ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-13399
DATE: 2019/12/24
B E T W E E N:
Her Majesty The Queen
– and –
Fabrice Ricourt-Casseus
Moiz Karimjee for
the Crown
Leonardo Russomanno for Mr. Ricourt-Casseus
HEARD in Ottawa: December 18, 2019
reasons for decision – detention review
o’bonsawin J.
Overview
[1] This is Mr. Ricourt-Casseus’ mandatory 90-day detention review. He seeks release to his mother as his surety supported by a bond amount of between $2,000 and $3,000. In addition, he proposes to abide by strict conditions. They include the following:
• that he reside with his mother and step-father;
• that he call the Ottawa Police Service from his mother’s home line at set times while she is at work;
• that Operation Door Knock be in effect;
• that he not possess any weapons; and
• that he not associate with anyone with a criminal record.
[2] The Crown seeks an order for the continued detention of Mr. Ricourt-Casseus.
Background
[3] Mr. Ricourt-Casseus has been charged with a series of charges that I will summarize. He is charged with assault (s. 266), forcible confinement (s. 279(2)), trafficking in persons (s. 279.01(1)), receiving a material benefit from trafficking in persons (s. 279.02(1)), receiving a material benefit from the sexual services of another person (s. 286.2(1)), possession of property obtained by crime (s. 354(1)(b)), procuring another person to provide sexual services for consideration (s. 286.3(1)), obstruct peace officer (s. 129(a)), sexual assault (s. 271(1)(b)), theft (s. 334(b)(ii)), uttering threats (s. 264.1(1)(a)), and withholding or destroying documents for the purpose of trafficking in persons (s. 279.03(1)); contrary to the Criminal Code.
[4] I will review the relevant facts related to the charges in question as alleged in the Prosecution Summary. On April 16, 2019, Mr. Ricourt-Casseus met the victim outside the Ontario Addiction Treatment Centre’s Vanier clinic. She asked him for a cigarette. Mr. Ricourt-Casseus asked the victim to follow him back to a residence. Before they arrived at the destination, he was arrested by the Ottawa Police Service. Later that evening, the victim attended Mr. Williams’ residence with Mr. Thibault. Mr. Ricourt-Casseus arrived afterwards. Mr. Ricourt-Casseus asked the victim if she was a prostitute and would work for drugs. She responded that she would rather pay for her drugs. Afterwards, Mr. Ricourt-Casseus sexually assaulted the victim by forcing her to perform oral sex on him and penetrating her with his penis. At the time of the sexual assault, the victim was in and out of consciousness due to the pain caused by Mr. Ricourt-Casseus hitting her head against a wall and kicking her. The victim was also sexually assaulted by Mr. Williams. These assaults occurred between April 16 and 18, 2019. The victim was later given a dirty needle of heroin, overdosed, and was treated by paramedics. She was taken to the Montford Hospital and then to the Civil Hospital where a sexual assault kit was performed.
[5] In May, the victim was looking for heroin. She ran into Mr. Ricourt-Casseus and he told her he would introduce her to Mr. Jean and she would be given free drugs. Mr. Ricourt-Casseus and Mr. Jean took the victim to 928 Montreal Road, Ottawa, where they tried to force her to have sex and perform oral sex with other males. The victim refused. The victim was then held down by Mr. Williams and Mr. Diarra while the latter burned her with a cigar and a heated rod at the direction of Mr. Jean. The victim received burns on her chest, arms, legs, and rectum. The rectal burns were particularly serious. Mr. Ricourt-Casseus and Mr. Jean threatened further assaults to the victim if she did not do as she was told.
[6] The victim was forcibly confined in the apartment for several days. She was forced to provide sexual services to Mr. Ricourt-Casseus and Mr. Jean’s drug clients. The victim was also transported to outcall appointments. The clients paid Mr. Jean for the sexual services.
[7] During the victim’s confinement, Mr. Ricourt-Casseus and Mr. Jean stole her watch, earrings, medication, birth certificate, identification, bank card, health card, and other personal belongings. They forced the victim to give them her TD bank card pin which they used to make fraudulent transactions.
[8] Mr. Ricourt-Casseus and Mr. Jean were arrested on May 17, 2019. Mr. Ricourt-Casseus resisted arrest. Mr. Williams was arrested on May 19, 2019.
Analysis
[9] The decision of R. v. Myers, 2019 SCC 18, 375 C.C.C. (3d) 293 of the Supreme Court of Canada provides judges with guidance with regards to the mandatory 90-day detention review procedure under s. 525 of the Criminal Code. As per s. 525, the hearing is an automatic procedure (Myers, at para. 44). As per s. 525(4), the judge must release the accused if she/he “is not satisfied that the continued detention of the accused in custody is justified within the meaning of ss. 515(10)”. This section provides that detention is justified in three circumstances: 1) where it is necessary in order to ensure the attendance of the accused in court; 2) where it is necessary for the protection or safety of the public; and 3) where it is necessary in order to maintain public confidence in the administration of justice.
[10] Furthermore, a s. 525 review is different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. These sections review prior orders while a review under s. 525 consists of a review of the detention itself (Myers, at para. 47).
[11] In Myers, the Supreme Court also instructs judges that when evaluating if the detention remains justified under s. 515(10), she/he must also consider whether the time that has already elapsed has had, or the anticipated passage of time will have, an impact on the appropriateness or proportionality of the detention. More particularly, judges must be sensitive as to whether the continued detention of an accused could erode public confidence in the administration of justice (Myers, at para. 50). Judges must pay particular attention to the possibility that the amount of time spent in detention has approximated or even exceeded the possible sentence he/she could realistically serve if convicted (Myers, at para. 51). Furthermore, a judge may also consider whether the Crown or the Defence has been responsible for any unreasonable delay in getting to trial (Myers, at para. 54). This is a relevant factor when considering if the accused’s continued detention is proportionate or appropriate.
[12] In a case such as Mr. Ricourt-Casseus’ matter where the accused has not had an initial bail hearing at the time of his arrest, the judge must conduct a full bail hearing in accordance with the ladder principle as noted in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, taking into account the time the accused has already spent in pre-trial custody (Myers, at para. 56).
[13] In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R 328, the Supreme Court confirmed that the release of an accused is the cardinal rule and detention is the exception. Automatically ordering detention is contrary to s. 11(e) of the Charter guarantee that there is a “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” (Myers, at para. 70). The recognized right to be presumed innocent as guaranteed by s. 11(d) of the Charter is a cornerstone of Canadian criminal law. Consequently, these fundamental rights require the judge to “ensure that interim detention is truly justified having regard to all the relevant circumstances of the case” (Myers, at para. 70).
[14] As noted by the Supreme Court in Antic, pre-trial custody “affects the mental, social, and physical life of the accused and his family” and may have a “substantial impact on the result of the trial itself” (Myers, at para. 66). In addition, recognizance with sureties is one of the most onerous forms of release (Myers, at para. 67).
[15] In R. v. Denesevich, 2019 ONSC 3823, Grace J. discusses who bears the onus on a s. 525 detention review. If a bail hearing was not conducted and the detention hearing is the first time a judge will review detention, the Crown bears the onus as per s. 515(5) unless it is shifted to the accused by virtue of s. 515(6).
Evidence
[16] I turn to a review of Mr. Ricourt-Casseus’ matter. I must start off by noting that the right to bail is a constitutionally protected right. There is a presumption of Mr. Ricourt-Casseus’ innocence.
[17] Ms. Ricourt, Mr. Ricourt-Casseus’ mother, was the only witness in this matter. Although likely well-intentioned, Ms. Ricourt’s testimony contained many inconsistencies. I will summarize the relevant parts of her testimony. She testified that she lives with her husband and two teenage daughters and that she has a spare bedroom for her son. Her husband is currently on sick leave and receives no income. He sleeps a lot because of his medication. Ms. Ricourt works in housekeeping at a local hospital. Her hours of work are from 3:00 p.m. to 11:00 p.m., Monday to Friday. This is her guaranteed full-time schedule and therefore her hours will not change.
[18] Ms. Ricourt acted as surety for her son in 2016. At that time, Mr. Ricourt-Casseus breached his conditions by being alone in the community unaccompanied by his mother. When Ms. Ricourt discovered that her son was missing, she did not report this breach to police. During her testimony at this detention hearing, when asked to explain what had occurred, she said that it was a misunderstanding. In addition, she admitted during cross-examination that her mistake was to say under oath that her son had been with her when in fact he was not. She only admitted to the fact he was not with her when the Crown showed her a video in court at the bail hearing before Maranger J. in May 2016. Furthermore, Ms. Ricourt confirmed that she had read the document, “What Sureties Need to Know” (Exhibit 1 in these proceedings), and she was aware of her obligation as a surety to call police if her son breaches a condition. During cross-examination, she confirmed that she had also read this same document when she acted as a surety for her son in 2016.
[19] Ms. Ricourt testified that on December 12, 2019, she was shocked to find out about the charges her son was facing. However, she testified that because her son had spent time in adult jail, she was confident he learned his lesson. She characterized adult jail as being different from youth detention. It must be noted that at her son’s bail hearing in May 2016, Ms. Ricourt testified that she thought her son had learned his lesson and that he would follow her rules.
[20] Ms. Ricourt also described Mr. Ricourt-Casseus’ living arrangements prior to his arrest. From 2016 to his most recent arrest, her son lived with her five days per week and with his father on the weekend. In addition, Mr. Ricourt-Casseus spent the holidays with his father. He was starting school and working at Tim Horton’s. She admitted she never saw him working there. He then worked at Jamba Juice at the mall. Ms. Ricourt was not aware that her son told police he was homeless when he was arrested on these charges, nor that he was last known to be staying at an apartment at 125 McLeod Street. She was not aware that he was arrested at 125 McLeod Street. Ms. Ricourt disagreed that her son was homeless at the time of his arrest; she testified he was either living with her or his father. During cross-examination, Ms. Ricourt testified that she only recently heard her son was in jail. From May 17 to December 12, she thought that her son was living with his father, but she did not check with the father to confirm the whereabouts of her son. The last time she called her son was near Mother’s Day, and someone else answered his phone and said it was not his phone number. She thought that her son had lost his phone. In addition, Ms. Ricourt confirmed that she did not call her son on his birthday on September 12. After further cross-examination on this issue, Mr. Ricourt testified that she found out her son was in jail in August. She has not spoken to him since his incarceration.
[21] Ms. Ricourt is prepared to put between $2,000 and $3,000 as an amount for bond. During cross-examination, she was asked if she was prepared to put $50,000 as an amount for bond using the equity that she had in her house. She seemed hesitant at first but then confirmed that she would do so if required.
[22] As previously noted, Ms. Ricourt testified at her son’s bail hearing before Maranger J. on May 25, 2016. She was proposed as a surety for her son. According to my review of the bail hearing transcript, Maranger J. found Ms. Ricourt’s testimony lacked some credibility: “That evidence is very difficult for the court to accept as anything but lacking credibility” (p. 37 of Transcript dated May 25, 2016).
[23] Mr. Ricourt-Casseus has a youth record and an adult criminal record which includes escape lawful custody, robbery, failure to comply with sentence as per s. 137 of Y.C.J.A. and, very recently, assault causing bodily harm. In addition, Mr. Ricourt-Casseus’ trial is scheduled for August 4-20, 2020.
[24] The Crown provided a series of documents and videos to support its claim that it has a strong case against Mr. Ricourt-Casseus, notwithstanding the fact that the victim passed away in September 2019. They include interview transcripts with the victim, Mr. Ricourt-Casseus, Mr. Jean and Mr. Williams, a video of the victim’s interview, cell phone screen shots, victim injury photographs, the victim’s Physical Examination Form and other various police records.
[25] A report from the Ottawa Carleton Detention Centre described that on July 6, 2019, Mr. Jean was assaulted by other prisoners. Mr. Ricourt-Casseus was identified as one of the assailants. Force was used to restrain Mr. Ricourt-Casseus to keep him away from Mr. Jean. Mr. Ricourt-Casseus was charged with assault causing bodily harm. He pled guilty to the charge.
[26] I turn to my review of the factors listed in s. 515(10) that must be considered in a detention hearing. Firstly, I must determine whether Mr. Ricourt-Casseus’ detention is necessary to ensure his attendance in court. This is not a relevant factor in his case.
[27] Secondly, I must determine whether the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence. I must have regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice. Mr. Ricourt-Casseus assaulted Mr. Jean, one of his co-accused’s, while in custody. I have been advised that Mr. Williams, a witness for the Crown in Mr. Ricourt-Casseus’ matter, is in the community. For the record, he has been identified as the “slow guy”. Based on Mr. Ricourt-Casseus’ actions while in custody, Mr. Williams may be at risk if the former is released from custody. I find that if Mr. Ricourt-Casseus is released, he may interfere with the administration of justice.
[28] Thirdly, I must consider if Mr. Ricourt-Casseus’ detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[29] With respect to this third consideration, I find that the public may lose confidence in the administration of justice if it were aware that Ms. Ricourt had acted as surety for her son in 2016 and she did not call the police when he breached his conditions. In addition, her testimony at this detention review was contradictory and leads me to believe that she was not a credible witness. There were inconsistencies in her evidence regarding the events of 2016, she maintained that her son resided with her and/or his father until his arrest which is contradicted by her son’s statement that he was homeless at the time of his arrest, and she did not know where her son was between May and December 2019. Lastly, she contradicted herself about when she became aware of her son’s arrest. At first, she said it was on December 12, 2019, and then said it was August 2019. I find that she would not be an appropriate surety for her son.
[30] As for the apparent strength of the prosecution’s case, I take Mr. Russomanno’s argument that there are evidentiary issues with much of the evidence provided by the Crown at this hearing. However, he conceded that the Crown may adduce such evidence at this stage in the process. While all of this evidence may not be adduced at trial, I find that the Crown’s case appears strong notwithstanding the fact that the victim has since passed away.
[31] The charges that Mr. Ricourt-Casseus faces are very serious. They include human trafficking, unlawful confinement, sexual assault and assault. Although a firearm was not used in the assault of the victim, she was burned with a cigar and a heated rod. In addition, if Mr. Ricourt-Casseus is convicted of these charges, he faces a potentially lengthy term of imprisonment.
[32] I have also considered the fact that Mr. Ricourt-Casseus has been in detention since May 17, 2019, and that his trial is scheduled for August 4–20, 2020. The timeline in question meets the Jordan obligations. Based on the evidence that I have been provided, I do not find that either party has been responsible for any unreasonable delay. In addition, the time lapse of approximately 15 months in detention is much less than the term of imprisonment that Mr. Ricourt-Casseus would face if he is convicted of these charges.
Conclusion
[33] For these reasons, I find that Mr. Ricourt-Casseus should remain detained.
Justice M. O’Bonsawin
Released: December 24, 2019
COURT FILE NO.: CR-19-13399
DATE: 2019/12/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
Fabrice Ricourt-Casseus
reasons for decision
Detention review
O’Bonsawin J.
Released: December 24, 2019