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Decision information:

Decision on s. 525 Bail Review

Decision Content

 

 

 

 

             R. v. Peterson, 2017 NWTSC 58            S-1-CR-2017-000048

 

 

 

                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

 

                IN THE MATTER OF:

 

 

 

                                HER MAJESTY THE QUEEN

 

 

 

                                        - v -

 

 

 

                              BILLY FRED TOMMY PETERSON

 

 

 

             __________________________________________________________

 

             Transcript of the Oral Decision on s. 525 Bail Review

 

             delivered by The Honourable Justice L. A. Charbonneau,

 

             sitting in Yellowknife, in the Northwest Territories, on

 

             the 17th day of July, 2017.

 

             __________________________________________________________

 

 

 

             APPEARANCES:

 

             Ms. A. Piché:                  Counsel for the Crown

 

             Mr. T. Boyd:                   Counsel for the Accused

 

 

 

               (Charges under s. 90(2), 92(2), 95(2), 117.01(3) x2 of

                                the Criminal Code)

 

             An Order of the Court has been made prohibiting publication,

             broadcast or transmission of information contained herein

             pursuant to s.517, s.520(9) and s.525(8) of the Criminal Code

 

 

 

 

 

 

 

        Official Court Reporters


 

 

 

 

         1      THE COURT:             You can have a seat with your

 

         2          counsel.

 

         3               Before I give my decision on this, I want to

 

         4          reiterate that there is a publication ban in

 

         5          effect that prevents publication of any

 

         6          information provided during the course of the

 

         7          hearing this morning, including the submissions

 

         8          and the allegations, and it applies to what I am

 

         9          about to say.

 

        10               Mr. Peterson is awaiting trial on a

 

        11          five-count Indictment.  Last April he had a show

 

        12          cause hearing before a Justice of the Peace and

 

        13          was ordered detained.  He has now applied to this

 

        14          Court for a review of that decision.  He is also

 

        15          now eligible for a 90-day review.  This is as of

 

        16          a few days ago, and so this morning Crown and

 

        17          defence agreed that the hearing that we had this

 

        18          morning could also be treated as a mandatory

 

        19          review under Section 525 of the Criminal Code.

 

        20               The allegations are that Mr. Peterson was

 

        21          arrested by police on April 15th, 2016.  They saw

 

        22          him walking on a road in Inuvik.  They were aware

 

        23          that a warrant was outstanding for his arrest in

 

        24          relation to a charge of assault causing bodily

 

        25          harm.

 

        26               Mr. Peterson was arrested without incident

 

        27          and was cooperative.  He was searched in a

 

 

 

 

 

 

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         1          cursory way and then placed in the back of the

 

         2          police vehicle.  The officers then heard a noise

 

         3          in the back of the vehicle and, when they

 

         4          checked, they found a Glock .40-calibre handgun

 

         5          on the floor in the back of the vehicle in the

 

         6          area where Mr. Peterson was.  That handgun was

 

         7          not loaded.  Police then conducted a further

 

         8          search of Mr. Peterson and, in his work coat,

 

         9          they found a .40-calibre clip magazine with

 

        10          ammunition in it.

 

        11               At the time, Mr. Peterson was prohibited

 

        12          from being in possession of firearms and

 

        13          ammunition.  A prohibition order had been made

 

        14          against him in July 2009 as part of a sentencing

 

        15          on a charge of assault causing bodily harm and

 

        16          that order was to be in force until ten years

 

        17          following his release from imprisonment on that

 

        18          sentence.  There is no question that that order

 

        19          was in force in April 2016.

 

        20               Mr. Peterson has been committed to stand

 

        21          trial arising from these allegations and he

 

        22          faces, now, five charges:  one for carrying a

 

        23          concealed weapon (s. 90(2) of the Code);

 

        24          possession of a prohibited device (s. 92(2) of

 

        25          the Code); possession of a restricted firearm

 

        26          together with ammunition, (s. 95(2) of the Code);

 

        27          and possession of the firearm while prohibited

 

 

 

 

 

 

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         1          and possession of ammunition while prohibited (s.

 

         2          117.01(3) of the Code).

 

         3               At the show cause hearing that was held last

 

         4          April, the release plan was that there would be a

 

         5          surety, Mr. Peterson's common-law spouse, and a

 

         6          pledge of $500, without deposit, in support of

 

         7          his release.

 

         8               The plan presented at that time showed that

 

         9          there was a good chance that Mr. Peterson would

 

        10          be able to have employment if released.  It was

 

        11          not 100-percent confirmed at the time, but it

 

        12          appeared to be a good possibility.  A number of

 

        13          conditions were proposed at that time.

 

        14               The submissions presented at the show cause

 

        15          hearing included references to his personal

 

        16          circumstances, including the fact that he and his

 

        17          spouse have an infant child.  There was also

 

        18          mention of his very good work history and

 

        19          employability.  It was pointed out at that time

 

        20          that the allegations do not include any

 

        21          reference, suggestion or evidence that he is

 

        22          affiliated with gangs, nor anything particularly

 

        23          sinister in conjunction with the firearm that was

 

        24          seized, aside from the fact that it is a

 

        25          restricted weapon.

 

        26               At that show cause hearing, the Crown

 

        27          opposed release on the secondary and tertiary

 

 

 

 

 

 

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         1          ground.  The Crown did not have any issues with

 

         2          the suitability of the proposed surety.  Its

 

         3          concerns were really based on the very long

 

         4          criminal record that Mr. Peterson has, which

 

         5          includes numerous convictions for crimes of

 

         6          violence and numerous convictions for offences

 

         7          against the administration of justice.  These

 

         8          include, notably, several breaches of court

 

         9          orders.  The Crown expressed concern, as well,

 

        10          about the nature of the firearm seized,

 

        11          distinguishing this case from the situation, for

 

        12          example, were a hunting rifle might be the weapon

 

        13          concerned.

 

        14               The Justice of the Peace ultimately agreed

 

        15          with the Crown's position.  He found the surety

 

        16          to be a reasonably strong surety, but he did note

 

        17          that Mr. Peterson was living with her when he

 

        18          committed his last offence.  This last offence is

 

        19          the assault causing bodily harm that he was being

 

        20          arrested for that day, for which he was

 

        21          ultimately convicted and sentenced.  The Justice

 

        22          of the Peace concluded that Mr. Peterson had not

 

        23          met his onus and ordered his detention.

 

        24               The release plan that is being presented now

 

        25          is similar to the one that was presented to the

 

        26          Justice of the Peace.  Mr. Peterson's common-law

 

        27          is being offered as a surety.  This time a cash

 

 

 

 

 

 

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         1          deposit is offered in the amount of $500.  The

 

         2          proposed employer is not the same as the one that

 

         3          was mentioned at the April show cause hearing,

 

         4          but there is an exhibit to Mr. Peterson's

 

         5          affidavit that shows that there is now a firm

 

         6          employment offer for him if he is released.  It

 

         7          appears to be virtually certain that Mr. Peterson

 

         8          will be employed if he is released, which is

 

         9          stronger or more firm than what was the case in

 

        10          April.

 

        11               Mr. Peterson's counsel has argued that

 

        12          because of the offer for cash deposit and the

 

        13          firmness of the job offer, this plan is stronger

 

        14          than the earlier one and this is a change in

 

        15          circumstances that opens up the door to review by

 

        16          this Court under the framework set down in R. v.

 

        17          St-Cloud, 2015 SCC 27.  Defence also argues that

 

        18          the additional passage of time since the April

 

        19          show cause hearing and the fact that there still

 

        20          is no trial date set are also things that are

 

        21          different from the situation that existed when

 

        22          the Justice of the Peace made his decision.  That

 

        23          issue of delay fits within the main submission,

 

        24          really, that was presented this morning on

 

        25          Mr. Peterson's behalf, that his continued

 

        26          detention could result in him spending more time

 

        27          in custody than what he will be sentenced for if

 

 

 

 

 

 

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         1          he is found guilty.

 

         2               The last aspect of this application which is

 

         3          somewhat unusual is that in his affidavit

 

         4          Mr. Peterson deposes that the Justice of the

 

         5          Peace who heard the show cause hearing has a past

 

         6          connection with him.  I am going to quote from

 

         7          the affidavit itself.  At paragraphs 14 and 15,

 

         8          Mr. Peterson deposes:

 

         9                 After the hearing was completed, I

                           mentioned to my lawyer that there

        10                 was a history between the

                           presiding JP and myself.  We

        11                 attended the same school in Inuvik

                           and there were several incidents

        12                 where I bullied Mr. Anderson in

                           the playground when his father was

        13                 principal.  My lawyer has

                           explained that we could have asked

        14                 the JP to refuse to hear my case

                           if this information was known

        15                 before April 13.  I have not seen

                           Mr. Anderson for many years and it

        16                 took me some time to make the

                           connection.

        17

 

        18               What I understood from the submissions I

 

        19          heard this morning is that the defence is arguing

 

        20          that this should be taken into account, not so

 

        21          much from the issue of actual bias, but from the

 

        22          point of view of there being a possibility of a

 

        23          perception of bias, that Mr. Peterson has a

 

        24          perception that perhaps the original hearing may

 

        25          not have been entirely fair given his connection

 

        26          with the Justice of the Peace.  That aspect of

 

        27          things does not fall neatly in any of the

 

 

 

 

 

 

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         1          categories of things identified in St-Cloud as

 

         2          opening the door to review by this Court.

 

         3               This past connection was not raised before

 

         4          the Justice of the Peace, so we cannot even be

 

         5          sure that the Justice of the Peace realized that

 

         6          he knew Mr. Peterson from the past, especially

 

         7          considering that Mr. Peterson deposes that he

 

         8          himself did not make the connection right away

 

         9          either.  There is no suggestion that the Justice

 

        10          of the Peace should have recused himself or erred

 

        11          in hearing the matter in the first place.  Where

 

        12          it fits best is probably under the "change in

 

        13          circumstances" heading, although in this case it

 

        14          would be more in the nature of new circumstances

 

        15          being brought to the attention of this Court and

 

        16          calling into question something about the

 

        17          fairness of the first hearing.

 

        18               This morning the Crown took the position

 

        19          that this connection is entirely irrelevant.  I

 

        20          am not certain I would go that far.  Although

 

        21          there is no indication that this was brought to

 

        22          the attention of the Justice of the Peace, and we

 

        23          do not know if he was aware of it, as defence

 

        24          counsel pointed out, our law is often concerned

 

        25          as much about potential perception of bias as it

 

        26          is with actual bias.  This is not the case for me

 

        27          to decide whether this, standing alone, would

 

 

 

 

 

 

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         1          open the door to review, but I think it is

 

         2          something that goes into the overall assessment.

 

         3          Given the fact that a cash deposit is now being

 

         4          offered, combined with the now firm offer for

 

         5          employment, and combined with this potential

 

         6          concern about a perception of bias, I have

 

         7          decided that the safest and fairest course is for

 

         8          me to re-examine the issue of whether detention

 

         9          is necessary to make sure that any lingering

 

        10          issues are put to rest.

 

        11               The primary ground is not a concern, so I am

 

        12          not going to address it.  The other two grounds

 

        13          are what is of concern to the Crown and they are

 

        14          also what is of concern to the Court.

 

        15               The plan is probably as strong as it could

 

        16          be, and as was noted by the Crown this morning,

 

        17          and it was very ably and persuasively presented

 

        18          by defence counsel.

 

        19               The Crown has conceded that the surety is

 

        20          suitable and that there are no issues with the

 

        21          employment being lined up.  There is little doubt

 

        22          that having Mr. Peterson working would be better

 

        23          for his family than having him sit in remand.  I

 

        24          also realize that having a young child and not

 

        25          being able to be there to parent that child is

 

        26          probably very difficult both for Mr. Peterson and

 

        27          for his spouse, and it is not good for the child

 

 

 

 

 

 

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         1          either to be without a parent, if that can be

 

         2          avoided.

 

         3               At the same time, though, there is an

 

         4          extensive criminal record here.  It starts in

 

         5          1995 and there was a conviction as recently as

 

         6          July 2016.  That recent conviction for assault

 

         7          causing bodily harm gave rise to a significant

 

         8          jail term.  There are a lot of convictions for

 

         9          crimes of violence, and this always raises

 

        10          concerns about public safety.  There is a large

 

        11          number of breaches of court orders.  There are

 

        12          convictions for breaches of recognizances,

 

        13          undertakings, probation orders, driving

 

        14          prohibitions, and the allegations here involve

 

        15          the failure to comply with the court order as

 

        16          well - the firearms prohibition.

 

        17               The combination of a long list of

 

        18          convictions for crimes of violence and a long

 

        19          list of convictions for failures to comply with

 

        20          court orders is not a good mix when the Court is

 

        21          asked to consider public safety.  It is very

 

        22          difficult for me to have any confidence that any

 

        23          conditions that I would impose with a view of

 

        24          protecting the public would be followed, given

 

        25          the stead pattern of non-compliance with court

 

        26          orders.

 

        27               I also think there are concerns under the

 

 

 

 

 

 

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         1          tertiary ground.  The allegations on their face

 

         2          are serious and the Crown's case appears strong.

 

         3          The arrest was effected on the strength of a

 

         4          warrant.  The initial search incident to arrest

 

         5          must have been very cursory indeed since the

 

         6          weapon and ammunition were not even discovered at

 

         7          first.  So I have a hard time seeing any basis

 

         8          for any kind of Charter argument that could be

 

         9          raised about the arrest, although, obviously, the

 

        10          matter has not been litigated.

 

        11               I cannot overlook the fact that defence

 

        12          counsel this morning talked about what he

 

        13          anticipates the defence may present when this

 

        14          matter proceeds.  He presented it with a view of

 

        15          showing that, at best, this offence would fall at

 

        16          the low end of the spectrum of seriousness as far

 

        17          as these types of offences go.  As I said during

 

        18          my exchange with counsel this morning in

 

        19          recognizing that this has not been litigated yet,

 

        20          what has been presented this morning does not

 

        21          appear to me to raise a defence to any of the

 

        22          charges that Mr. Peterson faces.  So while he

 

        23          does benefit from the presumption of innocence,

 

        24          the case against him appears very strong.  Taken

 

        25          at its highest, what I have heard this morning

 

        26          may be mitigating as far as the level of

 

        27          seriousness of the offence, but it is difficult

 

 

 

 

 

 

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         1          to see how it would offer a defence to the charge

 

         2          of being in possession of the item in question.

 

         3               All of that goes to the strength of the

 

         4          Crown's case, which is one of the things that the

 

         5          Code refers to specifically as a factor to

 

         6          consider when examining the tertiary ground.

 

         7               Some of the other factors mentioned are more

 

         8          difficult to assess because they do depend on

 

         9          findings of facts that would be made in the event

 

        10          of conviction.  For example, findings of facts

 

        11          about how Mr. Peterson came to be in possession

 

        12          of this firearm would fall under the heading

 

        13          "circumstances of the commission of the offense".

 

        14          Those findings of facts would also be linked to

 

        15          the gravity of the offence and they would have an

 

        16          impact on the potential length of any term of

 

        17          imprisonment that could be imposed.  And at this

 

        18          stage, I cannot say much about any of those

 

        19          things, including what the likely sentence would

 

        20          be, because those facts have not been found.  But

 

        21          I do think that members of an informed and

 

        22          reasonable public would have grave concerns if

 

        23          someone with this kind of criminal record, facing

 

        24          these charges, involving this type of firearm,

 

        25          and in the face of what appears to be a very

 

        26          strong case, were to be released into the

 

        27          community.  I am not satisfied that Mr. Peterson

 

 

 

 

 

 

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         1          has met his onus on either the secondary or

 

         2          tertiary ground and, in that respect, although I

 

         3          have taken a fresh look at matters, I reach the

 

         4          same conclusion that the Justice of the Peace did.

 

         5               With respect to the Section 525 review, at

 

         6          this point it cannot be said that this matter has

 

         7          been unduly delayed, and I do not find that

 

         8          Mr. Peterson has showed that release would be

 

         9          justified under that provision either.

 

        10               There is a further pre-trial conference on

 

        11          this that is scheduled for next week.  It will

 

        12          not be proceeding before me.  Counsel have

 

        13          confirmed that they want to use that as a blended

 

        14          "trial management" and "settlement" pre-trial

 

        15          conference.  I will let the judge know that that

 

        16          is what counsel want.

 

        17               I want to go back to something that I

 

        18          alluded to a little bit just now and more so this

 

        19          morning when I was having my exchange with

 

        20          counsel about the types of issues that the

 

        21          defence expects to raise on this case.  I am not

 

        22          going to repeat all of that now, but I will just

 

        23          say this, and I want to emphasize Mr. Peterson

 

        24          has every right to have a trial if that is what

 

        25          he wishes, he is entitled to put the Crown to the

 

        26          proof of its case, and he has the right to have

 

        27          this done within the process of a trial before a

 

 

 

 

 

 

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         1          jury if that is what he wishes.  Nothing I say

 

         2          now should be interpreted as suggesting that he

 

         3          does not have that right, and I am confident that

 

         4          Mr. Boyd, who is a very experienced defence

 

         5          counsel, will be able to make that very clear to

 

         6          Mr. Peterson.  The reality is that scheduling a

 

         7          jury trial is more challenging than scheduling

 

         8          other types of hearings and for a few reasons.

 

         9          The first is that more court time is needed to do

 

        10          a jury trial, so that gives the Court less

 

        11          flexibility in scheduling.

 

        12               So as I heard emphasized this morning that

 

        13          delay was a concern here, I reiterate that it may

 

        14          be worthwhile for other options to be seriously

 

        15          considered.  In particular, if the central areas

 

        16          of dispute between the parties have to do with

 

        17          facts that do not go to the essential elements of

 

        18          the offences charged but go to things that would

 

        19          be aggravating or mitigating on sentencing, if

 

        20          that is what is at the heart of the issue between

 

        21          the parties, that opens up even more options,

 

        22          procedurally speaking, for scheduling this

 

        23          matter.  I offer those comments simply because

 

        24          the Court schedule is filling up quickly.  We

 

        25          have a large number of jury elections in this

 

        26          jurisdiction.  That has always been the case.

 

        27          And although we do everything we can to have

 

 

 

 

 

 

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         1          matters scheduled as quickly as we can, there are

 

         2          very real practical limitations to what we are

 

         3          able to do.  All of these things need to be

 

         4          discussed first and foremost between Mr. Boyd and

 

         5          Mr. Peterson, and depending on how those

 

         6          discussions go, perhaps they can be the subject

 

         7          of discussion between counsel before or during

 

         8          the next pre-trial conference.

 

         9               I make these comments perhaps more as part

 

        10          of the 525 bail review.  The Code says that when

 

        11          a judge does not release on a 525 review, that

 

        12          judge may give directions to expedite matters.  I

 

        13          certainly will do everything that I can to

 

        14          schedule this quickly if it is possible.  But one

 

        15          of the things that I am going to suggest is,

 

        16          subject to what the presiding judge at the

 

        17          pre-trial conference says, that if by the end of

 

        18          that pre-trial conference it is confirmed that

 

        19          this matter is going to be going to trial, the

 

        20          mode of trial should be firmed up so we know what

 

        21          we are looking at in terms of scheduling, and

 

        22          that within a week everybody send in their

 

        23          availabilities so that the information that I

 

        24          need to identify the quickest date possible is

 

        25          provided to me as soon as possible.

 

        26               Now, I say "subject to what the pre-trial

 

        27          conference judge may direct" because obviously I

 

 

 

 

 

 

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         1          do not know how the discussions will go.  But I

 

         2          would urge counsel to try to get to some sort of

 

         3          a final decision on the mode of trial, on whether

 

         4          it will be a trial, and then to send in all the

 

         5          information so I can schedule this because of the

 

         6          reasons you put forward, Mr. Boyd, about the

 

         7          importance of getting this done sooner rather

 

         8          than later.  But I am not directing anything yet

 

         9          because I do not know what will happen next week.

 

        10               Have I overlooked anything, Mr. Boyd?  Are

 

        11          there any clarifications needed?

 

        12      MR. BOYD:              No, ma'am.

 

        13      THE COURT:             Did you want to try to move up

 

        14          the pre-trial conference or are you content to

 

        15          leaving things as it is?

 

        16      MR. BOYD:              Monday is fine.

 

        17      THE COURT:             All right.  Anything further

 

        18          from the Crown?

 

        19      MS. PICHÉ:             No.  Thank you, Your Honour.

 

        20      THE COURT:             All right.  That is the

 

        21          matters for the afternoon.  Thank you.

 

        22      MS. PICHÉ:             Thank you, Your Honour.

 

        23               .................................

 

        24                        Certified Pursuant to Rule 723

                                  of the Rules of Court

        25

 

        26

                                  Jane Romanowich, CSR(A)

        27                        Court Reporter

 

 

 

 

 

 

       Official Court Reporters

                                        15

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.