ONTARIO COURT OF JUSTICE
DATE: 2021·06·25 COURT FILE No.: Toronto 4817 998 20-75004075
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MARK ANTHONY THOMPSON
Before: Justice André Chamberlain
Heard on: April 15, 2021
Reasons for Judgment released on: June 25, 2021
Counsel: Ms. Reyam Zager...................................................................................... Counsel for the Crown Ms. Alana Page...................................... Counsel for the defendant Mark Anthony Thompson
1Mark Thompson is charged with two counts of failing to comply with a release Order, both offences having been alleged to have happened on September 7, 2020. The facts are not in question: both parties agree that on two occasions that day Mr. Thompson was out of his residence without a surety. What is at issue is whether a defence of de minimus non curat lex is available on these facts given the brevity and seriousness, or lack thereof, of the breach itself.
Facts Not in Dispute
2It was admitted that Mr. Thompson was subject to bail conditions at the time of his arrest. He was on a release for a manslaughter charge. Mr. Thompson was being supervised by two sureties: Oscar Alcazar and Hassan Ibrahim. The relevant terms of his release included:
“He shall report daily to Hassan Ibrahim – either in person, or by phone if Mr. Ibrahim is out of the country.”
“Reside with surety at 220 220 Oak Street (sic), apartment 1703 and follow the rules of that house as imposed by Mr. Alcazar.”
“Remain in your residence
EXCEPT
- He shall be in the direct company of at least one of his sureties at all times when outside of the apartment #1703 at 220 Oak Street, including when in the common areas of that building except in the case of a medical emergency, to attend court or to attend a scheduled meeting of counsel providing that in all such cases, Mr. Thompson shall carry on his person the written consent provided for below and travel directly to and from the place indicated;”
Mr. Thompson shall be permitted to travel directly to and from (i) any court attendance or scheduled meeting with council; (ii) any counseling appointment or (iii) to provide drug testing sample as permitted in the foregoing conditions provided that he has on his person a signed and dated consent from one of his sureties indicating where he is attending, which released condition permits him to attend and the expected departure and return time, such consent from his surety to provided (sic) to any police officer upon request; and”
“Mr. Thompson shall be permitted to seek work with the assistance of his sureties providing acceptance and commencement of any such employment shall be conditional upon court approval of such further release terms as may be required to supervise Mr. Thompson.”
3At the time, both sureties, who shared responsibility to supervise Mr. Thompson, resided in the same building at 220 Oak Street in the city of Toronto. They reside, however, in separate units in the same building; Hassan Ibrahim 1409 and Oscar Alcazar 1703. This is a Toronto Community Housing Corporation (TCHC) building with multiple floors. They have an impressive, if somewhat daunting, array of a closed-circuit television (CCTV) system that appears to cover not only the main common areas of the building, such as the lobby and entryways, but also appears to cover all hallways and staircases in the building.
4Mr. Thompson’s bail release was clear. He was to remain in his residence, which was primarily with Mr. Oscar Alcazar and with very limited exceptions, which were not at play here, he was only to be out of his residence when in the company of one of his sureties. On September 7, 2020, Mr. Thompson was planning on being out for the afternoon with Hassan Ibrahim. The plan was for Mr. Ibrahim to escort Mr. Thompson to go and make a little money cutting hair. Time was a little tight as Mr. Ibrahim had to go to work around dinner time. Oscar Alcazar was at home in his unit, suffering from a recurring bad back and was bedridden that day.
5Hassan Ibrahim was in the shower. Mr. Thompson was going to hop in the shower next, and then they would leave to get their day going. Mr. Thompson realized he had left his towel and kit upstairs in Oscar Alcazar’s unit. He knew Oscar Alcazar could not come get him and that by the time Mr. Ibrahim was done and dressed, the time to escort him upstairs and then return downstairs to have his shower and get ready would make them even later. So he decided to head up to Oscar Alcazar’s unit quickly to get his things. The video evidence in court shows him returning from Oscar Alcazar’s unit, making his way to the stairs, going down three floors to the location of Hassan Ibrahim’s unit. The breach is alleged to be the travel from one unit to the other without the presence of a surety. Mr. Thompson readily admits that the breach captured was just half the journey; a few minutes before he had travelled from Mr. Ibrahim’s unit in 1409 to 1703. What was caught on video was the return trip.
6Later in the day, Hassan Ibrahim is returning Mr. Thompson to the building, but he is now pressed for time and has to take care of some business before heading to work. Mr. Ibrahim is on the verge of running late, so he drops Mr. Thompson at the front of the building, directs him to go directly to Oscar Alcazar’s unit. Mr. Thompson does just that. Mr. Thompson is captured entering the building by the front lobby and heading to the elevators, again, without being in the presence of a surety.
The Position of the Parties
7The Defence argues that this was a very strict, perhaps overly restrictive, bail. It means he cannot do his laundry nor can he do a simple task such as taking out garbage to the garbage chute in the hallway without being escorted by one of his sureties.
8Counsel directs me to R. v. Arsenault, [2018] O.J. No. 1858, citing Justice Doherty in R. v. Murdock, stating that:
The harm principle, as a principle of fundamental justice, goes only so far as to preclude the criminalization of conduct for which there is no "reasoned apprehension of harm" to any legitimate personal or societal interest. If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convicting someone who has not done anything wrong. Difficult questions such as whether the harm justifies the imposition of a criminal prohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutional competence of the judiciary and the institutional competence of the criminal law adversarial process. (Para 33)
9Counsel, to that end, suggests that the Courts should not be burdened with trivial matters where no harm arises, particularly where the breach is connected to a prohibited behaviour or term of bail that is completely unconnected to the offence. For instance, an offender who is charged with the robbery of a convenience store might be barred from entering any convenience store. But she argues there is no rational connection to the underlying offence in this case and, as such, argues that a conviction is not in the public interest.
10This led to a discussion of R. v. Zora, 2020 SCC 14 , [2020] S.C.J. No. 14, pointing out that the Supreme Court of Canada has made it clear at paragraph 26, stating that the situation had not changed since the Court’s ruling in Antic, “with the ongoing imposition of bail conditions which are unnecessary, unreasonable, unduly restrictive, too numerous, or which effectively set the accused up to fail.”
11At paragraph 27, the Court states: “Parliament also acted to address concerns regarding the overcriminalization of bail breaches, which is in part explained by the initial imposition of numerous and onerous bail conditions. Besides changes to bail revocation under section 524, parliament has enacted a new procedure for managing failure to comply charges under section 145(3) called a “judicial referral hearing” [s. 523.1]. If an accused has failed to comply with their conditions of release, and has not caused harm to a victim, property damage, or economic loss, the Crown can adopt can opt to direct the accused to a judicial referral hearing.”
12Citing paragraph 118, counsel for Mr. Thompson argues that specifically to the second count, relating to the event later in the day where he is dropped off by Mr. Ibrahim and directed to get up to Mr. Alcazar’s apartment directly, that it would not meet the standard of recklessness as defined in Zora. That in order for me to convict I must not only find that he did in fact commit the act of breaching his bail, but I need to also accept that his actions were reckless; a calculated risk that Mr. Thompson took knowing full well he was in full breach of his bail.
118 Given that s. 145(3) can operate to criminalize otherwise lawful day-to-day behaviour, I would conclude that knowledge of any risk of non-compliance is not sufficient to establish that an accused was reckless. Instead, the accused must be aware that their continued conduct creates a substantial and unjustified risk of non-compliance with their bail conditions. . . . (Citations omitted) . . . The risk cannot be farfetched, trivial, or de minimis. The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations (Manning and Sankoff, at p. 229). Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accused was aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified.
13As such, on top of the de minimus argument raised on both counts alleged, Ms. Page submits, in any event, that I should acquit on the second count because the Crown has not established the mens rea for this offence. The standard for recklessness is high, because the risk is that we criminalize everyday activities, as mentioned earlier.
The Crown
14The Crown argues simply that de minimus does not apply in this context. She distinguishes Arseneault, noting that the alleged breach in that case was a brief comment made to a third party.
15Ms. Zager points out that Mr. Thompson lived with those bail conditions from June of 2020 to his arrest in September of 2020. That if he was not satisfied with the terms of his bail, he had four months in which to seek a bail variation; he did not. She points out that Mr. Thompson made it clear that he considered the terms of his bail, that he knew he was not supposed to be out of the apartment without at least one of his sureties being in his presence and that, in weighing the pressures of time, he made a deliberate decision to breach his bail in the first instance by quickly running from one apartment to the other rather than waiting until somebody was available.
16With respect to the second count, the Crown argues that he clearly understood what his bail conditions were and that he made a deliberate and reckless decision to go from Mr. Ibrahim’s car to Mr. Alcazar's apartment because it was the most convenient thing to do. It was poor planning on his part; it is clear evidence of his reckless disregard for the terms of his bail. He knew in advanced that they were pressed for time. He knew that Mr. Ibrahim needed to leave to get ready for work in the late afternoon. He should have anticipated the possibility that this might have happened and planned for it.
Legal Analysis
17Let me start by addressing count two, surrounding the events at the end of the day. I am not persuaded that the Crown has established beyond a reasonable doubt that Mr. Thompson was reckless in his disregard for his bail in that instance. In my view, he appreciated that there was a time crunch for Mr. Ibrahim. But it was not clear on Mr. Ibrahim’s evidence nor on Mr. Thompson’s evidence that it was his decision or idea to be dropped off and just run up to Mr. Alcazar’s residence. Mr. Ibrahim testified he was in a rush. He directed Mr. Thompson to go directly up to the unit after he dropped him off. Mr. Thompson knew he was under the supervision and direction of his sureties. I am not satisfied on the basis of these facts that I can find Mark Thompson guilty of recklessly disregarding the conditions of his release in the circumstances. He will be acquitted on count two.
18On the first count, let me first address the need to avoid a collateral attack of an Order in a trial of a breach of that Order. An Order made by a Court must be obeyed unless it has been set aside in a proceeding taken for that purpose. It would be improper for me to make findings on the lawfulness of the original Order where there are other options for review or appeal such Order after its imposition. R. v. Bird, 2019 SCC 7; R. v. Consolidated Maybrun Mines Ltd., 1998 CarswellOnt 1476, 1998 CarswellOnt 1477, [1998] 1 S.C.R. 706, 123 C.C.C. (3d) 449 (S.C.C.); R. v. Litchfield, 1993 CarswellAlta 160, 1993 CarswellAlta 568, [1993] 4 S.C.R. 333, 25 C.R. (4th) 137, 86 C.C.C. (3d) 97 (S.C.C.).
19I turn to the de minimus argument. That there was a breach is not in doubt. I have to resolve whether I must acquit because the breach is so trivial and so minor in nature that it precludes entering a conviction as it would criminalize a matter best described as trifling. I would turn first to an analysis of the breach in context of Mr. Thompson’s personal circumstances, the nature and duration of the breach and other relevant factors:
(1) The duration of breach: I would not classify this a lengthy breach by any means though it was certainly not fleeting. The trip probably lasted just about a minute each way, just enough time for Mr. Thompson, a relatively fit individual to go down the hall, run down the stair from the 17th to the 14th floor on the video and enter Mr. Ibrahim’s apartment right next to the stairway. (2) The location of the breach: it is relevant that the breach happened in the same high-rise building, just three floors apart. This was not a trek across town or even down the street or block. As mentioned, the trip was barely a minute. (3) The purpose of breach: There was no medical emergency or other crisis. I accept that Mr. Thompson felt pressured to get going, knowing his tasks were not going to be brief. He appreciated that Mr. Ibrahim was under some time pressure as well, needing to take steps and get ready for his own work responsibilities in the late afternoon or early evening. But the urgency felt by Mr. Thompson amount to concerns about tardiness and inconvenience. I do not mean to demean or insult Mr. Thompson by this statement. It is to his credit that as a friend relying on the goodness and support of Mr. Ibrahim, he is being conscientious. I accept that. (4) Other circumstances of the breach: Mr. Thompson did not consult with his sureties, either by calling Mr. Alcazar, or calling out to Mr. Ibrahim in the shower to either ask permission or seek their advice and counsel. He simply made a judgment call and decided that it would be a more effective use of time to simply run up quickly, on his own. (5) The wording of the bail condition itself: We have all seen those conditions of house arrest that simply state house arrest except for medical emergencies or in the presence of a surety. This was not the case here. This was a strict bail with careful consideration given to the very limited exceptions to the house arrest. Specifically, any exceptions that were not for medical emergencies, were in the presence of a surety, and absent that, for the limited purpose of court, and scheduled meetings with counsel. Even on those slim exceptions, Mr. Thompson was to have a written note from a surety indicating his surety’s consent. Further, the Order makes specific mention of common areas of the building as places with which he must be accompanied by a surety. (6) Failure to seek a bail variation: though not determinative, he was aware of the limits of his freedom and the burden that he ended up causing on his sureties. He could have asked for a variation. Nothing is guaranteed of course, but no efforts were made on that front. (7) Any evidence, or lack of evidence, regarding his intentions at the time of the breach: I completely accept that Mr. Thompson had no nefarious intentions when he decided to quickly run back and forth between the locations. If there was a breach, it was administrative in nature. (8) The seriousness of the underlying charges: I know very little of the allegations before the Court that make up the underlying charge. It is a manslaughter charge, which on its face is serious. It implies an allegation, clearly unproven, that he may have had a hand in the death of an individual.
20I appreciate that there is not a definitive ruling from the Supreme Court on whether “de minimus curat lex” is available as a defence in the criminal context. Among academics, many argue it should not be available, but many Courts have ruled in favour of accepting it as a defence in particular circumstances.
21In reviewing R. v. Arsenault, [2018] O.J. No. 1858, I take note of the following: that case centered around an acrimonious family law dispute. As is too often the case following a separation and dispute about property, the complainant in that case obtained an ex parte restraining order. In seeming defiance of a family Court Order for access to visitation on behalf of Mr. Arseneault, visitation was to be arranged through a third party who was apparently frustrating efforts to facilitate access. In communications to try and facilitate that access through the third party, who the judge described as an ally to the complainant, Mr. Arseneault sent a message, among many, to the third party stating: "Yeah you should tell Beverly (the complainant) that I pose no threat to her and now I have a restraining Order and what's going on this weekend"
22As such, Arseneault may well be an accurate statement of the law on “de minimus,” but I find it is easily distinguishable on these facts. Context is everything. Mr. Thompson is facing a serious criminal charge. He was under a very restrictive bail, with very deliberate attention seemingly paid to the need for supervision, not only in the community, but mentioning specifically the common areas of his building. I take the view that to discharge him of that very specific obligation not to comply with a very restrictive bail, considered by a justice with knowledge of the allegation and specifics of the background and circumstances of Mr. Thompson at the time, would place the reputation of the criminal justice system at risk. And though I confirm that there was no nefarious intention in his actions, I do find that he made a judgment call, that was very well intentioned in not wanting to delay or inconvenience Mr. Ibrahim further, but I do find that his actions were reckless, a calculated risk that Mr. Thompson took, knowing full well he was in full breach of his bail.
23For these reasons, I find I must convict Mr. Thompson of the single count of failing to comply with his bail.
Released: June 25, 2021 Signed: “Justice André Chamberlain”