Ontario Court of Justice

Date: 2022 03 17 Court File No.: Toronto, College Park, 20-70000341 and 20-70000390

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CURTIS BECKLES

Before: Justice B. Jones

Heard on: March 16 and 17, 2022 Reasons for Judgment released on: March 17, 2022

Counsel: A. Cox.................................................................................................... counsel for the Crown S. Pashang........................................................................................... counsel for C. Beckles

Jones J.:

Introduction

[1] Mr. Beckles was tried before me on two counts of failing to comply with a probation order on two separate informations. Defence counsel consented to this procedure. The Crown elected summarily.

[2] The first information alleges that between the 8th day of January, 2020 and the 21st day of January, 2020, in the city of Toronto, Mr. Beckles, while bound by a probation order made on October 7th, 2019 by Justice Wolski of the Ontario Court of Justice, failed to report as directed by his probation officer contrary to Criminal Code s. 733.1.

[3] The second information alleges the same offence of failing to comply with the same probation order by failing to report between the dates of March 31st, 2020 and May 7th, 2020.

Crown Evidence

[4] A copy of the probation order issued by Justice Wolski on October 7th, 2019 was made an exhibit on consent.

[5] Condition 4 on that probation order stated: “Report in person to a probation officer immediately and after that, at all times and places as directed by the probation officer, or any person authorized by a probation officer to assist in your supervision.” [1]

[6] There is no dispute that Mr. Beckles was bound by this probation order at all relevant times.

[7] The Crown called Ms. Radika Koneswaran, a probation and parole officer with the Ministry of the Solicitor General in Ontario. She was Mr. Beckles’ probation officer.

[8] She met with him, in person, on November 4th, 2019 to review the probation order. Her office is located at 2131 Lawrence Avenue East, in the city of Toronto. Mr. Beckles also resided in the city of Toronto, within her office’s catchment area. She reviewed the terms and conditions of the probation order and the consequences of non-compliance. He indicated he understood. She had no reason to doubt he understood their conversation.

[9] Mr. Beckles reported again in person on December 17th, 2019. He was directed to return in person on January 8th, 2020. He did not attend on that date. Ms. Koneswaran did not receive any communications from Mr. Beckles to explain his non-attendance.

[10] She sent him a reporting letter to the address she had on file for him. She testified that at each appointment she would verify Mr. Beckles’ phone number and address. The letter gave him instructions to report to her in person on January 17th, 2020, at 10 am.

[11] He did not report on that date. He did not communicate with her or provide any information about his non-attendance. Ms. Koneswaran checked her Ministry records and there was no indication he was in custody during this period of time.

[12] On March 9th, 2020, Mr. Beckles did report in person to Ms. Koneswaran. He was directed to attend in person again on March 24th, 2020. He did not report in person, but he did call Ms. Koneswaran to reschedule the appointment. He indicated he didn’t have transportation to arrive at her office and the appointment was rescheduled to March 27th.

[13] On that date, he did not report in person. Again, he called Ms. Koneswaran. He said his non-attendance was due to his ongoing transportation problems. She verbally cautioned him about Criminal Code s. 733.1 and the potential consequences of non-compliance with his probation order. She warned him if he did not report in person there would be a criminal charge laid. He agreed to report in person on March 30th.

[14] He did not attend on that date. He did not call her. She mailed him another reporting letter to his address informing him he had to attend on May 7th, 2020 in person. He did not attend on that date in person and nor did he call her office. Ms. Koneswaran checked the records of the Ministry and Mr. Beckles was not in custody during this period of time.

[15] In cross-examination Ms. Koneswaran explained that all clients are expected to report in person at least once a month. A second meeting could be in person or over the phone. She would accommodate some telephone reporting appointments depending on a particular client’s background and personal circumstances (e.g. if he had any outstanding charges.) In the case of Mr. Beckles, she felt it was necessary that he report in person due to the charges he had been placed on probation for and the potential victim concerns.

[16] These reporting requirements did not change during the pandemic, which began to significantly affect the justice system by the end of the second week of March 2020. Certain court operations were immediately impacted by the pandemic. For example, the Ontario Court of Justice instructed accused persons not to attend in person at courthouses on March 16, 2020. [2] However, Ms. Koneswaran testified that in person reporting requirements for those subject to probation orders did not change. Rather, her Ministry implemented health and safety protocols, such as masking requirements, the availability of hand sanitizer, staggered appointments to ensure clients did not attend at the same time, and shorter meetings.

[17] She continued to attend at the office in person every week, although not for five days each week necessarily. Nevertheless, a member of her office was always present to meet any client that would attend. If a client attended in person, or called, it was part of their collective duties to note the client reported.

[18] Mr. Beckles never expressed to Ms. Koneswaran any personal concerns about contracting COVID-19 and nor did he express any concerns about him living with a close family member who might be particularly vulnerable.

Defence Evidence

[19] The defence did not present evidence.

Position of the Parties:

[20] Crown counsel submitted that Mr. Beckles was bound by a probation order which required him to attend in person and at the direction of his probation order. He simply did not do so. He had the condition explained to him by his probation officer, did attend at least twice in person in 2019, and again once in March 2020. He knew what his responsibilities were and the mens rea requirement is therefore proven.

[21] Defence counsel submitted that with respect to the second allegation of breaching the probation order, I should consider that Mr. Beckles expressed concerns about his transportation difficulties and did reach out to the probation officer by telephone at least two times. This is evidence he was at least attempting to comply with the reporting condition. Whether viewed through the Crown’s requirement to prove mens rea or as a “reasonable excuse”, this should result in an acquittal.

[22] Counsel also submits that the emergence of the pandemic had an effect on court proceedings generally and that should also be a consideration when determining if Mr. Beckles intentionally breached. He submits that the probation officer could have exercised her discretion more generously and the insistence on in person reporting may have created a difficult if not potentially unsafe requirement. Probation terms, just like bail terms, must be tailored appropriately and narrowly. As a result, the reporting term as drafted, while lawful when first issued in 2019, resulted in circumstances that made Mr. Beckles’ failure to report after the onset of the pandemic understandable once the pandemic resulted in changes to court operations (and society more broadly) in March 2020. This change in circumstances should also result in an acquittal.

[23] Counsel reasonably conceded the Crown’s case on the first breach of probation charge was not substantially challenged through cross-examination.

The Law and Analysis

[24] Mr. Beckles is presumed innocent. The Crown must prove his guilt beyond a reasonable doubt. He has no burden to prove anything.

[25] There is no dispute that Mr. Beckles was bound by the probation order, that it was in effect at all material times, and that a condition on that order required him to report to his probation officer as directed. The parties differ on whether the Crown has proven the mens rea requirement or if a “reasonable excuse” has been established.

[26] In R. v. Zora, 2020 SCC 14, the Supreme Court of Canada established the mens rea required for a conviction with respect to failing to comply with a bail condition. The Court’s analysis applies equally to the requirements for a violation of a probation condition.

[27] The Crown is required to prove subjective mens rea. The Crown must establish that the accused breached a condition of a probation order knowingly or recklessly.

[28] Subjective mens rea for such offences can be satisfied where the Crown proves:

(1) the accused had knowledge of the conditions of their bail order or were wilfully blind to those conditions; and

(2) either the accused knowingly failed to act according to the bail conditions or they were wilfully blind to those circumstances and failed to comply despite that knowledge, or the accused recklessly failed to act according to the conditions, meaning they perceived a substantial and unjustified risk that their conduct would likely fail to comply with the conditions and persisted in this conduct.

[29] The Supreme Court held that the accused need not have knowledge of the legal consequences of their condition, but they must know that they are bound by the condition. The knowledge requirement means that the Crown must prove the accused was aware of the factual circumstances requiring them to act (or refrain from acting): Zora at paras. 112-114.

[30] Mens rea can also be established by the Crown proving the accused was reckless. That requires proof that the accused was aware that his conduct created a substantial and unjustified risk of non-compliance with the condition and yet proceeded in the face of that risk regardless: Zora at para. 118.

[31] Genuinely forgetting a condition could be a mistake of fact and would negate mens rea: Zora at para. 114.

[32] Failure to comply with a condition of a probation order will also not attract criminal liability if the accused had a “reasonable excuse” for his actions, or failure to act. This is a separate inquiry from the mens rea analysis. It provides “an additional defence that would not otherwise be available to the accused”: Zora at para. 37. The burden is on the accused to prove, on a balance of probabilities, the factual circumstances that could establish a lawful or reasonable excuse: Parlea c. R., 2021 QCCA 601 at para. 44.

[33] Based on the evidence presented in this trial, I am satisfied the Crown has proven beyond a reasonable doubt Mr. Beckles knew about the reporting condition on his probation order, and knowingly failed to act accordingly. Nothing in the Crown’s case would establish a “reasonable excuse” and the defence presented no evidence.

[34] Ms. Koneswaran met with Mr. Beckles on November 4th, 2019 and explained the probation order and its requirements to him. He indicated he understood. He then reported on December 17th, 2019, in person, as required, demonstrating he understood.

[35] I heard no evidence explaining why he did not attend on January 8th, 2020 or any circumstances that would have made it effectively too difficult for him to do so. After a letter was mailed to his home address, he did not attend on January 17th, 2020. Again, I heard no evidence to explain this non-attendance. Even if he did not receive the letter, he was still required to have reported on January 8th, 2020. Nor did I hear any evidence that he phoned the probation office to report during the month of January 2020.

[36] Mr. Beckles attended in person again with Ms. Koneswaran on March 9th, 2020 and was directed to re-attend on March 24th. He failed to attend in person, but did call her. He did this again on March 27th. He was cautioned about the consequences for non-attendance and was directed to attend on March 30th. He failed to attend and a letter was sent to his address again instructing him to report in person on May 7th, 2020. He did not attend on that date.

[37] I heard no evidence explaining his non-attendance between March 30th and May 7th, 2020. Ms. Koneswaran was adamant he did not call her office during this period of time either.

[38] I must rely only on the evidence presented during the trial, or where relevant, the absence of evidence. Mr. Pashang submitted that his client may have experienced concerns with respect to COVID-19, or faced transportation challenges which prevented him from reporting. Any consideration that COVID-19 may have played a role in his non-attendance is purely speculative. I heard no evidence whatsoever during the trial that this was ever a concern for Mr. Beckles. Whatever transportation issues he was facing, he was able to report in person in November and December 2019, and once in March 2020. He had access to public transit in the city of Toronto. He could have used a private transportation service. He never told Ms. Koneswaran he was simply incapable of attending in person. Brief phone calls by Mr. Beckles stating he had issues with respect to transportation does not negate the mens rea requirement for these charges and does not by itself constitute a reasonable excuse.

[39] A condition on a probation order requiring an offender to attend as directed by a probation officer is enforceable. Ms. Koneswaran was lawfully entitled to require in person attendance. Mr. Beckles was required to report in person to his probation officer and thereafter as directed. He understood the terms of this order and did comply with it initially. He simply did not comply with the order thereafter. He made those decisions willingly.

[40] The Supreme Court of Canada held in Zora, supra, that the principle of restraint requires any condition of a bail order to be reasonable and the “least onerous in the circumstances”: see para. 6. This requirement also applies to probation conditions: see R. v. N.H., 2020 ONCJ 295 at para. 18. However, the probation condition at the centre of this trial is explicitly authorized by the Criminal Code: see section 732.1(3)(a)(ii). It cannot be said to be in any way unlawful as it was drafted. Nor did the emergence of the pandemic render this term unreasonable.

[41] Furthermore, a person should not be permitted to breach a court order and then seek to avoid responsibility for such a decision by arguing at his trial that the condition he breached was somehow invalid: R. v. Barnett, 2010 ONSC 3720, [2010] O.J. No. 5822 at para. 14. This would amount to a violation of the rule against a collateral attack. In R. v. Litchfield, the Supreme Court of Canada explained this rule holds that a court order, made by a court that had jurisdiction to make it, may not be attacked in this manner, but rather should be reviewed “in proceedings… whose specific object is the reversal, variation, or nullification of the order or judgment”: see para. 14.

Conclusion

[42] I find the Crown has met its burden on both charges and he will be found guilty accordingly.

Released: March 17, 2022 Signed: Justice Brock Jones

[1] My emphasis added.

[2] See Notice to the Public Regarding Criminal Matters in the Ontario Court of Justice (March 16, 2020).