CITATION: R. v. Lazore, 2015 ONSC 950
COURT FILE NO.: 14-97
DATE: 2015/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT JON LAZORE a.k.a. BOBBY JON LAZORE
Accused
Gilese Turner, counsel for the Crown
Alain Leclerc, counsel for the Accused
HEARD: February 9, 2015
reasons for judgment
LAFRANCE-CARDINAL, j.
[1] Robert Jon Lazore applies for judicial interim release pursuant to section 18 of the Extradition Act while he awaits an extradition hearing. Mr. Lazore was arrested in October 24th, 2014 based on a warrant for arrest issued under section 16(3) of the Extradition Act. He has been detained since October 24th, 2014.
[2] The burden of proof is on Mr. Lazore to show on a balance of probabilities that continued detention is not justified. Paragraph 515(6)(d) of the Criminal Code provides that an accused charged with having committed an offence punishable by imprisonment for life under section 5(1) of the Controlled Drugs and Substances Act (C.D.S.A.) or with conspiracy to commit those offences under section 465 of the Criminal Code shall be detained in custody until trial unless he shows why detention is not justified. Me Leclerc confirms that it is a reverse onus situation.
[3] The United States seeks Mr. Lazore’s extradition to face prosecution for his role as one of the principal suppliers of Oxycodone and other narcotics on the Saint Regis Mohawk Reservation and elsewhere.
[4] The Canadian offences that correspond to the criminal conduct alleged by the United States against Mr. Lazore are conspiracy to traffic in a Scheduled I controlled substance contrary to section 465(1) of the Criminal Code and section 5(1) of the Controlled Drugs and Substances Act. Both provide for a maximum penalty of life imprisonment.
[5] Section 19 of the Extradition Act provides that part XVI of the Criminal Code in respect of judicial interim release applies to extradition hearings, with modifications to bail that the extradition circumstances may require. The Supreme Court of Canada, in R. v. Pearson, (1992) 1992 52 (SCC), 3 S.C.R. 665 approved the reverse onus inherent in paragraph 515(6)(d) of the Criminal Code on the basis that “it is necessary to promote the proper functioning of the bail system” (p. 693) for specific offences for which the normal bail system would allow continuing criminal behaviour and an intolerable risk of absconding. The Court distinguished trafficking from most other crimes on the basis that:
i) Trafficking in narcotics occurs systematically, often within a highly sophisticated and lucrative commercial setting, so there is significant incentive to carry on with the criminal operation after arrest and release on bail;
ii) The risk of absconding is highly elevated. These accused persons have access to funds and contacts to assist in flight from justice;
iii) The scope of the special rules are tailored to apply differential treatment based on the seriousness of the offence; and
iv) The onus only requires the accused to provide information he is most capable of providing.
[6] The context as set out by the Supreme Court of Canada in Pearson is even more worrisome when we are dealing with the Extradition Act. One of the considerations is that we must ensure adherence to Canada’s International Obligations. Consequently, the risk of non-appearance will be assessed more cautiously than would be the case for a domestic proceeding. One most also note that a finding of guilt for these offences in the United States could result in imprisonment for a period of up to 20 years. The United States Attorney for the United States Department of Justice indicates that if found guilty that the sentencing guidelines would warrant a period of incarceration of between 210 to 240 months of imprisonment.
THE EVIDENCE
[7] If the record of the case (ROC) is accurate, Mr. Lazore does not fall within the scope of the small or casual domestic drug dealer who would normally have no difficulty justifying release. The ROC depicts that Mr. Lazore from 2008 to November 2012 was one of the principal suppliers of oxycodone and other narcotics on the Akwesasne reserve. He would have employed at least eight couriers and runners to coordinate the distribution of the drugs to his various customers on both the American and the Canadian side of the St. Lawrence River.
[8] The Record of the Case comprises disclosures from four cooperating witnesses who report that they dealt directly with Mr. Lazore in the pursuit of this drug business. They give particulars of various transactions. All four cooperating witnesses (CW) speak of Mr. Lazore selling Oxycontin from his home in Snye, Quebec. That he would store the Oxycontin in a red trailer in front of his home and/or at his mother’s residence - Two of the cooperating witnesses speak of free Oxycontin, CW1 was given 4 free Oxycontin for every 25 sold. CW3 speaks of having free Oxycontin for a period in 2012 before he started selling for Mr. Lazore - Two of the CW speak of purchasing Oxycontin from Mr. Lazore’s daughter and/or son from Mr. Lazore’s home in Snye, Quebec - CW2 speaks of exchanging hundreds of thousands of money for Mr. Lazore from American currency to Canadian currency. CW2 was also selling 2000 pills – 80 mg of Oxycontin per week. CW4 indicates that they were getting anywhere from $90 to $140 for an 80 mg Oxycontin pill. CW1 indicates that from 2011 on he was selling 100 to 200 pills per day. Both CW1 and CW3 started dealing with Mr. Lazore as simple users addicted to the pills. CW1 speaks of purchasing 3 to 10 pills per day @ the outset of the relationship with Mr. Lazore; - CW3 speaks of 6-7 pills per day before they both were promoted to sellers of the drugs. If proven, Mr. Lazore was a large scale commercial dealer of Oxycontin.
Criminal Code PROVISIONS
[9] Under section 515(10) of the Criminal Code pre-hearing detention is justifiable on one or more of the following grounds:
“(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) 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; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case;
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”
[10] The onus is on Mr. Lazore to prove that his plan is one that addresses each and every grounds of pre-hearing detention and satisfies the Court that his detention is not justified and that the conditions of his release can be crafted in such a way to alleviate the Court’s concerns.
MR. LAZORE’S PLAN
[11] Mr. Lazore is proposing to reside with a good friend, Allison Dennison, at her home on Ellen Avenue in Cornwall. Ms. Dennison is on a disability pension and she resides with her son, Brandon Dennison, with Mr. Lazore’s daughter, Megan Angus (who is pregnant with Brandon Dennison’s baby) and where Mr. Lazore resided up until his incarceration. She is presently a surety for Mr. Lazore on the outstanding charges he has in Ontario. Although she is his surety since August 21st, 2014 she was not able to recollect all of the conditions he was released on but she knew the most important ones. Of concern is the fact that she still has weapons locked under key in her home even though she knows Mr. Lazore has outstanding charges in Quebec for unauthorized possession of a firearm, careless use of a firearm, possession of a firearm while prohibited by law, and assault with a weapon. Most importantly 3 release conditions for which she is a surety states:
• Do not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person;
• If you now possess any weapon(s) as defined in the Criminal Code you must deposit them, along with every authorization, licence and registration certificate relating to any of these items, to the police at Cornwall Community Police Service within 48 hours of your release from custody;
• Do not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code.
[12] It would have been prudent for Ms. Dennison to bring the weapons to the police station or store them in another safe location not in the premises of 220 Ellen Avenue. She now states, that if necessary, she would be prepared to do so now. Ms. Allison is prepared to post $5,000 in cash, she has borrowed this money from family and friends.
[13] Mr. Brandon Dennison, age 21, is also being proposed as a surety. He too is a surety for Mr. Lazore on the outstanding charges he faces in Ontario. I find him to be an unsuitable surety. He was not able to recall one condition on the release document he signed for Mr. Lazore in August of 2014. He was not sure if Mr. Lazore had a curfew, he certainly did not realize the importance of his role as a surety, that being Mr. Lazore’s jailor.
[14] Part of Mr. Lazore’s plan is to continue residing with his daughter, Megan Angus, the same daughter who allegedly was selling Oxycontin from her dad’s home as described by CW3 and CW4.
[15] The question becomes has Mr. Lazore satisfied the Court that he can be released pending the hearing of the Extradition Hearing?
[16] Has Mr. Lazore met his onus?
a) Application of the primary ground
The Supreme Court of Canada in Pearson recognized that drug traffickers have access to a large quantity of money and contacts with organizations who can facilitate flight from justice. Mr. Lazore presents a significant risk that he will abscond rather than face extradition. He is facing a possible sentence of 210 to 240 months of imprisonment if found guilty in the U.S.A.
The amount of money he is alleged to have received and the fact that he faces a substantial prison sentence gives him the money and the motive to flee.
Mr. Lazore is a gentleman who has 4 convictions of failing to attend Court or failing to appear in 1996 & 2007. Me Leclerc indicates that he was an addict then and such a heavy user that he could not keep commitments including a commitment to appear in Court. Mr. Lazore himself testified that about 4 years ago he was highly addicted to Oxycontin, ingesting 20 pills per day, a mixture of 80 mg and 40 mg. This would have been around the alleged period he is accused of trafficking Oxycontin from his home, being 2006 to 2012. Howver, it would not explain the fail to attend Court in 1996 and 1997.
b) Application of the secondary ground
The Court in Pearson recognizes that the business of drug trafficking is a sophisticated commercial enterprise with lucrative returns. It is a way of life. There are huge incentives to continuing the criminal behaviour after someone’s release or at least continue the criminal activity to tie loose ends, collect debts, collect money from transactions not quite completed before the arrest.
A concern is that Mr. Lazore will continue to reside with his daughter who allegedly sold the drugs for him. It is not difficult to surmise that she would have the connection and the knowledge to continue acting as Mr. Lazore’s agent. She could, on his behalf, continue the criminal activity or tie the loose ends connected to this criminal activity.
The best predictor of future behaviour is to look at the past. Mr. Lazore, as evidenced by his criminal record, has shown a disregard for sanctions imposed by the Court. He has four convictions for failing to attend court. He has 11 outstanding charges in Quebec stemming from incidents in 2010, 2011 and 2012. These outstanding charges are for production of an illegal substance, possession for the purpose of trafficking, 3 weapon charges, failing to comply and assault with a weapon.
Mr. Lazore also has outstanding charges in Ontario dated August 18th, 2014 which include possession of property obtained by crime, 4 charges of failing to comply with a recognizance and 4 charges of possession of a Schedule 1 substance contrary to the CDSA.
Mr. Lazore is a flight risk. He is on methadone. He has a much clearer head now that he has had for the last 8 to 9 years. He realizes the gravity of the offences he is facing and the odds of him spending many years in an American jail. Mr. Brandon Dennison is not a suitable surety. Ms. Dennison is well intentioned. She is a good friend, her and Mr. Lazore will be sharing a grandchild soon but she cannot control him. She was extremely surprised to learn that the mother of her unborn grandchild was allegedly selling Oxycontin out of Mr. Lazore’s home. Ms. Dennison has more than she can handle now with the situation as it presents today. She cannot reassure the Court that she can be his jailor.
[17] Mr. Lazore has not met his onus.
[18] Mr. Lazore cannot be released on either the primary or the secondary grounds. Consequently, it is not necessary to analyze whether he should also be detained under the tertiary grounds.
Madam Justice Lafrance-Cardinal
Released: February 12th, 2015
CITATION: R. v. Lazore, 2015 ONSC 950
COURT FILE NO.: 14-97
DATE: 2015/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT JON LAZORE a.k.a. BOBBY JON LAZORE
REASONS FOR JUDGMENT
Madam Justice Lafrance-Cardinal
Released: February 12th, 2015