Court File and Parties

Ontario Court of Justice

Date: February 9, 2016

Court File No.: 15-01573 Newmarket

Between:

Her Majesty the Queen

— and —

Julio Soto

Ruling on Motion for Directed Verdict

Before: Justice Joseph F. Kenkel

Oral Ruling: February 9, 2016

Written Reasons: February 10, 2016

Counsel:

• Ms. Jina Lee, counsel for the Crown
• Mr. David North, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Soto is charged with Assault s. 266 and Disobeying a Court Order s. 127(1) both in relation to a domestic incident. At the close of the Crown's case, the defence applied for non-suit on the breach charge.

[2] This application requires consideration of six issues:

• May the Crown tender an original Information as evidence without a witness and without notice and compliance with the Canada Evidence Act?
• Is documentary evidence that a 515(12) order was made sufficient proof that the accused was aware of the order and understood its terms?
• Is leaving a name-only collect call voice mail "communication" within the meaning of the s. 515(12) order?
• Has the Crown proved that the voice mail came from the accused?
• Does the message necessarily breach the s. 515(12) order where other parties live in the same residence including the accused's son?
• If the Crown has otherwise proved a breach, is there evidence that the breach occurred during the time alleged in the Information?

Original Court Documents as Evidence

[3] I agree with the defence that the hearsay rule is engaged where a party seeks to tender a written document to prove the truth of its contents. Written statements made by persons who will not be testifying at trial are generally inadmissible as hearsay where offered to prove the truth of the statements. The common law provides an exception to that rule for public and judicial documents. R. v. W.B.C., [2000] O.J. No. 397 (CA) at para. 39, [R. v. Tatomir, 1989 ABCA 233, [1989] A.J. No. 843 (CA) leave refused SCCA No. 448, R. v. Bailey, 2014 ONSC 5477, [2014] O.J. No. 4420 (SCJ) at para. 18, R. v. Williams, 2004 ONCJ 80, [2004] O.J. No. 2557 (CJ) at para. 6

[4] To be admissible at common law, the judicial or public document must be either the original record or an exemplification of that record under the seal of the court. R. v. W.B.C. at para. 39

[5] The Canada Evidence Act, R.S.C. 1985, c. C-5 provides another path for admission by exemplification or certified copy of judicial proceedings s. 23, and by certified copy of public documents s. 24. The Canada Evidence Act provisions are in addition to the common law power to receive judicial and public documentary evidence. Canada Evidence Act s. 36, W.B.C. at para. 15.

[6] The original Information in this case is admissible in evidence.

Proof the 515(12) Order was Communicated to the Accused

[7] The defence questions whether the notation on the Information that a s. 515(12) non-communication order was made is sufficient proof that the order was communicated to the accused in a case where breach is alleged.

[8] In my view the documentary evidence showing that a 515(12) order was made is evidence of that fact and prima facie evidence that the accused would have known of the order and understood the simple requirement. The presumption of regularity applies. The order must have been made in open court, on the record, in the presence of the accused. The Crown does not have to negative theoretical possibilities (the accused was removed in error just prior to that endorsement and that wasn't corrected by defence counsel) as part of their case.

[9] The defence submission that the Crown must prove by direct evidence that the order was read to the accused and that the accused acknowledged understanding is similar to the argument made in R. v. Docherty, [1989] S.C.J. No. 105. However, I find that case doesn't assist here for two reasons. First, that case involved a breach of a probation order. Section 732.1(5) sets out a number of specific requirements in the making of a probation order including having the order read (5)(a), and explained (5)(b). The court must also take reasonable measures to ensure understanding (5)(d). There are no similar provisions in s. 515 although a court may well take similar steps in the making of a non-communication order.

[10] Second, in the Docherty case much turned on the wording of the section at that time which included the term, "wilfully" (unlawfully and wilfully fail to comply). The Supreme Court found that "wilfully" denoted a high level of mens rea. Parliament subsequently removed that term from section 733.1 and instead placed a burden on the accused to show a "reasonable excuse" for a breach. Section 127 includes a similar term, "without lawful excuse".

Is a Voice Mail "Communication"?

[11] The defence submits that the one word (name) collect call voice mail is not evidence of "communication" within the meaning of s. 515(12).

[12] Section 515(12) prohibits the person detained from communicating "directly or indirectly" with "any victim, witness or other person identified in the order".

[13] The wording and the purpose of the section indicate a broad definition of communication including non-verbal acts. In my view, leaving a voice message, even this brief, falls within the term "communication". That interpretation would be consistent with the statutory purpose in domestic cases such as this one where even brief communication contrary to court order may send an unwelcome message to a complainant.

[14] Further, in my view the communication was complete at the time the voice message was left. The fact that the collect call was not accepted or that the message was only discovered later by the complainant does not result in an inchoate act or mere attempt.

Identification of the Caller

[15] I agree with the defence that the phone display identifying the Lindsay Jail as the origin of the call is hearsay, but there is direct and circumstantial evidence upon which a trier of fact could reasonably find that the accused was the person who left the voice message.

Does the Voice Message Necessarily Breach s. 515(12)?

[16] The evidence shows that persons other than the complainant lived in the home with her including her 9 year old son. The defence submits that as the message could have been left for the child the Crown has not proved that there was a breach.

[17] Considering the timing of the message shortly after the detention of the accused, left at the complainant's number, in the context of the events to that point a trier of fact could reasonably find that the message was left to communicate with the complainant or that the accused was at least reckless in that regard.

Proof of the Date of Breach

[18] There's sufficient direct and circumstantial evidence on this point.

Conclusion

[19] I find that the Crown has proved there is sufficient evidence upon which a properly instructed trier-of-fact could reasonably find guilt on the breach count. The frailties in the direct evidence mentioned by the defence remain to be considered at the close of the trial, but at this stage the defence application must be dismissed.

Released: February 10, 2016

Justice Joseph F. Kenkel