Decision Content
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 Official Court Reporters 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 Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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 Official Court Reporters 7 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. Official Court Reporters 8 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 Official Court Reporters 9 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 Official Court Reporters 10 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 Official Court Reporters 11 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 Official Court Reporters 12 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 ------------------------------------- 22 23 24 25 26 27 Official Court Reporters 13 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 7 8 9 10 11 ____________________________ 12 Lois Hewitt, Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 14
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