Decision Content
|
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)
A.C.E. Reporting Services Inc.
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.
|
The officers observed that Mr. Larocque had |
|
|
a strong smell of alcohol on his breath, that he |
|
A.C.E. Reporting Services Inc. |
2 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
3 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
4 |
|
|
|
|
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.
|
A.C.E. Reporting Services Inc. |
5 |
|
|
|
|
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.
|
A.C.E. Reporting Services Inc. |
6 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
7 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
8 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
9 |
|
|
|
|
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.
|
A.C.E. Reporting Services Inc. |
10 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
11 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
12 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
13 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
14 |
|
|
|
|
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.
|
A.C.E. Reporting Services Inc. |
15 |
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
16 |
|
|
|
|
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.
|
A.C.E. Reporting Services Inc. |
17 |
|
|
|
|
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. |
|
A.C.E. Reporting Services Inc. |
18 |
|
|
|
|
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 |
||
|
A.C.E. Reporting Services Inc. |
19 |
|
|
|
|
|
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
|
A.C.E. Reporting Services Inc. |
20 |
|
|
|
|