Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
Jason Mario Caruana
Judgment
Before: Justice Joseph F. Kenkel
Delivered: May 31, 2016
Counsel:
- Ms. Jina Lee — counsel for the Crown
- Mr. Sharif Foda — counsel for the defendant
Decision
KENKEL J.:
1Mr. Caruana is charged with failing to comply with a Sex Offender Information Registration Act (SOIRA) (SC 2004 c10) reporting requirement contrary to s.490.031(1) of the Criminal Code.
2The parties agree that the accused is a sex offender bound by a SOIRA order to report for 20 years from September 5, 2007. He reported until November 14, 2014 when he made his last report to the Toronto Police Service while living at a Toronto address. On March 10, 2015 he moved to an address in Markham in York Region. Between April 30th 2015 and May 1, 2015 he moved to another address in Markham close to the first one.
3SOIRA s.4.1(1)(a) requires that a sex offender report a change of address to a designated registration centre within 7 days. The means of reporting is prescribed in s.4.1(2) which requires personal reporting.
4Mr. Caruana did not report his change of address to the Toronto Police Service unit that deals with SOIRA reporting where he'd reported in the past. He did not report his move to the York Regional Police so did not register with the police in the area where he moved within 7 days as required under the Act.
5The defence submits that the Crown has not proved their case for two reasons:
The Crown has not proved the mens rea element of the offence. At best the Crown has shown negligence but they haven't proved the accused intentionally failed to report or was reckless as to that obligation.
In the alternative, the accused has a reasonable excuse as he was placed on bail in relation to new charges and he assumed the SOIRA system would know of his bail obligation to live in York Region.
SOIRA Reporting
6The obligations of sex offenders to report are set out in SOIRA sections 4 to 7.1.
7Mr. Caruana reported from 2007 to 2014 to the Toronto Police Service Sex Offender Enforcement Unit, Bail and Parole Enforcement Unit, 2440 Lawrence Avenue East, Toronto, a designated registration centre within the meaning of s.7.1 of SOIRA, located in the area of his residence as required by s.7.1 and designated by SOR/2004/305 pursuant to SOIRA s.18.
8After the offender first reports, the subsequent ongoing obligation to report is governed by s.4.1 of the Act. That section requires that an offender:
Report within 7 days of any change of residence (4.1(1)(a))
Report to a designated reporting centre (4.1(1)) that serves the area where the offender's residence is located (7.1)
Report in person (4.1(2))
On reporting in person, provide the information listed in s.5(1)
9It's conceded that after moving to York Region Mr. Caruana never reported in person to the York Regional Police Service, at 17250 Yonge Street, Newmarket the designated registration centre for this area within the meaning of s.7.1 of SOIRA designated by SOR/2004/305 pursuant to SOIRA s.18.
Has the Crown Proved the Mens Rea of the Offence?
10Failing to comply with a recognizance is a true criminal offence requiring proof of mens rea. Mere carelessness or failure to take precautions a reasonable person would take would not support a conviction. R. v. Legere, [1995] OJ No.152 (CA) at para 33. Failure to comply with a SOIRA order is similar to the s.145 offence and includes provision for reasonable excuse. I find the instruction in Legere reasonably applies in this context.
11The defence concedes that the evidence proves the accused failed to report as alleged, but submits that the accused was merely careless in that regard. The defence submits there's no evidence of an intention not to report or recklessness. The Crown submits that the accused's intention not to report can reasonably be inferred from the circumstances and at best he was wilfully blind to his obligations.
12An example of carelessness in this context might be where an accused schedules an annual reporting appointment towards the end of the statutory period. He attends the reporting centre on Thursday only to find he'd mixed up the date and was meant to come on Tuesday which was the last day of the period. He'd misread the note he made at the time he scheduled the appointment. He'd failed to report within the required time but his inadvertent or careless mistake would not suffice to prove the mens rea of a breach offence.
13This is not a case of inadvertence or carelessness. The evidence shows that the accused was aware of his obligation to report pursuant to SOIRA to the York Regional Police designated centre upon moving to York Region. He chose not to do so. He provides an excuse, but it's plain he chose not to report. The act of not reporting was intentional. The Crown has proved both the act alleged (failure to report) and the intent to commit that act.
Reasonable Excuse
14Where the Crown has proved the essential elements of the offence, a defence of "reasonable excuse" remains where additional facts should preclude the imposition of criminal liability. R. v. Goleski 2014 BCCA 80 at para 80, Affirmed 2015 SCC 6.
15The defence typically bears a burden to prove a "reasonable excuse" on the balance of probabilities. R v. Goleski 2015 SCC 6. That means only that the defence must establish a factual foundation for the asserted reasonable excuse on that test. The ultimate burden always remains with the Crown to prove the charge alleged beyond a reasonable doubt.
16The accused testified that he moved to Markham on March 10th, 2015. He was on bail on new charges at the time and required to live with his surety in Markham.
17The accused was required by SOIRA to report his change of address to Markham to the York Regional police within 7 days of his move. He testified that he thought that given the new Toronto charges and a bail with a new address, he assumed the Toronto Police would update their system and this would relieve him of his SOIRA obligation to report to the York Regional Police upon his move to Markham.
18The accused later changed his address again, moving to another close-by unit on the same street in Markham. He again did not report the change of address to the York Regional Police designated centre as required pursuant to SOIRA.
19A copy of an email marked as Exhibit 7 between the accused and his defence lawyer on his Toronto charges showed that he provided his lawyer with new employment and residence information on April 28, 2015. He testified that the information was to be provided by his lawyer to the Officer-in-charge of the Toronto case in accordance with his bail terms there. Two later bail variations dated June 23, 2015 and September 3, 2015 marked as Exhibit 5 along with the original March 10th bail do not mention the changed address.
20Mr. Caruana did comply with other statutory obligations arising from his move. On May 16th, 2015 he obtained a temporary driver's license showing the new second address in Markham he'd just moved to.
21In cross-examination Mr. Caruana agreed he had always reported in person as required by his SOIRA order. He was aware that reporting required him to attend in person at the designated centre with the Toronto Police. Each time he reported as required he received further written reminders of his reporting obligations.
22He described the SOIRA report process as taking approximately half an hour. The in-depth interview includes reviews of any changes in physical appearance, tattoos, new cars or license plates, new phone numbers etc. It's a thorough, formal review of the information set out in s.5 of SOIRA. His photograph was updated each time. The full process was followed every time he reported including the time in 2008 when he last changed his address.
23The accused's excuse amounts to this – that he was aware of the requirement to report to a York Regional Police registration center upon his move to York Region, but he chose not to do so as he thought that:
the information he provided to the court upon receiving bail and later through his lawyer would be sent to the OIC of the Toronto charges
the Toronto officer was aware of his SOIRA status and would contact the Toronto SOIRA centre and provide that information to them
the Toronto Police Service SOIRA Centre would see that the accused was now living in York Region and would contact the York Regional Police and advise their High Risk Offender Unit of the accused's new circumstances
those circumstances would relieve him of his SOIRA duty to report in person to the designated reporting centre with the police in the area he moved to.
24Considering the evidence as a whole I do not find the accused's evidence on this point to be credible. He described the very detailed in-person reporting process. He's very familiar with that process both as an annual obligation and also one that applies within 7 days of a move. He knows that from a past move. It's plain that the reporting obligation he's familiar with cannot be satisfied by the remote process he described.
25The suggestion that new charges relieved him of his SOIRA reporting obligations is illogical and contrary to the accused's knowledge and experience to that point. Mr. Caruana took no steps to ensure that notice of the move was given to the York Regional Police SOIRA unit. There's no evidentiary basis for his asserted belief that they were aware of his residence here. He had a lawyer at the time who could have provided him with legal advice if any was required as to his obligations under SOIRA.
26I find the evidence as a whole shows that Mr. Caruana was well aware of the SOIRA reporting requirement engaged by his move but simply chose not to comply. He was diligent in transferring his driver's license but he ignored his SOIRA obligation.
27In the alternative, if the accused's evidence were accepted as credible the excuse described would not be a reasonable one nor would it be lawful.
28It would not be reasonable for much the same reasons as I've found the evidence not to be credible above. The accused cannot disregard the SOIRA reporting requirements nor can he rely upon others to fulfill the obligation that is upon him. Even if it were true that he came to believe the Markham addresses had somehow been conveyed to the York Regional Police, and that such a process might relieve him of the statutory reporting requirement, his SOIRA order told him there was a need for an inquiry to confirm that. The burden is on him to comply with the order, not the police or court records staff. His choice not to report and not to make any inquiry cannot create a defence.
29The system report he described would not be a lawful report as it would not comply with the SOIRA requirement that he report in person, it doesn't comply with the SOIRA requirement that he report at a registration centre designated by regulation and it doesn't include the information required for a SOIRA report. There is no provision in SOIRA that relieves a sex offender from reporting obligations if he's otherwise before the courts on new charges. Even if the accused had truly believed the circumstances to be as he described, his mistakes of law could not provide a defence. See: La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers 2013 SCC 63
Conclusion
30I find that the Crown has proved the offence alleged beyond a reasonable doubt.
DELIVERED May 31, 2016.
Justice Joseph F. Kenkel