CITATION: R. v. Newton, 2017 ONSC 7677
COURT FILE NO.: 17-13301
DATE: 2017/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
In the matter of an application pursuant to section 18 of the Extradition Act, S.C. 1999, c. 18 for the judicial interim release of JOSEPH EVERETT NEWTON
BETWEEN:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
JOSEPH EVERETT NEWTON
Applicant
Jeffrey G. Johnston, for the Respondent
Frank Horn, for the Applicant
HEARD: December 20, 2017
REASONS FOR denial of bail pending extradition
aitken J.
Nature of Proceedings
[1] James Everett Newton (the “Applicant”) was arrested on November 23, 2017 pursuant to a provisional arrest warrant issued under s. 13 of the Extradition Act, S.C. 1999, c. 18 (the “Act”). The Applicant seeks judicial interim release under s. 18 of the Act pending the outcome of the extradition proceedings. By virtue of s. 19 of the Act, Part XVI of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) applies in respect of a person arrested under s. 16 of the Act. Consequently, the provisions of s. 515 of the Code dealing with judicial interim release must be considered.
Reverse Onus
[2] Under s. 515(6)(b) of the Code, it is the accused who must show cause why his detention in custody is not justified if the accused is charged with an indictable offence other than an offence listed in s. 469 of the Code and is not ordinarily resident in Canada.
[3] The Applicant cannot be considered to be ordinarily resident in Canada. He is an American citizen. Until March 23, 2016, he was a resident of the United States of America. At some point after that date, he came to Canada. The Canadian Border Services Agency has no record of the Applicant entering Canada, and he has no status in Canada. No evidence was tendered as to the Applicant’s residence in Canada aside from the fact that he was arrested at a residence near Alexandria, Ontario, where he appeared to be living at the time.
[4] The Applicant is charged in Wisconsin with the crime of sexual assault of a child under 16 years of age between May and October 2014. The offence of sexual assault is an indictable offence in Canada (see s. 271(a) of the Code). The offence of sexual interference is also an indictable offence in Canada (see s. 151(a) of the Code).
[5] The Applicant bears the onus of showing cause why his detention in custody is not justified. The Respondent opposes the Applicant’s release and relies on the primary, secondary, and tertiary grounds articulated in s. 515(10) of the Code.
Evidence Tendered by the Respondent
[6] The Respondent provided an affidavit of Detective Constable Jesse Dean of the Toronto Fugitive Squad, setting out the allegations against the Applicant.
[7] The allegations against the Applicant involve repeated acts of sexual intercourse with a 15-year-old girl between May and October 2014, some occurring when the child was allegedly unconscious. It is alleged that the child became pregnant with the Applicant’s child, but subsequently suffered a miscarriage. The child, and an independent adult, who claims to have directly witnessed the Applicant and the child having sexual intercourse on numerous occasions in the summer of 2014, have provided statements to American authorities. As well, police officers have interviewed several other females who reported that the Applicant sexually assaulted them in jurisdictions outside of Wisconsin. No charges have yet been laid in regard to those allegations, though evidence in their regard may be admissible in regard to the charges in this case.
[8] The Applicant has a lengthy criminal record dating from September 26, 1997 (when the Applicant would have been just shy of 17 years of age) to January 12, 2015. The record includes three counts of resisting/obstructing an officer; two counts of fleeing/eluding an officer; one count of escape; four counts of retail theft; one count of hit and run, one count of 2nd degree recklessly endangering safety; one count of operating without a valid driver’s licence; one count of disorderly conduct; one count of burglary in a building or dwelling; and one count of theft of movable property. He has received sentences for these offences ranging from 5 days to 6 years in prison, and from 12 months to five years of probation.
[9] The State of Wisconsin issued a warrant for the Applicant’s arrest on March 10, 2016. The information provided by the American authorities and attached to the Affidavit of Detective Constable Dean is that the Applicant fled Wisconsin shortly after becoming aware of this warrant. For him to have been convicted previously of escape under Wis. Stat. §946.42(3)(a), on a previous occasion, there must have been a finding that the Applicant intentionally escaped from custody after being arrested for, lawfully charged with, or convicted of or sentenced for a crime.
[10] When the Applicant was arrested in Canada pursuant to the provisional arrest request, he had no identification documents. The Applicant claimed at the time that they had been burned in a car fire. During the course of the bail hearing, the Applicant’s wife produced to his counsel an identification document for the Applicant. According to the Applicant’s counsel, the document, which was not tendered in evidence, had been issued by the State of Wisconsin and confirmed that the Applicant is Joseph Everett Newton identified in the provisional warrant.
[11] Under Wisconsin law, if the Applicant is convicted of the charge in this case, he will face a maximum term of imprisonment of up to 40 years. Under Wisconsin law, the maximum bifurcated prison sentence for the charge is 25 years initial confinement followed by 15 years extended supervision.
[12] Further evidence as to other outstanding allegations against the Applicant was provided in the Affidavit of Detective Constable Dean and the exhibits attached thereto. I do not consider it necessary to review that for the purpose of my decision.
Evidence Tendered by the Applicant
[13] The Applicant put forward one surety, Victor Ronald Smith.
[14] Mr. Smith is 51 years of age. He lives in Cornwall with his wife of five years and their 12-year-old daughter. He has been the night auditor at a hotel in Cornwall for 20 years, working from 10 p.m. to 8 a.m. every second week. He met the Applicant sometime in the summer of 2016. Mr. Smith’s wife is a close friend of the Applicant’s wife. For the last year, Mr. Smith and his family have visited frequently with the Applicant, his wife, and their two children. The families have gone camping together and engaged in other activities. Mr. Smith considers the Applicant a friend. It is as a result of this friendship that Mr. Smith has agreed to be a surety for the Applicant.
[15] Despite Mr. Smith’s generous spirit and sincerity, I cannot find him to be a suitable surety.
[16] Mr. Smith only learned of the nature of the charges against the Applicant as he was sitting in court listening to the submissions being made by the Respondent’s counsel. His attitude was that he did not care what the charges were; he did not believe them. Although loyalty to a friend is a commendable thing, blind loyalty and faith can get in the way of a person being a reliable surety. If a surety is completely convinced that the accused is innocent and is being unfairly pursued by law enforcement officials, and if the surety does not keep an open mind, there is a risk that the surety’s judgment could be blurred if faced with a breach of conditions by the accused.
[17] As well, Mr. Smith acknowledged that, as far as he knew, his wife and his daughter did not know about the nature of the charges against the Applicant. Again, he said that this was irrelevant as his wife would support him 100%. What Mr. Smith’s wife would think, if she knew of the nature of the charges, is a relevant consideration. Mr. Smith testified that the plan would be for him, his wife, and their daughter to move in with the Applicant, his wife, and their children, in the Applicant’s home in Greenfield – a 35 minute drive from where Mr. Smith lives and works. The families would live together for as long as the Applicant was on bail. Surely, for this plan to have any merit, both Mr. Smith, and his wife, should have been notified in advance of the nature of the charges and given a chance to discuss the appropriateness of the proposed living arrangements – particularly for their daughter.
[18] It was obvious that Mr. Smith had not given much consideration to the practicalities of the plan. He would need the family car to get to and from work the weeks he is working. His wife would need the car during the day to get to her work in Cornwall. Someone would have to drive their daughter to her school and be available to pick her up from school. No consideration was given to the impact these arrangements would have on the Smiths’ child and her participation in after-school activities or other activities in her normal community. When asked about practical considerations, such as making the plan work with one car at the family’s disposal, Mr. Smith responded that he would make it work somehow, perhaps through borrowing a car from others. The whole plan was simply too vague.
[19] When Mr. Smith was asked how he could supervise the Applicant during the night-time hours when Mr. Smith was working, he had no good answer. He said he could call the house to make sure the Applicant was there – not a great solution if everyone in the house is sleeping. He did not see the night-time hours as being problematic because his wife would be there, but his wife was not put forward as a surety. She would have no supervision responsibility in regard to the Applicant. As well, during the day, the evidence was that the Applicant’s wife and Mr. Smith’s wife would be away from home working. Presumably, for some of that time, Mr. Smith would be sleeping.
[20] Mr. Smith had not previously been advised that the court might want him to post a bond. He was shocked to learn that the size of the bond being sought in the United States, if the Applicant were to be granted bail there, was $100,000. Although I accept the submission of the Applicant’s counsel that the level of bond likely sought in Canada would be far less than that, still, Mr. Smith should have been advised of this likelihood before he testified. He should have been given an opportunity to consider the request, after discussion with his wife. Mr. Smith made it clear that he is a man of modest means. He may have $50,000 equity in his home. Clearly, he was not comfortable posting a bond for any amount of money; though, in the end, he tentatively agreed that he could do so up to $5,000 – an amount that I consider inadequate in the circumstances of this case.
[21] In summary, Mr. Smith, though a willing surety, is not an appropriate surety in the circumstances of this case. No other sureties were put forward. The Applicant’s wife tried to interject from the body of the courtroom, but was not permitted to do so. It was only after I asked counsel to speak to the Applicant’s wife that he did so and advised of the possibility of her posting a sizable bond based on her equity in her home; however, the Applicant’s wife was not called as a witness or put forward as a surety.
[22] Finally, the Applicant did not testify on the bail hearing to explain how he saw the interim release plans working and what, if any, conditions he would be prepared to abide by if he were released. The court cannot be expected to make an order for interim judicial release based on a plan of Mr. Smith’s family moving in with the Applicant’s family if no evidence is heard from the Applicant and his wife.
Primary Grounds
[23] Under s. 515(10)(a) of the Code, the detention of an accused in custody is justified where the detention is necessary to ensure his attendance in court in order to be dealt with according to law.
[24] In an application for judicial interim release in the context of extradition proceedings, “the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings” (United States of America v. Edwards, 2010 BCCA 149, 288 B.C.A.C. 15, at para. 18, per Low J.A.).
[25] A good indicator of future conduct is past conduct.
[26] The Applicant has several convictions over many years for resisting or obstructing an officer, fleeing or eluding an officer, and escape. In addition, the evidence is that, once the Applicant became aware of the arrest warrant in Wisconsin in regard to the outstanding charges being considered in this matter, he eluded arrest by coming to Canada. Many of the submissions made by the Applicant’s counsel impliedly acknowledged that the Applicant had left the United States to avoid arrest. The Applicant’s counsel made lengthy submissions about how the Applicant, as an American Indian and member of the Menominee Tribe in Wisconsin, had been the victim of harassment, unlawful and unfair treatment, unfounded allegations, and numerous other injustices. The Applicant’s counsel argued that the Applicant had every reason to fear that he would not be treated in a fair, just, or lawful fashion if he returned to the United States to face the outstanding charges. For this reason, the Applicant should be released on bail so that he could properly prepare his case to challenge the charges against him and return to the United States only when he was ready to do so and on his own terms. The Applicant’s counsel ignored my suggestion that such submissions were misplaced at this bail hearing.
[27] The charges that the Applicant is facing in the United States are serious. If he is found guilty, he could potentially be facing a very lengthy sentence. This fact increases the risk of flight.
[28] In the absence of any specific and realistic plan to deal with primary concerns under s. 515(1)(a), and in the face of numerous convictions against the Applicant for resisting or obstructing an officer, fleeing or eluding an officer, and escape, the Applicant has failed to satisfy me on a balance of probabilities that his detention is unnecessary to ensure his attendance in court to face the outstanding charges in the State of Wisconsin.
[29] Having come to this conclusion in regard to the primary grounds, I consider it unnecessary to consider the secondary or tertiary grounds.
Disposition
[30] For these reasons, I denied bail to the Applicant on December 20, 2017.
Aitken J.
Released: December 21, 2017
CITATION: R. v. Newton, 2017 ONSC 7677
COURT FILE NO.: 17-13301
DATE: 2017/12/21
ONTARIO
SUPERIOR COURT OF JUSTICE
In the matter of an application pursuant to section 18 of the Extradition Act, S.C. 1999, c. 18 for the judicial interim release of JOSEPH EVERETT NEWTON
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Respondent
– and –
JOSEPH EVERETT NEWTON
Applicant
REASONS FOR denial of bail pending extradition
C. AITKEN J.
Released: December 21, 2017