury. The allegation is that he committed perjury, when examined as a Crown witness during the trial of Pierre Aragon, by lying about whether he knew the nickname “Carlito” to be associated with Mr. Aragon.
[2] Mr. Pammett’s bail hearing, on the day following his arrest, commenced at approximately 4:00 p.m. He was represented by counsel and, pursuant to an agreement negotiated between the Crown and defence counsel, he was released on a recognizance in the amount of $5,000, with one surety, on the following additional terms (reproduced here exactly as set out in the recognizance):
Reside with surety
NOTIFY THE PETERBOROUGH LAKEFIELD COMMUNITY POLICE SERVICES, IN WRITING, WITHIN 24 HOURS OF ANY CHANGE OF ADDRESS
ABSTAIN FROM COMMUNICATING WITH MOTORCYCLE OUTLAW MEMBERS AND ALL THOSE KNOWN TO HIM TO HAVE A CRIMINAL RECORD, EXCEPT FOR IMMEDIATE FAMILY MEMBERS
REMAIN AWAY FROM 285 PERRY STREET, PETERBOROUGH, ONTARIO
[3] On this bail review application, Mr. Pammett asks that the release order be varied and that the third and fourth additional terms be deleted. His position is that these terms are arbitrary, unconstitutional or unrelated to the perjury charge.
[4] The first issue to be dealt with is the basis upon which the existing order is to be reviewed. In Chapter 8 of his book, The Law of Bail in Canada, Trotter J. notes that sections 520 and 521 of the Criminal Code are vague about the standard of review, and he discusses what he refers to as the three paradigms of review: an appeal on the record, a de novo hearing and the hybrid model. The hybrid model, which he identifies as the most popular model, combines the features of an appeal on the record, and a de novo hearing. Under this model, the applicant must present new evidence referred to as a “material change in circumstances” or demonstrate and error of law in the proceedings below.
[5] Trotter J. then goes on to argue that sections 520 and 521 of the code should be approached from a functional perspective, identifying the appropriate goals of the review process. Of the factors to be considered, he identifies, as most important, the constitutional framework in which the law operates.
[6] An accused’s Charter right not to be denied reasonable bail, without just cause, continues until the charges before the court have been finally dealt with. As in this case, bail hearings are often an informal and hasty process. For these reasons, Trotter J. argues that even in the absence of a change in circumstances, the initial determination ought to be susceptible to review by a higher court, and that the standard of review should be correctness.
[7] In my view, the functional approach advocated by Trotter J. should be applied in this case. The accused’s right to reasonable bail continues, and the fact that the release terms were arrived at in discussion between the Crown and defence counsel cannot disentitle the accused to a review of the initial order on the basis of correctness.
[8] The facts upon which the Crown relies in support of the perjury charge against Mr. Pammet are that in his evidence at the Aragon trial, he disavowed any knowledge of the nickname “Carlito” in reference to the accused, Pierre Aragon, but later in his evidence, referred to Mr. Aragon as “Carlito”.
[9] On this bail review, the Crown argues that the existing bail terms are necessary in order to protect the integrity of Mr. Pammett’s trial. In particular, the Crown wants to deter any associates of the accused who might be tempted to commit perjury at his trial. She points out that the accused has acknowledged, under oath, that the rules that he follows, as a member of a motorcycle club, have the potential to come into conflict with the obligations of a witness giving evidence in court.
[10] In my view, the bail terms impugned by the defence are unlikely to have the desired practical effect; and are, in any event, far too broad in relation to the stated purpose.
[11] There is a dispute as to the scope of the third term. Mr. Pammett says that he understood it to mean that he could not associate with any members of the Outlaw Motorcycle Club. He was, but is no longer, a member of that club. As I understand it, the Crown’s position is that the term applies to any members of a motorcycle club whose members could be described as “outlaws”.
[12] In my view, taking the Crown’s interpretation of the term, it is too broad to serve the intended purpose. Mr. Pammett carries on a construction business, and sells custom motorcycles and motorcycle parts at flea markets and motorcycle meets. The current release terms prohibit him from hiring, or subcontracting to, or selling to, any “motorcycle outlaw members”, whether or not they have any previous connection to the accused, or any knowledge of the matter with which Mr. Pammett is charged. During argument, the Crown refused to consider any attempt to name particular individuals or to otherwise narrow the class of persons included in the prohibition, whether by reference to the other witnesses who gave evidence during the Aragon trial or otherwise. The scope of the current prohibition is all the more objectionable given that the facts upon which the Crown relies in support of the perjury charge are apparent on the record of the Aragon trial.
[13] With respect to the fourth term, the address at which Mr. Pammett is prohibited from attending is the address of a rooming house owned by his common law wife, and which is used as a clubhouse by the Vagos Motorcycle Club, of which Mr. Pammett is the president. While this term does not suffer from the same “overly broad” criticism as the third term, it is difficult to see the utility of the term, without naming any particular persons, and there is no evidence to support it. While the Crown points out that the assault in respect of which Mr. Aragon stood trial took place across the road from the clubhouse, any connection between the house and the perjury charge is unknown and, at best, remote.
[14] In the result, I conclude that the third and fourth terms of the recognizance violate Mr. Pammet’s right to reasonable bail. The existing order will therefore be varied to provide that Mr. Pammet be released on a recognizance, in the amount of $5,000, with one surety, Nancy Foote, that he will live with his surety, and that he will notify the Peterborough Lakefield Community Police Services, in writing, within 24 hours of any change of address.
“Bale J.”
Released: September 25, 2014
COURT FILE NO. 1329/14
DATE: 20140925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT NORMAN PAMMETT
REASONS FOR DECISION
Bale J.
Released: September 25, 2014