ONTARIO COURT OF JUSTICE DATE: 2024 09 18 COURT FILE No.: Oshawa 23-28109071
BETWEEN:
HIS MAJESTY THE KING
— AND —
MAISUM ALI ANSARI
Before Justice Joseph Hanna
Heard on August 19, 2024, August 21, 2024 Reasons for Judgment released orally on September 17, 2024 Written Reasons released September 18, 2024
G. Raven ................................................................................................ counsel for the Crown S. Rinas ……………………………………………………………… counsel for the defence
HANNA J.:
Overview
[1] Maisum Ansari was on release order which included a curfew term with certain exceptions. Police officers found the defendant outside of his residence past his curfew. During his interactions with the police, Mr. Ansari falsely identified himself to the officers. As a result, Mr. Ansari was charged with obstructing a peace officer, impersonation with intent, and breaching his bail by contravening his curfew condition. At the outset of his trial before me, Mr. Ansari pleaded guilty to the obstruct and impersonation counts. He pleaded not guilty, however, to the charge of breaching his release order, contrary to s. 145(5)(a) of the Criminal Code. This case is about whether the Crown has proven that allegation beyond a reasonable doubt.
The Evidence
Agreed Facts and the Release Order
[2] An agreed statement of facts was filed as an exhibit on the guilty pleas and trial. It indicates that on October 28, 2023, Mr. Ansari was the passenger in a vehicle stopped by police in Whitby shortly before 3:30 am. The driver of the vehicle was Abidali Khimani. Based on certain observations, police arrested Mr. Ansari for a drug offence. Mr. Ansari then incorrectly identified himself to the officers. The agreed statement of facts includes that Mr. Ansari was subject at the time to a release order issued by the Ontario Court of Appeal.
[3] A copy of the defendant’s release order was filed on consent. It states that the defendant was to reside at 924 Crocus Crescent, Whitby. The order contains a curfew condition which required Mr. Ansari to remain in his residence between the hours of 11:30 pm and 6:00 am, daily, except:
i. When in the direct and continuous presence of one of your sureties;
ii. For the purposes of travelling directly to and from, and while at, work; or
iii. To obtain medical assistance during a medical emergency involving yourself or an immediate member of your family.
[4] The parties agreed that Mr. Khimani was the only person with Mr. Ansari at the time he was stopped by the police. It was further agreed that Mr. Khimani was not one of the defendant’s sureties.
Maisum Ansari’s Evidence
[5] Mr. Ansari testified in his own defence. He began by briefly discussing his background. He said that he was 40 years old, born in Pakistan, was a Canadian citizen, had a degree economics and marketing, and had previously been an accredited chartered accountant. He explained that in September of 2023, he was granted a release order by the Ontario Court of Appeal pending his appeal of convictions for firearm and drug related offences. He also indicated he had previously received a conditional discharge for a domestic related assault charge.
[6] Mr. Ansari described how following his release from prison he returned to work for his family’s business, which is a general contracting company. He advised that he performed many roles for this company including meeting with clients, arranging quotes, obtaining permits, communicating with engineers and municipalities, and personally assisting with the physical aspects of the contracting work.
[7] Mr. Ansari testified that around the time of the alleged offence, his foreman, Alex Vo, had been using Mr. Ansari’s truck for work. On October 27, 2023, Mr. Vo picked him up in Whitby to attend jobs in Lindsay and Peterborough. The pair left Peterborough around 5:30 pm.
[8] According to Mr. Ansari, he had planned on then attending a worksite on Lebovic Avenue in Scarborough but needed to wait for his friend Abidali Khimani to go with him, since Mr. Khimani had been interested in viewing the property.
[9] Mr. Ansari advised that at approximately 8:30 pm he received a call from his client in Scarborough who was upset because certain work had not been done. Mr. Ansari explained that he then attended the Scarborough site with Mr. Vo and was met there by another male, Thomas Rayment. He said he arrived at the site between 9:30 pm – 10 pm.
[10] While Mr. Khimani was supposed to meet Mr. Ansari in Scarborough, Mr. Khimani did not attend. Mr. Ansari said that he finished work around 12:30 am. His plan to return home was for Mr. Vo to drive him to the Port Union area in Pickering where Mr. Khimani would then pick him up. He testified that he arrived at a No Frills parking in that area at approximately 1:00 am, where he was met by Mr. Khimani.
[11] Mr. Ansari acknowledged in cross-examination that it was not a quick process to get into Mr. Khimani’s vehicle. He said that he moved the generator from the truck Mr. Vo had been driving to Mr. Khimani’s vehicle. The other people there spent some time examining Mr. Khimani’s new BMW, playing with the vehicle’s “bells and whistles.” Mr. Ansari said he spent between 10 – 15 minutes at the parking lot, at most. When cross-examined regarding the delay at Port Union, Mr. Ansari said that he could not control Mr. Khimani’s actions. He explained that he was simply going to wait and show some courtesy. He testified that he had told people he was tired and asked them “don’t you need to get home?”. He stated that he had done everything he could to keep himself on schedule but, because he was not able to control Mr. Khimani, he was not able to tell him “lets go now”, though that was his intention. He added that it was not his intention to stay and chat since he likes to be home, and preferred to have his laptop so that he could make notes about what had happened during the day and make plans for the following day. He advised that once the others had exited Mr. Khimani’s vehicle, he got in and said, “lets go.”
[12] Mr. Ansari indicated that he and Mr. Khimani then went directly to 1828 Grandview, Oshawa, where the mother of his children resided. He explained that he would store tools there, including the ones that “have a tendency of growing legs and walking away.” In examination in-chief, he described offloading the generator, cleaning the trunk of the vehicle with a brush and pan, and then leaving. In cross-examination he added more detail. He said that he first removed the generator and then showed Mr. Khimani some tools. Mr. Khimani then inspected an electric vehicle charger that Mr. Ansari had installed in the garage, after which Mr. Ansari cleaned out the trunk of the vehicle before getting back into the car to leave. He estimated that he was at this location for probably close to 15 minutes.
[13] In cross-examination, it was suggested to Mr. Ansari that it would have made more sense for the generator to have been taken by Mr. Vo. Mr. Ansari responded that it belonged to him and that it was useful to have a generator in the east end. He then stated that because his equipment is expensive he would not leave it in trailers since he has had tools stolen before, including from his trailer on Crocus crescent. When asked if had filed police reports regarding those thefts, he indicated that he had not. He explained that he had a contractor doing work at his residence who had a disgruntled employee. The contractor told him to call the police, but Mr. Ansari declined, saying, “just get the work done.” Mr. Ansari added that he had had bigger losses, and that he had lost everything.
[14] After leaving 1828 Grandview, Mr. Ansari described being driven a short distance to Mr. Khimani’s house, which was on the same street. Mr. Khimani told him he was going to stop there, though Mr. Ansari could not remember what Mr. Khimani had said about the reason for doing so. Mr. Khimani got out, opened his garage, and entered the house. Mr. Ansari testified that he then got out of the vehicle and entered the garage.
[15] He explained that he snooped around the garage looking at Mr. Khimani’s tools and opened a fridge where he retrieved a bottle of Tito’s vodka. He described lighting a cigarette and having a couple of sips of the vodka while waiting for Mr. Khimani. In cross-examination, he stated: “I was kind of on my downtime now, like okay. Work is finally done. I’m getting home. Waiting for this individual to finish up what he is doing inside and get back outside so we can get home.” Mr. Ansari recalled Mr. Khimani having a cigarette when he came out. Mr. Khimani asked him if he wanted to spend the night there, but Mr. Ansari told him no and that he had to get home. When asked in-chief why he felt he needed to go home, Mr. Ansari responded that he did not feel it was appropriate to stay at Mr. Khimani’s house given that he had a curfew. Mr. Ansari testified that he offered to hang out at his place instead, and Mr. Khimani agreed. Mr. Ansari then told Mr. Khimani that he was going to take the vodka with him.
[16] In cross-examination, he estimated that he spent about 20 minutes at Mr. Khimani’s residence before leaving. When it was suggested to him that his travels home from work were not direct, Mr. Ansari described his stop at Mr. Khimani’s house as being “kind of out of my control.” According to him, Mr. Khimani said he was going to stop quickly. He explained, “what can I say, the magic carpet has its own brain.”
[17] Mr. Ansari said that once they left Mr. Khimani’s residence, they drove directly towards his home in Whitby. He described being stopped by the police on Lupin drive, very close to his residence. He testified that he told one of the officers that he was returning from work. He said he panicked. He explained that he lied about his name because he was worried that he could be charged with offences related to the drugs found in the vehicle. He denied lying because he was concerned about his curfew.
[18] The Crown suggested to Mr. Ansari that it was his responsibility to arrange for direct travel to and from work, and that he had other options such as using a taxi, Uber, or Lift. Mr. Ansari responded that he had made his best efforts. Regarding the alternative means of transportation suggested by the Crown, he began his response by indicating that those options all cost money and that every dollar counted to him. He started to say that “if I have to wait another 5 minutes to save” but did not complete his sentence. He then indicated that he had looked into Uber when he was at Lebovic and that the cost would have been over $200 for him to drive to Mr. Rayment’s address on Port Union, to Oshawa, and then to Whitby. He added that the wait time for an Uber while at Lebovic was 25 minutes.
[19] Mr. Ansari agreed that the conditions of the release order had been reviewed with him and read to him. He specifically acknowledged that he was aware that he was subject to a curfew condition with an exception relating to work and travelling to and from work. When shown his curfew condition in cross-examination, Mr. Ansari stated, “thank you, yeah, this is a good refresher. So, this is what I took from it. So, for the purposes of travelling directly to and from work, and while at work (italics indicating the emphasis Mr. Ansari placed on that word in his voice).
Abidali Khimani’s Evidence
[20] Abidali Khimani was called as a defence witness. He has no criminal record. He works as general manager with an LCBO distribution facility. He has known Mr. Ansari since high school and reconnected with him about 10 years ago. He described having a close relationship with Mr. Ansari.
[21] Mr. Khimani testified regarding his arrest with Mr. Ansari and described events during the day and evening leading up to that point. He said that he originally was supposed to see Mr. Ansari earlier in the evening but that he failed to do so because he had stayed late at a work event. He originally stated that there had not really been any plan that evening other than that he was supposed to get Mr. Ansari home. When asked directly, in-chief, whether there had been a plan to meet up at a property in Toronto, Mr. Khimani indicated that he had wanted to look at a property because he had been thinking about making an investment. In cross-examination, Mr. Khimani seemed unsure whether he had planned on seeing a property in Toronto. He mentioned that he was planning on seeing two or three properties. He believed one was in Whitby and another one or two were in Oshawa. He indicated that he had not been provided an address for the properties.
[22] Mr. Khimani testified that he had picked up Mr. Ansari around midnight or 1:00 am at a No Frills parking lot in the Port Union area. He indicated that Mr. Ansari had been with a couple of co-workers at the time. He said he had a conversation with the other males about his new vehicle and that Mr. Ansari was moving tools from another vehicle to Mr. Khimani’s vehicle. He said they were there for “a little bit just exchanging stuff”. In cross-examination he estimated they had spent between 15 – 20 minutes at the parking lot before leaving.
[23] Mr. Khimani indicated that after leaving the No Frills parking lot, he drove Mr. Ansari to Mr. Ansari’s ex-wife’s house in Oshawa, which was very close to where Mr. Khimani lived. While there, he described unloading a few toolboxes, a generator, and various tools. He mentioned that Mr. Ansari showed him an electric vehicle charger he had mounted in the garage. In cross-examination he said that they had “stopped” to look at the charger and that Mr. Ansari had been showing him exactly how he had installed it. He estimated that they may have spent a half-hour at the location. Mr. Khimani testified that since the garage was a “disaster” they took tools in totes and bags to unload at his residence.
[24] Mr. Khimani indicated that they stopped at his residence because he needed to use the washroom. He said that he also let the dog out while there. He advised that he offered Mr. Ansari a beverage while he waited for him in the garage. Mr. Khimani testified that when he returned to the garage, he found Mr. Ansari asleep in the vehicle. Mr. Khimani advised that he woke up Mr. Ansari and asked him if he wished to spend the night. He said that Mr. Ansari declined the offer and told him that he needed to get home right away. Mr. Khimani estimated that the stop at his residence lasted approximately a half-hour. In cross-examination, he agreed that the total time spent at the two stops in Oshawa approached an hour.
[25] Mr. Khimani testified that his and Mr. Ansari’s next destination was Mr. Ansari’s home in Whitby. He described being arrested with Mr. Ansari on the way there, very close to Mr. Ansari’s residence. He was driving and Mr. Ansari was in the passenger seat. Mr. Khimani was unsure of the location of their arrest, though he thought it may have been on Lebovic.
Relevant Legal Principles
General Principles
[26] Mr. Ansari is presumed innocent. The onus rests upon the Crown to prove his guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 13.
[27] The defence called evidence in this case. Accordingly, I am bound by the principles established in R. v. W. (D.), [1991] S.C.J. No. 26, summarized at paragraph 28 of that decision. Some modification of the W.(D.) analysis will be appropriate depending on the context. This may be so in cases, for example, where the accused’s evidence, even if believed, does not afford a defence to the offence charged: R. v. Ibrahim, 2019 ONCA 631, at para. 37; R. v. S. (J.H.), [2008] S.C.J. No. 30, 2008 SCC 30, at paras. 10 - 13; R. v. McClenaghan, 2010 ABCA 222, at para. 31, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 353; R. v. Achuil, 2019 ABCA 299, at paras. 15 – 16, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 144. Even if some modification is acceptable, I must be careful not to improperly neutralize the accused’s evidence of its exculpatory potential: R. v. Ruthowsky, 2024 ONCA 432, at para. 70; Ibrahim, at para. 59.
[28] It is essential for me to keep in mind that “lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt”: S.(J.H.), at para. 13. Rather, I must consider whether, based on the whole of the evidence, including the testimony of the accused, I am left with a reasonable doubt. Moreover, I must remember that whether an accused's testimony is accepted as true or not, it may be capable of raising a reasonable doubt: Ruthowsky, at para. 71; Ibrahim at paras. 36-37, 49 and 65.
[29] In assessing credibility, a trier of fact is entitled to accept some, none, or all of a witness’s evidence: R. v. H.K., 2022 ONCA 45, at para. 19; R. v. Saini, 2023 ONCA 445, at paras. 22 – 23.
The Elements of the Offence of Breaching a Release Order
[30] Section 145(5) of the Criminal Code makes it an offence to fail to comply with a condition of a release order without lawful excuse.
[31] The actus reus of the offence is straightforward. The Crown must prove that the accused was bound by a release order and that he or she did something to contravene a term of that order: Gary T. Trotter, The Law of Bail in Canada, 3rd Edition, § 12:5.
[32] The first component of the mens rea for the offence requires that the accused have knowledge of or be willfully blind to the bail condition in question: R. v. Zora, 2020 SCC 14, at paras. 112 – 115. The Crown need not prove, however, that that an accused knew and understood their legal obligations to fulfill those conditions. “[A] mistake regarding the legal scope or effect of a condition is a mistake of law and would not be an excuse for non-compliance with the condition”: Zora, at para. 114.
[33] The second component of the mens rea can be satisfied by showing that the accused knowingly or recklessly breached their condition. Knowledge here means that “the accused must be aware of, or be wilfully blind to, the factual circumstances requiring them to act (or refrain from acting) to comply with their conditions at the time of breach”: Zora, at para. 116.
[34] This second component can also be met by establishing recklessness on the part of the accused. Recklessness for the purposes of this provision requires proof that the accused was aware that their continued conduct created a substantial and unjustified risk of non-compliance with their bail conditions: Zora, at paras. 117 – 118.
[35] The statutory defence of lawful excuse is completely independent of the interpretation of the mens rea for the offence. “Lawful excuse provides an additional defence that would not otherwise be available to the accused”: Zora, at para. 37. The existence of this defence does not in any way alleviate the Crown of its burden to prove both the actus reus and the mens rea of the offence beyond a reasonable doubt: Zora, at para. 37.
[36] The lawful excuse defence is not easy to define. In Québec (Procureur général) v. Québécor Média inc., 2011 QCCQ 15413, the court explained at para. 50:
Authors agree that the notion of lawful excuse is difficult to define. For instance, professors Fortin and Viau write [1]:
[translation]
The case law is unanimous in stating that a general definition of lawful excuse is impossible. If the law creating the offence does not assign a specific meaning to it, the meaning must be inferred from the purpose of the charge.
[37] Similarly, Trotter’s The Law of Bail states, at § 12:6:
No context-specific definition of “lawful excuse” has emerged from the case law dealing with s. 145. However, the definition of “reasonable excuse” provided by Doherty J.A. in R. v. Moser provides a helpful template for considering claims under s. 145:
A plea of “reasonable excuse” is an admission that the essential elements of the crime have been established, combined with an assertion that some additional fact or set of facts precludes the imposition of criminal liability. In this respect, the “reasonable excuse” defence is comparable to the “lawful excuse” defence.
[38] It is clear, however, that a mistake of law is not a lawful excuse: R. v. Walker (1980), 51 C.C.C. (2d) 423 (Ont. C.A.), at paras. 14, 17; R. v. Custance, 2005 MBCA 23 at para. 20.
[39] In The Law of Bail, the author’s review of the caselaw leads him to conclude that: “courts take a hard look at excuses for failing to abide by bail orders and that compliance must be virtually impossible”: Trotter, The Law of Bail in Canada § 12:6. I need not decide in this case whether such a high standard is required. I mention this only to highlight that the “lawful excuse” threshold is certainly not lower than the “reasonable excuse” one found elsewhere in the Code. See for example: R. v. El Kasir, [1999] O.J. No. 4650 (C.A.); Custance, at para. 25; R. v. Jorgensen, [1995] S.C.J. No. 92, at paras. 120 – 121. For the purposes of this case, however, I will not treat the standard for “lawful excuse” as being any higher than the one for the defence of “reasonable excuse” mentioned in other provisions. I note as well that the lawful excuse defence is “highly fact-specific”: Parlea v. R., 2021 QCCA 601, at para. 44; R. v. Grizzle, 2024 ONCJ 300, at para. 52.
[40] Considering the foregoing, it is helpful to refer to some judicial commentary regarding the “reasonable excuse” defence. It has been emphasized that "it is the Court's judgment that passes on the reasonable quality of the excuse and not that of the person who fails or refuses”: R. v. Miller, 10 C.C.C. (2d) 467, 21 C.R.N.S. 211, at para. 17; R. v. Vieira, 2016 ONSC 5950, at para. 10. In other words, “the excuse must be a reasonable one, which must mean that, viewed objectively, the explanation given provided sufficient reason for the violation of the court order”: R. v. McCain, [2003] O.J. No. 1762, 15 C.R. (6th) 360, at para. 19. “A ‘reasonable excuse’ refers to something outside the essential elements of an offence. An excuse speaks to whether an accused should be held accountable for what otherwise would be a crime”: R. v. Armstrong, 2011 ONCA 709 (Ont. C.A.), at para. 9.
[41] In this case, the Crown and the defence agree that if the evidence establishes an air of reality to the defence of lawful excuse, the Crown bears the persuasive burden of disproving it beyond a reasonable doubt. Given the position of the parties, I will proceed on that basis. See: R. v. Refaeh, 2024 ONSC 755 at paras. 55-71; Grizzle, at para. 52.
Analysis
The Issue
[42] The issue in this case is whether the Crown has proven that Mr. Ansari violated the curfew condition of his release order and, if so, that he did so without a lawful excuse. Mr. Ansari was clearly out of his residence between 11:30 pm and 6:00 am. He was not in the presence of either of his sureties at the time and there is no evidence he was in the process of seeking medical assistance for himself or a member of his family. Accordingly, this case turns on whether the Crown has established beyond a reasonable doubt that when Mr. Ansari was outside of his residence during the relevant time it was not “for the purposes of travelling directly to and from, and while at work.” If I am satisfied the Crown has met that burden, I must then decide whether the Crown has disproven the defence of lawful excuse beyond a reasonable doubt.
Assessment of the Defence’s Narrative of Events
[43] I have some reservations with certain aspects of Mr. Ansari’s evidence. While he testified that he believed records relating to his work at the Scarborough site would be readily available, none were provided. Given Mr. Ansari’s evidence on this point, I would expect such documentation to be presented. Furthermore, Mr. Ansari appeared to me to be attempting to explain his stop at 1828 Grandview by suggesting that it was a more secure place to leave his tools than his Whitby residence. He indicated he had had equipment stolen from his trailer on Crocus crescent. When Mr. Ansari was asked whether he had filed police reports relating to those thefts, Mr. Ansari provided a response that made no sense. He testified that a contractor who had a disgruntled employee told him to call the police, but Mr. Ansari declined, explaining simply that he told the contractor to get the work done and that he (Mr. Ansari) had suffered worse losses. I did not find this to be an explanation at all. I was left puzzled regarding how contacting the police would delay the work or how Mr. Ansari’s previous losses accounted for why he would not want to report the theft of valuable items.
[44] Furthermore, Mr. Ansari’s evidence was inconsistent with Mr. Khimani’s evidence in certain respects. While Mr. Ansari testified that the plan had originally been for Mr. Khimani to attend the Scarborough site, Mr. Khimani’s evidence on this point was different. Mr. Khimani originally stated that there had been no plan other than that he was meant to get Mr. Ansari home. When asked a somewhat leading question, he agreed he had planned on visiting a property in Toronto. However, in cross-examination, Mr. Khimani indicated that he believed he was supposed to visit properties in Durham region, and he seemed unclear about there being any intention to visit a property in Toronto. Moreover, he stated that he had not been provided an address for the property he was meant to visit.
[45] Additionally, Mr. Ansari’s evidence regarding the stop at Mr. Khimani’s house was somewhat different than Mr. Khimani’s. Mr. Khimani described having brought tools to the residence in bags, while Mr. Ansari made no mention of this. Mr. Khimani also described finding Mr. Ansari asleep in the vehicle upon returning from his house, whereas Mr. Ansari’s account was different.
[46] Finally, Mr. Khimani’s refence to Lebovic as potentially being the street he was stopped at in Whitby was curious. This, coincidently, is the same street Mr. Ansari mentioned he was working near in Scarborough. Mr. Khimani denied being given an address for the property in Toronto and seemed unsure whether he was supposed to have attended a location in that city. That he coincidently referred to Lebovic as maybe being the street he was stopped at in Whitby may suggest that he and Mr. Khimani discussed their evidence and that he simply became confused while testifying. That said, while I find this odd, I do not make a finding that there was collusion between the two witnesses. Indeed, even if the two had spoken regarding their evidence, that would not, on its own, be the equivalent of collusion: R. v. T.D.A, 2017 ONCA 910, at paras. 9 – 10.
[47] Despite the above-mentioned concerns, I am willing to give Mr. Ansari the benefit of the doubt that he was working in Scarborough, that he attended the No Frills parking lot, and then attended two addresses in Oshawa before travelling to Whitby. I will also give Mr. Ansari the benefit of the doubt that he unloaded some tools while at 1828 Grandview and that it was Mr. Khimani’s decision to stop at Mr. Khimani’s house. Mr. Ansari’s evidence relating to these events is supported in many respects by Mr. Khimani’s evidence. I do not necessarily believe the evidence regarding these events. However, because I cannot reject it, I must consider whether this evidence, in combination with the other evidence in the case, leaves me in a reasonable doubt with respect to the elements of the offence and the lawful excuse defence: R. v. F.S., 2017 ONCJ 7, at para. 36 (7); Ibrahim, at para. 37; J.H.S., at paras. 10 – 13; Achuil, at paras. 15 - 16.
[48] Regarding the discrepancy between Mr. Khimani’s and Mr. Ansari’s evidence relating to having taken tools to Mr. Khimani’s residence, I reject Mr. Khimani’s evidence. Neither Mr. Khimani nor Mr. Ansari describe the action of unloading any tools while at Mr. Khimani’s residence. Moreover, Mr. Khimani could not describe what any of the tools where, saying only that they were in tots and bags. Furthermore, it makes no sense that Mr. Ansari would have failed to mention this occurring had it happened. It was in Mr. Ansari’s interest to account for his time after 11:30 pm as being occupied by work related activities.
[49] Mr. Ansari testified that matters were out of his control at times and that he had done what he could to stay on schedule. Whether I believe his evidence on these issues, or am left in a reasonable doubt by it, is discussed below in my assessment of the lawful excuse defence.
The Actus Reus
[50] I am satisfied beyond a reasonable doubt that the Crown has established that Mr. Ansari committed the actus reus of the offence. I am sure that Mr. Ansari was outside of his residence past his curfew for at least some period when he was neither travelling directly to or from, or while at work.
[51] First, Mr. Ansari and Mr. Khimani both describe Mr. Ansari being at the No Frills parking lot near Port Union after 11:30 pm. Mr. Ansari testified they spent at most 10 – 15 minutes there and Mr. Khimani estimated they were there for between 15 – 20 minutes. Based on both their evidence, I am sure there would have been some delay leaving the parking lot unrelated to Mr. Ansari having to move any tools between the vehicles. I heard no evidence that moving the tools would have taken that amount of time, nor does it seem reasonable at all to me that it would have. Moreover, I find from both Mr. Ansari and Mr. Khimani evidence that there was a delay in leaving related to Mr. Khimani speaking with the others about his vehicle.
[52] Second, both Mr. Ansari and Mr. Khimani testified they attended the house where Mr. Ansari’s children reside on Grandview Street in Oshawa. Mr. Ansari estimated he was at this location for approximately 15 minutes. Mr. Khimani’s estimated they were there closer to a half-hour. Both men are consistent that they spent time, unrelated to unloading any equipment or cleaning out the vehicle, discussing an electric vehicle charger that Mr. Ansari had installed in the garage. At the very least, the time spent examining and discussing the electric vehicle charger was an act which would have been in contravention of Mr. Ansari’s curfew. It neither involved being at work or travelling directly to or from work.
[53] Third, the defence’s evidence relating to a stop at Mr. Khimani’s house does not assist the defence. As mentioned earlier, I reject Mr. Khimani’s evidence that this stop may have involved the unloading of any tools. On Mr. Ansari’s own evidence, this stop had nothing to do with work and clearly cannot be characterized as travelling directly to or from work. Mr. Ansari smoking a cigarette and drinking vodka in the garage while he waited for Mr. Khimani would not fall within any exception to his curfew condition.
[54] The defence evidence (both Mr. Ansari’s and Mr. Khimani’s) does not leave me in a reasonable doubt about whether Mr. Ansari committed the actus reus of the offence. Furthermore, I find nothing in the Crown’s case, alone or in combination with the defence evidence that leaves me in a reasonable doubt in that regard.
The Mens Rea
[55] The Crown has proven beyond a reasonable doubt that Mr. Ansari was aware of or was at least willfully blind to the release condition he is alleged to have breached. He signed the order, and he admitted that its terms had been reviewed and read to him. He also confirmed his understanding of the condition while testifying.
[56] I am also satisfied beyond a reasonable doubt that Mr. Ansari knowingly or recklessly breached his curfew condition. Mr. Ansari and Mr. Khimani testified that Mr. Ansari attended a No Frills parking lot, 1828 Grandview Street, and Mr. Khimani’s residence. Based on their descriptions of these events [2], I conclude Mr. Ansari would have been aware that his conduct was in violation of his bail condition, or at the very least would have been aware that his conduct created a substantial and unjustified risk of non-compliance: Zora, at paras. 117 – 118. Applying the common sense inference that individuals “intend the natural and probable consequences of their actions” to the circumstances in this case, I find this to be an irresistible conclusion: Zora, at para. 120; R. v. Saleh, 2015 ONCA 23, at para. 199. In each of the three incidents described by the defence witnesses, Mr. Ansari would have been aware that he was spending time neither working or travelling directly to or from work. Waiting for Mr. Khimani to finish a conversation with others about his car at the No Frills, conversing about and examining an electric vehicle charger at 1828 Grandview, and smoking and drinking vodka at Mr. Khimani’s residence were all events that obviously did not constitute work or direct travel to or from work.
[57] I note that Mr. Ansari gave evidence that he had not “processed” being in breach of his curfew up until the point when he was in the police cruiser because he knew had an exception for commuting to work. This evidence does not leave me in reasonable doubt about whether he had the mens rea for the offence. Even if Mr. Ansari believed that his conduct at the No Frills and the two Oshawa addresses complied with his bail, I find that at most this would mean he had a mistaken belief regarding the legal scope of his condition. A mistake of law does not afford him a mens rea defence: Zora, at para. 114; Custance, at paras. 14 – 20; R. v. Forster, [1992] 1 S.C.R. 339, at para. 14.
[58] When I consider the whole of the evidence, including the defence evidence, I am not left in a reasonable doubt on the issue of whether Mr. Ansari possessed the mens rea for the offence: Ruthowsky, at para. 71.
Mr. Ansari’s Utterances to the Police
[59] I will comment briefly on Mr. Ansari’s utterances to the police. I will begin with Mr. Ansari statement that he was coming from work. The defence indicated it was relying on this evidence solely for the purposes of rebutting any suggestion of recent fabrication. Even if I did make substantive use of this statement pursuant to R. v. Edgar, 2010 ONCA 529, it would not have left me in a reasonable doubt regarding either element of the offence when considered along with all the other evidence in the case. The evidence led by the defence through Mr. Ansari and Mr. Khimani explained what the accused meant by “coming from work”. For the reasons already given, I have found, having considered that evidence, that Mr. Ansari was non-compliant with his curfew and possessed the requisite mens rea for the offence.
[60] As for Mr. Ansari’s lie to the police regarding his identity, I place no weight on it. This lie is equally consistent with Mr. Ansari being concerned about being charged for a drug related offence. Accordingly, it adds nothing to the Crown’s case.
Lawful Excuse
[61] The evidence led by the defence at trial raises the issue of whether Mr. Ansari had a lawful excuse for failing to comply with his curfew. Mr. Ansari testified that he could not control the actions of others and that he had done what he could to stay on schedule.
[62] For the following reasons, I am satisfied beyond a reasonable doubt that Mr. Ansari did not have a lawful excuse for violating his curfew.
[63] On Mr. Ansari’s version of events, he attended a work site in Scarborough without a reliable plan to return him directly home following the completion of his work. Despite being in his own truck that evening, he decided to let Mr. Vo drop him off in Pickering rather than drive himself home or insist Mr. Vo drive him directly home. Mr. Ansari’s evidence was that he had alternated driving with Mr. Vo earlier in the day, so there is no suggestion that Mr. Ansari was incapable of driving his vehicle that evening. While Mr. Ansari may have had to inconvenience Mr. Vo in some way, the fact remains that he had the means to get directly home – his own truck.
[64] Mr. Ansari indicated that at the No Frills parking lot he was showing Mr. Khimani courtesy while he waited. There is no evidence that he made anyone present aware that he was subject to a curfew and therefore needed to travel directly home. Furthermore, Mr. Ansari could have arranged for an Uber, or a taxi. He acknowledged he had the Uber app on his phone because he said he had checked it while in Scarborough. His desire to save money was not a lawful excuse. While I heard evidence “that every dollar counted” to him, I did not hear any evidence that he was unable to pay for transportation home.
[65] At 1828 Grandview, Mr. Ansari indicated he spent time there showing Mr. Khimani an electric vehicle charger he had installed, rather than insisting he needed to get home because he was subject to a curfew. I do find this conduct to be reasonable or a lawful excuse for non-compliance.
[66] Furthermore, on Mr. Ansari’s own evidence, his conduct at Mr. Khimani’s residence was unreasonable. Mr. Ansari estimated he spent 20 minutes at the residence, while Mr. Khimani estimated it may have been a half-hour. According to Mr. Ansari, he was finished work and was on his downtime while he waited for Mr. Khimani. In this situation, smoking and drinking vodka while he waited was unreasonable. Mr. Ansari could have made efforts to get home directly. This may have involved explaining to Mr. Khimani that he needed to get home because he had a curfew or contacting a taxi or Uber.
[67] When I consider the evidence in its entirety, including that of both defence witnesses and the Crown’s evidence, I conclude beyond a reasonable doubt that Mr. Ansari did not, objectively speaking, have sufficient reason for contravening his release order. Non-compliance was avoidable. I reject his assertions about not being in control and that he did what he could to “stay on schedule”. I find that the defence of lawful excuse has been disproven beyond a reasonable doubt.
Conclusion
[68] For the reasons given, I find Mr. Ansari guilty of violating his release order.
Released: September 18, 2024 Signed: Justice Joseph Hanna