ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-5079

DATE: 2014/01/24

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ERIC RICHARDS
Applicant/Accused

M. Karimjee, for the Crown

I. Gencher, for the Applicant/Accused

HEARD at Ottawa: January 20, 2014

decision on application by accused for interim release

kane j.

APPLICATION AND GROUNDS

[1] The original Notice of Application brought by the accused is dated November 27, 2013 in relation to complaints by J. B. relating to an incident which occurred on September 6, 2013.

[2] The above application was replaced by an Amended Notice of Application dated December 23, 2013 following the issuance of a new indictment dated December 5, 2013 based upon complaints made by J. B. and S. D. The events complained of by S. D. allegedly occurred on June 18, 2012.

[3] The Amended Notice of Application seeks an order granting Judicial Interim Release of the accused who is charged with two counts of sexual assault with a weapon, two counts of unlawful confinement, one count of dangerous driving, two counts of uttering a threat to cause death, one count of mischief and one count of assault.

[4] J. B. communicated her complaints to police on September 7, 2013. The accused was arrested and has been held in custody since September 7, 2013. A bail hearing was conducted on that same date before Justice of the Peace, L. Logue. Bail was denied pursuant to s. 515 (10) (c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. That bail hearing proceeded on the basis of the original information involving charges based upon the complaints of J. B. only.

[5] The grounds relied upon in the present application for Judicial Interim Release are:

(a) the accused has no criminal record,

(b) there has been a material change in circumstances since the accused’s detention on September 7, 2013 as the applicant is now proposing three sureties, being his father, his mother and his brother, and

(c) the learned Justice of the Peace in detaining the applicant pursuant to s. 515 (10)(c), committed an error in law in failing to analyze why detention was necessary to maintain confidence in the administration of justice.

Initial Refusal Of Bail

[6] The Crown before the Justice of the Peace sought detention solely on the tertiary ground regarding the charges of sexual assault, using a weapon, unlawful confinement, dangerous driving, uttering a threat and mischief, based upon the complaint of J. B.

[7] That court began by examining the four considerations under s. 515 (10)(c), namely the strength of the Crown’s case, the gravity of offences, the circumstances surrounding the events and whether the accused faced a lengthy period of incarceration if convicted.

[8] Based upon the accused being arrested at the scene, the presence of two witnesses to the events complained of in addition to the complainant, the seizure by police of a knife alleged to be used against the complainant in the course of the sexual assault which, according to the brother, is similar to a knife owned by the accused, a partial admission, police finding a used condom on the accused and a condom wrapper in his vehicle, the court concluded that the Crown had an extremely strong case as to the complaint by J. B.

[9] The court determined that the nature of these offences against the complainant, identified as a sex trade worker, threatened with her life at knife point and then raped while screaming and asking for assistance, were serious charges.

[10] As to the circumstances surrounding the alleged offences, they occurred late afternoon, in a public cemetery at a time when the accused was expected home to pickup his daughter, the use of a knife, the threats against the complainant, the accused drove away quickly when a cemetery employee attempted to intervene and the complainant then being pushed out of that vehicle as it sped away, were held to be important circumstances under the thirdelement. The court stated that the nature of these offences involving a threat to life using a knife against a female is of serious concern in the community.

[11] As to the fourth element, the court indicated that a lengthy period of incarceration under the above circumstances could be the result upon a conviction.

[12] The court thereupon proceeded to examine the two sureties put forward by the accused namely, the accused’s father and his brother.

[13] The father of the accused testified that he and the mother reside in a one-bedroom apartment on Clarence Street in the City of Ottawa. He stated he was shocked to learn of the original allegations against the accused but felt he had to show a little faith in his son. He acknowledged that he was not totally involved in the accused’s life.

[14] He stated that this son was married to a woman who resides in the state of Connecticut, U.S.A., who is the mother of a 3-year-old daughter from a previous relationship whom the accused subsequently adopted. At the time of these charges, this 3-year-old daughter was temporarily being cared for by the accused at night and by the paternal grandmother during the day as the wife had returned with her one year old son, whom the accused is the father of, to Connecticut.

[15] The father stated that the accused lived on his own. He acknowledged that he has a poor memory and stated that the accused, formerly on disability, returned to employment in the summer of 2013.

[16] The father acknowledged the strength of the Crown’s case. The court concluded that the father had only a superficial knowledge about the accused’s activities and there was no sense of closeness between the father and the accused.

[17] The accused’s brother, Philip Richards, testified that he and the accused lived in his public housing unit after his recent separation from his wife. It appears the brother testified that the accused had been living with him since May, 2012, not since the summer of 2013.

[18] This brother stated that he and the accused have a collection of knives, with the majority being owned by the accused. He stated the knives were stored in his basement, as opposed to the father who testified that the knives were on a wall display in this residence and only taken down when the children were visiting in Ottawa.

[19] The court cited the father’s evidence that the accused in his employment sanitizes male and female washrooms which provides him access to a knife. Philip Richards testified that the accused was employed as a manager with responsibilities which include receiving shipments.

[20] It appears there were several contradictions as stated above. This confusion confirms the father’s limited knowledge as to the accused’s circumstances.

[21] The court concluded that Philip Richards worked Monday to Friday and could not afford the extent of supervision required given the seriousness of the offences alleged.

[22] The court thereupon determined that the Crown had met its onus for detention. It was held that the informed reasonable public, having heard the evidence presented and knowing the strength of the Crown’s case, the gravity of the offences alleged, the circumstances surrounding the commission thereof and the potential for a lengthy term of imprisonment, would lose faith in the administration of justice if the accused was granted bail.

Allegations

[23] S. D. alleges that while walking on June 18, 2012, a silver automobile approached her and stopped. She alleges that the male driver grabbed her breasts and pulled her into his car. She alleges that the male driver threatened her with a knife, told her to comply with his demands or he would cut out the fetus she was carrying, placed a knife to her throat while he pulled down her pants. She alleges that the male then punched her in the stomach, told her to spread her legs and thereupon sexually assaulted her. The complainant provided police with a vaginal swap she performed after waiting unsuccessfully two hours in the hospital, together with a cigarette butt she alleged she and the assailant had smoked and her pants and nylons worn at the time of the incident.

[24] S. D. was unable to identify the accused from a photo line-up presented to her after the arrest of the accused on September 7, 2013.

[25] No charges were laid in relation to the allegations of S. D. until December, 2013 when police learned of a connection between the male DNA from this first incident and the male DNA obtained in the assault against J. B.

[26] In the case of J. B., a telephone call was received from the grounds manager at an Ottawa cemetery on September 6, 2013 at 16:16 hours. The caller, Mr. Smith, had physically detained the accused on the cemetery grounds. Mr. Smith had been alerted by a female passerby who sought help regarding an ongoing assault of the complainant who was screaming for help as the accused had his hand to her neck and was raping her.

[27] Mr. Smith approached the defendant’s vehicle and saw that he was wearing a condom. The accused, according to Mr. Smith, was detaining the complainant in his motor vehicle but sped away as he approached. The complainant screamed to Mr. Smith that she was being raped.

[28] As the accused attempted to drive away, the complainant was pushed out of the car by Mr. Richards who thereupon struck a light post which halted the vehicle.

[29] During the recorded telephone conversation with the 911 operator, Mr. Smith repeatedly tells the accused to remain on the ground and not move. A male voice on the recording states that he “F”d up and that the knife is on the front seat of the vehicle.

[30] Police arrived and took the accused to the police station. During their search of the accused, a blue condom fell from the underwear of the accused. DNA samples from the condom and the clothing of the complainant were sent for DNA analysis.

[31] Police were notified that the male DNA identification from the two occurrences indicate that the same male was involved in both instances.

[32] Police are currently awaiting a DNA report of a sample judicially authorized obtained from the accused.

Analysis

[33] The Supreme Court of Canada in R. v. Hall, 2002 SCC 64, 2002 CarswellOnt 3259, (S.C.C.) paras. 31 and 41 as to the third ground under s. 515 (10) stated that “… It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public’s confidence if the circumstances of the case so warrant. … While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail is available. … At the end of the day, the judge can only deny bail if satisfied that in view of these factors [i.e., identified in s. 515 (10)(c)] and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.”

[34] This court is satisfied that the decision under review clearly identifies the surrounding circumstances used in analyzing each of the four elements and that the combination thereof, if known by knowledgeable, reasonable person, would undermine the public’s confidence in the administration of justice if the accused was released on bail. This analysis, which is supported by the evidence, is an appropriate analysis and reason to deny bail under s. 515 (10)(c). This analysis does not constitute an error in law.

[35] There are new, similar and serious charges resulting from the complaint of S. D. which were not before the Justice of the Peace. S. D. was unable to identify the accused from a photo line-up conducted one year after the alleged sexual assault against her. The current DNA evidence however, strongly suggests that the accused was the perpetrator of this earlier reported sexual assault.

[36] There may be merit to the argument of the defence that the testimony of these two sex trade complainants may be subject to challenge at trial if their evidence proves to be unreliable due to the number of male individuals they were involved with or if the complainants are shown to have a criminal record or a substance dependency. Reliable DNA evidence however identifying the accused combined with the two, third party witnesses at the cemetery on the second occurrence who allege that they witnessed the accused performing a sexual assault with the use of the knife on a female screaming for help, are strong evidence and corroborative of the Crown’s theory that the accused is the assailant in each incident.

[37] The accused has no criminal record. His presumption of innocence and the requirement under the Charter that bail be granted unless detention is justified, applies and is important. The accused however is facing strong evidence that he has perpetrated very violent crimes twice against females within a 14-month period. He acknowledges having a bad memory. He was uncertain in his testimony on this application whether he commenced living at his brother’s home in 2012 or 2013. He was quick to suggest alternate explanations for inconsistencies put to him as to his testimony and that of the three members of his family who also testified. He stated that he, his parents and his brother have a very close relationship.

[38] There have been regular reportings during the last few years of males approaching, molesting and sexually assaulting females in public areas in Ottawa. I agree with the analysis and conclusions of the Justice of the Peace that the four factors under subsection 515(10)(c) are established and represent a very strong case by the Crown involving very serious charges, including the threat of death with the use of a knife, and that the accused, if convicted, potentially faces a long period of incarceration. Given the surrounding circumstances as to how the offence in 2013 was carried out, the similarity between those circumstances and the alleged offences in 2012, I conclude that an informed and reasonable public, with the knowledge of the similarity between these two violent attacks and the strong evidence pointing towards this accused and his potential culpability thereof, would seriously question the court’s release of the accused in the face of this evidence. Releasing the accused now would undermine the public’s confidence in the administration of justice.

[39] As to the second ground under s. 515(10)(c) and whether detention is necessary for protection of the public having regard to all the circumstances, including substantial likelihood the accused will commit a criminal offence or interfere with justice administration if released, the Supreme Court in R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711 (S.C.C.) at paras. 37, 39 and 43 to 46, held that:

(a) The likelihood of the accused committing a crime or interfering with justice, does not of itself justify detention.

(b) Either or both of these risks only justified detention where the substantial likelihood thereof endangers the protection or safety of the public.

(c) Detention is justified only where it is necessary for public safety, not merely convenient or advantageous.

(d) Bail will be denied if it is shown that there is a substantial likelihood of the accused committing an offence, or interfering with justice, and that the commission thereof will likely be dangerous to the public. (Emphasis added)

[40] If the accused in fact has perpetrated these offences against two separate complainants over 14 months, there is definitely the possibility he may commit another offence if released. Without psychological or psychiatric evidence providing expert opinion as to the accused’s “substantial likelihood” of committing a similar or other offence, it is very hard for the Crown to meet this first element, or for this court to arrive at that conclusion. It is only when this first element is established that the court then addresses whether that substantial likelihood represents a risk to the public. I would be satisfied as to this second element. I can only speculate however as to the first element in this analysis. I conclude that the secondary ground has not been established.

[41] Although it is obiter given my decision as to the second ground, I am not satisfied with the plan put forward by the defendant, even with the addition of the mother as a third surety. I found the evidence of the parents and brother as proposed sureties to be unsatisfactory.

[42] The evidence of the father as a surety was indecisive or unstable. His daily absence for employment from approximately 7 AM until 5 PM or later provides no supervision or observation during the day.

[43] The mother was categorical. Notwithstanding the evidence and the playing of the 911 recording as to the September, 2013 incident, she does not believe the allegations against her son. She presented her reason why such evidence was suspect. Her research of bank records has led her to believe that the 2012 allegations are also untrue. She has discussed this research with the accused. She is also at work daily from 6 or 7 AM until 4 PM and as such, is unavailable to provide any supervision or observation of the accused during the day. The addition of the mother as a third surety is mere “shuffling of the deck”.

[44] The brother is at work daily so the accused is to be on his own in the two homes during the day.

[45] The court therefore is being asked to simply accept the word of the accused that he will not commit an offence during regular working hours and that he will comply with any other terms or conditions imposed upon his release. I am uncomfortable with his undertaking given the manner in which he testified on this application.

[46] In summary, this court concludes that based on the evidence, now augmented with the similarity in the method of attack and use of a knife in the 2012 allegations, the severity of each, and the DNA evidence from both occurrences identify one male who appears to be the accused based on the witnesses of the second occurrence, the Crown has established each of the elements under s. 515(10) (c). The heightened nature of the four elements combined with the surrounding circumstances, warrant the exceptional detention in this case of the accused under the third ground.

[47] For these reasons, the application of the accused is dismissed.

Kane J.

Released: January 24, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ERIC RICHARDS

Applicant/Accused

decision on application by accused for interim release

Kane J.

Released: January 24, 2014