ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11173
DATE: 20140820

B E T W E E N:

Her Majesty the Queen

L. A. Tuttle, for the Respondent

Respondent

• and -

Johnathon Andrew Rick

F. S. Brennan, for the Applicant

Applicant

HEARD: August 13, 2014

Grace J. (Orally)

[1] Mr. Rick’s application for interim release from custody arises in unusual circumstances. After a lengthy trial, the Crown sought and obtained convictions on ten of eleven counts set forth in the June 14, 2012 indictment. The charges include assault, aggravated assault, assault using a weapon, sexual assault, aggravated sexual assault, sexual assault using a weapon and unlawful confinement.

[2] As a result of events that occurred between the date of the findings of guilt on March 21, 2013 and the date set for sentencing, the trial judge declared a mistrial. The matter is scheduled to be retried in January, 2015.

[3] Mr. Rick has been in custody since his arrest on August 13, 2011.

[4] On September 21, 2011, a show cause hearing was conducted by Justice of the Peace Diaz pursuant to section 515 (1) of the Criminal Code. The lead investigating officer testified as did Mr. Rick and his co-accused Ms. Anderson.

[5] In her September 26, 2011 reasons, the Justice of the Peace concluded that detention of Mr. Rick was justified on the grounds set forth in section 515 (10) (b) (the so-called “secondary ground”) and (c) (the “tertiary ground”) of that statute.

[6] With respect to the secondary ground, the Justice of the Peace said, in part, at page 104 of the transcript of the proceedings:

It is of note to the Court that neither Ms. Anderson nor Mr. Rick are able to provide the Court with residential sureties for themselves.

The proposed plan would leave both Ms. Anderson and Mr. Rick unsupervised throughout the day and within blocks of each other. The Court fears for the safety of [the complainant] and also doubts that they would respect any order for non-association with each other. They have no real relationships or supports. The Crown has met its onus on the secondary ground.

[7] The Justice of the Peace then turned her mind to the tertiary ground and the non-exhaustive list of circumstances mentioned in section 515 (10) (c) of the Criminal Code: the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence and the potential sentence facing the accused on conviction.

[8] She noted that the allegations are very serious, involve an alleged victim who is disabled and vulnerable and that, if convicted, the accused would be found to have committed “sadistic” acts, causing “unspeakable injuries”. The Justice of the Peace fairly commented that upon conviction “the potential for a significant period of custody is high”.

[9] The Justice of the Peace noted that the alleged offences occurred while the co-accused and complainant cohabited and appeared to conclude that the Crown’s case was strong. Those considerations, as well as the weakness of the plans proposed by Mr. Rick and his co-accused, led to the conclusion “that a well-informed member of the public in this community would indeed call into question the administration of justice if” they were released from custody. She held that the Crown had also satisfied the tertiary ground.

[10] Section 520 (1) of the Criminal Code allows the accused to apply to a judge of the Superior Court of Justice for a review of an order of detention at any time before trial.

[11] Mr. Rick, who, as mentioned, has now been in custody for more than three years, has invoked that right. He does not allege any error in the Justice of the Peace’s analysis. He does, however, maintain that there has been a material change in circumstances relating to each of the grounds that underlies the decision to detain.

[12] Before detailing the alleged changes in circumstance, I turn to the general principles that are applicable. They are undisputed.

[13] A person’s right not to be denied reasonable bail without just cause is guaranteed by s. 11 (e) of the Charter of Rights and Freedoms. That right exists even if the accused faces one or more charges of the utmost gravity.

[14] As evidenced by s. 515 (10) of the Criminal Code, the denial of bail can only occur in a narrow set of circumstances.

[15] However, in an application under s. 520, the accused bears the onus of showing cause why the order below should be vacated: s. 520(7). If that onus is not met, the application will be dismissed.

[16] A material change of circumstances may result in a different disposition. In R. v. Aydin Akdemir, 2010 ONSC 6955 (S.C.J.), Price J. summarized the applicable principles. At paras. 68 and 69, the justice wrote:

If there is a material change in circumstances, the review is in effect a de novo hearing and not an appeal based only on the record of proceedings before the justice of the peace. While due consideration must be given to the initial order of the justice, this court is entitled to exercise an independent discretion…

In R. v. Baltovich, in the context of s. 679, Rosenberg J.A. remarked, “A material change in circumstances…would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in” the governing section. Commenting on the material change in circumstances in the s. 521 context, Justice Trotter remarked that the change in circumstances must be “of such magnitude that the order of the lower court can no longer stand”.

[17] The same principles apply to an application under s. 520 of the Criminal Code. I turn to Mr. Rick’s application under that section.

[18] Documentary evidence was filed before[^1] and oral testimony was given on the return of the application.[^2] I was also given a transcript of the September 21, 2011 show cause hearing and of the Justice of the Peace’s subsequent reasons to which I have already referred.

[19] Section 515 (10) provides that detention is justified only if one or more of three grounds is satisfied. The first ground is not in issue on this application. The second – or secondary – ground is relied upon. Section 515 (1) (b) applies:

where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice…

[20] As noted, the Justice of the Peace found the release plan to be unsatisfactory. No residential surety was proposed. The applicant was going to be unsupervised throughout the day. She was concerned that he would interact with his co-accused even if a non-association order was in place.

[21] The applicant argues that this ground is no longer applicable because his sister Ms. Konrad and mother Ms. Easton-Raymond are willing to act as sureties. They have agreed to provide a financial covenant and a promise of intensive supervision in order to secure Mr. Rick’s release. Mr. Rick’s co-accused is, it appears, still being detained.

[22] During her submissions, Crown counsel indicated that despite Mr. Rick’s long and troubling criminal record, the release plan would allay concerns that detention was necessary for the protection or safety of the public if satisfactory sureties were proposed. However, the Crown questions the appropriateness of those who have offered to take on that role.

[23] Before addressing the sureties and the plan presented if Mr. Rick is released, I turn to the concern for the protection and safety of the public – particularly vulnerable women - that arises upon review of his criminal record. The applicant was convicted of assault in 2003, 2005 (he was convicted of sexual assault at the same time) and 2007 (a conviction was also entered for uttering threats). There were two female victims: the developmentally delayed then spouse of the accused and an adolescent.

[24] I was not referred to any reasons that may have been given underlying those findings of guilt or, if applicable, any agreed statement of facts. What clearly emerges from the transcript of examination and cross-examination of the accused during the show cause hearing is a minimal, if any, acceptance of responsibility. For example, he suggested the 2005 assault conviction flowed from an incident in which he raised his voice. When asked about the 2007 convictions during the show cause hearing, Mr. Rick said “that was the victim of the sexual assault that kept stalking me and harassing me. I found out later it was because she wanted me to apologize but I’d had my head wrapped up in trying to fight in the second domestic I wasn’t guilty of.” With respect, there is obviously much more to the story. The victim was 13 years old. Mr. Rick was 29.

[25] The simple point I make is this: Mr. Rick’s reaction to convictions for criminal behaviour has been to minimize, deny and shift responsibility. Based on the material I have had the ability to review, he does not seem to appreciate that he has a violent, criminal and recurrent past.

[26] If safety and protection concerns are to be satisfied, strict terms and conditions will not only have to be imposed but the court must be satisfied that they will be effective. That requires consideration of two things: first, the likelihood Mr. Rick will comply with conditions imposed by the court and second, the adequacy of the mechanisms proposed to ensure compliance.

[27] Those comments should come as no surprise to Mr. Rick. The July 20, 2014 affidavit he filed in support of this application addresses both considerations directly. At paragraphs 12 through 17, he deposed as follows:

12. I am willing to abide by any and all conditions of a Judicial Interim Release Order.

13. I understand that, if I am released on bail, I can have absolutely no contact with the complainant or her family and I will be strictly prohibited from attending any of those individuals’ places of residence, education, or employment.

14. I understand that, if I am released on bail, I will be required to remain in my surety’s residence subject to any exceptions deemed acceptable by this Court. I am fully prepared to comply with the terms of house arrest.

15. I further understand that, if released on bail, I must comply with the “routine and discipline” of my surety’s residence. I am fully prepared to follow any and all of my sister’s rules.

16. I understand that if I breach any conditions of my recognizance that myself and my sureties would lose any amount of money that has been pledged and I would be sent back to jail. I will not betray the trust my sister or mother place in me to comply with the terms of release.

17. I understand that a breach of my conditions of release will result in my arrest and additional criminal charges. I further understand that if I were arrested on a breach of my recognizance, it is highly unlikely that I would be released again before my trial.

[28] The words are the right ones. Are they to be accepted on their face?

[29] With respect, the answer is an unequivocal no. In 2004, Mr. Rick was convicted of failing to comply with a recognizance. Two other convictions were registered in 2007 arising from a failure to comply with a probation order and the failure to obey an order of the court. In 2009, he was convicted of breaching the terms of a probation order for a second time.

[30] Given the evidence I heard, the 2007 and 2009 convictions are particularly troubling. Ms. Konrad testified at length about her prior experience as a residential surety for her brother in 2005.

[31] He was prohibited from communicating with the young complainant. Ms. Konrad testified that the complainant called her home repeatedly asking for Mr. Rick. Ms. Konrad said that she reported the behaviour to the police. She alleged nothing was done to stop the complainant’s attempts to cause Mr. Rick to breach the non-association order.

[32] Ms. Konrad said the calls continued. She testified that she withdrew as surety because Ms. Konrad feared a breach if a call was made to her home while she was not there to intercept it. Her withdrawal led to Mr. Rick’s arrest and subsequent detention even though he was not, to her knowledge, in breach of the order for interim release.

[33] If that evidence is true and accurate, Mr. Rick was taught a rather cruel, but unforgettable, lesson about the importance of orders of the court – a lesson he should have already learned from his previously mentioned conviction in 2004 for failing to comply with the terms of a recognizance. The events of 2005 demonstrated that interim release is precious and fragile.

[34] Yet, within a short period of time, he was convicted twice of breaching the terms of probation orders and again for breaching a court order. Given that history, the most recent promise is destined to be met with a cynical stare although I fully recognize that Mr. Rick has been detained for slightly more than three years on these charges.

[35] Furthermore, the evidence of the accused’s mother Ms. Easton-Raymond, fortifies the concern. During examination-in-chief Ms. Easton-Raymond was asked whether her son had ever broken a promise to her. She answered “No”. The nature of the promise was revealed in cross-examination. The promise Mr. Rick was said to have made was “to try to stay out of trouble”.

[36] It is impossible for me to understand how convictions in five of seven years between 2003 and 2009 can be regarded by anyone as fulfilment of the modest, uninspiring promise that was made. Ms. Easton-Raymond’s belief it was is, bluntly, of concern. I now turn to the sureties and the release plan.

[37] As noted, Ms. Konrad is Mr. Rick’s sister. She is 43 years old. She owns her own home and resides there with her 18 year old son and 17 year old daughter.

[38] Ms. Konrad has been employed by the Thames Valley District School Board for 25 years. She is a Student Information Systems Analyst and earns approximately $50,000 per year.

[39] She has offered to serve, once more, as her brother’s residential surety. In addition to offering to house and supervise Mr. Rick, she has also expressed her willingness to pledge an amount of money to a maximum that increased ten-fold from the beginning of examination in chief to the end of cross-examination. That offer extended to the entire equity in her home - $50,000.

[40] Ms. Konrad testified that aside from having Mr. Rick in her company except when she is at work, she will ensure that he does not have access to a computer or cellular phone, would prohibit him from using a land line except when she is present and would take all other steps necessary to ensure that the terms of an order of this court were met.

[41] She acknowledged that the plan for Mr. Rick’s release requires the involvement of her mother. Ms. Konrad said that they get along well and would be able to work cooperatively.

[42] Ms. Konrad said she believed her brother would listen to her and promised to notify various people, including the police, if her brother breached any condition of his release.

[43] Ms. Easton-Raymond is 64 years old. She lives alone in London – only a few minute drive from Ms. Konrad’s home. Mr. Rick’s 10 and 13 year old sons have been staying with her since June and are scheduled to be returned to their regular living arrangement this weekend. She testified that Mr. Rick is permitted to have access to his children provided that it is supervised by Ms. Easton-Raymond or Mr. Rick’s older brother. Both sons are developmentally delayed.

[44] Ms. Easton-Raymond said that she would be able to supervise Mr. Rick while her daughter is at work. While she deposed in her July 10, 2014 affidavit that she had “been employed for the past year as a School Bus Monitor with Voyageur Transportation”, at the hearing she testified that she last worked there in April, 2014 and is now fully retired.

[45] She described her relationship with Mr. Rick as really good from the day he was prematurely born. She said that she has visited him regularly since detained – including during the time housed in Chatham.

[46] She, too, said that Mr. Rick would be supervised while in her presence. Calls would be screened, there would be no use of a computer and “tough love” will, if necessary, be administered.

[47] That brings me to an assessment of the release plan. Ms. Brennan submits that the new sureties add two things: a financial covenant and intensive supervision twenty four hours per day, seven days a week pending trial. Ms. Brennan submits those circumstances should cause the court to assess the secondary ground of detention differently than the Justice of the Peace.

[48] Those circumstances are vastly different than existed more than three years ago. I am prepared to accept that the offers of Ms. Konrad and Ms. Easton-Raymond are sincere. Nonetheless, after giving the new evidence and Ms. Brennan’s very capable submissions long, careful and very serious consideration, I am of the view that Mr. Rick’s continued detention is still necessary for the protection and safety of the public. Let me try to explain why.

[49] According to Ms. Konrad, the terms of interim release in effect in 2005 when she first served as surety allowed Mr. Rick some ability to come and go. The terms would be much more restrictive this time and would last for several months at least. Bluntly, the suggestion that she ceased being a surety when her brother had not breached any condition of his release seemed incredible. I am of the view that her decision was motivated by facts that relate to her brother’s conduct and which have not been fully disclosed to this court.

[50] Ms. Konrad described herself as being “fairly close” to Mr. Rick. Yet, she did not seem to know much about her brother: for example, she thought he had spent some of the time since his arrest in Cambridge (according to their mother, he was actually housed in Chatham). In cross-examination she said that she did not know if Mr. Rick has had a paying job. Mr. Rick is 40 years old. Surely that information would be known by a person who knows Mr. Rick well.

[51] Ms. Konrad did not seem to have truly considered the magnitude of what she was being asked to do prior to testifying. She reported visiting her brother approximately once per month while detained in London. The task of supervising a person convicted of violent offences against vulnerable women and repeated breaches of previous court orders, will be a daunting one – even for that person’s parent or sibling. With respect, I am not satisfied there is sufficient closeness, trust or respect for the proposed residential surety arrangement to be effective at all.

[52] Further, it appears to me that the proposed sureties are looking at Mr. Rick through a gilded lens. Both of them seemed to blame a 13 year old complainant for having a sexual relationship with their 29 year old family member. According to Ms. Easton-Raymond, the young teenager was a member of the congregation of the church she attended. Ms. Easton-Raymond said the young girl was a friend of Mr. Rick’s developmentally delayed spouse Monica. She suggested that the teen “looked 25”. Ms. Konrad attributed the 2007 convictions to the fact that the victim was pursuing her brother.

[53] Despite convictions in 2003, 2004, 2005, 2007 and 2009, Ms. Easton-Raymond suggested that Mr. Rick had stayed out of trouble for a very long time. Remembering that Mr. Rick has been detained on the current charges since August, 2011, that is simply untrue.

[54] Despite Mr. Rick’s lengthy period of detention, I am highly doubtful that he will be respectful of the authority of his sister or mother when the power of the court has not seemed to register so far.

[55] In my view, detention continues to be justified on the secondary ground despite a much better developed and well-presented plan.

[56] I will address the third – or tertiary – ground justifying detention in case my analysis on the secondary ground is found to be wanting. As is clear from the preamble to section 520 (1), it operates independently from the secondary ground.[^3] As Rosenberg J.A. said in R. v. R.D., 2010 ONCA 899 at para. 51, “it is invoked only where the accused has already been considered a suitable candidate for release on the usual considerations of attendance in court and likelihood of commission of further offences.”

[57] For ease of reference it applies “if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances” including four that are specifically delineated. In the order listed in the statute they are:

i. The apparent strength of the prosecution’s case;

ii. The gravity of the offence;

iii. The circumstances surrounding the commission of the offence; and

iv. The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[58] Once again, the applicable legal principles are not in dispute. This ground is to be used sparingly: R v. R.D. 2010 ONCA 899 at paras. 51 – 55; R. v. Gale, 2011 ONCA 144 at para. 25; R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.) at para. 30.

[59] At page 3-55 of his text, The Law of Bail in Canada, looseleaf, 3rd ed. (Toronto: Thomson Reuters Canada Limited, 2010), Trotter J. wrote that detention to maintain public confidence in the administration of justice “will hardly ever be justified”.

[60] The defence recognizes that Mr. Rick is charged with extremely serious offences. They are alleged to have been committed in appalling circumstances. The photographs show the horrific consequences. A very long term of imprisonment is likely to follow a conviction on even a small number of the counts. I reiterate, however, that Mr. Rick has already been detained for more than three years.

[61] In my view the most important factor in this case is the apparent strength of the prosecution’s case. As noted, in March, 2013, Mr. Rick was convicted of ten counts after a trial.

[62] However, there is more to the story. In mid-June, 2013, the complainant’s brother provided a lengthy statement to the police. He said he was told in an emotionally charged conversation with the complainant that she had lied at trial in various important respects. Specifics were provided.

[63] While I have not heard it, counsel referred to a subsequent audiotape. The Crown’s response to this application describes it in these words:

…the complainant has since provided a very brief audiotaped statement to the investigating officer wherein she says that she caused the injuries to herself. The complainant suffers from cerebral palsy and is developmentally delayed and relies on her brother and his family for shelter and support.

[64] The Crown detailed the steps it proposes to take in light of these developments. Those steps and what the Crown describes as “significant corroborating evidence against the Applicant”, underlie the Crown’s submission to me that its case remains very strong.

[65] I have considered the additional but limited information available to me on this application including the photographs taken of the complainant in August, 2011, the summary provided by physicians at London Health Sciences Centre on the complainant’s discharge from hospital in August, 2011, a July 20, 2013 statement of Acting Sergeant Dionne Skelton of the London Police Service and a short letter from plastic surgeon Dr. Scilley dated February 9, 2014. That letter addresses, from the perspective of a specialist in his field, the likelihood of the injuries being self-inflicted.

[66] If the burden of proof lying upon the Crown was only the balance of probabilities I would whole heartedly agree with the Crown’s assessment. However, it isn’t. It is almost too trite to say that proof beyond a reasonable doubt is a significantly higher burden. It should go without saying that the issue of self-infliction goes to the heart of the Crown’s case.

[67] I do not have sufficient information or appreciation of the extensive evidence to comment further upon the apparent strength of the prosecution’s case. However, I can say this factor does not have maximum or nearly maximum force any longer.

[68] Had I not reached the conclusion I did with respect to the secondary ground, I would not have been able to say that the confidence of a reasonable, informed member of the community in the administration of justice would have been shaken if the applicant had been released on the strict terms proposed by the applicant’s counsel. Detention on the tertiary ground would not have been justified.

[69] However and for the reasons given, detention on the secondary ground is warranted. The application is dismissed.

“Grace J.”
Grace J.

Released: August 20, 2014

REASONS FOR JUDGMENT

Justice A. D. Grace

Released: August 20, 2014

[^1]: The documentary evidence included an Application Record of the accused containing, among other things, his own affidavit (a copy of Mr. Rick’s criminal record was attached) and affidavits from his proposed sureties, sister, Joyce Elaine Konrad and mother Marjorie Easton-Raymond. The Crown filed a book of materials that included a transcript of the trial judge’s reasons for judgment delivered March 21, 2013, a typewritten statements of London Police Service member Dionne Skelton and the complainant’s half-brother Darryl Rooth concerning subsequent events, records of the London Health Sciences Centre relating to the complainant’s condition in hospital between August 13 and 26, 2011, photographs of the complainant while in hospital, a letter from plastic surgeon Dr. Scilley dated February 9, 2014 and copies of Mr. Rick’s criminal record.

[^2]: Ms. Konrad and Ms. Easton-Raymond testified.

[^3]: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at para. 30; R. v. E.W.M. (2006), 223 C.C.C. (3d) 407 (Ont. C.A.) at para. 24