Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 25176 Date: 2013-05-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — B.M.

Before: Justice J. De Filippis

Heard on: May 2-3, 2013

Reasons for Judgment released on: May 27, 2013

Counsel:

• Mr. T. Fitzgerald for the Crown
• Ms A. Morrow for the Defendant

Reasons for Judgment

De Filippis J.:

[1] Late on the evening of 23 May 2012, a uniformed police officer on routine patrol in a marked cruiser came upon a car stopped on the shoulder of a rural road in an isolated area of north Pickering. He approached and saw a female driver who was visibly shaking and a bare chested male passenger who was fidgety. Concerned that the woman might be in danger, the officer demanded identification. The man produced a federal parole card. He was eventually charged with breaching the conditions of his release by being outside the City of Toronto. The man in question is the defendant.

[2] On 24 March 2005, the defendant was sentenced to five years in the penitentiary for sexual assault. At that time he was also declared to be a long-term offender. As such, he was subject to a long-term supervision order (LTSO) for 10 years following the completion of the sentence for the predicate offence. The LTSO commenced in December 2011, five months before these events.

[3] It is not in dispute that on the day in question the defendant was found to be outside the City of Toronto. Pickering is a city to the east of Toronto. Indeed, the defendant told the police officer that he was not allowed to be at that location. Defence counsel raised several arguments in aid of her request for dismissal of the charge. I accept that it has not been proven that the defendant intended to breach the LTSO. On this basis, I find him not guilty. Accordingly, I do not find it necessary to decide the other arguments presented and I have not reviewed the evidence relevant to those issues.

Facts

[4] Cst. Brown discovered the defendant while patrolling the "Pickering airport lands". He testified that this is an isolated and dimly lit area that is commonly used by people to consume drugs and commit other crimes. At 10:45 PM, while travelling eastbound on Concession 7, he saw a motor vehicle parked on the shoulder of the road. He approached the car and observed a female driver and male passenger. He asked what they were doing. The driver identified herself as S.G. and replied that she had been talking on her cell phone. The officer noted that she appeared nervous and was "shaking uncontrollably". The male passenger produced a parolee card that identified him as the defendant. He was not wearing a shirt and was continuously rubbing his hands on his thighs.

[5] Cst. Brown was concerned for the safety of the woman and made further inquiries. The defendant said he was with his wife and hoped to have some "private time" with her "because of the numerous conditions" attached to his parole. He expressed frustration because he was not permitted to rent a hotel room. The defendant added that, "I'm not technically supposed to be here. I'm supposed to be in Toronto. Please don't arrest me". He told the officer that he had been doing well on parole and just wanted to get back to the "Keele Street Centre". Cst. Brown arranged for back up to arrive and arrested the defendant for violating the terms of his parole. He waited with the defendant and his wife for other officers to arrive. He noted that the defendant was polite and compliant at all times.

[6] Ms Revill is a parole officer with Corrections Canada at the Keele Community Correctional Centre in Toronto. This institution is a bridge between the penitentiary and a half-way house. The defendant is an inmate at this centre and Ms Revill is his supervisor. She testified that conditions of release, whether by statute, parole, or LTSO are set by the Parole Board. A parole officer can impose "local conditions" which must be confirmed or cancelled by the Parole Board within 90 days. The defendant's LTSO includes the following term, as set by the Parole Board: "Remain in Canada within the territorial boundaries set by your supervisor". Ms Revill testified that the local condition established pursuant to this term required him to remain within the City of Toronto. Other terms included a prohibition on the defendant meeting his wife in hotel rooms or being with his children without supervision. These terms were reviewed with the defendant.

[7] Ms Revill testified that the defendant could be outside the City of Toronto if he had a "travel permit". She stated that such a permit had been granted to him in the past. Ms Revill confirmed that the defendant has been compliant while under her supervision such that, but for this charge, he would no longer be at the Keele Community Correctional Centre.

[8] S.G. testified that she and the defendant have lived in a common-law relationship for 16 years and have three children together. She also has a daughter from a previous relationship. The family visited the defendant weekly while he was in the penitentiary. She continued to see him after he was transferred to the Keele Community Correctional Centre and the defendant obtained travel permits for supervised visits to his children in the Town of Uxbridge. S.G. confirmed that the terms of the defendant's release reflect concern that he not be alone with her because he "had previously been an abusive alcoholic" and that he could only have supervised access to their children because he had sexually assaulted her daughter from the other relationship. S.G. explained that these and other restrictions prevented them from enjoying intimate relations at her home or in a hotel. She stated that they found "private time" together in her car in parking lots in Toronto.

[9] On May 23rd S.G. picked up the defendant at the tattoo shop where he worked, near the Keele Community Correctional Centre. This visit was authorized but as the defendant did not have a travel permit he had to remain within the City of Toronto and be back by midnight. S.G. testified that she wanted to have sex with the defendant but their traditional practice always made her nervous about being seen by the police or others. She did not want to repeat that experience and drove to the Rouge Valley Park at the eastern end of Toronto. She parked her car and the couple walked into the woods.

[10] S.G. testified that after returning to her car, she decided to show the defendant her "dream home". She had seen this many years earlier and described it as a large green house in the rural area near the Rouge Valley. She conceded that it was a home they could never afford and that it was foolhardy to try to find it in the dark. Nevertheless, she was determined to go there and engage in more sex with the defendant. S.G. testified that she lost her way and pulled over to the side of the road to telephone her babysitter to "google the area". Having spoken to the latter, she realized she had gone beyond the Toronto boundary by about 5 kilometres. This is when Cst. Brown happened to come by.

[11] S.G. admitted that she was shaking when the officer approached the driver's door to speak to her. She explained that she was upset at having placed the defendant in jeopardy of "going back to jail".[1] Crown counsel aggressively – and appropriately - challenged S.G.'s version of events. In particular, it was suggested that the search for a dream home at this time and place and stage in life was incredible and that as a resident of a community to the north and east of the location in question she could not have been lost. The Crown asserted that S.G. and the defendant knowingly went outside the Toronto city limits. S.G. denied these suggestions. She explained that on this evening her emotional state was such that she could not accept the degrading experience of sex in a car in a parking lot. She stated that the search for the "green house" was simply the dream of a "normal family and life".

[12] The defendant confirmed the events described by his spouse. He said that by lying together in the woods, she did not have to feel like "a hooker". He testified that he does not drive and has limited familiarity with the City of Toronto. He stated that after they left the Rouge Valley Park, he did not know where he was but "had a feeling they were going the wrong way". His concern was that if they went too far, he would not make it back to the Keele Community Correctional Centre before his midnight curfew. The defendant testified that his spouse mentioned the "green house" for the first time that night and added, "That house is from her past, not my past". By the time Cst. Brown arrived, he knew he was outside the boundaries of Toronto.

Legal Analysis

[13] Section 753.3(1) provides that "An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years".

[14] As already noted, Defence counsel opposed this prosecution on several grounds. She argued that the Crown failed to prove the LTSO because it tendered an uncertified copy of the order. Counsel also submitted that non-compliance with a house rule or local condition can be dealt with by administrative sanctions and is not properly the subject of a prosecution under s. 753.3. I have not considered these issues because I am satisfied that the only reason the defendant found himself outside the City of Toronto is because the driver of the car in which he was a passenger lost her way and inadvertently took him there.

[15] Counsel disputed the mental element of this offence. The Crown added that "reasonable excuse" is common phrase in the Criminal Code that places an onus of proof on the defendant on a balance of probabilities. In this regard, the Crown submits that the defendant was aware of requirement to stay within Toronto, was found outside the city, admitted knowledge of this when arrested, and said nothing at that time about being lost while searching for "green house". It is argued that this explanation, tendered for the first time at trial, is not believable and that the only reasonable inference is that the defendant and S.G. wanted to have sex and went outside Toronto to do so in a rural area.

[16] I reject the Crown's submission and attack on the credibility of the defendant and S.G.. I believe them. There was no reason to go to Pickering to experience wilderness; the Rouge Valley, within Toronto, provides this. I accept that while in search of a home that had great significance to S.G., the parties lost their way, realized they were outside Toronto, and were trying to find their way back when Cst. Brown discovered them. They were found a short distance over the boundary in a dark and rural area.

[17] The defendant was a passenger in a motor vehicle; in the circumstances of this case, he could not leave that car and hail a taxi. He took no action to place himself outside the City of Toronto. That he ended up in Pickering was an accident. This is a reasonable excuse.

Disposition

[18] The charge is dismissed.

Released: May 27, 2013

Signed: "Justice J. De Filippis"

[1] In fact, as a result of his arrest on this charge, the defendant was returned to the penitentiary for the next 52 days until he was granted bail.