Court File and Parties

Date: January 14, 2015

Court File No.: 13-15999

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jermaine O'Raine Syblis

Before: Justice Paul F. Monahan

Heard on: January 13, 2015

Oral Reasons Released on: January 14, 2015

Counsel:

Ms. C. Sibian for the Crown

Mr. J. Tong for the defendant Jermaine O'Raine Syblis

MONAHAN J.:

Introduction

[1] Jermaine O'Raine Syblis is charged that on or about December 11, 2013 that he purchased and possessed alcohol contrary to an undertaking contrary to s. 145(5.1) of the Criminal Code of Canada (the "Code") (the "breach of undertaking charge"). In addition, he is also charged that on or about March 14, 2014 having been charged with the offence of breach of undertaking and being at large on his recognizance, that he failed without lawful excuse to attend court in accordance with his recognizance contrary to section 145(2)(a) of the Code (the "breach of recognizance charge").

Facts

[2] There were only two witnesses in the case. The Crown called the arresting officer, Constable Markham, and the defence called Mr. Syblis. Constable Markham's testimony was straightforward and not contested. Mr. Syblis was challenged on a number of points and I will address his credibility in these reasons.

[3] On or about May 29, 2013, the defendant Mr. Syblis was charged with six domestic violence related charges relating to his ex-spouse/girlfriend. He has since been acquitted on all six of these charges but not before being charged in connection with the matters giving rise to this proceeding.

[4] On May 29, 2013, he gave an undertaking to a peace officer which permitted him to be released from custody in connection with the domestic violence charges. The undertaking included a provision that he remain 100 metres away from his ex-spouse and other related persons. The undertaking also included other provisions including that he could not possess any weapons and that he "abstain from the purchase/possession/consumption of alcohol or other intoxicating substances" (sometimes referred to in these reasons as the "alcohol condition").

[5] On June 20, 2013, the accused and the Crown applied on consent to vary the undertaking. The undertaking was amended by court order dated June 20, 2013. The purpose of the amendment was to permit Mr. Syblis to have contact with his ex-spouse and related persons "pursuant to family court orders and other proceedings".

[6] Reading the undertaking of May 29, 2013 and the order of June 20, 2013 amending the undertaking, it is clear that the requirement that Mr. Syblis abstain from the purchase/possession/consumption of alcohol or other intoxicating substances continued after the order was made.

[7] Mr. Syblis testified that he thought that after the order of June 20, 2013 was made all that was required of him was that he abstain from contact with his ex-spouse and related parties (except as permitted by the undertaking and order) and that the alcohol condition did not continue. He was assisted by a lawyer throughout this process but he testified that he did not ask his lawyer about the alcohol condition. He testified to being present in court when the order of June 20, 2013 was made and he thought the alcohol condition may have been mentioned or come up in some way but his evidence was unclear on this point. He was clear though that he never sought to have the alcohol condition varied or eliminated.

[8] He testified that in July 2013 he was arrested for impaired driving and that no mention was made at that time by the police authorities that the alcohol condition continued. The charge he faced at that time was strictly for impaired driving.

[9] On December 11, 2013 Mr. Syblis was helping his uncle with some work at his uncle's house. He went to the liquor store with the stepdaughter of his uncle's girlfriend. The person's name was Brittany Loney. Ms. Loney drove with Mr. Syblis in her car. When they arrived at the liquor store, Ms. Loney indicated that she forgot her purse and Mr. Syblis offered to buy the alcohol for her and ended up buying a six pack of Corona beer. He testified that he paid for it and carried it to the car.

[10] Constable Markham of the Peel Regional police was conducting sobriety checks on persons leaving the LCBO and he pulled over Ms. Loney's car. He noted that the six pack of Corona beer was on the floor on the passenger side between Mr. Syblis' feet. Mr. Syblis told the officer that he had purchased the alcohol and he provided the receipt for the purchase to the officer.

[11] Constable Markham testified that Ms. Loney indicated that she did not have identification with her. Constable Markham's checks in the police computer indicated that Mr. Syblis was not to possess alcohol (as provided for in the May 29, 2013 undertaking as varied by the June 20, 2013 order). When Constable Markham told Mr. Syblis that he was not to possess alcohol, Mr. Syblis said that that condition had been amended. Constable Markham did further checks and confirmed that the police computer information he had was up-to-date and that the no alcohol condition remained. Mr. Syblis was then charged with the breach of the May 29, 2013 undertaking.

[12] In connection with the breach of undertaking charge, a number of court attendances were required. On January 17, 2014, Mr. Syblis was remanded to attend at court on March 14, 2014. He did not attend.

[13] Mr. Syblis testified that at the time of the March 14, 2014 court attendance he was juggling four court proceedings: (i) the civil family proceedings with his ex-spouse; (ii) the domestic violence charge proceedings; (iii) his impaired driving proceedings; and (iv) his breach of undertaking proceedings. He testified that he had another court attendance on March 12, 2014 in connection with the family law proceedings. He testified that he kept track of his various court attendances through an "app" on his phone but that for whatever reason he did not have the March 14, 2014 court attendance input into his app so his phone failed to remind him and he fail to attend on March 14, 2014 as required.

[14] He testified that towards the end of the day on March 14, 2014, his aunt spoke to him and asked him how court was that day. He said he did not have a court attendance that day to which his aunt said that he did. He called the court late in the day on March 14 (around 4:30 p.m.) and was advised by some court official that he had indeed missed an attendance that day and that there was a bench warrant for his arrest and that he should come in the following Monday. Mr. Syblis testified that he did attend court on the following Monday, March 17 to turn himself in. In cross-examination, the documentation was put to him which indicated that he had not turned himself in until March 18. In any event, there is no dispute that it was Mr. Syblis who turned himself in on March 18 and that this occurred prior to the police arresting him on the warrant.

Issues

[15] The two issues in the case are as follows:

Issue 1 – Has the Crown proved beyond a reasonable doubt that Mr. Syblis breached his recognizance when he failed to attend court on March 14, 2014?

Issue 2 – Has the Crown proved beyond a reasonable doubt that Mr. Syblis breached his undertaking when he purchased the alcohol on December 11, 2013?

I will deal with each one of these issues in turn.

Issue 1 – Has the Crown Proved Beyond a Reasonable Doubt that Mr. Syblis Breached His Recognizance When He Failed to Attend Court on March 14, 2014?

[16] The breach of recognizance charge alleges a breach of s. 145(2) of the Code which reads as follows:

145(2) Everyone who,

(a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof which lies on him, to attend court in accordance with the undertaking or recognizance,

… is guilty of an offence punishable on summary conviction.

[17] There is no issue that Mr. Syblis was required to attend court on March 14 and that he failed to do so. The actus reus of the offence is made out.

[18] The issue in the case is whether the mens rea of the offence has been proven. For the mens rea to be proven it must be established that the accused knew of his obligation to appear and that he failed to do so knowingly or recklessly. If a person is honestly mistaken as to the date he is required to appear or even negligently forgets to appear, the offence is not made out. At some point, deliberate forgetfulness or ignorance can amount to willful blindness which does satisfy the mens rea requirement.

[19] It is clear to the Court that Mr. Syblis made an honest mistake when he failed to attend court March 14, 2014. He did not deliberately or knowingly fail to attend court on March 14, 2014. He simply forgot and his forgetfulness does not rise to the level of willful blindness in my view. It is clear that he was balancing numerous proceedings. There would be no reason to deliberately fail to attend. Moreover, the fact that he turned himself in by March 18 without being contacted by the police or the court indicates that his failure to attend was inadvertent and not deliberate. Accordingly, there will be an acquittal on the charge of breach of recognizance.

Issue 2 – Has the Crown Proved Beyond a Reasonable Doubt that Mr. Syblis Breached His Undertaking When He Purchased the Alcohol on December 11, 2013?

[20] This issue is more complicated from a legal and factual perspective. The defence's argument was threefold. First, the defence argued that Mr. Syblis honestly believed that the undertaking had been amended by the court order dated June 20, 2013 and that as a result he did not have the mens rea to commit the offence. Second, in the alternative, the defence argued that the undertaking prohibiting the purchase/possession/consumption of alcohol should be strictly construed and that it ought not to capture the circumstance of the current case where Mr. Syblis purchased and possessed the alcohol but not for his own personal consumption. Third, the defence argues that the conduct in the case was de minimis and that the charge ought to be dismissed on that basis.

[21] In the case at bar, there is no doubt that Mr. Syblis was subject to a continuing obligation not to purchase/possess/consume alcohol. Further, in my view, there is no doubt that he did in fact purchase and possess alcohol on December 11, 2013 notwithstanding that it was not his intention to consume that alcohol himself. Accordingly, in my view, the actus reus of the offence is made out.

[22] The issue is whether the mens rea of the offence made out. Mr. Syblis did intend to purchase and possess the alcohol on December 11. However, he says that he was not aware of the continuing obligation prohibiting him from doing so.

[23] The offence with which Mr. Syblis is charged with is under section 145(5.1) of the Code which provides in part as follows:

(5.1) every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1)… is guilty of an offence punishable on summary conviction.

[24] Dealing with an offence under s. 145(3) of the Code, the Manitoba Court of Appeal in R. v. Custance found that the elements of an offence under that section, which in my view apply to an offence under s. 145(5.1), are as follows:

(1) that the Crown must prove that the accused was bound by an undertaking or recognizance;

(2) that the accused committed an act which was prohibited by that undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and

(3) that the accused had the appropriate mens rea, which is to say that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

[25] The mens rea component of an offence for failing to comply with the condition or recognizance requires proof of actual knowledge or willful blindness. The Ontario Court of Appeal has stated the following with respect to willful blindness:

willful blindness requires more than a failure to make inquiries where those inquiries could have been made and reasonably should have been made by the accused. Willful blindness requires a finding that the accused, knowing he had reason to suspect that a certain state of affairs existed, deliberately declined to make inquiries necessary to confirm that state of affairs, preferring instead to remain ignorant of the true state of affairs. This is a subjective state of mind and justifies the imposition of criminal culpability…

[26] In the case at bar, Mr. Syblis admits that he knew he was subject to the no alcohol condition as of May 29, 2013. He also admitted that the only purpose of the variation obtained on June 20, 2013 was to permit him to have contact with his ex-spouse through the Family Court proceedings. He never sought to have the alcohol condition lifted. It is clear to the court that Mr. Syblis knew as of June 20, 2013 that he was still subject to the no alcohol condition. I do not believe Mr. Syblis when he says that he did not think the alcohol condition applied as of June 20, 2013. The documentation and all of the circumstances indicate otherwise.

[27] When he was charged with impaired driving in July 2013 I believe he was surprised that he was not charged with breach of the undertaking and at that point I believe he likely thought that there was an administrative mix up. I am satisfied that at this time (July 2013) he continued to know or was willfully blind as to the ongoing no alcohol possession requirement.

[28] Accordingly, I am of the view that as of December 11, 2013 he knew or was willfully blind that he continued to be subject to the no alcohol possession requirement. I do not believe his evidence in this regard as it contrary to the documentation and all of the circumstances. At best, by July 2013, he was willfully blind to the no alcohol condition. I have considered and applied the analysis required by R. v. W. (D.). I don't believe that he did not know that he was bound by the no alcohol condition and I am not left in a reasonable doubt by his evidence. The evidence as a whole proves the required mens rea beyond a reasonable doubt.

[29] The defence's second argument is that the prohibition in the undertaking/order did not prohibit possession in the circumstances of this case namely possession of the beer but not for personal consumption. Mr. Syblis was not challenged on this evidence and I accept that he purchased and possessed the alcohol but not for his own consumption. My view is that the terms of the undertaking were clear and that he was not entitled to purchase or possess alcohol even if he was not going to consume it himself.

[30] The defence's third argument is the charge is not made out due to the de minimis doctrine or defence. While I consider the breach in this case to be quite minor I do not consider the de minimis doctrine applies to it. For the defence to apply, the act must be "trivial". While the act here was a minor breach, it was squarely within the terms of the undertaking and was not trivial.

[31] Accordingly I am satisfied that the crown has proved beyond a reasonable doubt that Mr. Syblis was in violation of the undertaking/court order on December 11 when he purchased the alcohol for Ms. Loney.

Conclusion

[32] For the reasons given there will be a finding of guilt on the breach of undertaking and an acquittal on the breach of recognizance.

Released orally: January 14, 2015

Justice Paul F. Monahan