CITATION: R. v. Pelletier, 2016 ONSC 1487

COURT FILE NO.: CR-14-0020-BR

DATE: 2016-03-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Kristen Mohr, for the Crown

Respondent

• and -

RORY PELLETIER

Philip Norton, for the Accused

Accused/Applicant

HEARD: January 20, 21, 22, 2016, at Thunder Bay, Ontario

Mr. Justice W.D. Newton

Reasons on Bail Review

[1] This is an application by the accused, Rory Jacob Pelletier, pursuant to s. 520 of the Criminal Code for review of the detention order made by Justice of the Peace R. E. Michels on July 10, 2013. That order was made under the "secondary ground", that is, that Mr. Pelletier's detention was necessary for the protection or safety of the public "having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offense or interfere with the administration of justice." (s. 515(10)(b) Criminal Code).

[2] Mr. Pelletier has been in custody since his arrest on June 12, 2013, 32 months ago.

[3] Mr. Pelletier argues that:

1. The proposed release plan adequately addresses the secondary ground;

2. His period of pretrial custody is equivalent or nearly equivalent to any sentence he may receive; and

3. There is some basis for the defences that he will be in advancing that detract from the apparent strength of the Crown's case.

[4] The crown argues that:

1. Based on past behavior, that it is likely that Mr. Pelletier will reoffend;

2. The Crown takes no position on the likely sentence to be imposed if Mr. Pelletier is convicted; and,

3. The defences to be advanced by Mr. Pelletier are without merit.

[5] In these circumstances, the onus is on Mr. Pelletier to satisfy me, on a balance of probabilities, that he should be released. I am satisfied that the lengthy period of pretrial custody is a material change in circumstance which allows me to review the detention order and that the "secondary ground" is adequately addressed by the proposed release plan.

[6] In arriving at this conclusion, I find that it is not necessary to consider the defences advanced other than to say that I cannot conclude, at this juncture, that the defences are without merit.

Rory Jacob Pelletier

[7] Mr. Pelletier is 45 and of Ojibway ancestry. Since approximately 2003 he has been self-employed as a contractor and subcontractor building houses. Prior to that he worked as a letter carrier with Canada Post for 15 years.

Mr. Pelletier's Criminal Record

[8] Mr. Pelletier has a criminal record. The record is not extensive although the convictions include three prior convictions for failing to comply with court orders. The record is as follows:

November 26, 2008 – fail to appear s. 145(5) – $100 fine

June 9, 2010 – possession of a schedule2 substance s. 4(1) – $1700 fine

November 22, 2011 – possession of a schedule2 substance s. 4(1) – $75 fine

– fail to comply with recognizance s. 145(3) – $75 fine

June 11, 2012 – fail to comply with recognizance s. 145(3 – 12 days and 18 days presentence custody

[9] At the bail hearing the Crown relied on other charges of failing to comply with undertakings relating to offences on September 16, October 1, and November 27, 2012. The Crown acknowledges that those charges were withdrawn on April 24, 2013, about two and one half months prior to the bail hearing. On September 16, 2012, and October 1, 2012, Mr. Pelletier was observed at a place other than his residence or worksite contrary to the conditions of his release. On November 27, 2012, Mr. Pelletier was observed in a mall in the presence of his girlfriend without his girlfriend’s father, his surety, present contrary to the conditions of his release. His surety was also in the mall but not immediately in Mr. Pelletier's presence. Counsel for Mr. Pelletier acknowledges that these were breaches but characterized these breaches as less serious breaches on the continuum.

The Present Charges

Indictment number CR-13-0050-00

[10] Mr. Pelletier is jointly charged with John Harry Tsekouras on the following counts:

Count 2

And further that JOHN HARRY TSEKOURAS and RORY JACOB PELLETIER between the 3^rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of Thunder Bay in the Region and elsewhere in Canada, unlawfully did conspire together with a person or person unknown, or unnamed to commit an indictable offence, to wit, trafficking in Cannabis (marihuana), thereby committing an offence, contrary to Section 465(1)(c)of the Criminal Code.

Count 3

And further that JOHN HARRY TSEKOURAS and RORY PELLETIER between the 1^st day of September in the year 2010 and the 10^th day of September in the year 2010 at the City of Thunder Bay in the said Region, unlawfully did conspire together with Kosmas DRITSAS and George DRITSAS, to commit an indictable offence, to wit, trafficking in Cannabis (marihuana), there by committing an offence, contrary to Section 465(1)(c) of the Criminal Code.

Count 7

And further that RORY JACOB PELLETIER between the 3^rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of Thunder Bay in the said Region, did participate in, or contribute to the activities of a criminal organization to wit: TSEKOURAS et al, for the purpose of enhancing the ability of the said organization to commit the indictable offence of trafficking in a controlled substance, contrary to the Controlled Drugs and Substance Act, contrary to Section 467.11(1) of the Criminal Code.

Count 8

And further that RORY JACOB PELLETIER between the 1^st day of September in the year 2010 and the 10^th day of September in the year 2010 at the City of Thunder Bay in the said Region, did traffic in a substance included in Schedule II of the Controlled Drugs and Substance Act, to wit: Cannabis (marihuana), contrary to Section 5(1) of the Controlled Drugs and Substance Act, thereby committing an indictable offence under Section 5(3)(a).

Count 9

And further that RORY JACOB PELLETIER on or about the 12^th day of June in the year 2013 at the City of Thunder Bay in the said Region, did being at large on his recognizance entered into before Justice of Judge and being bound to comply with a condition of the recognizance to: you shall not possess or attempt to acquire the benefit of any papers, cellular phones, Blackberry, other portable communication devices, public telephone or internet access, without lawful excuse failed to comply with that condition by having Blackberry devices, contrary to Section 145(3) of the Criminal Code.

Count 10

And further that RORY JACOB PELLETIER between the 3^rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of Thunder Bay in the said Region, did commit the indictable offence of traffic in a substance included in Schedule II of the Controlled Drugs and Substance Act, to wit: Cannabis (marihuana), contrary to Section 5(1) of the said Act, for the benefit of a criminal organization to wit: TSEKOURAS et al, contrary to Section 467.12(1) of the Criminal Code.

Indictment number CR-14-0020-00

[11] Mr. Pelletier is jointly charged with Roberto Dennis Chiodo, Monica Pihlaja-Chiodo, and Travis Gordon on the following counts:

Count 1

Between the 1^st day of January, 2010 and the 16^th day of June, 2011, at the City of Thunder Bay, in the said Region, Rory PELLETIER did participate in, or contribute to the activities of a criminal organization, to wit: TSEKOURAS et al., for the purpose of enhancing the ability of the said organization to the Controlled Drugs and Substances Act, thereby committing an offence contrary to Section 467.11(1) of the Criminal Code. (P12025298)

Count 2

Between the 1^st day of January, 2010 and the 16^th day of June, 2011, at the City of Thunder Bay, I the Region, Rory PELLETIER, did participate in, or contribute to the activities of a criminal organization, to wit: TSEKOURAS et al., for the purpose of enhancing the ability of the said organization to commit the indictable offence of trafficking in a controlled substance contrary to the Controlled Drugs and Substances Act, thereby committing an offence contrary to Section 467.11(1) of the Criminal Code. (P12025298)

Count 3

On or about the 11^th day of April, 2012, at the City of Thunder Bay, in the said Region, Rory PELLETIER did have in his possession a prohibited weapon, to wit: a butterfly knife, without being the holder of a licence under which he may possess it contrary to Section 91(2) of the Criminal Code. (P12025298)

Count 4

On or about the 11^th day of April, 2012, at the City of Thunder Bay, in the said Region, Rory PELLETIER, unlawfully did possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: cannabis (marihuana), contrary to Section 4(1) of the said Act, there by committing a summary conviction offence under Section 4(5) of the said Act. (P12025298)

Count 5

Between the 12^th day of June, 2011 and the 16^th day of June, 2011, at the City of Thunder Bay, in the said Region, Rory PELLETIER unlawfully did conspire together with person or persons unknown or unnamed to commit an indictable offence, to wit: possession of cannabis (resin) for the purpose of trafficking, thereby committing an offence contrary to Section 465(1)(c) of the Criminal Code. (P12025298)

Count 6

Between the 12^th day of June, 2011 and the 16^th day of June, 2011, at the City of Thunder Bay, in the said Region, Rory PELLETIER unlawfully did conspire together with person or persons unknown or unnamed to commit an indictable offence, to wit: possession of cannabis (resin) for the purpose of trafficking, thereby committing an offence contrary to Section 465(1)(c) of the Criminal Code. (P12025298)

Information 153695

[12] In this information that was brought forward in December, 2015 the following offenses are alleged:

(1) that between the 3^rd day of November in the year 20008 and the 11thd ay of April in the year 2012 at the City of THUNDER BAY in the said Region, elsewhere in Canada and the United States of America did conspire together to commit the indictable offence to wit: possession of cannabis resin for the purpose of trafficking contrary to Section 465(1)(c) of the Criminal Code

and further

(2) that between the 3^rd day of November in the year 2008 and 11^th day of April in the year 2012 at the City of THUNDER BAY in the said Region, elsewhere in Canada and the United States of America did conspire together to commit the indictable offence to wit: importing of cannabis resin contrary to Section 465(1)(c) of the Criminal Code

and further

(3) that between the 3^rd day of November in the year 2008 and the 11day of April in the year 2012 at the City of THUNDER BAY in the said Region, elsewhere in Canada and the United States of America did conspire together to commit the indictable offence to wit; trafficking of cannabis resin contrary to Section 465(1)(c) of the Criminal Code

and further

(4) that between 3^rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of THUNDER BAY in the said Region, elsewhere in Canada and the United States of America did commit the indictable offence of Conspiracy to Import a Controlled Substance for the benefit of or at the direction of or in association with a criminal organization to wit Tsekouras et al, contrary to Section 467.12(1) of the Criminal Code

and further

(5) that between the 3rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of THUNDER BAY in the said Region, elsewhere in Canada and the United State of America, unlawfully did, for the purposes of trafficking, possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: more than 3 kg of cannabis resin, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the Controlled Drugs and Substance Act

and further

(6) that between the 3^rd day of November in the year 2008 and the 11th day of April in the year 2012 at the City of THUNDER BAY in the Region, elsewhere in Canada and the United States of America unlawfully did import a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: cannabis resin, contrary to Section 6(1) of the said Act, thereby committing an indictable offence under Section 6(3)(a) of the Controlled Drugs and Substances Act

and further

(7) that between the 3^rd day of November in the year 2008 and the 11^th day of April in the year 2012 at the City of THUNDER BAY in the Region, elsewhere in Canada and the United States of America unlawfully did traffic in a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: more than 3 kg. of cannabis resin, contrary to Section 5(1) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the Controlled Drugs and Substances Act

Bail Hearing July 10, 2013

[13] When Mr. Pelletier was arrested he was in possession of a cell phone contrary to the terms of his recognizance of bail dated December 28, 2012. The position put forward by the Crown on the bail hearing was that the possession of the cell phone "differentiated" Mr. Pelletier from his co-accused and that is why the Crown sought the detention of Mr. Pelletier and not Mr. Tsekouras.

[14] In ordering that Mr. Pelletier be detained, Justice of the Peace Michels indicated that Mr. Pelletier's prior record was not a "driving factor" in his decision. In referring to the breaches of recognizance the Justice of the Peace stated:

"I cannot, despite the best of intentions of the surety might have, feel confident in his credibility as a surety because here we are three times* around and about to look at a fourth time around on recognizance. Can I put any trust in the credibility of Mr. Pelletier?… So based on that, the lack of reliability on both Mr. Pelletier and the propose surety and history involved I hereby deny bail."[^1]

[15] I should also add that on the charges outlined in the information which was created after this bail review was scheduled, Mr. Pelletier appeared before a Justice of the Peace on December 18, 2015 and consented to his detention on those charges so that a "global" bail review could be conducted in this court.

Proposed Release Plan

[16] The proposed surety, Timothy Ward, is 48 and is also of Ojibway ancestry. He has served his community of Fort William First Nation as a Band Councilor for 20 years. For 16 years, he was the Band’s representative on the police board. Although unemployed at present he works seasonally as a security guard for Fort William First Nation.

[17] He and his wife own their home and he also owns other equipment. He is willing to post bail of $50,000 and to pledge his equipment and home as security for bail without deposit.

[18] He testified that he has acted as a surety six times previously and that, in the past, he has had no hesitation in reporting breaches of anyone for whom he is acting as a surety. The Crown candidly admitted that the Crown had no dispute with Mr. Ward as surety and Crown counsel acknowledged that Mr. Ward was "forthright". The Crown did raise an issue with firearms in Mr. Ward’s possession.

[19] The proposed release plan includes the following conditions:

i. Keep peace and be of good behavior,

ii. Abstain from communicating, directly or indirectly, with co-accused on either Indictment or information (or other person the Court deems appropriate) except through or in the presence of Counsel,

iii. To reside with his surety and be in the residence of his surety at all times except for medical emergencies or while in his surety`s presence,

iv. Report as required to the Thunder Bay police,

v. Not to possess or consume any Scheduled drugs or illegal substances,

vi. Not to possess or use a cellular phone;

vii. Not to possess any weapons as defined by Criminal Code.

Pretrial Custody

[20] As noted, Mr. Pelletier has been in custody for 32 months.

[21] With respect to Indictment CR-13-0050-00, 13 weeks of pretrial motions are scheduled between May 25, 2016, and December 16, 2016. The trial on this indictment has been scheduled to commence February 6, 2017, and last four months.

[22] With respect to Indictment CR-14-0020-00, pretrial motions are scheduled for the weeks of April 25, 2016, May 24, 2016, and June 13, 2016, and the trial is scheduled to commence September 6, 2016, for three weeks and then November 14, 2016, for one week.

[23] With respect to the new information Mr. Pelletier has the right to a preliminary inquiry which has not yet been scheduled.

[24] Assuming credit for pretrial custody at 1.5 to 1, 32 months pretrial custody is equivalent to a sentence of four years. Counsel also raised the possibility that credit at the rate of 2 to1 may be available subject to the determination of the dates of prior offences.

[25] Mr. Pelletier has been detained throughout at the Thunder Bay District Jail. I take judicial notice of the fact that this is an aging, overcrowded facility and that credit at 1.5 to 1 is commonly given for credit for pretrial custody at this facility based on qualitative factors.

[26] Counsel for Mr. Pelletier submitted that, before considering any Gladue factors, the likely range of sentence would be four to four and one half years. Counsel for the Crown declined to provide a range of likely sentence.

Strength of the Crown Case

[27] Considerable time was spent at this hearing on argument on the merits of Mr. Pelletier's pretrial motions. As indicated at the outset, these factors are not determinative of my decision to release Mr. Pelletier. For completeness however, I set out these three arguments briefly.

Res Judicata or Abuse of Process

[28] On June 21, 2011, Mr. Pelletier was acquitted of possession of cannabis marijuana in an amount greater than 2 kg by Justice Baig of the Ontario Court of Justice. Mr. Pelletier alleges that some of the charges relate to the same circumstances for which the acquittal was given. See count number 3 and 8 on indictment CR-13-0050-00.

Sections 489.1, 490 Seizures and Report Re-Property Seized

[29] The defence will also argue that the police failed to follow the procedures set out in sections 489.1 and 490 of the Criminal Code regarding the cell phone seized from Mr. Pelletier. Following R. v. Garcia-Machado, 2015 ONCA 569, Mr. Pelletier argues that this constitutes a breach of s. 8 of the Charter. The question remains whether the evidence should be excluded pursuant to s. 24 (2).

Improper Seizure of Cell Phone March 17, 2010, – S. 8, 9, 10 (A), 10 (B) Breaches

[30] The defence also argues that certain cell phones seized during what started as a “ride program” were improperly seized when that stop evolved into a criminal investigation. Mr. Pelletier argues that the search was unreasonable, that he was unlawfully detained and that his s. 10 (a) and 10 (b) rights were violated.

[31] Whether these arguments will succeed will be determined at the pretrial motions scheduled before Pierce J. At this juncture, I cannot say that these defences are void of merit and, as indicated, it is not necessary for me to determine this for the purposes of this bail hearing.

Discussion

[32] There is helpful instruction from the Supreme Court of Canada regarding review of detention orders in the decision of R. v. St-Cloud, 2015 SCC 27.

[33] The basic principle is this:

[27] Since the enactment of the Canadian Charter of Rights and Freedoms (“the Charter”) in 1982, any person charged with an offence has the right “not to be denied reasonable bail without just cause”: s. 11(e). This Court has stated that s. 11(e) creates “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 691. Section 11(e) has two distinct components: (1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause”.

[70] Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.

[34] Under s. 520 or s. 521 of the Criminal Code, a reviewing judge, does not have "an open-ended power to review the initial order respecting the detention or release of the accused." Rather, the reviewing judge must decide "whether it is appropriate to exercise this power of review." ( St-Cloud at para. 120)

[35] "A reviewing judge can intervene where relevant new evidence is tendered, where an error of law has been made or, finally, where the decision was clearly inappropriate." (St-Cloud at para. 139)

[36] Where new evidence is submitted, the reviewing judge "may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case." (St-Cloud at para. 121)

[37] What is admissible as new evidence is evidence "that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable." (St-Cloud at para. 132).

[38] Length of pretrial custody can constitute a material change in circumstances. In R v. Whyte, 2014 ONCA 268 at paragraph 43 the court quoted Hill J. in R. v. White, 2010 ONSC 3164 at para. 10:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pretrial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.

[39] I conclude that the length of the pretrial custody is a material change in circumstance that justifies review of the detention order. While Mr. Pelletier record includes convictions for breach of court orders, he has now spent 32 months in custody. I conclude that this experience, coupled with the proposed release plan which includes a very "forthright" surety, is sufficient to reduce the likelihood that Mr. Pelletier will reoffend if released.

[40] The proposed release plan is strict and requires that Mr. Pelletier be supervised by his surety at all times.

Disposition

[41] For reasons given, I order that Mr. Pelletier be released from custody upon entering into a recognizance of bail with Timothy Ward as his surety in the amount of $50,000 without deposit on the conditions that he:

1. Keep the peace and be of good behavior.

2. Reside with Timothy Ward (DOB May 17, 1967) at 103 Back Street Road, Fort William First Nation, Ontario P7J 1K5 and be amenable to the rules and discipline of that residence.

3. Provide Detective Constable Robert Kushnier of the Thunder Bay Police, or his designate, with a copy of his monthly telephone statement within seven days of receipt of same by delivering a copy to the Thunder Bay Police Service, 1200 Balmoral St., Thunder Bay, ON, or by sending a copy via facsimile at (807) 623-6208.

4. Report in person to the Thunder Bay Police Station located at 1200 Balmoral St., Thunder Bay, ON every Monday and Friday between 8:00 a.m. and 8:00 p.m. commencing on the first Monday following his release from custody with one piece of personal identification which includes a photo.

5. Be inside his place of residence at all times, and not away from his residence, unless in the presence of his surety.

6. Remain within a 80 km radius of the City of Thunder Bay, ON.

7. Deposit with Detective Constable Robert Kushnier, or his designate, his passport, Nexus Card and/or Certificate of Canadian Citizenship within 1 week of his release from custody and he is not to apply for a replacement of the same. If he does not have a passport or Nexus Card or Certificate of Canadian Citizenship, he shall not apply or attempt to obtain one.

8. Shall abstain from the consumption, possession, production, or trafficking of any substances listed in the Schedules to the Controlled Drugs and Substances Act, illicit drugs, non-medically prescribed drugs or any substances banned under the Controlled Drugs and Substances Act. He is also not to be found or associate with anyone known by him to possess, produce, traffic in, import or export such substances.

9. Shall not possess any drug trafficking paraphernalia or equipment including, but not limited to; weighing devices, buffing agents, packaging materials, or to be found in any place where the same are present.

10. Shall not possess or attempt to possess or acquire the benefit of any pagers, cellular phone, Blackberry, other portable communication devices, public telephones or internet access.

11. Shall not associate or communicate:

a) Directly or indirectly with the following people: Travis Gordon, Robert Chiodo, Monica Pihlaja-Chiodo, Frank Muzzi, John Tsekouras, Keith Richie, and Rose Muzzi, except in the present of counsel for the purpose of preparing a defence.

b) With Lonny Poulin.

12. With the exception of his surety, he shall not associate or communicate directly or indirectly with anyone whom he knows to have a record of one or more criminal or CDSA charges, the onus being upon him to inquire.

13. Pursuant to subsection 515(4.1) of the Criminal Code, he shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. He is to surrender any such items currently in his possession to Detective Constable Robert Kushnier, or his designate, within 24 hours of your release.

14. Shall surrender any Possession or Possession and Acquisition licence for firearms (PAL/POL) or other firearms certificate/registration to Detective Constable Robert Kushnier, or his designate, within 24 hours of his release.

15. Shall present himself at the door of his residence within 5 minutes of a request made by the police at any time when he is required to be at his residence and to ensure that the police have access to the door of his residence to enable such bail compliance check to be conducted.

16. Upon release, carry a copy of your release document on his person at all times and show the document to police upon demand.

17. That the surety, Timothy Ward, remove any firearms from his residence prior to Mr. Pelletier residing with him.

[42] Counsel may arrange an appointment before me with the trial coordinator to present submissions on any additional conditions that I may have overlooked and to ensure that the conditions are practical in the circumstances.

“Original signed by”____

The Hon. Mr. Justice W.D. Newton

Released: March 1, 2016

CITATION: R. v. Pelletier, 2016 ONSC 1487

COURT FILE NO.: CR-14-0020-BR

DATE: 2016-03-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

RORY PELLETIER

Accused/Applicant

REASONS FOR JUDGMENT

Newton J.

Released: March 1, 2016

/cs

[^1]: *The Justice of the Peace does not appear to been aware of the fact that the three charges for breach of recognizance referenced in the reasons had been withdrawn.