Court File and Parties

Ontario Court of Justice

Date: 2020-11-12

Court File No.: 190489 Parry Sound

Between:

Her Majesty the Queen

— and —

Donald Grosbeck

Before: Justice B.C. Oldham

Heard on: February 13 & 14, 2020

Reasons for Judgment released on: November 12, 2020

Counsel:

• R. Pe, counsel for the Crown
• The defendant Donald Grosbeck, on his own behalf

Judgment

OLDHAM J.:

Procedural Background

[1] The trial for Mr. Grosbeck commenced on February 13, 2020 and was completed on February 14, 2020. The matter was scheduled for decision on March 23, 2020, but was delayed as a result of the COVID-19 pandemic.

[2] Mr. Grosbeck was charged with two counts of breach of an undertaking for incidents arising on July 4, 2019. Specifically, he was charged with breaching the condition that he abstain from communicating directly or indirectly with Norma Swanson and the condition that he not attend at 701 Lane B, Apt. 4, Wasauksing First Nations.

[3] There were a number of preliminary issues with respect to disclosure and his ability to file materials in advance. Mr. Grosbeck wished to file documents with the court prior to the commencement of the trial. He was advised that any documents relevant to the proceedings could be properly filed during the course of the trial. Mr. Grosbeck also indicated that he had not received the required disclosure from the Crown. The Crown confirmed that disclosure had been provided on August 15, 2019 and that Mr. Grosbeck signed for it on that date. Mr. Grosbeck provided a letter from his previous counsel dated October 15, 2019 indicating that she would be returning the disclosure to the Crown. The Crown did not have the returned disclosure, but was able to make a copy (which was only 13 pages in total, including the notes from Officer Enosse and Officer Jacques). The disclosure was provided to Mr. Grosbeck on February 13, 2020. He confirmed that he was familiar with the information from his discussions with his previous counsel, but was also provided with an opportunity to review it before the commencement of the trial.

[4] The trial commenced at 12:45 pm. The Crown called three witnesses; Officer Darcy Enosse, Officer Travis Jacques and Detective Constable Nathanial Counter. Mr. Grosbeck called his father Jamie Grosbeck to testify on his behalf.

[5] Through the course of the proceedings, it became clear that Mr. Grosbeck was involved in a number of proceedings in the criminal and family courts and at times he had to be redirected to the specific two count information before this court. This decision relates only to the evidence and issues relative to the two count information alleging breaches of undertaking.

Evidence

[6] Officers Jacques and Enosse testified that they attended at 701 Lane B, Apt. 4, Wasauksing First Nations on July 4, 2019 at approximately 2:00 pm in respect to an unrelated matter. Mr. Grosbeck answered the door. The Officers completed their duties in respect of the unrelated matter and left the property.

[7] They returned to the residence at 5:25 pm on July 4, 2019 after completing a CPIC query which revealed that there were two warrants and undertaking conditions on Mr. Grosbeck which included a non-communication restriction with respect to Norma Swanson and a condition that Mr. Grosbeck not attend at 701 Lane B, Apt 4 Wasauksing First Nations. Upon arrival at 5:25 pm, the Officers spoke with Norma Swanson briefly. At 5:28 pm Mr. Grosbeck exited from Apt 4, 701 Lane B, Wasauksing First Nations and spoke with Officer Jacques and DC Counter.

[8] Ms Swanson was an individual who was known to Officers Jacques, Enosse and Counter. They each confirmed that they were able to identify her and that she exited Apt 4, 701 Lane B, Wasauksing First Nations three minutes before Mr. Grosbeck. None of the Officers overheard any conversations between Mr. Grosbeck and Ms Swanson at this time.

[9] Officer Enosse identified the Undertaking dated March 9, 2018 that he signed on that date. Officer Enosse was able to confirm that he served the document on Mr. Grosbeck on March 9, 2018. The Undertaking included the following conditions:

(a) Abstain from communicating directly or indirectly with Norma Swanson or from going to 701 Lane B, Apt 4 Wasauksing.

[10] Mr. Grosbeck challenged the validity of the Undertaking on the basis of jurisdiction and failure to follow protocol. Mr. Grosbeck's position was that the property was located on Parry Island #16, not Wasauksing and that the Ontario Provincial Police had no agreement with Parry Island and accordingly had no jurisdiction to arrest and issue the Undertaking. The Undertaking was dated March 9, 2018 almost a year prior to the incident and there was no Notice of Constitutional or Jurisdictional Issue properly before the Court. The Undertaking was not cancelled until July 12, 2019 and accordingly, the Court took notice of its own records and processes and made a finding that the Undertaking sworn, served on Mr. Grosbeck and was valid and in force as of July 4, 2019.

[11] With respect to the protocol, there was no evidence regarding the protocol that was alleged to have been breached or the manner in which it was alleged to have been breached other than the suggestion that the Undertaking indicates that he was arrested by APS when in fact was the OPP who arrested him. Mr. Grosbeck questioned whether the human rights of all parties, the victim, accused and children had been properly adhered to. These issues, like the jurisdictional issue, were not properly before the court.

Law and Analysis

[12] The onus is on the Crown to prove all of the essential elements of the charges (in this case the breaches of undertaking) beyond a reasonable doubt.

[13] It is clear on the face of the Undertaking that Mr. Grosbeck was not to attend at Apt 4, 701 Lane B Wasauksing First Nation. I am satisfied beyond a reasonable doubt that Mr. Grosbeck was at Apt 4, 701 Lane B Wasauksing First Nation on July 4, 2019 in breach of the Undertaking. He was observed by three officers at that location on July 4, 2019; Officers Jacques, Enosse and Counter. He answered the door at 2:00 pm and exiting to have a conversation with Officers Jacques and Counter at 5:28 pm. There were no issues with respect to identity.

[14] There will be a finding of guilt on this count which is Count 2 on the Information 190489.

[15] I am also satisfied beyond a reasonable doubt that Ms Swanson and Mr. Grosbeck were in Apt 4 at 701 Lane B, Wasauksing First Nations together on July 4, 2019. Mr. Grosbeck's own witness confirmed his understanding that Mr. Grosbeck was there assisting in the care of his and Ms Swanson's children.

[16] While none of the Officers testified as to any specific verbal communications between Mr. Grosbeck and Ms Swanson, the condition is not that narrow. Mr. Grosbeck was not to have any direct or indirect communication with Ms Swanson. By his physical presence, it is reasonable to conclude that there was some form of communication. It is illogical in the circumstances to reach any other conclusion. Mr. Grosbeck was there at 2:00 pm and remained in the home as of 5:28 pm. Although Ms Swanson was not present at 2:00 pm, she was present at 5:28 pm. Mr. Grosbeck's father confirmed that Mr. Grosbeck was there to assist in the care of his children – a circumstance which would have required some form of communication.

[17] There was no call to the OPP by Ms Swanson seeking assistance to have Mr. Grosbeck removed from the property. Mr. Grosbeck was polite and co-operative. There was no evidence to suggest that he had attended without Ms Swanson's consent and as noted above, it appears that he may have been invited there to care for the children during her absence.

[18] The non-communication provision in Mr. Grosbeck's Undertaking does not include any exceptions in respect of communications about the children and accordingly, even if there were communications about his need to attend to care for the children, such communication would be in breach the Undertaking.

[19] For all of these reasons, I am satisfied beyond a reasonable doubt that Mr. Grosbeck was communicating with Ms Swanson in breach of the Undertaking on July 4, 2019 and accordingly there will be a finding of guilt on Count 1 as well.

[20] Given that both of these findings of guilt arise from one set of circumstances, it may be appropriate that there be a stay entered in respect of one count based on the Kienapple principle (Kienapple v. R., [1975] 1 SCR 729). I invite counsel and Mr. Grosbeck to provide me with submissions on this point before proceeding to conviction and sentencing.

Disposition

Released: November 12, 2020

Signed: Justice B.C. Oldham

Addendum: The Crown agreed that Count 2 should be stayed. The stay has been entered. Count 1 has been adjourned to 10:45 am on the December 3, 2020 virtual remand list.