ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0066-BR
DATE: 2015-12-11
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore, for the Crown
Applicant
- and -
Ricki Lee Erickson,
Tyler Woods, for the Respondent
Respondent
HEARD: November 30, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Judgment On Application For Bail Review
[1] This is an application by the Crown, pursuant to s. 521 of the Criminal Code, for review of the release order made by Justice of the Peace Gibbon on November 3, 2015.
[2] Mr. Erickson was released on a recognizance of bail in the amount of $10,000 without deposit with his mother, Jane Elizabeth Erickson as surety with the following conditions:
Reside with surety
Be amenable to the rules and discipline of your surety.
Remain in your residence at all times\
EXCEPT
for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling).
for purposes of employment
unless you are in the direct presence of your surety
Present yourself to your door when requested to do so by police.
Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following Marilyn Erickson
Do not be within 1000 metres of her home or any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be.
Do not possess
- any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
Do not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code.
Do not buy, possess or consume alcohol or other intoxicating substances
Do not go into any premises primarily licensed to sell liquor.
Carry your recognizance papers will you at all times
the said recognizance is void, otherwise it stands in full force and effect.
Overview
[3] The facts for the purposes of this hearing are not in dispute. The following synopsis is reproduced from the Crown's factum:
- The Respondent is charged with the following Criminal Code offences:
a. assault causing bodily harm contrary to section 267(b)
Information Number 153227 Application Record Tab 2
b. aggravated assault contrary to section 268,
c. uttering threats contrary to section 264.1,
d. overcoming resistance by choking 246(a),
e. obstructing police contrary to section 129(a) and
f. resisting arrest contrary to section 129(a)
all arising out of events which occurred on the 30th of October 2015.
Information Number 153249 Application Record Tab 2
- The Respondent was arrested on the 30th of October and detained in custody, until his show cause hearing on 3rd of November 2015.
Information Application Record Tab 2
- The show cause hearing took place largely on submissions.
Transcript of Bail Hearing held November 3, 2015
- The Applicant adduced its case by reading into the record the allegations set out in the police brief, specifically:
a. that on the 30th of October at approximately 2:30 a.m. the Respondent and the alleged victim, Marilyn Erickson, were imbibing alcohol in the kitchen area of their residence at 118 Finlayson Street. An argument ensued and the Respondent put his hands aground the victim’s neck.
b. the victim fell to the ground; the Respondent kneed her in the chest and punched her several times in the face, and [the victim] began to lose consciousness.
c. the Respondent got off the victim and said “What did I do? I gotta kill you now.”
d. the Respondent began to strangle the victim again and she lost consciousness again, urinating herself.
e. she regained consciousness, taking a large breath, the Respondent then stating “I can’t believe you’re still alive.”
f. the victim told the Respondent she would tell the police an intruder had done this to her.
g. the victim called 911 but was unable to speak.
h. the police attended and spoke with both the victim and Respondent, the Respondent telling them first that there was one intruder and then that there was a group of intruders.
i. when the police attempted to arrest the Respondent he adopted a boxer’s stance and directed a racist slur towards Constable Baxter.
j. the officers had to use force to arrest the Respondent.
k. the victim was taken to the Thunder Bay Regional Health Science Centre for medical attention, which revealed she was suffering from swelling and bruise to her face, soft tissue injuries to her chest, possible internal damage to her throat and a small brain bleed.
Transcript of Bail Hearing pages 2 to 5
- The Applicant tendered the Respondent’s criminal record as an exhibit.
Transcript of Bail Hearing page 5
Applicant Record Tab 2
- The counsel for the Respondent called his mother as a proposed surety.
Transcript of Bail Hearing pages 6 to 24
Counsel for the Respondent did not call the Respondent as a witness.
Counsel made submissions and her Worship Justice of the Peace Gibbons made her ruling concluding with:
“I’m ordering you detained in custody until your next court appearance”
Transcript of Bail Hearing page 36 lines 1 to 2
- There followed an exchange between the Respondent, Her Worship and defence counsel, in which the Respondent asserted as a fact that incarceration would cause him to lose his job, negotiated with Her Worship and offered evidence about the circumstances of the offence before the court.
Transcript of Bail Hearing page 36 line 3 to page 37 line 10
- The exchange concluded with her worship stating:
“Sir, I’m going to order your release then. I’m going to change my decision.”
Transcript of Bail Hearing page 37 lines 11 to 12
At no point in the exchange was Crown counsel offered an opportunity to respond or make submissions prior to the Court advising all parties that it was changing its decision.
The Respondent was released on a recognizance with a surety.
Transcript of Hearing pages 37 line 12 to page 40 line 33.
[4] Mr. Erickson's criminal record is extensive but he has had no convictions for over 16 years. His record includes convictions for five assaults, including one assault on a peace officer, four breaches of recognizance and several convictions for impaired driving and driving while disqualified.
[5] He is employed with the City of Thunder Bay.
[6] On this application, the alleged victim's medical records were filed as exhibits by Mr. Erickson. These records only became available to Mr. Erickson through disclosure recently. These records were not available at the time of the initial bail hearing.
[7] These records from Ms. Erickson's emergency admission, for the most part, repeat the allegations made by Ms. Erickson to the police.
[8] It is recorded that, when admitted to emergency, Ms. Erickson told the emergency nurse that she was "assaulted and choked", "had an unknown duration of LOC (loss of consciousness) and "woke up beat up." Nursing staff noted "+ + R sided facial swelling" and that her right eye was "completely shut."
[9] The emergency physician records that Ms. Erickson said that she had been assaulted by her ex-spouse and "while she was being strangled she says that the individual said "she was going to die tonight and get rid of her." He also recorded that "she lost consciousness during the episode of strangulation and was incontinent; she woke up afterwards, seemingly to the surprise of the individual who said he thought she was not going to wake up." The emergency physician noted that her face was very swollen and that she was bleeding from her nose. He noted red marks under her chin and on both sides below her jaw. The blood alcohol level was noted to be .56 mmol. The driving limit is .17 mmol. X-rays of her face and skull did not reveal any fractures. The brain scan noted a "possible subtle bleed." The neurological exam was otherwise normal and she was kept in the hospital overnight for observation.
[10] The ambulance call report notes "patient states was punched repeatedly in the face, no LOC... ."
Submissions
[11] It is acknowledged that the onus is on the Crown to show that Mr. Erickson should be detained.
[12] The Crown argues that the Justice of the Peace committed a jurisdictional error by failing to allow the Crown to make further submissions in response to her change in decision. Further, the Crown argues that information from Mr. Erickson should have been presented through sworn testimony and not submissions so the Crown could cross-examine Mr. Erickson. Finally, the Crown argues that the Justice of the Piece was "functus" having made the decision to detain and that she had no jurisdiction to reverse her decision.
[13] Mr. Erickson argues that he has a constitutional right to bail, that the medical records do not support an aggravated assault and that, having completed 27 days of post hearing release with the current bail conditions and attending at this hearing, he has demonstrated that he will abide by his bail conditions.
Discussion
The Law
[14] There is helpful instruction from the Supreme Court of Canada regarding review of detention orders in the decision of R. v. St-Cloud, 2015 SCC 27.
[15] The basic principle is this:
[27] Since the enactment of the Canadian Charter of Rights and Freedoms (“the Charter”) in 1982, any person charged with an offence has the right “not to be denied reasonable bail without just cause”: s. 11(e). This Court has stated that s. 11(e) creates “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, at p. 691. Section 11(e) has two distinct components: (1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause”.
[16] Under s.520 or s. 521 of the Criminal Code, a reviewing judge, does not have "an open-ended power to review the initial order respecting the detention or release of the accused." Rather, the reviewing judge must decide "whether it is appropriate to exercise this power of review." (St-Cloud at para. 120)
[17] "A reviewing judge can intervene where relevant new evidence is tendered, where an error of law has been made or, finally, where the decision was clearly inappropriate." (St-Cloud at para. 139)
[18] Where new evidence is submitted, the reviewing judge "may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case." (St-Cloud at para. 121)
[19] What is admissible as new evidence is evidence "that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable." (St-Cloud at para. 132)
Analysis
[20] I conclude that the Justice of the Peace did commit a jurisdictional error by failing to provide the Crown with an opportunity to make further submissions once she changed her decision. As such, I need not consider the other two arguments advanced by the Crown.
[21] I conclude that it is appropriate to exercise the power of review under s. 521.
[22] I find that the medical records constitute new evidence that is admissible following the analysis in St-Cloud. However, I do not accept Mr. Erickson's submission that these records do not support the charge of aggravated assault for the purposes of this hearing.
[23] Mr. Erickson's constitutional right to bail is noted. I also accept the submission that his post-release behavior is supportive of his submission that he will comply with his release conditions. However, I am also mindful of his past record which, although distant, includes convictions for assault and breaches of recognizance.
[24] In this case, the primary concern is the secondary ground and, in particular, protection of the complainant.
[25] During submissions one of the concerns expressed by the Crown was that Mr. Erickson could be, while at work, alone and unsupervised thereby creating a risk for the complainant. I also heard submissions that arrangements could be made with Mr. Erickson's employer so that he was not alone and unsupervised. However, there was no confirmation that the employer would agree or that this was practical.
[26] Balancing the respective positions is always difficult especially where there is risk of serious harm. As noted, Mr. Erickson has been compliant with his release conditions for 27 days. The conditions imposed by the Justice of the Peace are strict.
[27] Conditions 5 and 6 of the current recognizance require that Mr. Erickson not contact or communicate with the complainant and that he not be within 1000 metres of her known location. Mr. Erickson knows that his surety, his mother, will be significantly harmed financially if he breaches these conditions.
[28] Mr. Erickson has the right “not to be denied reasonable bail without just cause”. In the circumstances, having exercised my power of review, the Crown has not satisfied me that Mr. Erickson ‘s detention is justified. The current recognizance with conditions will remain in effect.
Conclusion
[29] This application is dismissed.
_______”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: December 11, 2015
COURT FILE NO.: CR-15-0066-BR
DATE: 2015-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Applicant
- and -
Ricki Lee Erickson,
Respondent
REASONS FOR JUDGMENT ON
APPLICATION FOR BAIL REVIEW
Newton J.
Released: December 11, 2015
/mls