ONTARIO COURT OF JUSTICE DATE: 2024 06 13 COURT FILE No.: Central West Region - Brampton – 24-31100425

BETWEEN:

HIS MAJESTY THE KING

— AND —

ZA

Before: Justice Andrew F. Falls

Heard on: June 12, 2024 Reasons for Judgment released on: June 13, 2024

Counsel: D. Noonan, for the Crown N. Sachak, for the defendant, ZA

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code in relation to Informations 21-010911 and 21-012314, information that may identify the person described in this judgment as the complainant(s) may not be published, broadcasted, or transmitted in any manner.

Falls, J.:

Introduction

[1] On Wednesday, December 5th, 2023, a YouTuber, named Charanjit Atwal, was at the Albion Mall in Etobicoke. Mr. Atwal attended the mall for the commendably altruistic purpose of giving out Christmas gifts to families in need. Mr. Atwal positioned himself in the middle of the mall hallway in close proximity to a mall exit and several stores. He was holding a sign that read, “If you can’t afford Christmas gifts for your kids…please take a gift”. A portion of Mr. Atwal’s interaction with mall patrons was captured by a YouTube video.

[2] ZA was also present at the Albion Mall on December 5th, 2023. He approached Mr. Atwal together with an adult female and a young boy. Mr. Atwal shared a gift with the young boy. A portion of the interaction between Mr. Atwal and ZA was captured by the YouTube video.

[3] At the time the video was taken, ZA was subject to conditions of a judicial interim release. The relevant condition for this trial prohibited ZA from being in the presence of anyone under the age of 16 unless in the “direct presence” of his surety.

[4] It is admitted that ZA was the person at the relevant portion of the video speaking with Mr. Atwal. It is also admitted that the woman captured in the video at the same time was not ZA’s surety.

[5] Counsel have helpfully narrowed the issues in this trial to two core issues – whether ZA was subject to a valid release order, and whether the Crown has proven that ZA was not in the direct presence of his surety at the time he was in the presence of the young boy.

[6] The Crown called two witnesses to prove their case. The officer in charge of the case and Mr. Atwal. Two exhibits were tendered – a certified copy of ZA’s release order and the YouTube video.

[7] I will briefly address the credibility and reliability of the witnesses’s evidence in summary fashion here. It was not disputed that Detective Constable Birnie and Charanjit Atwal were credible witnesses, that provided reliable evidence. I agree. Both witnesses testified in a straightforward manner to the best of their ability. Particularly, Mr. Atwal was clear about the accuracy and limits of his recollection. I accept both Constable Birnie and Mr. Atwal’s evidence as truthful accounts.

[8] The Crown argues that the evidence of Mr. Atwal, supported by the YouTube video illustrates that ZA was in the presence of a person under 16 years old. Mr. Atwal was clear in his evidence when he observed the defendant approach with the female and child. There was no one else near or around when ZA was present with the female, including during the time the female left and entered a nearby store.

[9] Defence Counsel raises two arguments. First, the Crown has not established ZA was bound by the conditions of a release order. As their second argument, the Defence argues that the Crown has not proven the absence of ZA’s surety.

[10] I must keep in mind that ZA, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities"[1].

Is there Sufficient Evidence that ZA was bound by a Release Order

[11] Turning first to a consideration of whether there is sufficient evidence that ZA was bound by the terms of a release order.

[12] To establish the offence of failing to comply with a release order the Crown must establish that ZA was bound by the terms of that order, and that he intentionally breached the order. It is not necessary in this case to delve into the legalities of the mens rea or mental intent required for failing to comply. I will simply note that I endorse the position taken by Justice Dellandrea in R v Feliciano, 2019 ONCJ 263.

[13] More important for a resolution of this issue is whether the Crown has proven that the release order was still in existence at the time of the alleged offence.

[14] To decide this issue some additional background and fact findings are necessary. Much of the following is drawn from exhibit 1, certified copies of two separate Ontario Court of Justice Informations. I pause to note that sorting out the procedural history of this matter from exhibit 1 was a confusing and arduous task.

• (a) As per Information 21-010911, ZA was originally arrested on June 20, 2021.
• (b) He entered into a release order on June 21, 2021. This release order lists the seven offences noted on the attached Information. I note that the offence dates for counts 1, 2, and 3 do not match the offence dates for those charges on the Information.
• (c) Condition 8 of that order prohibited ZA from being in the presence of anyone under 16 years old, unless in the direct presence of his surety.
• (d) ZA signed this release order on June 21, 2021. As did Justice of the Peace D.S. Dulai. This release order does not appear to have been cancelled or vacated.
• (e) Attached to Information 21-010911 is a second release order. This release order lists the seven original offences plus six new offences.
• (f) This second release order was also entered into on June 21, 2021, signed by ZA and Justice of the Peace R. Quon on June 21st.
• (g) As per Information 21-012314, ZA was re-arrested on new charges on July 21, 2021. On this Information, ZA was charged with six new offences.
• (h) Attached to this Information is a copy of the second previously noted release order. This release order lists 13 offences, the original seven and the new six offences. The order adds an additional surety.
• (i) As I noted above, this second release order was signed by ZA and Justice of the Peace R. Quon on June 21st, 2021. This was a month prior to ZA’s arrest for the offences noted in the second Information. And a month prior to the alleged commission of count 6 on the second Information. I note that ZA’s first appearance on the second Information was on July 22nd, 2021.
• (j) Condition 7 of the second release order prohibited ZA from being in the presence of anyone under 16 years old, unless in the direct presence of his surety.
• (k) The second release order does not appear to have been cancelled or vacated.
• (l) From the sequence of the arrest dates and the listing of the additional 6 offences, the second June 21, 2021 release date must be a typographical error. I note, it is not an error that would impact the issues in this trial, given the allegations are from November and December 2023.
• (m) On January 9, 2023, both Informations were before Justice S. MacLean in the Ontario Court of Justice. ZA was committed to stand trial in the Superior Court of Justice on both Informations for most of the listed offences. ZA or his counsel were not noted to be present.
• (n) On January 12, 2023, both Informations were before Justice Lai. All charges on both Informations were withdrawn at the Crown’s request, with a notation that a direct indictment was preferred on November 21, 2022. ZA or his counsel were not noted to be present.
• (o) Attached to the Information before this court is a warrant for committal. The warrant notes it is for the offence of “Fail to comply release order, 145(5)(a) CCC.” An additional notation “FURTHER May 14, 2021 at the City of Mississauga, 9 count indictment in the Superior court of Justice, 151ccc etc” has been crossed out. Followed by the words “on separate warrant for committal”. This warrant detained ZA pursuant to s. 515(6) of the Criminal Code of Canada. The warrant also notes that a non-communication order while in custody was made for HM and JI.
• (p) At the top of this warrant for committal under case/file no., the information number for the Fail to Comply Information and a Superior Court of Justice Indictment file number are noted.
• (q) The warrant for committal was signed by Justice of the Peace Santos on January 15, 2024.
• (r) Additionally, attached to the Fail to Comply Information is a copy of a non-communication order pursuant to s. 515(12). This order prohibits ZA from contacting HM and JI. The order was signed by Justice of the Peace Santos on January 15, 2024.
• (s) The non-communication order notes it relates to the following offences, “December 05, 2023, 145(5)(a) CCC, Fail to comply release order; May 14, 2021, 151ccc etc, 9 count Indictment in the Superior court of Justice”. The order further notes the Information number for the Fail to Comply Information and a Superior Court of Justice Indictment file number, 571/22.

[15] From the evidence noted above, I am prepared to make the following findings.

• (i) As of June 23, 2021, ZA was bound by two release orders.
• (ii) Both release orders prohibited ZA from being in the presence of anyone under 16 years old, unless in the direct presence of his surety.
• (iii) Whether by way of a direct indictment or a judicial committal, ZA’s matters proceeded to the Superior Court of Justice by January 12, 2023.
• (iv) ZA was detained in custody on the Fail to Comply offence on January 15, 2024.
• (v) On January 15, 2024, ZA was ordered to have no communication with HM and JI in relation to both the Ontario Court of Justice Fail to Comply Information and a Superior Court of Justice Indictment.
• (vi) HM and JI are listed as complainants on the first OCJ Information (21-010911). They are not listed as complainants on the Fail to Comply Information.

[16] On behalf of ZA, Mr. Sachak argues that there is no evidence of ZA being bound by a release order at the time of the alleged offence. Mr. Sachak noted that any number of outcomes in relation to the release order could have occurred. Some which would lead to a cessation of its terms. Given the Crown has the legal burden of proving this offence beyond a reasonable doubt, there must be some evidence of the existence of a valid order. At a minimum, the Crown should have tendered a certified copy of the Indictment.

[17] I agree in part. Indeed, as the Crown noted, it would be preferable to have a copy of the Indictment before this Court. However, in my view, the Crown has tendered evidence of the existence of a valid release order.

[18] The Crown has put before me a valid release order dated June 21, 2021. That release order included a prohibition from being in the presence of anyone under 16 years old.

[19] The release order was in existence when ZA’s matters moved to the Superior Court in November 2022 or January 2023. The terms of that order remained in force by virtue of section 523 of the Criminal Code of Canada.

[20] Taking note of the Ontario Court of Justice’s own process and following the Presumption of Regularity, I am prepared to accept that Justice of the Peace Santos was aware of the Superior Court Indictment when she made the non-communication order in relation to that matter on January 15, 2024. I accept that the inclusion of the SCJ Indictment case number on the non-communication order was an accurate and intentional act on Her Worship’s part. This supports a positive finding that the Crown has circumstantially proven the existence of the Indictment.

[21] Further support for the existence of the Superior Court Indictment can be found in reference to the case/file numbers on the warrant for committal and the non-communication order. Both documents list a Superior Court Indictment number. Both documents contain non-communication orders in relation to the same two people noted as complainants in the original Information.

[22] I did consider the Crown’s secondary argument of Detective Constable Birnie’s belief that ZA was subject to the conditions of his release when arrested. While this belief likely informed the officer’s subjective grounds to make the arrest, I am not prepared to elevate that belief to proof of its existence at trial. I did not hear any evidence that might support the currency of the officer’s belief. Defence Counsel fairly conceded the conditions of the release pertained to ZA. This obviated the need for the officer to testify further on this issue.

[23] I am prepared and do find that a Superior Court of Justice Indictment existed between November 1st and December 31st, 2023, stemming from the above noted Informations charging ZA with offences in relation to HM and JI.

[24] Considering the totality of the evidence on this issue, I am satisfied that the Crown has proven that ZA was subject to a condition prohibiting him from being in the presence of anyone under 16 years old, unless in the direct presence of his surety at the time he was present at the Albion Mall.

Has the Crown Proven the Absence of a Surety

[25] This brings me to the next issue in this trial. Has the Crown proven that ZA was not in the presence of his surety?

[26] Prior to addressing this issue, I am prepared to make the following additional findings of fact:

• (a) The young child in the video, likely a boy, was under the age of 16. Though, there was no evidence tendered in the trial as to the age of the child, it was plainly clear to me that this was a young child. His body size, facial features, and movements observed in the video leave no doubt in my mind of this fact.
• (b) ZA was in the presence of a person under the age of 16. I accept Mr. Atwal’s evidence in this regard. Further, during the YouTube video, ZA specifically references the female and young child mentioning that they just arrived from Nigeria.

[27] Defence counsel argues that the Crown must disprove the presence of a surety as an essential element of the offence. In other words, the Crown must prove beyond a reasonable doubt that ZA was not with his surety when he was in the presence of the young child.

[28] Counsel relies on a case from Justice Hachborn to support his argument. In that case, it was found that the Crown must negative an exception in order to prove the breach. That case dealt with an employment exception to a curfew. The Accused was located at the Zanzibar Tavern beyond his curfew. The Crown failed to prove that the Accused was not an employee of the establishment and an acquittal followed.

[29] With the greatest of respect, I disagree. In my view, in a fail to comply trial, the Crown is not required disprove an exception to a condition unless the exception is properly raised as a defence, with an air of reality to the defence.

[30] I find support for my conclusion in the following.

[31] Section 794(1) of the Criminal Code of Canada states that “No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.”

[32] There are practical policy reasons for this provision. Many court orders containing prohibiting conditions include exceptions. It would unnecessarily lengthen criminal trials and waste investigative resources if the Crown was required to negative all exceptions during the Crown’s case, when a breach of a court order is charged.

[33] Justice Code considered this issue in two summary conviction appeal cases. As part of an obiter dicta in R v JG, 2012 ONSC 1090. And specifically on appeal in R v Blaker, 2012 ONSC 6397. Although arriving at differing results based on the case facts, His Honour found that treating an exception to a breach condition as an essential element of the offence amounts to an error of law. In His Honour’s view, an exception is “simply a potential defence that may or may not arise on the particular facts of a particular case, at some point in the evidence, either in cross-examination of the Crown's witnesses or during the defence case. Once it arises, and reaches the "air of reality" threshold, then the Crown must negative it beyond reasonable doubt by the end of the case” (see paragraph 6 of Blaker).

[34] I am mindful that the burden of proving this case remains with the Crown. It is only when the Defence raises a potential defence, in this case the exception, that the Defence bears some burden of proof.

[35] Applying this to ZA’s case, I find that the exception has been raised as a potential defence thus requiring the Crown to disprove the presence of a surety beyond a reasonable doubt.

[36] Although they were not required to, the Crown specifically pleaded the exception in the Information, noting “Not to be in the presence of anyone under the age of 16 unless in the direct company of your surety.” The Crown further asked questions of Mr. Atwal about the presence of anyone else that may have been with ZA, the female and the child. In closing submissions, the Crown fairly raised this as the central issue in this trial.

[37] The presence of a surety was a central focus of Defence Counsel’s cross-examination of Mr. Atwal. The Defence also raised the issue as one of two issues central to a determination of guilt or innocence.

[38] Considering this, in my view, the exception has been properly raised as a possible defence. Further, given the admissions of Mr. Atwal that there were other adults in the vicinity that he was not specifically focused on, there is an air of reality to this defence.

[39] This brings me to a consideration of whether the Crown has disproved the presence of the surety beyond a reasonable doubt.

[40] Mr. Atwal’s evidence was clear that he only observed ZA, the female and the child together. His subjective impression was that they were alone as a group. Though I do not have a clear picture of where Mr. Atwal was standing in the mall, he did testify that he positioned himself in the flow of traffic to maximize his time and the potential to attract attention to his cause. He was hyper focused on families with children.

[41] Mr. Atwal testified that ZA directed the female to attend a nearby children’s clothing store leaving ZA alone with the young child.

[42] Further, in the YouTube video, I observed ZA’s actions. ZA’s attentions were focused on Mr. Atwal, the female, and the actions of the child. He did not once direct his attention in another direction. For example, in the direction of a potential surety to ensure that he was in compliance with his release order.

[43] I pause to note that Mr. Atwal testified that this video is only a portion of the interaction with ZA. I observed that the video broke and appeared to have frames spliced together. I note this to highlight that the video is not a complete account of the alleged breach. Though, I do accept Mr. Atwal’s evidence of his interaction with ZA outside of what was captured in the YouTube video.

[44] In cross examination, Mr. Atwal fairly conceded that there were other adults present in the mall. For example, specifically in the children’s store where the female attended. Mr. Atwal characterized the flow of traffic in the mall as steady. This position is supported by the YouTube video. I observed a number of people present and walking past Mr. Atwal. Some taking note of Mr. Atwal’s activities. Noteworthy, two females were standing by the Urban Depot store watching Mr. Atwal, including one female at the point where the camera focuses on the child’s smiling face. I suspect she may have been a store employee, however, I cannot conclude this as a fact.

[45] I accept Justice Krelove’s definition of the phrase “direct presence” in R. v. Ciurleo, 2020 ONSC 3009. This definition seems to allow sufficient flexibility for life’s practicalities when a person is acting as a surety. Given this, I accept that a surety could be in proximity of ZA though not in the frame of the video or within Mr. Atwal’s attentions. Perhaps even just inside a nearby store within view of ZA.

[46] At paragraphs 12 and 13 in Blaker, Justice Code discussed the difference between speculative possibilities, an anything is possible approach, and rational possibilities grounded in the evidence. It is the rational possibility that would give rise to a potential defence.

[47] Quoting the Supreme Court of Canada, His Honour noted,

"... the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact most favourable to him, provided of course that it is based on evidence in the record and not mere speculation."[2]

[48] Considering the above, and specifically the concessions of Mr. Atwal in cross examination, it is by a narrow margin that I find that the Defence has raised a rational possibility that a surety could have been present and supervising ZA. This being the case, the Crown was required to disprove the presence of a surety beyond a reasonable doubt.

[49] Though it is a strong Crown case establishing ZA was in the presence of an underage child, on the evidence before me, I find the absence of a surety has not been established. I did not hear any evidence about the location of the surety when ZA was at the Albion Mall.

Conclusion

[50] In the end, I am left with a doubt that ZA was in breach of his condition prohibiting him from being in the presence of anyone under the age of 16.

[51] ZA is entitled to the benefit of my doubt and is acquitted of the charge.

Released: June 13, 2024 Signed: Justice Andrew F. Falls

Footnotes

[1] R. v. Starr, 2000 SCC 40 at para. 242. [2] R. v. Starr, 2000 SCC 40 at para. 242.