Her Majesty the Queen v. Tremblay [Indexed as: R. v. Tremblay]

89 O.R. (3d) 48

Court of Appeal for Ontario,

Doherty, Sharpe and Gillese JJ.A.

January 16, 2008

Criminal law -- Long-term offenders -- Breach of long-term supervision order -- Condition in long-term supervision order which translated read "you must report any relationships entered into with females to your supervisor" -- Accused having conversation with young woman in laundromat and giving her his telephone number -- Accused not reporting encounter to his supervisor -- Accused not guilty of breaching condition -- Purpose of condition to protect women with whom accused entered into relationship -- Condition not requiring accused to report casual encounters and unsuccessful attempts to enter into relationships with women.

The accused had a history of abusing women with whom he formed relationships. He was subject to a long-term supervision order which contained a term which translated read, "you must report any relationships entered into with females to your supervisor." He struck up a conversation with a young woman in a laundromat, talked to her for 90 minutes to two hours, and gave her his telephone number. She testified that she had no intention of calling him. The accused [page49 ]failed to report the encounter to his supervisor, and was convicted of breaching the condition of his long-term supervision order. He appealed.

Held, the appeal should be allowed.

The purpose of the condition in question was to protect vulnerable women who might enter into a relationship with the accused by requiring him to notify his supervisor so that appropriate steps could be taken to warn the woman involved. That purpose suggested that more than a casual or chance encounter with a woman was required to trigger the duty to report. The accused was only required to report relationships he entered into. The condition did not require the accused to report any unsuccessful attempt to enter into a relationship, although it is not determined whether repeated, casual encounters could trigger the reporting obligation. The actus reus of the offence was not made out.

APPEAL from the conviction entered by Bordeleau J. of the Ontario Court of Justice, dated October 16, 2006, for breach of a long-term supervision order.

The judgment of the court was delivered by

Cases referred to Marcotte v. Canada (Deputy Attorney General), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, [1974] S.C.J. No. 142, 51 D.L.R. (3d) 259; R. v. Tremblay (19 October 2007), Toronto (Ont. S.C.J.) Statutes referred to Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 135.1(1) [as am.] Criminal Code, R.S.C. 1985, c. C-46, s. 753.3 [as am.]

Leslie Maunder (duty counsel), for appellant. Kim Crosbie, for respondent.

[1] SHARPE J.A.: -- The appellant appeals his conviction for breach of a special condition imposed by the Parole Board as a term of his release from custody as a long-term offender. The issue raised on appeal is the proper legal interpretation of that condition.

[2] The condition at issue was drafted in French and reads as follows: "Vous devez faire rapport de toutes relations que vous entamez avec les femmes à votre superviseur" (emphasis added). The parole board provided an English translation of the conditions, translating this condition as follows: "You must report any relationships entered into with females to your supervisor" (emphasis added). The information charging the appellant with breaching s. 753.3 of the Criminal Code, R.S.C. 1985, c. C-46 defined the condition as being: "You must report to your supervisor all relationships that you initiate with women" (emphasis added). Section 753.3 provides: [page50 ]

Breach of order of long-term supervision

753.3(1) An offender who is required to be supervised by an order made under paragraph 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Facts

[3] The appellant encountered a young woman at a laundromat who was having difficulty with one of the machines. After providing her with some help, the appellant engaged her in conversation that included details about where they both had lived and about their work and family situations. She testified that he appeared to be stressed. When he told her he had travelled to Rwanda, Iraq and Israel, she became suspicious but continued to converse with him. The appellant told her about his daughter and also that he had recently been in prison after beating up a man he found with his wife. He also told her that he was now on conditional release, that he was being followed and that he had both a parole officer and a psychologist. The appellant further related that he had difficulty controlling himself and that he was the man who had sought an injunction in 1989 to restrain his then girlfriend from having an abortion in the case that had gone to the Supreme Court of Canada. The woman indicated her disagreement with him having dragged his girlfriend through the courts. At some point in the conversation the appellant asked her if she had a boyfriend to which she responded "no".

[4] The woman testified that she realized that he was a potentially dangerous person, that he had "a hard time controlling himself" and that he was someone who is "convinced of his rights".

[5] At the end of the conversation, which lasted between 90 minutes and two hours, the appellant asked her if she had a good memory and gave her his telephone number in "case that one day I might want to go out with him for a coffee". She testified that she told him he could give her his number and that she would call him but that she had no intention of doing so. The two left the laundromat together and then parted after three or four minutes.

[6] The police were monitoring the entire encounter and interviewed the woman almost immediately. When the appellant met with his parole officer a few days later he failed to report the laundromat encounter and this charge followed.

[7] The trial judge found that by giving the woman his phone number the appellant was, in the language of the information, "initiating a relationship" with her and that, under the terms of his release, he was required to report that to his parole officer. The trial judge convicted the appellant and sentenced him to 15 months imprisonment. [page51 ]

Issue

[8] The appellant submits that the trial judge erred in law by finding that his encounter with the woman in the laundromat was caught by the language of the special condition and was therefore something the appellant had to report to his supervisor.

Analysis

[9] The appellant has a disturbing record of abusing women with whom he forms relationships, a record that led to him being declared a long-term offender. The condition at issue on this appeal serves to protect vulnerable women who might enter a relationship with the appellant by requiring him to notify his supervisor so that appropriate steps can be taken to warn and protect the woman involved. Clearly, we must interpret the condition in the light of its protective purpose and avoid an unduly restrictive interpretation that would impede the authorities in supervising the appellant to ensure that he does not re-offend.

[10] That said, we must also be mindful that failure to comply with the condition constitutes a serious criminal offence carrying a period of up to ten years imprisonment and that it must be interpreted according to applicable legal principles. In particular, the appellant is entitled to the benefit of the principle explained by Dickson J. in Marcotte v. Canada (Deputy Attorney General), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, [1974] S.C.J. No. 142, at p. 115 S.C.R.:

No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

[11] I turn first to the wording of the condition. As I have already noted, we have before us three different versions of the terms of the special condition. The condition was drafted in French. I therefore will focus on that version: "Vous devez faire rapport de toutes relations que vous entamez avec les femmes à votre superviseur" (emphasis added). "Entamer" is translated as "to cut into", "to broach", "to penetrate" and while it means "to initiate" in certain contexts (for example, "entamer des poursuites" means "to intitiate proceedings"), the phrase "entamer des relations avec quelqu'un" is translated as "to enter into relations with someone": Harraps New Standard French and English Dictionary (London: George G. Harrap & Co., 1972). This dictionary meaning corresponds with the Parole Board's translation of the condition as "You must report any relationships entered into with females to your supervisor" (emphasis added). [page52 ]

[12] I can see no reason why we should not interpret the word "entamer" in the same manner as did the Parole Board itself as meaning, as the dictionary states, "to enter into". In my view, the trial judge, no doubt misled by the erroneous language of the information, erred by overlooking the language of the condition as it was drafted and translated by the Parole Board.

[13] The condition must be interpreted in its proper context. The Parole Board provided the following reasons for the condition:

The third condition would be to report any relationships that you enter into with females. You have a history of psychologically and physically abusing women you lived with. In addition, you have previously shown great difficulty controlling your anger. Your victims indicated that you often become aggressive without provocation. The Board notes that you have a number of convictions for uttering threats and seem incapable of empathy. Your pattern is to become violent and controlling once you start living with a woman.

(Emphasis added)

[14] The Parole Board's reasons for the condition certainly suggest that the Board's concern is with the formation of any relationship with a woman that might lead to a recurrence of his past abusive behaviour. Those relationships are described as being of a "live-in" nature. While I certainly do not say that the appellant would only be required to report live-in relationships, the Board's reasons do suggest that more than a casual or chance encounter with a woman is required to trigger the duty to report.

[15] The condition at issue should also be interpreted in the light of other conditions that require the appellant to follow psychological counselling, to reside in a community correctional centre for 90 days after his release and to avoid any contact with victims and their families. He is not prohibited from having any casual contact with women nor is he required to report such contact -- he is only required to report relationships he enters into.

[16] Proper consideration must also be given to the word "relationship". We were referred to the reasons of Karakatsanis J. rendered in R. v. Tremblay (19 October 2007), Toronto (Ont. S.C.J.), a similar prosecution against the appellant for breach of the same condition arising out of a similar incident that occurred after his conviction in the case at bar.

[17] Karakatsanis J. cited the Concise Oxford English Dictionary meaning of "relationship":

(1) the way in which two or more people or things are connected, of the state of being connected, the way in which two or more people or groups regard and behave towards each other, and (2) as an emotional and sexual association between two people. [page53 ]

She ruled:

[T]here needs to be some mutual level of involvement, or connectedness, between two people for them to have a "relationship." In essence, it takes at least two of them to make a relationship. It seems to me that in applying this definition to the phrase "any relationship entered into with females" in the context of the condition of this long-term supervision order, the second more restricted definition in the dictionary is most appropriate. The Parole Board fashioned the condition to ensure notice where there was a relationship that could develop into cohabitation with a woman. The word "relationship" in this context refers to any mutual connection with a woman that engages on an emotional or sexual level. While the relationship need not necessarily be romantic and could be, for example, one of friendship, it does not in my view include an unsuccessful attempt to enter into a relationship with another person or an interest by one person to enter into a relationship.

[18] While I would not foreclose the possibility that repeated, casual encounters could trigger an obligation to report even if such encounters lacked mutuality, I agree with Karakatsanis J. that the condition does not require the appellant to report every isolated unsuccessful attempt to enter a relationship.

[19] As I have already indicated, the condition at issue must be interpreted in the light of its purpose of protecting women who might enter a relationship with the appellant that would expose them to the risk posed by his pattern of abusive behaviour. In my view, excluding casual encounters and unsuccessful attempts to engage women of the kind at issue here does not undermine that important purpose.

[20] Moreover, the parole authorities have other means available, short of charging the appellant with this serious criminal offence, should they perceive a genuine risk to the public: see Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 135.1(1), conferring the power to suspend the long- term supervision not only when an offender breaches a condition, but also,

. . . when the member [of the Board] or person [designated, by name or by position] is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society . . .

[21] I need not decide whether that power could properly be invoked on the facts of the present case. Suffice it to say that when the parole authorities are satisfied that suspension of the long-term supervision order and the arrest of the appellant are required to protect the public, they have the power to act.

[22] The Crown argues that the evidence of how the appellant's supervisor explained this condition to the appellant supports the conclusion that the condition required the appellant to report his encounter at the laundromat. In my view, the evidence relied upon is not relevant to the legal issue to be decided, and even if it were relevant, the evidence fails to support the Crown's contention. [page54 ]

[23] The evidence is not relevant because the issue here is not whether the appellant had the necessary mens rea, but rather whether the actus reus has been made out. The definition of the actus reus relates to the proper legal interpretation of the ingredients of the offence and I fail to see how what the supervisor told the appellant can have any bearing on that issue.

[24] In any event, as I read the evidence, it falls short of supporting the proposition advanced by the Crown. The appellant's supervisor testified that, prior to the date on which the appellant failed to report the laundromat encounter, he had explained to the appellant several times that "all female relationships include casual, platonic, romantic, and intimate relationships" and that "a relationship also meant that if he was going for a coffee with a lady, I would expect him to report it to me immediately or the next day, or whenever the opportunity would arise." He admitted on cross-examination, however, that he did not tell the appellant that he would have to report if he had asked a woman to go for a coffee even if she did not agree to the meeting.

Conclusion

[25] For these reasons, I would allow the appeal, set aside the conviction and enter an acquittal.

Appeal allowed.