ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 2015-11-13
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHN JOSEPH RUCH
DEFENDANT/APPLICANT
J. Bocking, for the Crown
P. Giancaterino , for the Defendant
HEARD: November 13, 2015
RESTRICTION ON PUBLICATION
Information contained in this judgment is subject to a publication restriction under subsection 517(1) of the Criminal Code. This judgment shall therefore not be published in any document or broadcast or transmitted in any way before either (i) the accused is discharged following a preliminary inquiry; or (ii) the end of the accused’s trial.
RAY, J
[1] This is a bail application by the defendant. He is charged with one count of robbery, contrary to s. 343(b) of the Criminal Code and one count of manslaughter, contrary to S.2 36 of the Criminal Code that is alleged to have occurred between November 26 and November 27, 2014.
[2] The Applicant was arrested for the above noted charges on December 19, 2014. The applicant was jointly charged with Steven Kozielo on both counts. The co-accused, Mr. Kozielo, was released at a bail review application before the Honourable Justice R. Maranger in the Ontario Superior Court of Justice on March 5, 2015.
[3] A bail hearing was held on February 13 and March 5, 2015, before Justice of the Peace Mackey in the Ontario Court of Justice. On March 13, 2015, the applicant was denied bail on the primary and tertiary grounds. The Detention Order of Justice of the Peace Mackey was appealed to Justice Kershman of the Ontario Superior Court of Justice, who heard it April 13, 2015, and dismissed the appeal. The Applicant has been in custody since December 19, 2014.
[4] The defence position is that that there are a number of material changes of circumstances that would allow this Court, acting as a Court of review, to vary the decision of Justice of the Peace Mackey. This in accordance with the Supreme Court of Canada’s recent decision in R. v. St-Cloud. The alleged material changes in circumstances include:
a. The current conditions of the applicant’s detention at the Ottawa Carleton Detention Centre are preventing the applicant from accessing the disclosure in this matter. This prevents the applicant from understanding the extent of the case to be presented against him. This inability to access the disclosure is preventing the applicant from preparing a full answer and defence;
b. New disclosure has revealed that DNA belonging to Steven Kozielo, the applicant’s co-accused, who is currently on a judicial interim release order, was found at the scene of the incident;
c. The applicant’s plan of release now includes a plan for the applicant post release and also includes a significant cash deposit of $30,000.00 in addition to a significantly higher non-cash bond;
d. The proposed plan of release would involve two sureties, each pledging a significant bond, a significant cash deposit and the option of electronic G.P.S. monitoring.
[5] The Crown’s position is that the plan is the same as was in front of Justice of the Peace Mackey (as well as Kershman, J.) and there is no material change of circumstances to permit review.[^1] He contends that evidence of the defendant’s unsatisfactory access to disclosure has no relevance to the findings of Mackey JP, or Kershman, J. concerning the primary ground.
Disclosure Issue
[6] The defendant filed an affidavit in which he recited his difficulties in reviewing disclosure while at the Ottawa Carleton Detention Centre. According to the defendant, disclosure in paper or electronic form is left at the OCDC for his review. He is not permitted to keep it in his possession. It is kept in a secure location and released to him for his review in a secure and private room. There are six available rooms for inmates to review disclosure. However these rooms are also used by lawyers for meetings with their clients, for hearings and then if available will be used for inmate review of disclosure. He was given paper disclosure by his lawyer, but was only permitted to review it for one hour, despite attempts to review it on a regular basis. At one point, he was told that his disclosure had gone missing. Eventually his lawyer provided a USB drive which was held by the OCDC in a secure location. He was provided with a laptop computer by the OCDC to review the disclosure but only in the meeting rooms when they were available. He had a one hour review of this disclosure, despite numerous requests.
[7] On three separate occasions (June, and twice in October, 2015), he was transferred to the Lindsay detention facility, but his disclosure was not sent with him. For those periods, he had no chance to review his disclosure. In October when he returned from Lindsay, he repeatedly requested access to his disclosure. He was finally permitted an hour.
[8] During the 108 lockdowns that have occurred since the beginning of the year, inmates are locked in their cells, and visitors are denied entry. He is not permitted to review his disclosure at these times. He prepared a calendar of these lockdown periods.
[9] Steve Ashdown, security officer at the OCDC was called by the Crown. He had no personal knowledge of the defendant’s disclosure requests, but was able to give evidence about the electronic entries by the OCDC. He confirmed there are six meeting rooms available for the inmates to use for disclosure review. One of them is used regularly by the CBSA. The other five are for hearings, lawyer-client meetings, police interviews, and for outside people such as the John Howard Society. When there is availability, and when staff are available then inmates are scheduled. However lawyers have to wait two weeks to meet with their clients. Lawyers are restricted to 9.00 to 11.30 am, and 1.30 to 4pm daily. His records showed that the defendant had access to his disclosure for an hour on November 9 and another hour on November 11. He had no record of any requests made that had been denied or ignored. That information was not recorded so I am left with the defendant’s evidence that he has made numerous unsuccessful requests. He confirmed that when inmates are transferred their disclosure is supposed to follow them but frequently does not.
DNA report concerning the co-accused
[10] It is not clear what the relevance is of this new evidence. The co-accused was released on bail by Maranger, J on March 5, 2015 who assessed the factors including the absence at the time of DNA at the scene. The evidence concerning the defendant has always shown his DNA at the scene. The fact that the co-accused’s DNA has now been reported to have been found at the scene may be relevant to the co-accused, but not the defendant. Each person must be assessed on the basis of their unique circumstances which will include the strength of the case against them.
Changed Plan of Release
[11] It appears the sureties are the same as were presented before Mackey JP, and argued before Kershman, J. The difference is that the one surety is prepared to post $35,000 cash on behalf of the defendant; and the other surety is prepared to increase her proposed posted bond by $25,000. No additional evidence was led concerning the electronic tracking device.
Analysis
[12] Mackey JP, and Kershman, J both felt satisfied with the evidence that the primary ground was of concern, that the defendant represented a flight risk, and that the proposed electronic tracking device could be tampered with by removing it. Both also were satisfied the tertiary ground justified the continuing detention of the defendant.
[13] No evidence was adduced on this application concerning the findings of Mackey JP on the primary ground, and I consider I owe deference to his findings. Particularly since his findings were reviewed and confirmed by Kershman, J. I accept that the tertiary ground may be open to argument in light of the evidence of problems with the defendant having access to his disclosure. While I agree that the defendant’s flight risk has little to do with the conditions at the OCDC that prevent the defendant from reviewing his disclosure, the failure of the OCDC might be an issue to be considered in the balancing of interests. The evidence I heard on this issue is troubling. Ultimately, if the interests of justice require that the defendant be provided with regular uninterrupted access to his disclosure, and if only his release on certain terms will permit him to exercise those rights, then I would be open to an argument I should balance his interests, the interests of justice and his flight risk to determine a final disposition.
[14] The Crown suggested and the defendant agreed that I adjourn this application for several weeks to determine if the OCDC is able to accommodate the defendant’s requirement that he have regular uninterrupted access to his disclosure when provided by counsel. The application is adjourned to December 22, 2015 at 9am for further submissions, and disposition.
Honourable Justice Timothy Ray
Released: 2015-11-13
DATE: 2015-11-13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHN JOSEPH RUCH
REASONS FOR decision
RAY,J
Released: 2015-11-13
[^1]: R. v. Cariaga [2010] O. J, No. 5880, 2010 ONSC 8020. (ONSC).