Court File and Parties
COURT FILE NO.: 347/20-00BR DATE: 20200409 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Robert Kevin Rouse
BEFORE: Justice Robert B. Reid
COUNSEL: D. Anger, Counsel, for the Director of Public Prosecutions J. Nadeau, Counsel, for the Accused
HEARD: April 7, 2020
Endorsement
[1] This is a detention review brought on behalf of the accused. He has been in custody since his arrest on December 9, 2019. Bail was denied at a hearing before Justice of the Peace T. P. Froese on December 12, 2019.
[2] This application began as a bail review under s. 520 of the Criminal Code. Since the accused has been in custody for over 90 days, and since defence counsel filed the application of the superintendent dated March 6, 2020 to fix a date for a 90-day review under s. 525 of the Code, and on consent of both counsel, the matter proceeded before me as a detention review.
[3] The hearing was conducted by recorded teleconference attended by Crown counsel, defence counsel, the accused, and Robert Calvin Rouse who is the father of the accused. Mr. Rouse Sr., as a proposed surety, filed an affidavit and gave evidence. The transcript of the bail hearing was filed as was the criminal record of the accused.
[4] The question is whether the continued detention of the accused in custody is justified within the meaning of s. 515(10). The Crown relied only on the secondary ground for detention: the necessity for the protection or safety of the public. Based on the offences charged, the accused bears the onus of justifying release. In determining whether the detention of the accused is still justified, I am also entitled to consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order.
[5] Counsel for Mr. Rouse submits that there has been a relevant and material change to the circumstances of the case which justifies judicial interim release pending trial. Originally, Mr. Rouse was charged with possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking and possession of proceeds of crime under $5,000 under s. 5(3)(a) of the Controlled Drugs and Substances Act and s. 355(b) of the Criminal Code respectively. The three grams of substance initially thought to be fentanyl was found after testing to be methylenedioxyamphetamine (MDA). As a result, the fentanyl charge was withdrawn and substituted with a charge of possession of MDA for the purpose of trafficking. Counsel submits that the current MDA charge is less serious than the fentanyl charge based on the nature of the drug.
[6] Secondly, counsel for Mr. Rouse submits that the current pandemic, and in particular the concern for the spread of COVID-19 in correctional facilities where recommended physical distancing is not possible, constitutes a further relevant and material change.
[7] By way of a brief summary of the facts, on December 9, 2019, at about 3:30 a.m., members of the Niagara Regional Police stopped a vehicle driven by Mr. Rouse because they recognized him as a suspended driver. His co-accused, Ernesto Marzoa, occupied the front passenger seat. On the floor in front of Mr. Marzoa was an open satchel within which were found bags of marijuana, cocaine and cash. A cell phone on the center console of the vehicle, and apparently belonging to Mr. Rouse, contained communications relating to drug trafficking. In the satchel were 131.7 grams of cocaine with an estimated street value of $14,000 separated into five separate clumps of bags which were measured at ounces per bag. In six separate bags were found a total of 34.6 grams of marijuana. One other smaller bag contained the substance which was tested to be MDA. The cash was in various denominations totaling $2,490. There was a package of unused plastic bags of the size typically used in the drug trade, and a digital scale.
[8] At the bail hearing, a surety was proposed in the person of Olivia Jackson, who was Mr. Rouse’s girlfriend. It was proposed that Mr. Rouse live with her and her son at her apartment in St. Catharines. She worked full-time outside the home.
[9] At this detention review, Mr. Rouse’s father, Robert Calvin Rouse was proposed as a surety. Mr. Rouse Sr. offers to relocate from Mississauga (where he lives with his daughter) to live in the residence of Mr. Rouse in St. Catharines. Because he is currently not employed while recovering from heart surgery, he would be in a position to ensure that his son was confined to the home and abided by proposed strict terms of bail. Mr. Rouse Sr. has been self-employed as a vehicle mechanic. If he finds work outside the home, he would require his son to accompany him so that there would be uninterrupted supervision. He testified that he was a surety for his son on a previous occasion and that no breach occurred. In cross-examination, Mr. Rouse Sr. testified that he did not offer himself as a surety at the bail hearing because he was not confident that his son would comply with terms of release. Since that time, in conversations between them, and based in part on the salutary effect of time in jail to date, Mr. Rouse Sr. has been convinced by his son that he would comply with strict terms of supervision if released.
[10] Mr. Rouse Jr., who is 42 years of age, has a criminal record dating back to 1994 when he was 17 years of age. His record contains convictions at least every second year since that time. In other words, he has had a consistent history of criminal involvement for the last 25 years. The record contains 13 convictions for failing to comply with a recognizance, 4 convictions for failing to attend at court or failure to appear, 4 convictions for failing to comply with a probation order, 12 convictions for possession of a scheduled substance and one conviction for drug trafficking under the CDSA. His record also contains convictions for such matters as break, enter and theft, dangerous operation of a motor vehicle, assault, mischief, possession of property obtained by crime, assault with a weapon, and threatening.
[11] At the initial bail hearing, the Crown opposed release based on the secondary grounds. Crown counsel did not consider that the proposed surety was able to give reasonable assurance that further offences would not be committed, particularly in light of the criminal record which demonstrates a disregard for terms of release. The justice of the peace agreed.
[12] The Crown maintained its position at this hearing and questioned the credibility of the proposed surety who deposed that he had no criminal record when in fact there was a conviction for obstruction of police in 1971. The Crown also relied on the criminal record of the accused to dispute the evidence of Mr. Rouse Sr. to the effect that there had not been a breach by the accused when he had previously acted as surety. Crown counsel also submitted that, upon conviction after trial, he would seek a penitentiary term as regards the offence of possession for the purpose of trafficking in cocaine.
[13] As to the progress of the case, a judicial pretrial took place on April 7, 2020 in the Ontario Court of Justice and it is expected that a date for preliminary hearing will be set when the matter returns to court in mid-June 2020.
[14] Defence counsel made some submissions as to the strength of the Crown’s case based on the propriety of the vehicle search and the evidence of possession. For the purpose of this hearing, I am satisfied that the Crown’s case is relatively strong.
[15] The accused has a lengthy and consistent criminal record in which he has shown a disregard for the terms of bail. It is no wonder that the Crown relied on the secondary grounds for detention and also no wonder that the justice of the peace at the bail hearing declined to order Mr. Rouse’s release.
[16] In the particular circumstances of this case, I am satisfied that a combination of the current release plan and the COVID-19 pandemic justify release pending trial for the reasons set out below.
[17] As to COVID-19, it is reasonable, where possible, to avoid pretrial custody where public health recommendations as to physical distancing, handwashing, and other preventative measures cannot readily be followed. That situation does not trump the objectives of the Criminal Code including, in this case, the protection and safety of the public. Nevertheless, it is a factor that militates toward release that did not exist until recently. Although no direct evidence was led as to the conditions in the detention facilities, I take judicial notice of the fact that correctional institutions are not set up, with the possible exception of specialized care or other units which are the equivalent of solitary confinement, to readily accommodate such measures. Under the unprecedented and rapidly changing circumstances of the current pandemic, and given significant public comment from medical professionals as to the higher risk in correctional facilities in general, the normal requirement for formal evidence of conditions specifically in the Niagara Detention Center must be relaxed.
[18] In addition, and leaving aside any constitutional issue of trial within a reasonable time, it is a virtual certainty that there will be a delay of at least several months in bringing the matter to trial which will extend the time that an accused in pretrial custody will be at risk of viral exposure.
[19] I consider that avoiding a return to custody should become a significantly higher priority for Mr. Rouse who presumably does not want to risk infection and possible death in a correctional facility. From his own personal perspective, COVID-19 is a new and compelling reason to comply with terms of release, despite his past history of noncompliance. To be clear, a breach by Mr. Rouse would virtually guarantee a return to custody, regardless of the COVID-19 circumstances in the detention center, until trial.
[20] Mr. Rouse Sr. is a key part of what I consider to be a credible plan for release. While initially reluctant, he has been convinced by his son that acting as a surety will not be an exercise in futility. He is prepared to relocate to St. Catharines and live in the same premises where the accused would be under what amounts to house arrest and to provide constant supervision. Although I was not able to see Mr. Rouse Sr. in person, I conclude that based on the evidence he presented and the manner of presentation, he was credible. Although not presented in a sophisticated way, he advised that his criminal record from 1971 had been expunged by a pardon. Whether that is actually the case is not relevant. What is relevant is that Mr. Rouse’s understanding of the situation explains the statement in his affidavit to the effect that he has no criminal record. Likewise, I am not able to say that his evidence of past success as a surety is false. The criminal record only includes dates of convictions as opposed to the dates of offences and details of pretrial release. As well, it appears that Mr. Rouse had two separate convictions on June 22, 2012 for possession of a scheduled substance but no related charges of failing to comply with a recognizance. The date of those convictions corresponds roughly to the time period referred to by Mr. Rouse Sr. when he previously acted as surety.
[21] In summary, I am satisfied that the accused has shown cause why his continuing detention is not justified under the secondary grounds in s. 515(10) of the Criminal Code. I accept the concession by the Crown that continuing detention is not justified under the primary or tertiary grounds.
[22] Therefore, there will be an order that Mr. Rouse be granted judicial interim release pending trial on the following terms:
a. There will be a release order with named surety, Robert Calvin Rouse, in the amount of $5,000 without deposit or valuable security, but with conditions:
- The accused is to reside with the surety at 36 Manley Crescent, St. Catharines and be amenable to the routine, rules and discipline of the home;
- He is to remain in the residence at all times, 24/7, unless he is outside in the direct and continuous company of the surety or in the event of a personal medical emergency;
- He is not to possess any firearms, weapons, ammunition, crossbow or apply for any firearms acquisition certificate;
- He not to possess any illicit or non-medically prescribed drugs or substances, except with a valid prescription in his own name;
- He is to report to the Niagara Regional Police Service every Monday between 9 a.m. and 11 a.m. During the COVID-19 emergency, his weekly report to the police will be by telephone. Following the termination of the emergency by the Province, he shall report in person at the St. Catharines Division of the NRPS at 68 Church Street, St. Catharines;
- He shall present himself to the police at the front door of the residence upon demand, or respond to the telephone upon the request of the police in order to ensure compliance with this order;
- If he is in possession of a passport, he shall deposit his passport with the NRPS within 24 hours of his release; and
- He may have the use of a cell phone and access to the internet only if provided to him by the surety and under the supervision of the surety.