R. V. LAROCQUE, 2017 NWTSC 46	S-1-CR-2017-000053		
	IN	THE	SUPREME COURT OF THE NORTHWEST TERRITORIES		
								
	IN	THE	MATTER OF:				
				HER MAJESTY THE QUEEN				
								
				- V  -				

JASON JOHNNY LAROCQUE

_________________________________________________________

Transcript of the Decision on s. 525 Bail Review delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 9th day of June, 2017.

_________________________________________________________

APPEARANCES:

Mr. J. Potter:	Counsel for the Crown

Mr. C. Davison:	Counsel for the Accused

(Charges under s. 253(1)(a), 253(1)(b), 259(4), and

264.1(1)(a) of the Criminal Code)

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1	THE COURT:	Mr. Larocque faces charges of

2	impaired driving, driving with a concentration of

3	alcohol in his blood in excess of the legal

4	limit, driving while prohibited, and uttering

5	threats to Special Constable Steven Beck.  These

6	charges arise from events that are alleged to

7	have occurred on November 28th, 2015.

8	The allegations are that on that date, at

9	about 5 p.m., Special Constable Beck and another

10	officer were on patrol in Hay River, and they saw

11	the snowmobile at a four-way stop near a

12	high-rise building in that community.  The

13	snowmobile did not have lights on.

14	Special Constable Beck recognized the driver

15	as being Mr. Larocque.  He was slouched over the

16	steering column of the machine.  As a result of

17	their observations, the officers initiated a

18	traffic stop.  The emergency lights were turned

19	on the police vehicle, and it is alleged that at

20	that point, Mr. Larocque revved the snow machine

21	in what the officers believed was an attempt to

22	drive past the police vehicle.  Special Constable

23	Beck jumped out to block his way, and the other

24	officer opened the door of the vehicle to assist

25	in preventing Mr. Larocque from getting away.

26	The officers observed that Mr. Larocque had	
27	a strong smell of alcohol on his breath, that he	

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1	had poor balance when he got off the snowmobile,

2	and that his speech was slurred.  A breathalyzer

3	demand was made based on those observations.  In

4	response, Mr. Larocque swore at the officer.  It

5	is alleged that he made various utterances

6	including the fact that he was just working on

7	the machine, that he was not driving it.

8	He made a comment to Special Constable Beck

9	to the effect of asking him to just let him go;

10	and as he was being taken back to the detachment,

11	as the vehicle was pulling into the bay, it is

12	alleged that Mr. Larocque uttered threats to

13	Special Constable Beck saying, among other

14	things, "I'll give you a good fucking licking."

15	The breathalyzer testing was done, and the

16	readings were 220 and 240.

17	At this stage, of course, these are

18	allegations only.  The trial of this matter has

19	now been scheduled to proceed on November 1st and

20	2nd, 2017.

21	Mr. Larocque initially was released on these

22	charges, but in 2016 various other charges were

23	laid against him, and he was ordered detained

24	following a show cause hearing that was held in

25	December 2016.  He now applies for a review of

26	his detention based on a change in circumstances.

27	That change is that at the time of the first show

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1	cause hearing, he was facing a much larger number

2	of charges.  Today the Indictment that is set for

3	trial in November is all that remains pending

4	against him.

5	The Crown does not dispute that this is a

6	change in circumstances, but it points out that

7	it cuts both ways, because some of the charges

8	that were pending at the time of the show cause

9	hearing have now resulted in convictions.  More

10	specifically, a charge of driving while

11	disqualified that arose before the allegations

12	here and which was recently concluded in a

13	sentencing hearing last month.  There have also

14	been convictions on two breach charges for which

15	Mr. Larocque, as I understand, was sentenced to a

16	jail term that was considered served through his

17	period of remand.  Most of the remand time he has

18	accumulated until now has been taken into account

19	in other sentencings.

20	The fact remains, though, that ten of the

21	charges that he faced at the original show cause

22	hearing have been stayed or withdrawn by the

23	Crown.  These included several other alleged

24	breaches and an assault, among other things.  I

25	am satisfied on that basis that there has been a

26	change in circumstance that does open the door to

27	bail being reviewed at this stage.  The point

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1	made by the Crown about the initial convictions

2	is well taken, but to me, it is relevant to the

3	ultimate decision.  It does not change the fact

4	that there has been a change in circumstances.

5	It is, of course, of concern that

6	Mr. Larocque now has one more driving while

7	disqualified conviction, given the nature of the

8	allegations he faces in this case.  And it is

9	also a concern that all three of his new

10	convictions -- by "new" I mean the convictions

11	that have arisen since the show cause hearing --

12	are all for failures to comply with orders of the

13	Court.

14	Mr. Larocque's release plan is to go spend

15	the better part of the summer at a lodge that is

16	operated by his aunt, Kim Beck.  A letter from

17	Ms. Beck has been filed at the bail review

18	hearing, and it confirms that he could be

19	employed there as a fishing guide pretty much all

20	summer.  The plan, as I understand it, is that he

21	would travel there as soon as possible after his

22	release, and he would work there for the summer

23	until the lodge closes down.  He does not have to

24	operate motor boats as part of his work as a

25	fishing guide, there is no alcohol at the lodge,

26	and I was told it closes down usually sometime in

27	September.

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1	Mr. Larocque's father, James Larocque, is

2	being offered as a surety, and he is prepared to

3	supervise Mr. Larocque while he is in the

4	community of Fort Resolution.  James Larocque

5	testified at the hearing.  He said he was willing

6	to pledge an amount of $500 without deposit to

7	support the release of Mr. Larocque.

8	James Larocque was a surety on one of

9	Mr. Larocque's earlier recognizances, including

10	one that he was bound by when he failed to appear

11	before the court in the fall of 2016.

12	I understand from what I heard at the

13	hearing that Mr. Larocque had decided to go out

14	on the land a few weeks before his scheduled

15	court date and got stuck where he was due to bad

16	weather, which, of course, is not uncommon at

17	that time of year.  James Larocque, as I

18	understand, went to court on the day that

19	Mr. Larocque was supposed to be there to report

20	that Mr. Larocque was weather bound and could not

21	be there.

22	James Larocque candidly acknowledged that

23	after that, he did not take any further steps to

24	see that Mr. Larocque turned himself in after he

25	did return to the community.  James Larocque

26	explained that he thought that after the warrant

27	issued, his duties as a surety were concluded.

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1	He has also said that he understands more now

2	than he did last fall what his responsibilities

3	as a surety would be.  He has a full time job,

4	but he is prepared to check on Mr. Larocque

5	regularly while he is in the community.  He does

6	not allow alcohol in his home, and he has said

7	that he will report any breaches of the

8	conditions to police.

9	Mr. Larocque, the accused, has indicated

10	through his counsel that he would be prepared to

11	post up to $1,000 in cash bail to support his

12	release application.

13	Part of the submissions I heard earlier this

14	week were on the issue of who bears the onus on

15	this application.  My attention was drawn to

16	paragraph 50 of the very recent decision of the

17	Supreme Court of Canada in R v Antic, 2017 SCC

18	27.  Some of the comments at paragraph 50 of that

19	decision seem difficult to reconcile with the

20	wording of Paragraph 520(7)(e) of the Criminal

21	Code.

22	Section 520 deals with bail reviews

23	initiated by the accused.  The paragraph I have

24	referred to states that on the hearing of such an

25	application, if the accused shows cause, the

26	Court may allow the application.

27	Section 521 deals with review applications

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1	brought by the Crown.  Paragraph 521(8) of that

2	provision says that the Court can either dismiss

3	such an application or, if the prosecutor shows

4	cause, allow the application.

5	A plain reading of these provisions suggests

6	that the onus to show cause on a bail review is

7	on the party that brings the application.  And

8	looking at the French version, it is as

9	unambiguous as the English version seems to be.

10	In Antic at paragraph 50, the Supreme Court	
11	said: (As read)		
12	With these interpretative principles	
	in mind, I will now turn to the bail	
13	review decision at issue in this	
	appeal.  Mr. Antic's show cause	
14	hearing and bail reviews were		
	contested.  Mr. Antic bore the onus	
15	of establishing why the detention	
	order should be vacated.  However,	
16	once Mr. Antic had satisfied the bail	
	review judge that new circumstance	
17	justified his vacating the order, the	
	ladder principle ought to have guided	
18	the judge in fashioning a release	
	order.  Although Mr. Antic had been	
19	charged with drug trafficking, which	
	had reversed the onus at the initial	
20	bail hearing, he had pleaded guilty	
	to these charges by the time	of his	
21	second bail review hearing.	He was	
	therefore not in a reverse onus	
22	position at that time.		
23	I have to admit that at first blush I find	

24	it difficult to reconcile the last few sentences

25	of this paragraph with the seemingly clear

26	language of Sections 520 and 521 that I have just

27	referred to.  If Defense's interpretation is

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1	correct, the onus on a bail review would only be

2	on the accused if the charges that the accused

3	faces at the time of the review triggers a

4	reverse onus on bail in the first instance.  And

5	as I said, I find that a little bit difficult to

6	reconcile with the language of the bail review

7	provisions.

8	There may be an alternative interpretation

9	of what the Supreme Court was getting at in that

10	comment at paragraph 50.  The Court was talking

11	about change in circumstances, and perhaps what

12	the Court meant was that one of the changes in

13	circumstances was that the accused would no

14	longer be in a reverse onus situation if he was

15	applying for bail for the first time at that

16	point because the drug charges, which had

17	triggered the reverse onus were no longer

18	pending.

19	Another example could be, if an accused is

20	ordered detained at a show cause hearing because

21	he is alleged to have breached his process, which

22	creates a reverse onus situation, and those

23	breach charges are later withdrawn, and the

24	accused then applies for a bail review.  It would

25	be fair enough, I would think, to say on review,

26	"I was in a reverse onus situation at my original

27	bail hearing, but now I'm back to not facing

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1	those charges that reversed the onus, and this is

2	one thing that should be considered on my review

3	application."

4	I acknowledge that if that is what the

5	Supreme Court meant, it could have been expressed

6	more clearly.  But at the same time, it is

7	important to put the comments of the Court in

8	Antic in context.  That case was a constitutional

9	challenge about one of the bail provisions.  The

10	Supreme Court of Canada took this opportunity to

11	talk about how the various release options set

12	out in the Criminal Code should be approached and

13	on the importance of respecting the "ladder

14	principle" that underlines the bail scheme in

15	Canada.  The case was not focused on onus, it was

16	about the importance of respecting the ladder

17	principle in bail matters and the proper

18	interpretation of the provisions that set out the

19	various release schemes available under the law.

20	I have made all of these comments on this

21	issue because the matter was raised at the

22	hearing, but I must say that I do not find the

23	disposition of this application rises or falls on

24	who has the onus.  The bottom line is that the

25	accused's criminal record raises significant

26	concerns, and the issue is whether his release

27	plan is strong enough to address those concerns.

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1	That is often the case in bail matters, but it

2	certainly is in this one.  I would reach the same

3	conclusion on this matter irrespective on whether

4	I approached it as one where the accused has the

5	onus or if I approached it as one where the Crown

6	has the onus.

7	The Crown is opposed to Mr. Larocque's

8	release, raising the primary and secondary

9	grounds, but with more emphasis, I think it is

10	fair to say, on the secondary ground.  The

11	central concern here is whether the Court can

12	have confidence that Mr. Larocque would respect

13	conditions that the Court might impose on him.

14	He has a very bad track record of non-compliance

15	with court orders.  His record includes a

16	staggering number of convictions for breaches of

17	all sorts of court orders, undertakings,

18	probations orders, driving prohibitions.  Put

19	simply, the question is why should I believe him

20	now when he says he will obey release conditions

21	that I might impose on him.

22	As far as the primary ground is concerned,

23	the issue is whether he will come to court in

24	November to have his trial.  I am satisfied that

25	with tight enough conditions, and a condition

26	that he turn himself into custody well ahead of

27	his trial date, I can be satisfied that he will

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1	attend court and be tried on the merits of this

2	matter.  The record for his breaches to comply

3	with court orders is a concern on the primary

4	ground, but Mr. Larocque is from Fort Resolution.

5	He has family there.  He is from the Northwest

6	Territories, and I really do not think he

7	represents a flight risk in the classic sense of

8	the term.

9	The secondary ground has to do with public

10	safety.  Mr. Larocque has a terrible record of

11	drinking and driving and for driving when he is

12	not allowed to drive.  Drinking and driving

13	represents a significant risk of serious harm

14	being caused to others, and for that reason the

15	criminal record raises significant concerns,

16	which I think is plain to see.

17	Mr. Larocque's track record suggests that he

18	cannot be trusted, if he drinks, not to drive,

19	even when he is prohibited from driving by virtue

20	of a specific order.  At the same time, the

21	release plan that he has presented would have him

22	spend the majority of the months between now and

23	his trial in a place where there is no alcohol,

24	where he can work, where he can make money to

25	satisfy his child support obligations, and

26	basically lead a healthy lifestyle for a period

27	of time.  Inevitably, he will be in Fort

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1	Resolution once the lodge closes, and he will be

2	subject to the temptations that might exist in

3	that community to consume alcohol.

4	But hopefully if he has spent the better

5	part of the summer working at his aunt's lodge,

6	that will have given him a foundation to build

7	from and continue to abstain from consuming

8	alcohol and complying with his conditions.  From

9	his affidavit, I know that he will want to be

10	back in the community or wherever the graduation

11	of his son will take place.  That is an

12	understandable wish, and I can see why he would

13	not want to miss that event.  Of course, the

14	longer he is away from the lodge, the more risks

15	there will be.  So I have given this some thought

16	in that context as well.

17	On its face the Crown's case, on at least

18	some of these charges, appears quite strong.  And

19	as I said, there are public safety concerns

20	associated with the danger Mr. Larocque presents

21	and the risk he will choose to drink and choose

22	to drive.  His father has said he can keep the

23	keys of his vehicle away from him, but

24	realistically in a small community, that does not

25	mean that Mr. Larocque will not be able to get

26	his hands on a vehicle if he really wants to.  So

27	there is clearly a risk.  But balanced against

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1	these concerns, I must also remember the

2	fundamental principles that must be honoured any

3	time bail is discussed.  Mr. Larocque is presumed

4	innocent, and he has the right, a

5	constitutionally protected right, to reasonable

6	bail.  Pretrial detention should be the exception

7	and not the rule.  And the plan here involves

8	removing him for a big part of time between now

9	and the trial from an environment where alcohol

10	is available.

11	Because of the plan -- and I have to say

12	this is probably the only plan that would have

13	convinced me under the circumstances -- I am not

14	satisfied that it is necessary for Mr. Larocque

15	to remain detained, and so I will release him.

16	But given the significant concerns that I have

17	about public safety arising from his criminal

18	record, including his most recent convictions,

19	the terms of release are going to be very, very

20	strict.  Mr. Larocque, you will find those terms

21	cumbersome, and the police may find them a little

22	bit cumbersome, too, but I think there really

23	needs to be strict monitoring of Mr. Larocque,

24	particularly when he is not at the lodge.

25	I have decided that there should be a

26	requirement for cash bail.  I am acutely aware of

27	what the Supreme Court said in Antic about cash

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1	bail being the last resort, but I think the

2	criminal record here makes this case a case where

3	it is, in fact, necessary to resort to all the

4	tools that the law gives me in order to make this

5	recognizance as strong and give it as much

6	"teeth" as possible.

7	I have also decided that Mr. Larocque should

8	turn himself into the custody of the Hay River

9	RCMP detachment a longer time ahead of the trial

10	date than might otherwise be the case, for a few

11	reasons.  One, there is one recent conviction for

12	failure to appear, and combined with all the

13	other breaches of court orders, that does give me

14	concern.

15	Two, knowing that Mr. Larocque will

16	hopefully spend a lot of time at the lodge, and

17	although the lodge's season should be finished

18	well ahead of the trial date, the fact is that he

19	may have the opportunity to work there after it

20	closes down.  There could be repairs to do.

21	There could be all sorts of things that need to

22	be done there.  And even aside from that, he may

23	well want to go out on the land quite apart from

24	his work at the lodge.  I think that would be,

25	actually, a very positive thing for him to do,

26	far more than just staying in town where, as I

27	said, temptation will be closer.

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1	But the flip side of that is because of the

2	fall weather especially, that the authorities

3	could need more time to find him should he choose

4	not to return.  So in the interest of making sure

5	that this trial does proceed as scheduled, I am

6	going to require him to turn himself into custody

7	on a date sufficiently in advance of the trial

8	date to ensure that the authorities have a little

9	bit more lead time to try and find him if he does

10	not turn up when he is supposed to.

11	I am going to grant the application and

12	release Mr. Larocque on a recognizance with James

13	Larocque acting as a surety, and with a $500

14	non-deposit pledge by James Larocque.  I am going

15	to require a cash deposit of $750.  It is not

16	quite the 1,000 that you offered.  I do not want

17	to go overboard, but I do think it is necessary

18	that there is an additional incentive for you to

19	follow your conditions this time.

20	Now, listen carefully to the conditions.

21	Most of them were the ones in your affidavit, but

22	there are a few small differences, and you will

23	see that the idea is that when you are in Fort

24	Resolution, there will be very, very, close

25	monitoring of what you are doing.  The first

26	condition will be that you attend court as

27	required.  The second is that when you are in

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1	Fort Resolution, you reside at the home of

2	James Larocque, Lot SA173.  The third is that

3	when you are in Fort Resolution, you abide by a

4	curfew and be inside the residence of

5	James Larocque between 9 p.m. and 7 a.m.

6	The fourth is that when you are in Fort

7	Resolution, you come to the door of the residence

8	or answer the telephone when the police or a bail

9	supervisor comes over or calls to check on your

10	curfew compliance.  You will have to answer the

11	door to show you are there.  The fifth is that

12	while you are in Fort Resolution, you will report

13	in person to the RCMP detachment every Monday,

14	Wednesday, Friday, Saturday, and Sunday between

15	noon and 5 p.m.  That is, quite simply and

16	honestly, to make sure you are not drinking.

17	THE	ACCUSED:	Okay.	
18	THE	COURT:	Six, you are not to possess or	

19	consume alcohol, and you are not to attend any

20	premises where alcohol is sold.  Seven, as soon

21	as possible after your release, you will make

22	arrangements to go to Aurora Nights Lodge to

23	work, and once those arrangements are made, you

24	will advise the RCMP or your bail supervisor in

25	Fort Resolution of the date you are departing.  I

26	want them to know when you are gone, and I want

27	them to know if you come back.

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1	Which takes me to Condition Number 8.	Here

2	I am thinking of your son's graduation and any

3	other occasion why you might want to or need to

4	return to Fort Resolution.  Condition 8 will be

5	if you return to Fort Resolution from Aurora

6	Nights Lodge, you will report to the RCMP or the

7	bail supervisor in Fort Resolution within two

8	hours of having returned and advise of the date

9	that you expect to leave again.  Condition

10	Number 5, the reporting condition, will start

11	applying again until you leave to go back to the

12	lodge.

13	THE	ACCUSED:	Okay.	
14	THE	COURT:	And, finally, I am going to	

15	direct that you turn yourself into the custody of

16	the RCMP in Hay River no later than October 18 at

17	5 p.m.  That is a little bit past the middle of

18	October.  The lodge should be closed by then, and

19	it is a couple of weeks before trial.  It is

20	better than being in custody between now and the

21	trial.

22	THE ACCUSED:	When's the trial date again?	
23	THE COURT:	November 1st and 2nd.	
24	THE ACCUSED:	Okay.	
25	THE COURT:	So that way, if you are not	
26	there, they will have a little bit of time.	
27	THE ACCUSED:	Okay.	

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1	THE COURT:	Or if there is a problem with

2	the weather, it gives a better buffer.  It is

3	really important that your trial proceeds on its

4	merits as it is scheduled, because this is

5	already getting a little bit dated.

6	THE	ACCUSED:	Okay.	
7	THE	COURT:	I do not want this trial to	

8	fall apart for any reason, whether it is the

9	weather that surprises or you any other reason.

10	You understand all of these conditions?

11	THE ACCUSED:	Yeah, I do.	I'll just -- I'll

12	just get -- I don't know.  Like, I'll get them in

13	writing or something?

14	THE COURT:	Yes.	The clerk is going to

15	put all of this in writing, and you will have a

16	copy with you, and you will have it accessible

17	to --

18	THE ACCUSED:	I was wondering about that --

19	that money.  Like, do you send it -- where do you

20	send it?

21	THE COURT:	Mr. Davison will	be able to	
22	explain all that.			
23	THE ACCUSED:	Okay.		
24	THE COURT:	All right.  Have	I overlooked	
25	anything, Mr. Potter?		
26	MR. POTTER:	No, Your Honour.	I just ask	
27	that there be a Form 8 until the recognizance and	

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1	the pledge of money is met.  So --	
2	THE COURT:	Well, there is already a	
3	Form 8 in place, and until all this is met --	
4	MR. POTTER:	Very well.	
5	THE COURT:	-- the recognizance does not	

6	kick in.  So hopefully all this can be worked out

7	fairly quickly.  And I think you are better off

8	at the lodge fishing and helping other people

9	then sitting in jail or doing other things that

10	do not lead to anything good.

11	-----------------------------------------------------

12	CERTIFICATE OF TRANSCRIPT

13	I, the undersigned, hereby certify that the

14	foregoing pages are a complete and accurate

15	transcript of the proceedings taken down by me in

16	shorthand and transcribed from my shorthand notes

17	to the best of my skill and ability.

18	Dated at the City of Edmonton, Province of

19	Alberta, this 4th day of July, 2017.

20		
21		
22	__________________________	
23	Kaylene Davidsen, CSR(A)	
24	Court Reporter	
25		

26

27

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