Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ruben Feliciano
Before: Justice Allison D. Dellandrea
Heard on: March 20, 2019
Reasons for Judgment released on: April 9, 2019
Counsel:
- Mr. J. Kingdon, counsel for the Crown
- Mr. H. Bassi, counsel for the accused Ruben Feliciano
Reasons for Judgment
Overview of Charges
1Mr. Feliciano is charged with four counts of domestic assault against his former spouse, alleged to have occurred on four separate dates spanning roughly thirteen years' duration, between 2004 and 2017. On a separate Information, he also faces two charges of fail to comply with his recognizance for alleged breaches of the non-communication clause contained in that order, on two separate dates in 2018. The Crown has very fairly conceded that the evidence heard could not support a conviction on the first of these two breach charges, which will be dismissed.
Complainant's Evidence
2The complainant, Sabrina Feliciano, testified about four different incidents during which she was either punched, choked, pushed into a bathtub, or pinned up against a wall by the defendant. She described her relationship to the defendant as an initially happy one, which gradually deteriorated over time as a result of her husband's controlling nature and hair-trigger temper. She said that his alcohol consumption was also a factor that sometimes fuelled his aggression towards her and exacerbated the trouble within their relationship. Ms. Feliciano testified that she felt so unhappy and unsafe in her marriage to the defendant that in April 2018 she packed up their two children and moved to her parents' house. Shortly after this, she reported her allegations of the four assaults to police, which led to Mr. Feliciano's arrest. A month later, Ms. Feliciano described receiving an email from her husband, in contravention of the no-contact term of his recognizance.
Defendant's Evidence
3The defendant testified. He denied that the first three incidents described by the complainant ever happened, and related a version of the fourth incident in which his wife was intoxicated, and assaultive towards him. According to the defendant, the complainant was herself prone to both excessive alcohol consumption, and angry outbursts. Mr. Feliciano categorically denied ever having assaulting his wife, and insisted that he had understood that the email which he sent to her about their son's baseball schedule on May 5, 2018 had been approved as permissible by his family lawyer.
Central Issue
4Credibility is clearly the central issue for determination in this case.
Submissions
5On behalf of the defendant, Mr. Bassi submits that Mr. Feliciano's evidence should be accepted. He argues that there is no reason to reject his client's evidence, which he submits was clear, coherent and compelling. Minimally, Mr. Bassi submits that his client's evidence must raise a reasonable doubt as to his guilt. Finally, it is argued by the defence that the complainant's evidence was fraught with such significant frailties of both reliability and credibility that it cannot safely support convictions on these allegations. In particular, counsel notes the vagueness and uncertainty of date ranges for the earliest allegations, Ms. Feliciano's combative demeanour during her cross-examination, and her strong motive to fabricate due to the couple's ongoing family court proceedings. Mr. Bassi submits that the combined effect of these concerns must be to leave me with a reasonable doubt as to the Crown's proof of the assault charges.
6With respect to the one remaining fail to comply charge, Mr. Bassi advances two alternative arguments on his client's behalf. First, he submits that Mr. Feliciano's evidence of having received his lawyer's approval to send the email to his wife should give rise to a reasonable doubt as to the mens rea of the breach charge. In the alternative, were I to find that the communication had been wilful, and the offence made out, Mr. Bassi suggests that the de minimus principle should be applied to preclude his client's conviction for conduct amounting to such a trifling breach.
7On behalf of the Crown, Mr. Kingdon submits that I should reject the defendant's evidence, and accept Ms. Feliciano's evidence as proof beyond reasonable doubt of all four of the substantive assault charges. In characterizing the complainant's evidence as credible, he suggests that she testified in a straightforward forthright manner, without exaggeration or substantive contradiction.
8With respect to the fail to comply charge, Mr. Kingdon argues that there can be no reasonable doubt with respect to the mens rea of such a blatant contravention of a clearly stipulated prohibition on any and all forms of communication. He further submits that for policy reasons arising from our courts' continued recognition of the seriousness of domestic violence, the de minimus principle cannot be applied to negate a conviction for the breach of a court order aimed at prohibiting contact with named complainants. The Crown submits that a conviction for this offence must be registered.
Applicable Legal Principles
9As with every criminal trial the Crown must prove its allegations beyond a reasonable doubt. There is no burden on Mr. Feliciano to prove anything, or to disprove the allegations. Although there are two opposite and competing versions of what took place, a trial like this is not a credibility contest. I cannot simply choose which witness is more credible. Rather, I must give Mr. Feliciano the benefit of any reasonable doubt that exists.
10The Supreme Court of Canada's decision in R. v. W.(D.) directs the approach that I must take to the evidence in a case such as this:
If I accept the evidence of the defendant, I must acquit.
If I do not accept the evidence of the accused, but it raises a reasonable doubt as to his guilt, then I must also acquit.
Even if I reject the evidence of the accused, and am not left in a state of reasonable doubt by it, I may not convict unless I am satisfied by the evidence which I do accept of all of the elements of each offence, beyond a reasonable doubt.
11This was a short two-witness trial. Ms. Feliciano was the only witness called for the Crown, and Mr. Feliciano was the only defence witness.
Evidence of Sabrina Feliciano
12Ms. Feliciano and the defendant married in 2010, having dated for almost a decade. Together they have two children, who are currently 3 ½ and 8 years old. They separated in early April 2018 when she left the matrimonial home with the children and moved to her parents' house. A few weeks later she disclosed the four incidents to police which gave rise to the assault charges before the court. Family court proceedings were initiated shortly thereafter, and remained active up to the day of trial. Ms. Feliciano testified that she retained primary custody of the children, and was admittedly resistant of granting the defendant equal access to them, on the basis of what she described as his lack of trustworthiness, and "mental abuse" of the children.
Count #1
13Ms. Feliciano testified that sometime in the summer of 2005 or 2006, when they were still dating, she and the defendant attended one of her cousins' weddings. She could not recall the municipality where the wedding took place, but assumed it was Vaughan or Toronto. What she could recall was leaving the reception at its conclusion to join the wedding party and a group of friends for a final toast in their hotel room, which was close by. She testified that the defendant became angry with her for wanting the extra drink, and demanded to speak to her privately outside the hotel room. When they reached the sidewalk outside the hotel, Ms. Feliciano said his anger just "snapped like a firecracker" and he pushed her down to the ground. She testified that he leaned over her and punched her two times in the eye with a closed fist.
14Following the assault, Ms. Feliciano said she did not return to the hotel room but left immediately in a cab, by herself, to her parents' home. She testified that she had a huge bruise on her eye as a result of the assault in the morning, so she left early in order to avoid being seen by any of her family members. Instead, she drove to Mr. Feliciano's apartment in Buffalo, where he lived. She did not seek any medical attention or report the incident to the police at the time.
Count #2
15The second assault allegation was described by the complainant as occurring some eight years later, in the fall of 2013. By then, the parties had married and had their first child. Ms. Feliciano testified that late one evening at their residence in Mississauga, she and her husband were having a discussion which turned into an argument. She said that once again, her husband's anger "flipped on like a switch" and he suddenly approached her and suddenly "strangled" her for 5-10 seconds while she was sitting on the couch. She testified that she said "what are you doing to me" and the defendant let go, and walked out of the house. Ms. Feliciano said she was not injured as a result of this assault, and that she did not report it to the police, as she did not want her son to be separated from his father.
Count #3
16The third incident was four years later, in August of 2017. The couple had added a second son and were on a short family vacation at a hotel in Niagara Falls. The family spent the afternoon at the hotel waterslide, then returned to their room. Mr. Feliciano told his wife that he needed time to have a short rest before dinner. She occupied the children to grant him this reprieve, but upon waking him for dinner, she said "something twitched in his brain" and he started yelling at her. Ms. Feliciano described trying to retreat to the bathroom, but being followed by the defendant, who pushed her angrily into the bathtub. She said her children witnessed the assault, and were crying and withdrawn from their father for the remainder of their stay. In cross-examination, she said the children had not been in the bathroom when she was pushed. She said she did her best that evening to make it appear like she wasn't upset, for the children's sake.
Count #4
17Ms. Feliciano described the fourth and final assault as occurring on Halloween weekend in 2017. She and the defendant joined her brother and some other friends at a house-party, and then a dance club in Mississauga. Both she and her husband were consuming alcohol at both locations. Ms. Feliciano testified that when she slipped in her high heels on the dance floor, her husband caught her and picked her up "aggressively" in a way that suggested to her he was about to get angry. She said her suspicions where confirmed when she slipped a second time later in the evening, and he picked her up and pinned against the wall, this time yelling at her and demanding to know what was wrong with her. Ms. Feliciano said she instinctively put her hands around her husband's neck, to defend herself, and that moments later a bouncer came and invited her husband to leave the club. They later regrouped and went home together by cab.
Fail to Comply – Recognizance, Count #2
18As a result of Ms. Feliciano's allegations to police in April 2018, the defendant was charged and released on a recognizance. Among the terms of his release was a condition directing him to have no communication, directly or indirectly or by any means with the complainant. By then, Ms. Feliciano had taken her children and moved into her parents' house, in the absence of any legal separation agreement or family court order.
19On May 5, 2018, Mr. Feliciano sent an email to his wife. The email was produced as an exhibit. The substance of the email is a bulletin from their son's baseball league regarding the players' team assignments, coaches, and practice schedule. Mr. Feliciano added one line to the information which he forwarded to his wife which reads: "Please take Lucas to baseball please."
20Ms. Feliciano testified that she interpreted this email to be another example of her husband's controlling and demanding nature. She reported her receipt of the message to police.
Evidence of the Defendant Ruben Feliciano
21Mr. Feliciano testified. He was calm and composed while delivering his evidence. He agreed to having been to several of his wife's cousins' weddings, but denied that there was ever any argument over alcohol or incident of assault at any one of them. Similarly, he denied that the second (choking) incident ever occurred, or that there was any conflict or violence during the third (bathtub) incident in Niagara Falls. With respect to the fourth allegation at the nightclub, Mr. Feliciano agreed that he did pick his wife up off the floor on two occasions at the nightclub, he said that he did so because she was intoxicated, and that there was nothing assaultive about his conduct. If anything, he said that she assaulted him on the last occasion, when she put her hands around his throat to try to choke him after he picked her up. Ms. Feliciano agreed in her evidence to having done so, but only in a gesture of self-defence to the way that he had picked her up.
22According to Mr. Feliciano, there had been a certain tension in his marriage to the complainant from the outset, sometimes resulting from her tendency to over-consume alcohol and become volatile. He said that this issue worsened after the birth of their first child, and that he had expressed his concern to her about it on multiple occasions.
23With respect to the email of May 5, 2018, the defendant waived solicitor-client privilege with respect to his communications with his family lawyer around this issue. He testified that he had asked his family lawyer to convey the information about his son's baseball schedule to Sabrina, on his behalf. He said his lawyer said he would do so, but told him it would be fine for him to pass it along to her as well. Mr. Feliciano said that he had explicitly asked his counsel if this communication would be considered a breach of the contact prohibition in his recognizance, and he was told that it wouldn't be. On this basis, he sent it.
Credibility Findings
24As Mr. Bassi noted in his submissions, the defendant was not pressed in cross-examination on any of the substantive allegations, and no major, or even minor inconsistencies in his evidence were revealed. The majority of his cross-examination was spent exploring the timing and details of the legal advice which he received relating to the email communication to his wife. In delivering this portion of his evidence, the defendant offered qualified or corrected responses when he could not recall precise details at to dates, but was generally unshaken as to the substance of what he had understood from that advice. There was nothing unreasonable or implausible about his account. Aside from its relative brevity, there is no obvious basis to reject the defendant's evidence when considering it in isolation. However, his evidence must of course be considered in the context of all of the evidence, however, including Ms. Feliciano's account.
25I accept the Crown's submission that the lack of detail in the complainant's account of the first two events, which she alleged occurred well over a decade ago, could very well be the natural result of her faded memory, as opposed to evidence of her fabrication. For example, Ms. Feliciano was unable to identify the location of the first incident, beyond naming a number of municipalities in the greater Toronto area. She also said she remembered the wedding venue and hotel, but couldn't name either of them. That she can't remember these particular details is not terribly surprising, so this particular gap in her narrative impacts little on my assessment of her credibility.
26However, the two related issues which must be assessed in any witness' evidence are her credibility (veracity or truthfulness) and reliability (accuracy). A trial judge may accept all, some or none of a witness' evidence.
27While there were some elements of Ms. Feliciano's testimony which were compelling, such as her obvious feeling of having been harmed by the defendant, her testimony also gave rise to serious concerns of both credibility and reliability.
28Mr. Kingdon was correct in his submission that certain portions of Ms. Feliciano's narrative were delivered in a forthright manner during her examination in chief. However, leaving aside any assessment of her demeanour at this juncture, the paucity of detail surrounding the first and second incidents gives rise to a measure of inevitable concern with respect to the reliability of those accounts.
29The complainant's admitted alcohol consumption with respect to the first and final incidents raises another real reliability concern. With respect to the first incident, now 14 years ago, Ms. Feliciano initially insisted on having a clear recollection that she had abided by her usual rule of having no more than three drinks over the course of the night. She repeated that she "never" had more than three drinks. In cross, she was resistant to conceding that her wish to have a nightcap with the wedding party suggested that that she didn't always abide by this cardinal rule, despite the obvious arithmetic of her own evidence. Ultimately she allowed for the possibility that she might have had some, but "not much more" and agreed that the defendant was the designated driver that night, and had consumed comparatively less alcohol.
30On both the complainant and the defendant's evidence, alcohol also figured prominently in the narrative of the final incident, at the nightclub. Neither party was driving, and both drank before and at the club. Ms. Feliciano's description of having slipped or fallen to the ground on two occasions is equally consistent with her having been unsteady in her heels due to alcohol, or poor footing. It is not necessary that I resolve the question of which of these reasons caused her to fall. What I must assess is whether her allegation that her husband pulled her aggressively from the ground the second time and pinned her to the wall amounts to an assault at law. The reliability of Ms. Feliciano's account is necessarily impacted by her agreement that she was at least tipsy that night, and her characterization of certain portions of the evening as "a blur."
31There were broader credibility concerns with Ms. Feliciano's evidence as well. In cross-examination, Ms. Feliciano's temperament as a witness changed dramatically from how she had presented in chief. While her testimony had begun in a reasonably calm, coherent and straightforward manner, in cross, the complainant revealed herself to be at times argumentative, defensive and indeed, openly combative.
32The clearest example of this occurred when Mr. Bassi was cross-examining Ms. Feliciano on an inconsistency between her police statement and her testimony in chief about the breach allegation. It became instantly clear that the complainant did not enjoy being corrected on even a minor issue. First, she told Mr. Bassi that he was making her mad, and then mused aloud "should I hit you?" This was a rather stunning piece of testimony, for what I expect are rather obvious reasons. First, it reflected a palpable resistance by the complainant to the legitimate testing of her evidence through questioning by counsel for the defendant. Her posture was one of open defiance, and sudden hostility toward counsel during this exercise. Second, and perhaps most significantly, this episode amounted to a demonstrated inconsistency with her repeated denials that she ever had any difficulty managing her anger.
33It is acknowledged that the experience of testifying at a criminal trial is doubtless a very stressful, if unenviable one for any person, particularly one who attends to report on allegations of strife within what was once an intimate personal relationship. There is no one correct way of testifying, so trial judges must take great care not to place undue emphasis on a witness' demeanour in giving their evidence in the overall assessment of credibility. I should note that Ms. Feliciano apologized repeatedly to Mr. Bassi for her intemperate remark after making it.
34It is one thing for a witness to exhibit a certain discomfort or even defensiveness in the unfamiliar and somewhat intimidating seat of the witness stand. It is quite another to openly threaten to strike a defence lawyer in response to a question, and to attribute such an outburst to a general sense of trepidation around testifying. The extremity of Ms. Feliciano's response does not allow me to accept such a limited rationalization for it, notwithstanding her apology. Rather, this exchange necessarily causes me to seriously doubt the credibility of the complainant's narrative in which she denied ever being argumentative or combative with her husband, and her insistence that it was he whose anger would suddenly and inexplicably erupt during the course of her marriage, leading to these allegations of conflict.
35This portion of Ms. Feliciano's testimony, as well as others, gave rise to a related but distinct credibility concern, namely motive to fabricate. Ms. Feliciano did not report any of the allegations of physical abuse by her husband until after she had separated with the children, and family law proceedings were on the horizon. The Children's Aid Society ('CAS') had also already become involved, after Mr. Feliciano reported his concerns to the society around his wife's alleged drinking and anger issues around the children. These factors do not in and of themselves mean that her allegations are not credible, however they invite heightened scrutiny of her evidence, and the timing of her disclosure, which happened to coincide with a pending custody battle. Ms. Feliciano admitted that there was nothing stopping her from reporting any of the allegations right after she says they happened. Her report was made three days after her own interview by the CAS (which was cleared). In cross-examination, Ms. Feliciano said she did not wish to engage in any "war" with the defendant, and always wanted to remain amicable towards him. The consistently defensive, somewhat angered tone and substance of her evidence, particularly in cross-examination, suggested otherwise. In the final analysis, I did not find Ms. Feliciano to be a credible witness.
36It must be remembered that a criminal trial is not an inquiry into what happened, or whose version of events is stronger. The ultimate function of the trial is to determine whether the Crown can prove the specific criminal allegations it has made beyond a reasonable doubt. The trial judge might well prefer substantial portions of the complainant's evidence over the defendant's, but this does not resolve the question of whether the accused's guilt has been established beyond a reasonable doubt. This is because there are other options requiring acquittal, including the legitimate possibility that the trial judge cannot resolve conflicting evidence, and is left in a state of reasonable doubt by it.
37After hearing all of the evidence, I am certainly satisfied that there was conflict in the Feliciano marriage, that alcohol was a contributing factor to their strife, that Ms. Feliciano felt mistreated, and that there may well have been incidents which escalated to the point of physical aggression by him. However, the threshold of proof required for a criminal conviction is an appropriately rigorous one, which requires much more than a finding that an incident possibly, or even probably happened. The standard requires proof beyond reasonable doubt, which I find has not been achieved in this case.
38Mr. Feliciano's evidence and denial of responsibility was not implausible, and minimally gave rise to a reasonable doubt with respect to the substantive assault allegations. There were no other witnesses or corroborative evidence offered by the Crown to support the proof of these charges, which rested entirely on the testimony of the complainant. As a result of the concerns which I have adverted to with both the reliability and credibility of Ms. Feliciano's evidence, I am left with a reasonable doubt with respect to each of counts 1 through 4. There will be acquittals entered on these charges.
Fail to Comply – Recognizance
39Two legal questions remain, with respect to the remaining count of fail to comply recognizance. First, can the defendant's evidence of having received legal advice approving of the single email transmission which he sent to his wife, if accepted, operate to give rise to a reasonable doubt of the mens rea for the breach? Alternatively, if the offence is made out, should the de minimus doctrine be applied to preclude a conviction being entered, and an acquittal substituted.
a) Mens Rea
40The mens rea component of an offence of failing to comply with a condition of an undertaking or recognizance requires proof of actual knowledge or wilful blindness. The Crown does not have to prove that the accused intended to breach the recognizance, but rather, that he or she intended to commit the actus reus. (Custance, 2005 MBCA 23, at paras. 12-13.)
41Mistakes of fact may afford a defence, whereas mistakes of law do not. (Whitworth, 2013 ONSC 7413; Rundle, [2008] O.J. No. 188 (S.C.J.).) In R. v. Forster, [1992] 1 S.C.R. 339, at para. 15, the Supreme Court of Canada affirmed:
It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused.
42In this case, I accept Mr. Feliciano's evidence that he did not intend to breach his bail, and further, that he honestly believed that his communication was permissible as a result of the flawed legal advice that he had sought and obtained. However, his belief in this regard amounts to a mistake of law which does not raise a reasonable doubt as to his mens rea or afford a defence to the charge.
b) De Minimus non curat lex
43The latin maxim de minimus non curat lex means "the law does not concern itself with trifling matters." In R. v. Juneja, 2009 ONCJ 572, Justice Duncan surveyed the then existing jurisprudence and concluded that the unanimous, though not substantial authorities favour the doctrines' availability in Canadian criminal law (at para. 14). The purpose of the doctrine was restated by that court as follows:
The de minimus doctrine is important to the criminal law for a number of reasons – to relieve against overly broad criminal offences that ensnare trivial or unintended violations: see R. v. Hinchey, [1996] 1 S.C.R. 353, at p. 380-81; to preserve dignity and respect for the administration of justice by not trivializing the important work of the courts; to ensure that scarce time and resources are not wasted.
44In R. v. Murdock, Justice Doherty described the principle as follows, at paragraph 29:
The "de minimus" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest.
45The ambit of the doctrine's availability rests, therefore, on the court's assessment of impugned conduct and measurement of its "triviality." Justice Doherty's language in Murdock, supra suggests that the calculus of triviality should include some assessment of the risk of harm, if any, engaged by the conduct.
46In R. v. Arsenault, 2018 ONCJ 224, Justice Bliss applied the doctrine to acquit that defendant for having transmitted a one-line text message to the complainant through a third party, in contravention of a court order. The court could not find that the text "had any impact on any public or community interest" and concluded that it was both trivial and trifling, such that the doctrine applied to negate the conviction (at para. 21).
47In R. v. Ellis, 2016 ONCJ 168, it was argued that the de minimus doctrine should be applied in circumstances very similar to those in this case, namely: where the accused was in technical breach of the terms of his recognizance, as a result of a good faith, but mistaken belief in the law. Notwithstanding the assessment of the accused's intentions in being briefly outside his surety's direct presence to help his younger brother as being both "lawful" and "worthwhile", Justice Crewe held that it was not possible to resolve the de minimus issue without having regard for the nature of the charge for which Ellis was on release: first degree murder. The court declined to apply the de minimus doctrine to the breach in that case, and a conviction was entered.
48In a similar vein, Mr. Kingdon urged me to reject the application of the de minimus principle in this case, based on the nature of the substantive charges to which the recognizance referred. He argues that for strong policy reasons, the de minimus doctrine is inapplicable to any conduct associated with allegations of domestic violence. He provided me with the Court of Appeal's decision in R. v. Carson, [2004] O.J. No. 1530 (C.A.) in support of this submission.
49In Carson, the appellant advanced de minimus as an alternative argument for the first time on his appeal against his assault conviction. The court dismissed the appeal without deciding the issue of the doctrine's application. However, the court's language at paragraphs 24-25, while obiter, persuade me that the doctrine should be more restrictively applied in the context of domestic violence:
The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated.
50In R. v. Ferreira, 2014 ONCJ 21, after applying the doctrine to exempt the defendant from liability for a minor domestic assault offence, Justice O'Donnell acknowledged that "the potential ambit of principle in domestic assault cases may diverge from its availability in other contexts" (at footnote 2). The assaultive conduct in question in that case was the defendant's swatting away the complainant's phone from her hand, while she was trying to film him. The court found that the indirect application of force to the complainant's hand amounted to an assault. However the court was satisfied that the context of the particular conduct was sufficiently trifling to permit de minimus principle to applied, and an acquittal entered.
51The conduct in question here consisted in Mr. Feliciano's forwarding his son's baseball league bulletin along to the complainant, to which he added the comment: "please take Lucas to baseball please." The transmission was sent in contravention of a blanket prohibition in his recognizance which forbade any form of direct, indirect or electronic communication with the complainant. I have found that Mr. Feliciano sent the email after having received flawed legal advice from his family lawyer, which led him to believe that its transmission would not be perceived as a breach.
52In assessing the risk of this conduct, I am mindful of the court's language in Carson that there is an element of harm occasioned to greater society by incidents of domestic violence, of an even minor nature.
53The conduct at issue here does not include any form of violence, either threatened or applied. It consists in the forwarding of information relevant to a child's sports schedule, to which a polite salutation and request was added. The content of the communication was not related in any way to the domestic assault allegations, or aimed at engaging the complainant in any form of dialogue, although the complainant interpreted it as "demanding". On its face, the purpose of the email was presumably to identify, for Ms. Feliciano's convenience, the time and location of their son's first practice, given her role as the custodial parent. Viewed in isolation, the conduct could well be described as trivial, and leading to no personal or societal harm, such that the de minimus principle should be applied.
54Yet in considering the application of the de minimus principle in a criminal case, context is critical. This particular communication, however helpfully that it might have been intended, was transmitted in contravention of a recently imposed court order arising from multiple allegations of domestic assault. I consider Justice Hill's observations in rejecting a similar argument in R. v. J.F., [2001] O.J. No. 2054 (S.C.J.) to be particularly instructive here:
The appellant's approach fundamentally misunderstands the objective of a term or condition such as bound the appellant. While recognizing that the sexual offenses charges amounted to allegations only, the bail system seeks to favour pre-trial liberty in balance with protection of those said to be victims of crime. Especially in instances of sexual or domestic violence, the sight or sound of the alleged perpetrator can evoke feelings of terror, insecurity, re-invasion of privacy, and mistrust of the criminal justice's system resolve to protect those who report crimes. Communications and physically proximate attendances, whether innocuous from the accused's perspective, frequently generate adverse experiences for those who are in fact victims of crime. I agree with the observation of Gary Trotter in The Law of Bail in Canada (2d ed., 1999) at page 259 as to the role of a non-communication term or condition:
Dealing first with restrictions on communication, s. 515(4)(d) and s. 515(4.2) have a dual aspect. First, they protect the victim from threats or entreaties by the accused regarding future court testimony. This may be crucial when the alleged offence involves the domination of the victim, as in the case of child sexual abuse or spousal abuse. Also, by imposing a non-communication condition, the victim may be provided with some peace of mind while the accused is at large during the interval between arrest and trial. It hardly seems reasonable to send the victim into hiding if there is a reasonable likelihood of interference or harassment.
55Viewed in its proper context, I cannot conclude that the defendant's email communication to his wife, sent in contravention of the absolute prohibition contained in his recognizance related to his charges of domestic assault, can be characterized as trivial or trifling. To relieve the defendant from responsibility for such a communication would be to potentially jeopardize the public's trust in the criminal justice system's goal of protecting those who report crimes.
56In these circumstances, the de minimus doctrine does not apply. There will be a finding of guilt on the breach of recognizance.
Released: April 9, 2019
Signed: Justice A. Dellandrea
1D.M. Paciocco: "Doubt about Doubt: Coping with R. v. W.(D). and Credibility Assessment", (2017) 22 Cdn. Crim. L.R. 31
