R. v. Hamade, 2012 ONCJ 2

Citation: R. v. Hamade, 2012 ONCJ 2

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RHABI HAMADE

Before Justice D. M. Nicholas

Heard on January 3, 2012

Reasons for Judgment released on January 5, 2012

Mr. Matthew Geigen-Miller for the Crown

Mr. Matthew Reardon & Mr. Michael Smith for the accused Rhabi Hamade

Nicholas J.:

Introduction

1The accused is charged with one count of failing to appear in court pursuant to section 145 (2) (a) of the Code. He has testified and therefore the W. D. principles must be applied to his evidence. There are two issues to be addressed by this Ruling. The first issue relates to the date of the offence alleged in the Information, namely March 22, 2010. The second issue is whether the evidence of the accused either establishes or raises a doubt with respect to required elements of failing to attend court as required “without lawful excuse, the proof of which lies on him”. In this case it is admitted that the accused had been released from custody, with respect to a number of other charges, on March 18, 2010. He was required to attend the remand court #5 on March 21, 2010 (exhibit 2). It is admitted by defence that he was fully aware of the terms of his release and did not appear on that date. The recognizance of bail document also required him, in addition to other unrelated conditions, to reside at Anchorage House, a rehab centre and follow the rules and discipline of the residence, and not to leave Anchorage without being accompanied by a staff member.

2The recognizance relates to Information 1-A11342 (exhibit 1) which alleges a number of offences, including substantive and breach charges. That Information discloses that, on March 18^th, a bench warrant with discretion was issued, and duty counsel was present and addressed the matter with the Court. The matter was adjourned until the next day. On March 22^nd the bench warrant was issued with defence counsel present.

The Evidence

3Then, because the non attendance and the existence of the recognizance were admitted, the Crown simply filed its documents and defence put the accused on the stand in order to cast doubt on the mens rea element of the offence. Hamade testified at length. He admitted his rather lengthy record. There is no doubt that he is familiar with court processes and terms of release and he readily admitted that. He was detained for approximately six months prior to his released on March 18, 2011. He was well aware that his conditions were strict and afforded him no liberty. He is a long term addict who had been on a methadone program for a number of years. His evidence is that, upon arrival at Anchorage, he was advised that they did not accept clients on methadone. His evidence is that this had not been disclosed to him in his interview for admission. He felt he had two options, get off methadone and go through withdrawal or go back to jail. He chose to go through withdrawal to remain in the program. His evidence is that he told them, on admission, of his date of March 22, 2010. At this point I recalled that his recognizance, in fact, required him to appear in remand court on March 21^st and brought this irregularity to the attention of counsel. He could not have advised anyone on admission of a court date of March 22^nd because his recognizance required him to attend on the 21^st. I then raised with counsel the issue of whether the Information could properly allege a wilful failure to attend court on the 22^nd when the only date he was personally remanded to by the Court was March 21^st.

4Hamade continued on with his evidence and detailed for the Court the withdrawal symptoms that he experienced once he made the decision to stay at Anchorage and get clean. He describes very physical pain, achy bones, diarrhoea. He describes it as a “walking nightmare”. In this condition, he testified that the court date “slipped his mind”. He had told staff earlier about his scheduled court appearance. Because “the symptoms got worse” he left Anchorage because he could not take the pain anymore and went and scored some “oxys”, the drug he was addicted to. He acknowledged that he knew full well he was breaching his condition to reside at Anchorage in doing so. He was subjected to a very lengthy cross-examination which, at times, exceeded significantly the elements of the offence before me. He acknowledged that he was given his court date of March 21, 2010 in writing and acknowledged that he had advised Anchorage of the date and was expecting them to accompany him to court. He testified that he did not have his release papers on him when he was driven directly from court to Anchorage by his lawyer.

Analysis

5The Crown has charged Hamade that he did “being at large on a recognizance entered into before a justice, fail, without lawful excuse, to attend court in accordance therewith, contrary to section 145 subsection (2)(a) of the Criminal Code”. The Crown contends that s. 601 (4) (1) of the Code provides, which pertains to defective indictments or counts, stands for the proposition that a variance between the count and the evidence taken is not material with respect to “the time when the offence is alleged to have been committed.” The distinction to be made, in my view, is that the cases annotated refer to a variance between the evidence and the Information. The evidence in this case reveals that he was ordered to return to court on March 21^st and failed to do so. That is admitted. There is not a shred of evidence, and the accused denies, that he was ever informed that the bench warrant was ordered and held over to March 22, 2010. The Crown submits that the date, in this case, is not a particular which the Crown has the burden of proving. He further argues that, even if the variance is deemed material, it matters not because the accused has not been prejudiced. He also submits that Hamade, is a man with a great deal of experience with the court system, and understands his obligations. He asked me to consider his background in assessing his criminality. I reminded the Crown that a trial Judge can make little use of a criminal record. It is prohibited to consider propensity as established by past convictions. I do however agree that the existence of such a record can be considered in establishing his credibility.

6Student at law Reardon relies on the binding summary conviction appeal decision in R. v. Weishar, 2003 CanLII 64247 (ON SC), 13 C.R. (6^th) 59 which states that a failing to appear in Court charge is a

“true criminal offence which requires proof of mens rea or in other words a guilty state of mind sometimes referred to as guilty intention. The prosecution must establish a mental element, namely that the person who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.”

At paragraph 39, Justice Thomas further states that “honest mistake” or “mistake of fact” or even “forgetfulness” may even negate the requisite guilty state of mind:

“A defendant is entitled to raise a defence of lack of guilty intention based on carelessness which falls short of wilful blindness or recklessness.”

In this case, defence contends that, due to the severe symptoms of withdrawal he was experiencing just three days after released and the commencement of detox, he was unable to draw his attention to his obligation to appear in court on the March 21^st. He had mentioned it to Anchorage personnel upon his arrival. Defence also relies on R. v. Coe 1971 CanLII 1280 (ON SC), 4 C.C.C. (2d) 23 in which our Court of Appeal dealt with an addict who “suffered from withdrawal as a result of the use of heroin” and “considerable evidence to suggest that those symptoms were serious enough to prevent him from attending court that day”. The Court ruled that the trial Judge erred in charging the jury that, as a matter of law, suffering from withdrawal symptoms was “not a lawful excuse for failure to appear in court.” Student at law Reardon suggests that, at best, this is a matter of carelessness but does not rise even to recklessness, let alone a wilful failure to skip a court date. Having been detained for six months prior to his release on March 18^th, and released to house arrest at a rehab centre, it is logical to assume that, had he had his wits about him, he would have attended remand court. Otherwise, return to jail was inevitable.

Conclusion

7I conclude that the Crown has failed to prove the essential elements of the s. 145 (2) offence. In applying the W. D. test, the evidence of Hamade may not have been believed to the extent of assuring him an acquittal on his evidence alone as per the first element of the W. D. analysis but it certainly has raised a doubt in my mind as per the second element of the test. He is acquitted of that charge.

8On the issue of the wording of the charge before me, as described above, I am not persuaded by the Crown’s argument that the wording involved the kind of non material averment that can be cured by a variance. The Crown has moved to seek such a variance. Firstly, I disagree that alleging a failure to appear in Court on a particular date is not material and required piece of evidence. Once the Crown particularizes the date on which the accused is to appear, as confirmed by his recognizance of March 18^th, then his non appearance on the very date he was remanded to, being March 21^st, is a required element of the offence. It bears repeating that neither the Crown nor the defence addressed their minds to this flaw until I brought it to their attention. In its application for variance, the Crown alleges that there is no prejudice to the accused because there was an admission that he knew he had a court appearance and did not appear on the date required. Defence has argued, and I agree, that in this case, there is great prejudice because the Crown’s application was put before the Court at a time when the accused had already taken the stand in his own defence. The discrepancy that I noted was plainly visible on the very documents that the Crown tendered and should have been discovered. As I have already stated this is not an averment that does not go directly to the actus reus of the offence. In fact the date is part of the actus reus itself and an element the Crown is required to prove. The offence is particular to the date stated and not an “on or about” kind of situation. Had I not found Hamade not guilty of the breach charge, I would have denied the Crown’s application to vary the count, and would have acquitted the accused on the basis that the Crown has failed to prove that his failure to appear on March 22^nd was intentional and wilful since it was never communicated to him, and that failure to appear on that date cannot be said to be contrary to his recognizance as it only relates to the 21^st of March.

Released: January 5, 2012 ___________________________

Signed: “Justice D. M. Nicholas”