R. v. Valle-Quintero, 2021 ONCA 390

COURT OF APPEAL FOR ONTARIO

DATE: 20210608 DOCKET: C66811

Watt, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Guillermo Valle-Quintero Appellant

Counsel: Ernest J. Guiste, for the appellant Andreea Baiasu, for the respondent

Heard: May 17, 2021 by video conference

On appeal from the conviction entered on August 30, 2012 by Justice Alfred J. O’Marra of the Superior Court of Justice, and from the sentence imposed on October 8, 2015 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2015 ONSC 6164.

REASONS FOR DECISION

[1] The appellant was convicted of three counts of assault on his girlfriend on a number of occasions in the course of episodes of anger and jealousy. He was also found guilty of wilfully damaging her vehicle, threatening to cause her death or bodily harm, failing to comply with a condition of a recognizance, attempting to obstruct justice, and breaching a court order prohibiting communication with the complainant. Because of his criminal history, the respondent Crown brought a dangerous offender application. The appellant was ultimately found to be a dangerous offender and sentenced to an indeterminate sentence.

[2] The appellant raises many grounds of appeal. Central to these is the submission of reasonable apprehension of bias. He also argues that the trial judge erred in finding that the complainant was a credible witness, and that the trial judge’s findings on the breach of recognizance count were tainted by abuse of process and jurisdictional error. In addition, he alleges that the period from the guilty verdict to the imposition of the sentence, around 37 months, was unreasonable and violated his Charter s. 11(b) rights.

[3] For the following reasons, the appeal is dismissed.

A. Background

[4] The appellant did not testify at his trial. The charges concerned events that had taken place in 2010-2011. The trial judge found that the appellant had choked the complainant to unconsciousness, had threatened to kill her when he told her “[i]f I can’t have you, nobody can”, and that he said, having choked her, that if she had died, he could have hidden her body in the wall so that nobody could find her. The trial judge accepted that the complainant was fearful for her life. The appellant was convicted of additional counts of assault in relation to two other incidents. He also attempted to obstruct justice and violated a non-communication order when he attempted to persuade the complainant to recant her statement after his arrest.

[5] Following the appellant’s conviction on the charges currently under appeal, the Crown commenced dangerous offender proceedings, and the court ordered a psychiatric assessment which was conducted by Dr. Scott Woodside. Dr. Woodside found that the appellant presented a high risk of reoffending with intimate partners due to his aggressive, controlling and jealous nature, lack of insight as to the nature of his problems, and his view of himself as a victim.

B. Discussion

(1) Reasonable Apprehension of Bias

[6] The appellant argues that a number of factors give rise to a reasonable apprehension of bias. First, he complains that A. O’Marra J. presided over a bail review only two months prior to being nominated as the trial judge. In addition, A. O’Marra J. declined the appellant’s recusal motion after he refused to permit the appellant to sit at the counsel table after the appellant resiled from his earlier willingness to do so with ankle shackles on.

[7] In oral submissions, the appellant’s counsel concentrated on the fact that A. O’Marra J. stepped down after pronouncing the verdict in light of the Crown’s intention to pursue a dangerous offender application, announcing that the sentencing proceedings would be taken over by B. O’Marra J. The appellant submits that this raises a reasonable apprehension of bias because the two are in fact related to one another as first cousins. We disagree.

[8] First, there is a strong presumption of judicial integrity and impartiality that the appellant has not displaced: see Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. Presiding over a bail review and seeing an accused’s criminal record does not disqualify a judge from presiding over a trial. Judges (as they regularly do in voir dire proceedings, for example) are expected and able to disabuse themselves of any prejudicial evidence that they might otherwise have encountered.

[9] Nor does the trial judge’s refusal of the defence request that the appellant be permitted to sit at the counsel table disclose any reasonable basis for an apprehension of bias.

[10] Further, there was no basis to suspect that there was anything improper about continuing the proceedings before a different judge: see Criminal Code, R.S.C. 1985, c. C-46, ss. 669.2(1) and (2). The trial judge explained that he was committed to conducting long civil trials but that the sentencing would be conducted by B. O’Marra J. as he had availability. Nothing in these circumstances gives rise to any basis for the appellant’s request for disclosure from the Crown regarding the matter, quite apart from the fact that pursuant to the principle of judicial independence, judges are not affiliated with the prosecution and cannot be seen or treated as belonging to a Crown agency. There is no merit to this ground of appeal.

(2) The Findings on Conviction

[11] We do not agree with the appellant’s submissions that the trial judge erred in finding that the complainant was credible and that the police investigation was adequate. These issues were also raised at trial and rejected by the trial judge in thorough reasons. The trial judge was alive to all the reasons for which the appellant submitted that the complainant’s evidence should be rejected. He found her to be credible, and given the record before him, it was open to him to do so. We see no merit in the appellant’s submission that the investigation was inadequate.

[12] The trial judge also rejected the submission that the appellant had not known about the non-communication order, referring to a transcript of the bail hearing at which the order was imposed which confirmed that duty counsel had explained it to him. The trial judge found that the appellant had fully understood the prohibition. During the abuse of process application brought by the appellant after the trial, he requested a stay on this count, arguing that there was a lack of knowledge of the non-communication order. We see no error in the trial judge’s findings or his refusal to enter a stay on this count.

(3) The s. 810.2 ground

[13] The submission that the condition ordered was made without jurisdiction and constituted an abuse of process is without merit.

[14] The appellant had been subject to a condition in his recognizance, granted under s. 810.2 of the Criminal Code, not to enter into any relationship or romantic relationship with a female until that person has been identified to the Toronto Police Service and there had been an opportunity provided to inform that person of the appellant’s criminal history. Count seven charged that the appellant had breached the recognizance by entering into a romantic relationship with the complainant without giving the police an opportunity to inform her of the appellant’s criminal history. This count was dealt with separately after the trial.

[15] The appellant had a criminal record that included abduction and serious acts of violence against former romantic partners. One of these resulted in a charge and conviction for attempted murder in 1999. While incarcerated, the appellant underwent a number of psychological assessments which indicated that he presented a high risk for violent recidivism with a partner in an intimate relationship. A similar condition to report romantic relationships was initially imposed when he was granted a conditional release in October 2006.

[16] The appellant’s warrant expiry date was August 13, 2010. Prior to that, he was observed getting out of a car driven by a woman. The appellant denied that he was in a relationship with the woman. He was reminded of the condition about reporting any new relationships, but he did not provide her identity or any further information that would allow officers to follow up and ensure that there was no relationship. His probation and parole supervisor contacted the Toronto Police Service to prepare for a s. 810.2 application to have the appellant bound by terms of a recognizance, including a condition that he advise the police of any new intimate relationships, because of the concerns related to his behaviour and high risk assessment for violence against female partners.

[17] On appeal, the appellant argues, as he did at trial, that the condition was imposed without jurisdiction and constituted an abuse of process. The trial judge dismissed the appellant’s abuse of process application and entered a conviction on count seven. As the trial judge noted, the seeking of a s. 810.2 order is governed by a process that is authorized by statute. Here, although the police could have arrested the appellant under the warrant, the Crown chose a less intrusive route by issuing a summons. Had they arrested him under the warrant that had been taken out, he would have had to be held in custody pending a bail hearing because the Crown had not been prepared for a s. 810.2 hearing but wanted similar conditions to be imposed in the meantime. Horkins J. deemed the warrant executed and granted the recognizance which included the condition.

[18] We agree with the trial judge that there was no misconduct or abuse of process, and finding otherwise could have the effect of compelling the police in any s. 810.1 or s. 810.2 application to arrest subjects under warrant in order to compel a bail hearing and a detention or release subject to conditions.

(4) The Dangerous Offender Finding and the Imposition of the Indeterminate Sentence

[19] The appellant argues that the sentencing judge erred in finding the appellant to be a dangerous offender. His first argument is that Dr. Woodside’s assessment report was filed late, beyond the statutory deadlines under s. 752.1 of the Criminal Code, and as such the dangerous offender designation must be set aside. We disagree. It is clear from the discussions between the sentencing judge and the parties that the 60-day assessment period began on October 28, 2013, the report would have been due on January 27, 2014, the time to file was extended on January 27, 2014 until January 31, 2014 which is permitted under s. 752.1(3), and the report was received on January 31, 2014, within the statutory time limits.

[20] Alternatively, he argues that the sentencing judge erred in failing to consider whether he should be designated as a long-term offender prior to being designated as a dangerous offender in accordance with R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. This argument fails because the 2008 amendments removed the exercise of discretion at the designation stage. Section 753(1) now states that the court shall find the offender to be a dangerous offender if the statutory criteria are met. Here, the sentencing judge found that those criteria as set out in s. 753(1)(a)(i) and (ii) of the Criminal Code were met. There were ample grounds for the sentencing judge’s findings that the past and index offences of domestic violence constituted a pattern of repetitive and persistent aggressive behaviour under those sections, and he set out the common elements in detail.

[21] We also disagree with the submission that the sentencing judge erred in failing to consider the “intractability” requirement as set out in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 27, 29-32 and 46. Although the sentencing judge did not have the benefit of Boutilier and did not use the word “intractable”, he carefully considered s. 753(1)(a) and applied it to the record before him. He considered the appellant’s recidivism, his refusal to abide by supervision conditions and his resentment of those conditions, as well as Dr. Woodside’s opinion that the appellant presented “a high risk for violent re-offence involving intimate partners”. The sentencing judge found “no reason to believe that he would restrain his behaviour in the future”. In short, the sentencing judge’s reasons satisfy the Boutilier requirement that the conduct of a person designated as a dangerous offender must be “intractable”.

[22] We would not disturb the sentencing judge’s imposition of an indeterminate sentence. The sentencing judge found that based on the evidence before him, a measure less than an indeterminate sentence would not adequately protect the public, and more particularly, any future intimate partners of the appellant. This was an appropriate conclusion, especially in light of Dr. Woodside’s evidence that he was pessimistic regarding the appellant’s future manageability within the community, even if strict conditions were put in place and the appellant agreed to follow through with conditions and treatment.

(5) Post-Verdict Delay

[23] Finally, we do not agree that the appellant’s Charter s. 11(b) rights were breached as a result of the delay of 37 months between the conviction and the imposition of sentence. The appellant relies on R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, which set a five-month ceiling applicable to the period between conviction and sentence, as well as R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[24] We do not accept this submission. First, in Charley, this court observed that dangerous or long-term offender proceedings under Part XXIV of the Criminal Code are properly characterized as exceptional in the sense that they are “reasonably unavoidable” after the Crown has determined that a designation should be sought, but the Crown still has an obligation to mitigate any resulting delay: at para. 98. A dangerous offender application is an exceptional circumstance that may justify delays above the ceiling set out in Charley: see e.g. R. v. McLean, 2020 ONSC 1931, at paras. 12-18; R. v. J.T., 2021 ONSC 365, at para. 32. Second, the entire post-verdict proceedings took place before the release of Charley. For that reason, as this court noted in Charley, at para. 105, the transitional exceptional circumstances as set out in Jordan also apply to post-verdict delay. The appellant made no submissions on the application of transitional exceptional circumstances.

[25] The appellant has not, therefore, established that in the circumstances of this case, his s. 11(b) rights have been breached.