WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: January 25, 2017

Court File No.: Central East - Newmarket 4960-15-03635

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Vincent Fera

Before: Justice P.N. Bourque

Reasons for Judgment

Released on January 25, 2017

Counsel:

• P. Colavecchia for the Crown
• D. Smith for the Defendant

BOURQUE J.:

Overview

[1] The defendant was charged with some 7 counts of breaches of his probation. The breaches are alleged to have happened between May 14, 2014 and January 30, 2015.

[2] The first 4 counts as particularized by the Crown (the counts are identical) involve:

1. A breach involving an attendance at the Toronto Zoo;
2. A breach involving attendance at a cottage in Thornbury;
3. A breach involving an attendance at Canada's Wonderland; and,
4. A breach involving an attendance at a local park.

[3] This trial involves the interpretation of bail conditions imposed upon the defendant. He had been arrested and charged with possession and production of child pornography, and other offences. He was released on bail and placed under house arrest with various exceptions. Understanding those exceptions as indicated in the release order, is at the core of this case.

[4] At the outset of the trial, the defendant pled guilty to three counts of breach of paragraph 10 of the recognizance of bail which spoke of attending a public park or public swimming area where persons under the age of 16 years were present.

[5] What remains is four counts of breach of probation which involve paragraph 5 of the release order as it existed between May 14, 2014 and January 30, 2015.

Documentary Exhibits

[6] The defendant was first placed on bail for these matters on October 11, 2013. He was placed upon house arrest. There were exceptions.

[7] On February 19, 2014, the bail was amended to provide no exceptions to the house arrest, and indeed provided that when in the home, he had to be in the direct presence of the surety or one other person.

[8] On May 14, 2014, the bail was amended to provide an exception to the house arrest which now read as follows:

Remain in your residence at all times except in the direct presence of your surety or Maria Bevaqua or in the presence of T.M. provided no children under the age of 16 are present when with T.M.

[9] On December 2, 2014, the bail provision above was amended to add a further person "Gail McMeeken" to the persons that the defendant could be with out of his residence. The provision with regard to T.M. was not changed.

[10] Filed were transcripts of statements of the two children of T.M., A.M. and I.M. In the statement of A.M., he speaks of the defendant visiting (but not living in) their house. He spoke of going to the park, going to the Zoo and a place where they went tobogganing with his family and the defendant. He also made reference to going to the Zoo and to Thornbury. The child I.M. spoke of going with her family to Wonderland, with the defendant. It was and is the case for the Crown that each count remaining covers one of these four "outings".

[11] They do not mention any of the other persons (mentioned in paragraph 5) going to the park as well. They were not specifically asked if any of those persons were there.

Christina Rodosky

[12] ...is a York Regional Police officer. She was tasked to check up on persons who had been released upon a recognizance. She attended at 246 Westview Boulevard, East York, to do a random check upon the defendant. She attended at 8:23 a.m. on January 30, 2015. She saw a red Sienna van running in the driveway and a blond woman shoveling snow. She saw the woman go into the house. A few moments later, an elderly woman and two young children got into the van and it drove away, while the young blonde woman was standing in the doorway. The officer's partner (Walper) went up to the door and knocked. No one answered the door and the officer returned to the police car.

[13] The van returned shortly without the children and the woman went into the house. Shortly afterwards, the older woman came out and got into the van and the defendant also came out of the house and got into the van. He drove the van away. The officers followed and shortly thereafter, they stopped the van and arrested the defendant.

Kynan Walper

[14] … is a York Regional Police officer and was with Officer Rodosky on January 30, 2015. He largely confirms her observations. He also describes knocking at the door of the house some 6 times without a response. The officer said that he reviewed the bail order of the defendant and was of the view that there was a condition prohibiting the defendant from being in the presence of anyone under the age of 16 years and because there was evidence, the defendant had been in the home with the two young children, then he was in breach. He admitted that upon a review of the bail order that there is no such specific provision but he believed that reading all of the terms that it was clear that there was such a prohibition.

T.M.

[15] …is a teacher and is the mother of A.M. (now 8 years) I.M. (now 6 years) and S.M. (now 2 years). She lives at 246 Westview Boulevard, East York. She is separated from her husband. She has a continuing relationship with the defendant and he is the father of the child "S". She described the interior of the house which includes a basement apartment which she rents out to tenants. For a period of time, the tenant has been the mother (Gail McMeeken) of the defendant.

[16] The witness describes that in the period between May 2014 and January, 2015 she went to the Zoo with the defendant, her children, and other persons, including the defendant's surety. She also described a trip to Canada's Wonderland, and in that trip, one or more of the other persons mentioned in Paragraph 5 of the defendant's release were in attendance.

[17] She also spoke of going to a park nearby in similar circumstances, again with her children and one of the persons mentioned in Paragraph 5 of the release order.

Analysis

[18] The Crown bears the burden at all times of proving the charges beyond a reasonable doubt. This includes not only the actus reus of the offences but the mens rea as well.

[19] To determine the actus reus of the offence, I must understand the terms of the bail provisions.

[20] I note that there is no general provision that the defendant not be in the company of children under the age of 16 years. Such a requirement (subject to the paragraph 5) is only contained in the provision that the defendant could not attend a public park or public swimming area where persons under 16 years of age are present (paragraph 10). There is also the provision of not obtaining employment or any volunteer work where there is a position of authority towards persons under 16 years of age (paragraph 11).

[21] Paragraph 5 of the bail order speaks of the requirement of the defendant to be in his residence at all times, with an exception that the defendant could be out of his residence when in the company of certain persons, with the company of T.M. containing the provision that in being with her, the said T.M. could not have a child under 16 years old in her presence.

[22] The defendant has been charged with the breach of Paragraph 5 of this bail order by being at a public park, Wonderland, Thornbury and the Toronto Zoo, when T.M. was present in the company of her two children under 16 years.

[23] The evidence of the attendance at these locations comes principally from T.M.. This is also somewhat supported by the statement of A.M. and to a lesser extent, I.M.. As I have noted above, neither of the children mention any of the persons in paragraph 5 as being present with them.

[24] T.M. was not a willing witness. It was clear that she had and has a relationship with the defendant. She would often say that she could not remember details of various outings with the defendant. However, I do not find that she misled the court. She answered all questions put to her by the Crown. She gave evidence which put the defendant in the company of her and her children. She was quick to point out that the defendant was also in the company of one of the other persons mentioned in paragraph 5. Her evidence was not contradicted. I cannot dismiss it and I do not. Even with its flaws, I accept it. It is largely in accord with the evidence of the children.

[25] What T.M. adds to the evidentiary record is the assertion that at least one of the other persons mentioned in paragraph 5 were also present.

[26] The Crown urges upon me an interpretation of the paragraph which is that the defendant could not be in the company of T.M. in the company of any children under the age of 16 years. To do so would constitute a breach of the order. It does not matter, according to the Crown, that one of the other named persons is also present at the same time.

[27] The defendant urges upon me that paragraph 5, being an exception to the rule that the defendant be in his residence at all times; if he was in the company of any of the persons listed in that provision (surety, Maria Bevaqua, Gail McMeeken, T.M. when not in the company of persons under 16 years) then the exception to the house arrest would prevail and there would be no breach of this condition.

[28] In my opinion, paragraph 5 is a provision dealing with house arrest and the exception to house arrest. It is not a provision dealing with the defendant keeping away from persons under the age of 16 years. When the defendant was only in the company of T.M. and any persons under the age of 16 years, then he could not take advantage of this exception, and if he were away from his residence, he would be in breach of this provision.

[29] If however, he was in the company of any of the other three persons, then he was not in breach of the requirement of house arrest. That would appear to be the most logical explanation.

[30] I have reviewed all of the previous release orders in this matter and the transcripts of the court appearances. There does not appear to be any discrepancy between the orders as pronounced in court and the orders as drafted and signed. The Crown is in essence asking me to read into this order a prohibition which may indeed be an appropriate one, but to extend this language into a larger prohibition goes beyond the meaning of the words. That the Crown may have let this "slip through the cracks" is a real possibility, but that does not place a requirement upon the defendant which does not now exist.

[31] While I admit that the Crown's explanation is a possibility, I am not convinced that is the explanation, based on the section as it is drafted. As the Crown bears the burden of establishing the facts required to constitute an offence beyond a reasonable doubt, I do not see how, based on the evidence in this matter, I can be so satisfied. Even if I were to go that far, there is also the issue of the mental element. Where the explanation of the defendant is so compelling, how can it be said that the defendant intended to breach the terms of his release? Certainly this trier of fact would be left with a reasonable doubt on this issue.

Conclusion

[32] I find the defendant not guilty of the four counts of breach of recognizance, being counts 1, 2, 3 and 4 on the amended information.

Signed: "Justice P.N. Bourque"

Released: January 25, 2017