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             R. v. Moore, 2012 NWTSC 14



                                                S-1-CR2010000218

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



             IN THE MATTER OF:





                             HER MAJESTY THE QUEEN





                                  - vs. -





                             RORY QUENTIN MOORE



             _________________________________________________________

             Transcript of the Decision of The Honourable Justice J.E.

             Richard, at Yellowknife in the Northwest Territories, on

             May 19th A.D., 2011.

             _________________________________________________________

             APPEARANCES:



             Ms. D. Vaillancourt:               Counsel for the Crown

             Mr. J. Chadi:                      Counsel for the Accused
             (appearing via teleconference)

              -------------------------------------------------

             Charges under s. 5(2) Controlled Drugs and Substances Act



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         1     THE COURT:            This accused, Rory Quentin

         2         Moore, faces serious charges of possession of

         3         cocaine for the purpose of trafficking and

         4         possession of marijuana for purposes of

         5         trafficking.  He is presumed innocent of these

         6         charges and he is a person with no criminal

         7         record.  He has been detained in custody since

         8         the date of his arrest in June, 2010, so

         9         approximately 11 months.

        10             He elected trial by Judge and jury in this

        11         Court.  A preliminary inquiry was held in

        12         November, 2010, following which he was

        13         committed to stand trial in this court.  No

        14         trial date has yet been set due to the fact

        15         that the accused has requested a pre-trial

        16         hearing of a Charter application he wishes to

        17         put forward before his trial date is set.  At

        18         his request, three days of court time have

        19         been set aside in August to hear his Charter

        20         application, yet he has not filed his Charter

        21         application as directed by the Court.

        22             Today he makes application for interim

        23         judicial release pending the trial of the

        24         charges against him.  On such an application,

        25         the Rules of Court require him to file an

        26         affidavit containing certain information

        27         specified in the Rules of Court.  He did





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         1         initially attempt to file an affidavit but it

         2         was rejected by the clerk as being defective

         3         in form.  Even in its unfiled form, that

         4         affidavit did not contain all of the

         5         information specified by the rules.  For

         6         example, that affidavit did not state his

         7         place of residence in the three years

         8         preceding the date of the offence charged, nor

         9         details of his employment in the three years

        10         preceding the date of the offence charged.

        11             Today he files a fresh affidavit in which

        12         he provides some of the missing information.

        13         In the new affidavit, he states that during

        14         most of his time in Yellowknife prior to his

        15         arrest in June 2010, he resided at a specific

        16         address here.  He also states, in the new

        17         affidavit, that during 2009 and 2010 here in

        18         Yellowknife, he worked for Paul McWhirter, his

        19         proposed surety, but does not provide further

        20         details of that employment.

        21             Upon cross-examination on his new

        22         affidavit by the prosecutor this morning, he

        23         says it was mainly construction work and only

        24         on weekends.

        25             The rules also require that where

        26         practical, the accused person is to provide an

        27         affidavit of the proposed surety disclosing





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         1         that person's willingness to serve as a surety

         2         and the amount for which that person is to be

         3         held liable.  No affidavit of surety

         4         accompanied the application for judicial

         5         release.

         6             That particular deficiency has now been

         7         corrected.  Mr. McWhirter has signed a form

         8         confirming his willingness to be a surety and

         9         his understanding of the role of a surety.  In

        10         addition, Mr. McWhirter was cross-examined by

        11         the prosecutor this morning on his association

        12         with this accused and on his offers of

        13         employment and of a residence for this accused

        14         in the event that the accused obtains

        15         pre-trial release.

        16             Although the accused is represented by

        17         capable counsel on this bail application, I am

        18         told that as at this date the accused does not

        19         have legal representation for the trial of

        20         these charges.  It is, therefore, uncertain

        21         whether the pre-trial hearing scheduled for

        22         August 29th, 2011 is proceeding and, if so,

        23         for what purpose.

        24             This is an unsatisfactory situation.  The

        25         accused ought to be using his energy and his

        26         resources in preparing for his trial on these

        27         serious charges.  There is no indication on





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         1         this hearing that the accused is doing so.  In

         2         my respectful view, the public may not have

         3         confidence in the judicial system if the Court

         4         were to grant pre-trial release to a person

         5         facing serious charges where that person, on

         6         the face of it, appears to be avoiding his

         7         trial.

         8             On the evidence before the Court on this

         9         hearing, this accused does not appear to have

        10         ties to this jurisdiction or to this

        11         community.  When he and the other accused were

        12         arrested by the police, they were en route

        13         from British Columbia to Yellowknife by road

        14         and the police found the drugs hidden in the

        15         vehicle in which the two accused were driving

        16         towards Yellowknife.

        17             The accused says he has an unnamed

        18         girlfriend who lives in Yellowknife but no

        19         name or other details are provided.

        20             In his post-release plan, he proposes that

        21         he will live in a residence at 31 Larocque

        22         Crescent here in Yellowknife with his

        23         acquaintance Paul McWhirter, his proposed

        24         surety.  The evidence indicates that he has

        25         known Mr. McWhirter for five years.

        26             In my respectful view, the accused's ties

        27         to this jurisdiction are tenuous, at best, and





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         1         there exists a real concern that this accused

         2         is a flight risk given the serious charges he

         3         is facing, given the finding of the

         4         preliminary inquiry Judge that there is a

         5         strong prima facie case against him, and given

         6         the likely sentence he would receive if he

         7         were convicted.

         8             At the two show cause hearings in

         9         Territorial Court in July 2010 and November

        10         2010, the accused failed to show cause why his

        11         detention in custody pre-trial was not

        12         justified.  The show cause Judge in each case

        13         ordered the accused detained in custody on the

        14         primary grounds and on the tertiary grounds

        15         set out in section 515(10) of the Criminal

        16         Code.

        17             On today's application, the prosecution

        18         submits that this Court ought to also order

        19         the accused's continued detention on the

        20         primary and tertiary grounds.

        21             Dealing firstly with the primary grounds,

        22         I repeat that in all of the circumstances of

        23         this case, this accused is a flight risk.

        24         However, I am satisfied that the Court can

        25         attach appropriate conditions to his release

        26         pending trial that will alleviate that risk.

        27             If I were dealing with the primary grounds





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         1         only, I would consider ordering his release

         2         upon his entering into a recognizance in the

         3         amount of $30,000 with $15,000 cash deposit

         4         and a further $15,000 without cash deposit in

         5         the name of the surety Paul McWhirter and with

         6         regular reporting conditions to the RCMP in

         7         Yellowknife, and other appropriate conditions

         8         as to residence, curfew, et cetera.

         9             With regard to the tertiary grounds, the

        10         Criminal Code states that the detention of an

        11         accused in custody, pending trial, is

        12         justified on the tertiary grounds if it is

        13         necessary to maintain confidence in the

        14         administration of justice having regard to all

        15         of the circumstances, including:

        16             1.  The apparent strength of the

        17         prosecution's case;

        18             2.  The gravity of the offence;

        19             3.  The circumstances surrounding the

        20         commission of the offence;

        21             4.  The fact that the accused is liable on

        22         conviction for a potentially lengthy term of

        23         imprisonment.

        24             Here, on the basis of the summary provided

        25         to me of the Crown allegations, the summary

        26         provided to me of the evidence given at the

        27         preliminary inquiry, and the characterization





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         1         by the preliminary inquiry Judge of a strong

         2         prima facie case against the accused, I am

         3         satisfied that the Crown has a strong case.

         4             That the charges against the accused are

         5         grave or serious almost goes without saying.

         6             The illegal trafficking in drugs in recent

         7         years in this jurisdiction, in particular

         8         cocaine, has been like a scourge on northern

         9         society and the Courts have seen many cases,

        10         including many cases where the drugs are

        11         brought from British Columbia into the north

        12         for distribution and sale.  As the Courts of

        13         this jurisdiction have said over and over, the

        14         illegal drug trade has wreaked havoc on the

        15         social fabric of our community year after

        16         year.  And it is for this reason, among

        17         others, that the Courts of this jurisdiction

        18         have taken the position that, absent special

        19         circumstances, a conviction for such serious

        20         charges will invariably result in a

        21         substantial term of imprisonment.

        22             The circumstances surrounding the alleged

        23         commission of the offences are fairly

        24         straightforward.

        25             It is alleged that this accused and

        26         another accused stored or hid the cocaine and

        27         marijuana in the interior of a black Ford





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         1         truck which they then drove from British

         2         Columbia to Yellowknife where the drugs were

         3         to be delivered and then distributed and

         4         retailed in this community.  The police had

         5         confidential information about this

         6         transportation and delivery of drugs and they

         7         intercepted the truck on the highway outside

         8         of Yellowknife, arrested the two accused and

         9         seized the truck and the drugs.

        10             As I stated earlier, there is yet no trial

        11         date set and that is due to the actions or

        12         inactions of the accused rather than the

        13         actions or inactions of the prosecution or of

        14         the Court.  In my view, this is a

        15         "circumstance" which I ought to take into

        16         account under the tertiary grounds.

        17             This accused is not represented by trial

        18         counsel on this application and the accused

        19         has not addressed on this application his

        20         failure to follow the Court's direction

        21         regarding the filing of his Charter

        22         application so that his application can be

        23         heard and his trial scheduled.

        24             On the facts before me on this

        25         application, I find that this accused has been

        26         given every opportunity to put in his full

        27         answer and defence to these serious charges.





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         1         He has failed to do so and is avoiding trial.

         2         I find that this accused is placing obstacles

         3         in the path of setting a trial date.  I find

         4         that to authorize the release of this accused

         5         until his trial, in these circumstances, could

         6         serve to erode the public's confidence in our

         7         justice system.

         8             Having said all of that, however, although

         9         it may be advisable for the Court to detain

        10         him to maintain confidence in our judicial

        11         system, I am unable to say that it is

        12         necessary to detain him in order to maintain

        13         confidence in the justice system but, rather,

        14         the Court can address any of this accused's

        15         shortcomings in moving his case towards trial

        16         and the public's confidence in the justice

        17         system by separate court directions and/or

        18         court orders which will require the accused to

        19         meet certain deadlines and other requirements

        20         in preparation for trial.  So for these

        21         reasons, I am unable to find that his

        22         continued detention is necessary on the

        23         tertiary grounds.

        24             Accordingly, I order that this accused be

        25         released pending trial upon entering into a

        26         recognizance in the amount of $30,000

        27         comprising of $15,000 cash deposit and a





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         1         further $15,000 without cash deposit secured

         2         by the surety, Paul McWhirter.

         3             The conditions of the recognizance will be

         4         as follows:

         5             The accused is to appear before this Court

         6         on May 30th at 10 a.m.

         7     MR. CHADI:            Your Honour, I apologize,

         8         but I have to interrupt.  I am sorry, sir, you

         9         are coming in and out and I am just about

        10         catching every second word now.  Sorry to

        11         interrupt you, Your Honour.

        12     THE COURT:            I will start again with just

        13         the order that I am making.  I apologize to

        14         those in the room for the level of my voice

        15         but this is for Mr. Chadi.

        16             I order that this accused be released upon

        17         entering into a recognizance in the amount of

        18         $30,000, comprised of $15,000 cash deposit and

        19         a further $15,000 without cash deposit secured

        20         by the surety Paul McWhirter.

        21             The conditions of the recognizance are as

        22         follows:

        23             The accused is to appear before this Court

        24         on May 30th at 10 a.m. and thereafter as

        25         required by the Court.  That should read is to

        26         appear in person.

        27             Secondly, the accused is to report in





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         1         person to the RCMP detachment in Yellowknife

         2         on Monday, Wednesday, and Friday of each week

         3         between the hours of 7 a.m. and 7 p.m.

         4             Next, the accused is to remain within the

         5         city of Yellowknife.

         6             Next, the accused is to maintain a

         7         residence at 31 Larocque Crescent in

         8         Yellowknife and to remain in that residence

         9         between the hours of 8 p.m. and 7 a.m. each

        10         day.

        11             Finally, the accused is to abstain from

        12         communicating directly or indirectly with

        13         Robert Livingstone.

        14             Now, that is the gist of the order that

        15         the Court is making.  But before I finalize

        16         it, do either counsel have any other

        17         submissions with respect to the conditions of

        18         the recognizance?

        19     MS. VAILLANCOURT:     Your Honour, and this was

        20         Mr. Chadi's suggestion and I would agree,

        21         given the nature of the charges that there be

        22         a weapons prohibition.  This was in the

        23         affidavit of the accused.

        24     THE COURT:            Well I didn't see that there

        25         was any weapons involved in the circumstances

        26         but let me just try and check that affidavit.

        27             I see that as being put forward as a





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         1         condition, Mr. Chadi.  Before I leave the

         2         Crown, anything further from the Crown?

         3     MS. VAILLANCOURT:     No, Your Honour, I think the

         4         conditions that you have put forward are

         5         satisfactory.

         6     THE COURT:            Mr. Chadi, any submissions

         7         on the conditions?

         8     MR. CHADI:            I think I got most of your

         9         conditions.  I thought I had written them

        10         down.  Are they the ones listed in the

        11         affidavit, Your Honour.

        12     THE COURT:            No, those are my own.

        13     MR. CHADI:            Okay, I leave it in your

        14         hands.  Any conditions that this Honourable

        15         Court deems fit, this accused will abide by.

        16     THE COURT:            Fine, then when counsel are

        17         preparing the recognizance, you can check with

        18         the court reporter as to the conditions the

        19         Court just listed.

        20             I am now going to add to that the accused

        21         is to abstain from possession of any firearms.

        22     Mr. CHADI:            Yes, sir.

        23     THE COURT:            Now, before we close court,

        24         and apart from the bail order, Mr. Moore, the

        25         accused, is to attend in this court on May

        26         30th at 10 a.m. in person, with or without

        27         counsel, and whether or not you are still in





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         1         custody.  At that time you are to provide to

         2         the Court an update:

         3             1.  On your efforts to retain counsel;

         4             2.  On your readiness for the court

         5         application scheduled for August 29th.

         6             So if there is nothing else, Mr. Clerk.

         7     COURT CLERK:          Your Honour, shall that

         8         condition as worded just now be part of the

         9         recognizance?

        10     THE COURT:            No, it's not part of the

        11         recognizance.  It'll just be in the clerk's

        12         notes as a direction.  And I should say for

        13         the record, Mr. Moore, you understand that for

        14         May 30th?

        15     THE ACCUSED:          Yes, yes, Your Honour.

        16     THE COURT:            Yes, fine, then we will

        17         close court.

        18     MR. CHADI:            Thank you very much, Your

        19         Honour.

        20

        21         -------------------------------------

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         1

         2

         3                           Certified to be a true and
                                     accurate transcript pursuant
         4                           to Rules 723 and 724 of the
                                     Supreme Court Rules,
         5
                                     Transcribed from the steno
         6                           notes of J. MacDonald,
                                     court reporter
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        12                           Lois Hewitt,
                                     Court Reporter
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