ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TIMUR ALIEV
Before Justice J.W. Bovard
Heard on September 5, 11, 2018
Reasons for Judgment released on September 28, 2018
Ms. M. Scott counsel for the Crown
Mr. A. Spektor counsel for the defendant Timur Aliev
1These are the court’s reasons for its disposition of Timur Aliev’s application to vary the boundary condition of his probation order.
Disposition
2For the reasons that follow I deny his application for lack of jurisdiction.
Introduction
3On March 7, 2018, Mr. Aliev pleaded guilty before Justice M. Wong to a simple assault on his intimate partner, Ms. Daria Kostenko. Prior to sentencing, he entered into the PAR program. Justice Wong adjourned the matter so that he could complete the program.
4Mr. Aliev’s Recognizance of bail imposed a condition on Mr. Aliev that prohibited him from being within a certain distance of Ms. Kostenko and places that she frequents. The condition stated:
Do not be within 100 metres of 252 Victoria St. Toronto or any place where you know Daria Kostenko to live, work, go to school, frequent, or any place you know the person(s) to be except for required court appearances or with his/her orally revocable written letter on the “Domestic Violence Early Intervention Court Consent to Communicate” form attached to the information, via full contact.
5This is an awkwardly worded “e-order” type of condition, and one wonders what “via full contact” means, but it gets the message across.
6The same month that Mr. Aliev entered into the Recognizance, Ms. Kostenko filed a written consent that relieved him of the boundary condition.
7On June 27, 2018, after having successfully completed the PAR program, Mr. Aliev appeared for me. He said that he was ready to be sentenced. In order for me to sentence him, and according to the normal procedure in the College Park Domestic Violence Court, I struck the plea that he entered before Justice Wong. Then he was arraigned before me, and he pleaded guilty to the same offence. The Crown proceeded by way of summary conviction.
8Pursuant to a joint submission, I granted Mr. Aliev a conditional discharge and put him on probation for 12 months and ordered certain conditions.
9Condition six of the probation order prohibits him from being within 100 meters of any place he knows Ms. Kostenko to “live, work, go to school, frequent or any place you know the person to be” except for required court attendances, or if she gives a written revocable consent to his probation officer that allows him to be closer than 100 meters of any of these locations. The condition permits Ms. Kostenko to cancel her consent in any manner at any time.
10Ms. Kostenko refuses to give her consent. She and Mr. Aliev are students at George Brown College. This caused Mr. Aliev to bring this application to vary the condition.
11Mr. Aliev asks the court to order the following additional exception to condition six: “except for the purpose of attending classes at George Brown College and other education – related activity on campus”.
12The Crown opposes this request on the basis that Ms. Kostenko told her that she feels very uncomfortable and afraid of seeing Mr. Aliev close to her at school.
13Furthermore, the condition only gives her the option of providing a consent. She is not required to consent if she feels uncomfortable doing so. She is entitled to refuse to give her consent if she feels apprehensive about doing so.
Evidence on the application
14Counsel proceeded with the application based on oral submissions. They introduced documentary evidence, case law and referred to the applicable provisions of the Criminal Code. They did not call witnesses.
15The offence occurred on September 12, 2017. Mr. Aliev and Ms. Kostenko were in an intimate relationship as boyfriend and girlfriend. They had been dating since October 2016. They met at George Brown College where both of them were students. Mr. Aliev is in Canada on a student visa.
16They had broken up several days before the offence date. They arranged to meet so that they could exchange some personal belongings. When they met, Mr. Aliev started calling Ms. Kostenko names and they argued. Then they had consensual sex. Afterwards, they continued to argue. He slapped her and poured water over her head. She did not suffer any physical injuries.
17Mr. Aliev is 21 years old. He does not have a criminal record or any outstanding charges. He completed the PAR program successfully.
18In his submissions to sentence, defence counsel advised me that Mr. Aliev is in Canada on a student visa. He graduated from high school in Hamilton, Ontario. Now, he is in his third year of a course on marketing and business administration at George Brown College. He has been in Canada for “quite a while in extensions of student visas”1.
19Defence counsel told me that Ms. Kostenko retained a lawyer to “give her input into the case”. The lawyer sent a letter to the Crown regarding Ms. Kostenko’s feelings about the charge and about Mr. Aliev. Defence counsel had a copy of the letter, but he did not seek to make it an exhibit in the sentencing, nor did he show the letter to me. However, on this application it is exhibit 3.
20Further in submissions to sentence, defence counsel told me that Ms. Kostenko was not afraid of Mr. Aliev. She encouraged a variation of his bail to allow her to give written, revocable consent for contact with him. She did this “at the time when the matter was still being discussed”. I assume that this refers to Crown pre-trial meetings, and judicial pre-trial conferences.
21Defence counsel told me that Ms. Kostenko did not want Mr. Aliev to “suffer, deportation or revocation of his visa”. Defence counsel pointed out that Ms. Kostenko said that she and Mr. Aliev have “many, many mutual friends and they – they’re constantly crossing over in any event and she’s passed it”2.
22Ms. Kostenko signed a written, revocable consent in March 2018, when Mr. Aliev entered the PAR program. However, Mr. Aliev did not avail himself of this. He has not had any contact with her since the offence date. In addition, he has abided by all of the conditions of his bail.
23The Crown and defence presented me with a joint submission for a conditional discharge and 12 months of probation. I agreed with the joint submission and made the orders that they requested. Conditional discharges are provided for by the Criminal Code in s. 730.3
24The Crown and defence asked me to impose a condition that Mr. Aliev “not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: Daria Kostenko except - with the prior written consent of [Ms. Kostenko] filed in advance, by [her] with the probation intake or the assigned probation officer. This may be cancelled by [Ms. Kostenko] in any manner at any time”. I agreed and made it condition number five of the probation order.
25In addition to that condition, counsel asked me to impose the boundary condition to which I referred above, with the exceptions mentioned.
26In his submissions on this application, defence counsel candidly admitted that he forgot to ask me to make an exception to the boundary condition for the purpose of Mr. Aliev’s attendances at George Brown College in furtherance of his studies.
27He said that after I sentenced Mr. Aliev they stepped out of the court room and Mr. Aliev told him that he did not want to reconcile with Ms. Kostenko. He did not want to ask her to provide her consent for an exception to the boundary, or the no-contact provisions of the probation order.
28Defence counsel tried to come back before me that day but I was no longer available, and the next day I left for holidays.
29Mr. Aliev was going to return to his home country the next day and was not coming back to Canada until September 4, 2018. The trial coordinators told defence counsel that the earliest he could come before me with this application was September 5, 2018. So that is what he did.
30During the application, defence counsel referred me to the letter that Ms. Kostenko’s counsel wrote, which indicates that “… she did not wish to harm the Defendant. She is aware that the Defendant is a foreign student in Canada and has had great difficulty in obtaining finance (sic) to cover his studies”. Her counsel indicates in the letter that Ms. Kostenko would be a reluctant witness for the Crown. She wanted the matter to be resolved in some other way than a trial.
31Ms. Kostenko’s counsel told her that a peace bond pursuant to s.810 of the Criminal Code “followed by a period of probation for 12 months with conditions of contact with her” might be a possible resolution of the case. Of course, s.810 does not provide for an order of probation to be made by the court. It grants the court jurisdiction to make an order for up to 12 months that the defendant comply with conditions stated in the order. This appears to have been an inadvertent slip by her counsel. In the end, the result is practically the same.
32Her counsel further stated in the letter that Ms. Kostenko was prepared to file a written revocable consent for contact with Mr. Aliev should the Crown agree to such a condition.
33Her counsel said that Ms. Kostenko would support such a resolution “because it would constitute a penalty to Aliev for his conduct but it would not destroy his status in Canada. It would also not destroy the potential of their friendship”.
34Lastly, her counsel stated that Ms. Kostenko “advised that she and Aliev have mutual friends and it is very difficult for the parties at the moment to avoid contact at various community events”.
35But that was then. Now, Ms. Kostenko has had a change of heart. She no longer wishes to grant a written revocable consent to allow an exception to the boundary condition.
36The defence argues that it is impossible for Mr. Aliev to continue his studies at George Brown College without an exception to the boundary condition. Ms. Kostenko and Mr. Aliev will inevitably be within 100 meters of each other when they are at George Brown College for their classes.
37If the court does not grant an exception to the boundary condition it will jeopardize Mr. Aliev’s student visa, which requires him to name the educational institution where he attends classes.
38If he has to change to a different institution, he will have to explain why to the immigration authorities. This will inevitably result in him having to divulge that he was found guilty of assaulting Ms. Kostenko. There is no guarantee that the immigration authorities would authorize a change to a different educational institution.
39Should they refused to allow him to go to another institution he would lose his status in Canada and have to return home. This would result in him not being able to complete his studies in Canada.
40In addition, the school year has already begun so even if the immigration authorities allowed him to go to a different school he would likely lose the current semester.
41Any of these eventualities would result in an unduly and disproportionate punishment for Mr. Aliev. Therefore, the court should grant his application.
42Defence counsel submits that at the time of sentencing Mr. Aliev assumed that Ms. Kostenko would agree to an exception to the boundary condition so that he would be able to attend his courses at George Brown College. He based his assumption on her previous behaviour, which seems to indicate that she was desirous of not doing anything to hurt him, or impede his educational studies.
43The Crown points out that the letter from Ms. Kostenko’s counsel does not say that she was not fearful of Mr. Aliev, contrary to what defence counsel submitted.
44The Crown asked Ms. Kostenko’s counsel to check with her regarding how she feels now about Mr. Aliev. He did so and reported to the Crown that she felt unsafe seeing Mr. Aliev. She felt very uncomfortable and threatened walking past him in the hallways at school, or seeing him in the library or in the cafeteria. These chance encounters could occur because their programs share common areas.
45In addition, she finishes school at 10 p.m. on Tuesday and she has to walk home alone.
46The Crown advised the court that Ms. Kostenko told her that she is afraid of Mr. Aliev and feels very uncomfortable, threatened and upset at the prospect of seeing him almost on a daily basis at school.
47The Crown reminds the court that Ms. Kostenko is the victim in the case and she has every right to feel the way she does. She is entitled to refuse to alleviate the effect of the boundary condition on Mr. Aliev by giving a written revocable consent to alter it so that he can attend his course at George Brown College.
48In any case, the condition does not guarantee that the victim will give the consent. She has the option to grant it or not. In addition, even if she gave the consent, a written revocable consent always allows for the giver of the consent to have a change of heart and to revoke it. These eventualities are implicit in the condition. Mr. Aliev must have understood this when he agreed to the conditions of the probation order.
49The Crown advised the court that Ms. Kostenko told her that while Mr. Aliev was on bail they were both attending George Brown College. While they were at school “she would cross paths with him I think with some regularity, and that he was giving her dirty looks, spreading rumours among her friends that she was ruling in his life, that she had tried to get him into trouble”. 4
50Last year, after the police charged Mr. Aliev, she saw him at least 10 times in school. Currently, she has two classes in the same building as he does. She attends school every day except Wednesday. Ms. Kostenko also fears that she will run into him in the bookstore.
51In addition, the Crown said that when she negotiated with the defence regarding the plea and sentence the defence did not tell her that a boundary condition would be an issue for Mr. Aliev. She submitted during the application that,
I wasn’t there on the day of the … sentencing, but it was also not something that had been specifically discussed and an exception had been agreed to, and then it was simply inadvertently left off the agreement between my friend and I. That was not something that we talked about as being an exception. The only exception, which is as you know, a standard exception, was the one that was agreed to. And it was – they would have no contact, directly or indirectly, and he would not be within 100 meters of her, unless she filed her written revocable consent.5
52The Crown stated that when she negotiated the plea agreement the defence did not tell her that Mr. Aliev and Ms. Kostenko were going to continue to attend George Brown College, much less, that this would be an issue that had to be addressed with regard to sentence. This could have been “contemplated by a joint position” had defence counsel brought it to her attention.6
53The Crown further submitted that since Mr. Aliev declined to avail himself of the consent for contact that Ms. Kostenko gave while he was on bail he should have known that this “might very well have had the impact of changing her feelings about the situation.” 7
54The defence countered this by saying that based on what Ms. Kostenko’s counsel said in his letter about how she felt about Mr. Aliev, the fact that Mr. Aliev did not want to avail himself of the written, revocable consent that she gave when the court varied his bail order did not mean that he should have anticipated not getting her written, revocable consent for the purposes of the probation order.
55Defence counsel submitted that Mr. Aliev and Ms. Kostenko have classes in different buildings that are approximately 30 metres apart. A possible solution would be to reduce the boundary condition from 100 meters to 20 meters. Mr. Aliev does not attend any of the common cafeterias, nor does he have to do his work in the library.
56The Crown responded that since they have classes in the same building on two days there is still a substantial likelihood that they would run across each other during these times.
57Defence counsel said that with regard to Tuesdays, the day on which Ms. Kostenko has classes until 10 PM, Mr. Aliev’s classes end at 3 PM. He would agree to be off-campus by 4 PM.
58Defence counsel also argued that the “no contact” provision of the probation order suffices to address Ms. Kostenko’s concerns.
59The Crown pointed out that Ms. Kostenko feels threatened by Mr. Aliev’s presence. When he was on bail he made her feel uncomfortable by giving her dirty looks at school.
60Defence counsel emphasized that Mr. Aliev has abided by his bail and all other court orders. There have been no further court related incidents between them.
61The Crown stressed that Mr. Aliev was found guilty of assaulting Ms. Kostenko. Why should she have to walk out of her classroom and see him in the hallway or see him in the library? She should not have to spend the rest of the school year looking over her shoulder.
Making a probation order
62Section 731(1) of the Criminal Code authorizes the court to put an offender on probation when it registers a conviction. Subsection 731 (2) provides that the court may also put an offender on probation when it discharges the offender under subsection 730 (1). 8
Imposing conditions in a probation order
63Section 732.1 of the Criminal Code authorizes the court to impose two types of conditions in a probation order: compulsory and optional.
Compulsory conditions
64Section 732.1 (2) of the Criminal Code directs the court to impose certain compulsory conditions when it makes a probation order. 9
65Among these compulsory conditions is the following in s. 732 (2) (a.1):
abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
(i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
(ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
Optional conditions
66Section 732.1 (1) defines “optional conditions” as “the conditions referred to in subsection (3) [regarding persons] or (3.1) [regarding organizations]”.
67The conditions in subsection (3) regarding persons are the following:
(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after the making of the probation order, and
(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
(c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding eighteen months;
(g) if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province;
(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.
68As can be seen, the optional conditions listed in subsection (3) do not specifically deal with the issues of the offender communicating with the victim, or with boundary conditions designed to keep the offender away from the victim as does s. 732.1 (2), which lists the compulsory conditions of a probation order.
69One might argue that conditions regarding communication and boundaries could be ordered under s. 732.1 (3) (h). However, this would render s. 732.1 (2) (a.1) redundant and moreover, be potentially contradictory to it. I do not think that this was Parliament’s intention when it passed these two sections.
Changing a probation order
70Section 732. 2 (3) allows the court to make changes to a probation order. The section stipulates that the court may change the optional conditions of a probation order if there has been a change in the circumstances since those conditions were prescribed. The section states:
A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,
(a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,
(b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or
(c) decrease the period for which the probation order is to remain in force,
and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed. (Emphasis added)
Has there been a change in circumstances?
71I am satisfied that the defence has shown on a balance of probabilities that there has been a change in circumstances since I imposed the boundary condition.
72According to the letter that Ms. Kostenko’s counsel wrote on January 26, 2018, it is clear that Ms. Kostenko was quite willing to do what she could to prevent harm to Mr. Aliev. She was aware of his vulnerable status in Canada on a student visa. She did not want to testify against him at a trial. She wanted the matter resolved in another way. In March 2018, while he was on bail she signed a written, revocable consent so that Mr. Aliev could contact her.
73Her lawyer’s letter, written after the assault occurred, relates an attitude on her behalf that is quite conciliatory and understanding towards Mr. Aliev.
74The Crown did not adduce a victim impact statement during sentencing. After reviewing the transcript of the sentencing, I find that there was no hint, much less evidence, that Ms. Kostenko had changed her attitude towards Mr. Aliev.
75Now, Ms. Kostenko refuses to sign a written, revocable consent to allow Mr. Aliev to be within 100 meters of her.
76She told the Crown that she is afraid of Mr. Aliev and that she feels uncomfortable seeing him in close proximity while at school. One could argue that the fact that Mr. Aliev assaulted her is a reasonable basis for such a fear. However, there is no evidence or information regarding why she gave her consent for contact with him while he was on bail, but refuses to now that he is on probation. It cannot simply be the fact that he assaulted her because she signed a written, revocable consent regarding contact with her when his bail was varied, which was obviously after he assaulted her.
77There was no indication at the sentencing hearing that her feeling toward Mr. Aliev had changed. Maybe he should have divined as the Crown argued that her attitude towards him would change because he refused to avail himself of the consent that she gave while he was on bail, but I find that it was reasonable to assume that Ms. Kostenko’s attitude toward Mr. Aliev was the same as it had been while he was on bail. On this basis, I find that there has been a change in circumstances since I imposed the boundary condition in the probation order.
78However, that does not settle the matter. The defence must also overcome the obstacle of showing that I have the jurisdiction to vary the boundary condition. This turns on whether the condition is a compulsory condition or an optional condition.
Is condition 6 of the probation order a compulsory condition or an optional condition?
79Condition 6 of the probation order prohibits Mr. Aliev from being within 100 meters of,
any place where you know Daria Kostenko to live, work, go to school, frequent or any place you know the person to be except for required court appearances [and] except with the prior written consent of the above named person filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time.
80This condition is in keeping with s. 732.1 (2) (a.1), which dictates that “The court shall prescribe, as conditions of a probation order, that the offender do all of the following:
abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
(i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
(ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
81In the case at bar, I followed the directives of s. 732.1 (2) (a.1) and imposed the boundary condition at issue in this application. I did not provide for any exception for the purpose of attending George Brown College because I was not asked to do so. Now, I am functus officio. I can only act pursuant to the provisions set out in s. 732.2 (3) for varying the optional conditions of a probation order.
82However, it is clear that condition 6 of the probation order is not an “optional condition” as defined in s. 732.1.
83The Crown submitted several cases which support this view. Although the court did not have to decide the issue specifically in these cases, it referred to the conditions in s. 732.1 (2) (a.1) as compulsory conditions:
(1) R. v. Brown [2015] N.J. No. 261, (para. 18);
(2) R. v. Delege [2017] B.C.J. No. 1672, (para. 32);
(3) R. v. L.H. [2016] N.J. N. 136, (para. 30);
(4) R. v. Rich N.J. No. 137, (para. 69);
(5) R. v. Hans [2016] B.C.J. No. 1608, (paras. 55, 166, 167)
Disposition
84Based on all of the above, I find that condition six of Mr. Aliev’s probation order, which he asks me to vary, is a compulsory condition pursuant to s. 732.1 (2) (a.1).
85I find further that I do not have the jurisdiction to vary condition 6, because s.732.2 (3) (a), (b), the sections that provide for the variance of the conditions of a probation order, only allow the court to vary the optional conditions.
86Consequently, the defence’s application is dismissed.
87Counsel did not address the issue of shortening Mr. Aliev’s probation order pursuant to s.732.2 (3) (c). Therefore, I do not think that it is appropriate for me to deal with that option without hearing submissions from counsel.
Released: September 28, 2018
Signed “Justice J.W. Bovard”
(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. (2) A court may also make a probation order where it discharges an accused under subsection 730(1).
(a) keep the peace and be of good behaviour; (a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless (i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or (ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition; (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
Footnotes
- Transcript, June 27, 2018, page 4, lines 31-32; page 5, line1
- Ibid., page 4, lines 19-23
- Conditional and absolute discharge - S. 730 Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731 (2). (emphasis added)
- Transcript, September 5, 2018, page 33, lines 15-19
- Transcript, September 5, 2018, 5, page 24, lines 13-26
- Ibid., page 27, line 17
- Ibid., page 27, lines 7-8
- s. 731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
- (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following: