COURT FILE NO.: 14-5008
DATE: 2019/11/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Meaghan Cunningham, for the Crown
– and –
JACQUES ROUSCHOP
Paul Lewandowski, for the Accused
HEARD: October 21, 2019
reasons for decision on crown’s request to introduce evidence of rouschop’s alleged choking and sexual touching of two inmates at the ottawa carleton DETENTION centre
R. smith J.
[1] The Crown seeks to introduce evidence in the Dangerous Offender hearing for Jacques Rouschop (“Rouschop”) of his alleged sexual touching and choking of two fellow inmates. On October 16, 2019, Kyle Bancroft and Matthew Villeneuve alleged that Rouschop touched them in a sexual manner and choked them at the Ottawa Carleton Detention Centre (“OCDC”).
[2] The defence opposed allowing the Crown to call this evidence for a number of reasons which are discussed below.
Choice of Counsel
[3] Rouschop initially alleged that he would be deprived of his right to choice of counsel as his present counsel has a conflict of interest because he had spoken to Mr. Bancroft about the alleged incident. Both counsel agree that Rouschop’s current defence counsel has a conflict of interest and cannot represent Rouschop if Mr. Bancroft is called as a witness. I agree with the proposal that a voir dire be held to determine if the Crown has proven beyond a reasonable doubt that Rouschop sexually touched and choked Villeneuve and Bancroft at the OCDC. An adjournment will be granted to allow Rouschop to retain separate counsel for the voir dire. John Hale has agreed to represent Mr. Rouschop on the voir dire.
Delay and s. 11(b) Charter Rights
[4] Defence also argued that Rouschop’s s. 11(b) rights may be breached by the further delay caused by holding a voir dire with separate counsel. The accused may bring an application based on s. 11(b) of the Charter at anytime before this sentencing hearing is completed if he wishes.
Is it Abusive to Allow the Crown to Call Evidence of a New Serious Personal Injury Offence without Advance Notice?
[5] Defence submitted that the Crown should not be permitted to call evidence of a new serious personal injury offence (“a predicate offence”) without giving adequate notice to Rouschop. The Crown argues that it only became aware of Rouschop’s alleged conduct at the OCDC last week and has made prompt disclosure to the defence. It submits that evidence of Rouschop’s alleged abusive behaviour at the OCDC is very probative and should be considered as the safety of society is a very important consideration in this sentencing hearing.
[6] In R. v. Campbell, [2003] O.J. No. 5724, the Crown sought to call evidence of an assault on a fellow prisoner, a head-butt, after notice had been given to the offender of the basis for its the Dangerous Offender application. At para. 12 of the decision, Hill J. stated that a factual dead-zone did not exist between the date of the notice of the Dangerous Offender application and the pronouncement of the sentence in a hearing of this type.
[7] This dangerous offender hearing commenced on October 15, 2019 and the Crown only became aware of the allegations against Rouschop on October 16, 2019. The Crown provided disclosure promptly and this motion was argued on Monday October 21, 2019. Hill J. held at para. 12 that “the commission of a further act of violence against a person, which could not have been disclosed or otherwise incorporated by reference into the Section 754(1) notice, is nevertheless admissible in furtherance of the government’s attempt at proof of the Section 753(1)(a)(ii) Code ground”.
[8] In the Campbell decision disclosure and an adjournment was found to be an appropriate remedy. I find that that is also the case on this motion.
[9] In R. v. C.L.S., 1999 CanLII 2984 (ON CA), [1999] O.J. No. 257, the Ontario Court of Appeal held that in a dangerous offender hearing, the Crown was permitted to adduce evidence of other incidents even though those incidents had not resulted in convictions. The traditional safeguards will be maintained for Rouschop by granting an adjournment to allow him to retain counsel to represent him in the voir dire and to obtain adequate disclosure. The voir dire will be held to determine if the Crown has proved that the alleged incident(s) occurred beyond a reasonable doubt.
[10] I find that the number of unproven allegations of Rouschop’s recent alleged conduct at the OCDC, involving Mr. Bancroft and Mr. Villeneuve, are not so numerous as to render the proceeding abusive or unfair.
Disposition
[11] For the above reasons a voir dire will be held where the Crown may call the evidence of Rouschop’s recent alleged sexual assaults and choking of Mr. Bancroft and Mr. Villeneuve at the OCDC. The date of the voir dire will be set at a time when independent cousel can properly represent Rouschop. The voir dire will determine whether the Crown has proven the evidence of the alleged incidents at the OCDC beyond a reasonable doubt as it constitutes an aggravating factor. If this standard is met, the evidence adduced during the voir dire will become evidence in the dangerous offender hearing and, if not, this evidence will not form part of this sentencing hearing.
The Honourable Mr. Justice Robert Smith
Released: Orally on November 4, 2019
COURT FILE NO.: 14-5008
DATE: 2019/11/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JACQUES ROUSCHOP
_____________________________________________
reasons for decision on crown’s request to introduce evidence of rouschop’s alleged choking and sexual touching of two inmates at the ottawa carleton centrE
R. Smith J.
Released: Orally on November 4, 2019