Ontario Court of Justice

Date: 2018-01-05

Court File No.: Newmarket 17-03069

Between:

Her Majesty the Queen

— AND —

Fenglin Ye

Judgment

Evidence heard: January 5, 2018

Delivered: January 5, 2018

Ms. Shambavi Kumaresan ..................................................................... counsel for the Crown

Mr. Mark Rieger ............................................................................. counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Ye is charged with three counts of failing to comply with probation orders s.733.1 and one count of failing to comply with a SOIRA order s.490.031. Having heard the defence evidence, the Crown agreed that counts 3 and 4 should be dismissed.

[2] The Crown's case with respect to the remaining counts was admitted via an agreed statement of fact and supporting documents marked as Exhibits 1-6. The defence does not dispute that the accused failed to report pursuant to a SOIRA order as alleged and failed to report to probation as required after he was released from serving a custodial sentence. The defence submits that the evidence of the accused's mental health worker shows the failures to report were not wilful given the accused's mental state when he got in touch with his worker after the alleged breaches. In the alternative, the defence submits the accused's circumstances provide a reasonable excuse for non-reporting.

Fail to Comply – Proof of Intent

[3] The defence submits that the Crown must prove not just the fact of non-reporting in relation to the two orders, but further that the accused "wilfully" failed to report. The defence submits that evidence of the accused's mental health difficulties after the period in question reasonably leave a doubt as to whether the accused's failures to report were wilful.

[4] Section 733.1 does not contain a requirement that the Crown prove an alleged breach is wilful. An earlier version of this section – s.666(1) – did contain proof of wilful failure but that was replaced in 1995 by the current provision which deleted that requirement but added a defence of reasonable excuse.

[5] Even under the prior section, evidence of direct intent was almost always difficult for the Crown to obtain and the Crown typically relied upon the fact of breach and asked the court to infer intent from the accused's conduct – R v Docherty, [1989] SCJ No 105 at para 29. A court is entitled to infer that a person intends the consequences of their conduct but the final determination in that regard must take into account all of the evidence.

[6] The current provision recognizes the difficulty in proving the wilfulness of a breach beyond the common sense inference. It removes the requirement to prove that specific intent but provides for a defence of reasonable excuse. While some trial courts have held that s.733.1 should still be read as if it contained the prior wilfulness requirement despite the legislative change – R v Downes 2017 BCPC 332 – the issue has been determined in this province by the decision in R v Porter 2012 ONSC 3504. In Porter at paragraph 34 Justice Code explained that section 733.1 removed the wilfulness requirement and the decision in Docherty has been reversed in this context by statutory amendment. That decision is consistent with a purposive approach to the s.733.1 amendment and has been followed in subsequent decisions – R v Singh 2013 ONSC 6324.

Reasonable Excuse

[7] The defence submits that the accused's mental health difficulties at the time provide a reasonable excuse for his failures to report during the period alleged.

[8] If that submission means that the accused failed to appreciate the nature and quality of his acts and decisions during that period due to mental illness then the defence falls under s.16 of the Criminal Code. The defence confirmed they are not advancing a s.16 defence and in any event there is little evidence of the accused's mental state during the period at issue. While there is evidence that the accused suffers generally from schizophrenia, there's also evidence that he has serious addiction issues. The accused did not testify and no expert evidence was called so it's not plain what his circumstances were at the time.

[9] In the past Mr. Ye has reported to SOIRA as required and has reported to probation. It's possible that he may have had mental health difficulties during the period alleged that left him in circumstances where he was effectively unable to report, but the evidence showed that even when homeless and suffering mental distress Mr. Ye was able to keep in touch via phone with his worker when he chose to do so. Even taking into account Mr. Ye's difficult personal circumstances, there's no evidence that could provide a reasonable excuse with respect to either charge.

Conclusion

[10] I find that the Crown has proved counts 1 and 2 beyond a reasonable doubt. Counts 3 and 4 will be dismissed.

[11] While it did not leave a doubt with respect to either count, the evidence as to Mr. Ye's general mental health difficulties remains highly relevant on sentence.

Delivered: January 5, 2018.

Justice Joseph F. Kenkel