Publication Ban Warning

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 11 01 Court File No.: Windsor 23-81100480, 23-81103144

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAD GRIEVE

Before: Justice S. G. Pratt

Heard on: 18 September 2024 Reasons for Judgment released on: 1 November 2024

Counsel: Iain Skelton........................................................................................... Counsel for the Crown Evelynn Lipton............................................................................ Counsel for the Defendant

Pratt J.:

[1] Shad Grieve, hereinafter the Defendant, is charged with three counts of sexual assault and three counts of sexual interference. An assessment and hearing to determine his fitness to stand trial were conducted, with the result that the Defendant was found unfit. Further assessments were carried out and a hearing was held to determine if a stay of proceedings should be granted pursuant to s. 672.851(7).

[2] The allegations against the Defendant are set out in Dr. William Komer’s initial report, dated 16 March 2024, and again in Dr. Komer’s report dated 22 July 2024.

[3] The first allegation involves a female who was between 6 and 8 years old at the relevant time. The Defendant attended the same church as the complainant. At some point from 2006 – 2008, he is accused of taking her to a private room at the church and instructing her to sit in his lap and move around. She later said she could feel him getting an erection as a result. She said he told her not to tell anyone about the incident. Initially, the girl’s parents did not want to press charges given the Defendant’s cognitive impairment. Charges were eventually laid, years later.

[4] The second allegation involves two female complainants. One was between 10 and 12 years old and the other was between 7 and 9 years old. It is alleged the Defendant went to their residence and told them they would play a game where he was a fireman and they were dalmatians. He told them to remove their clothing as dalmatians didn’t wear clothes. They did not. He then lifted the shirt of the older complainant and touched her nipples. He also lifted the shirt of the younger complainant and exposed her breasts as well. The report says he “blew raspberries” on her stomach. He also pulled down both complainants’ shorts and exposed their genitals. He digitally penetrated the younger complainant’s vagina and had the older complainant touch his penis.

[5] Further to the allegations as outlined in Dr. Komer’s report, counsel agreed to some additional information being provided regarding the second allegation. It is alleged the two complainants were sisters. Their family was friends with the Defendant, and they’d invited him to their house. Incidents of inappropriate conduct occurred 5-10 times with these children.

[6] On 10 April 2024, a fitness hearing was held. Dr. Komer testified. Following submissions from counsel, I found the Defendant to be unfit to stand trial. The defence sought a disposition hearing under s. 672.45(1). A further assessment, to assist in determining the proper disposition, was ordered.

[7] Following that assessment, counsel for the Defendant advised she was considering seeking a stay of proceedings on the basis of the Defendant being permanently unfit. The disposition hearing was adjourned pending the outcome of that application and an assessment under s. 672.851(5) was ordered. The stay application was heard on 18 September 2024.

[8] The Court heard from several witnesses on the application. Dr. Komer testified again. He opined that the Defendant was permanently unfit and not a significant threat to the safety of the public. He supported the defence request for a stay of proceedings.

[9] Kim Garon-Purdy, an Adult Protective Services Worker, testified that she had been working with the Defendant for about a year and a half. In that time, she has helped connect him with social supports and assisted him in finding housing. She had previously worked with Community Living Essex County (CLEC), and continues to liaise with them to assist the Defendant. In her prior work with CLEC, she had assisted the Defendant for approximately seven years, and in fact has known him since their high school days. She said he has the services of a Personal Support Worker named MJ, who visits him for about four hours a week. She also said the Defendant has the support of his mother Sheila. She was asked how often she understood the Defendant was left alone either at home or in the community. She responded that in her experience that never happened. She said that if you see the Defendant in the community, invariably you also see Sheila. Further, she confirmed that the Defendant’s current housing, at a rest home in St. Joachim, offered 24-hour staffing and support. He is currently on a waitlist for 24-hour supportive housing through CLEC.

[10] Carly Baz-Ficociello is a dual diagnosis justice case manager with Regional Support Associates. Her role involves helping the Defendant navigate the court system. While her involvement would end at the conclusion of the criminal case, she said his other supports (i.e. CLEC, Developmental Services Ontario) would remain. She also confirmed that there was nothing holding the Defendant at the St. Joachim residence and that he could move at any time. If CLEC found him housing, it would not include housing for his mother, and so if he wished, he could turn that housing down. Potentially, he could choose to move somewhere without 24-hour support if that was his desire.

The Law

[11] Stay applications based on permanent unfitness are governed by s. 672.851(1) and onward of the Criminal Code. Specifically, subsections (7)-(9) state the following:

(7) The court may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court shall consider any submissions of the prosecutor, the accused and all other parties and the following factors:

(a) the nature and seriousness of the alleged offence;

(b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 to decide whether sufficient evidence can be adduced to put the accused on trial; and

(d) any other factor that the court considers relevant.

(9) If a stay of proceedings is ordered by the court, any disposition made in respect of the accused ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused under section 672.83.

[12] The test for a stay, therefore, is threefold:

(1) The Defendant must be permanently unfit;

(2) He cannot pose a significant threat to the safety of the public; and

(3) A stay must be in the interest of the proper administration of justice.

Permanently Unfit

[13] It is agreed between the parties, and I concur on this point, that the Defendant is permanently unfit. His unfitness does not arise from a treatable condition. It arises from a cognitive impairment that has been present throughout his life. No treatment order would render him fit. I’m sure that if there was some form of treatment that would alleviate his cognitive impairments, it would have been tried by now. I accept the opinion of Dr. Komer and the parties’ agreement that the Defendant is unfit to stand trial and is not likely to ever become fit.

[14] The issues here are with regard to the second and third parts of the test. Does the Defendant pose a significant threat to the safety of the public, and would a stay be in the interest of justice? On these points, the parties differ.

A Significant Threat to the Safety of the Public

[15] In the case of R. v. Winko, [1999] 2 S.C.R. 625, Justice McLachlin (as she then was) considered this phrase. Her Honour said this at paragraph 62:

A "significant threat to the safety of the public" means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.

[16] Expanding on that point, Justice Goldstein of the Superior Court of Justice quoted that passage and added the following at paragraph 41 of R. v. LeBlanc, 2022 ONSC 2357:

The significant threat standard is onerous. Detention must not be based on mere speculation. There must be a grave risk of physical or psychological harm. That harm must be foreseeable. The conduct that would give rise to a significant threat must be criminal in nature. A small risk of great harm is not enough; neither is a great risk of trivial harm: Re Carrick, 2015 ONCA 866 at para. 17; Re Marmalejo, 2021 ONCA 130 at para. 37.

[17] The phrase also appears in s. 672.5401 of the Criminal Code. That section reads as follows:

672.5401 For the purposes of section 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.

[18] While that definition specifically relates to s. 672.54 (disposition hearings), Justice Dambrot of the Superior Court of Justice found no reason not to apply it to the test in s. 672.851(7). In the case of R. v. Lynn, 2020 ONSC 4581, His Honour said,

While the definition in s. 672.5401 is specifically applicable only to s. 672.54, I can imagine no reason why the definition would be different when the identical phrase "a significant threat to the safety of the public" is used in s. 672.851(1), and I am aware of no authority to the contrary.

[19] I agree with Justice Dambrot.

[20] The allegations against the Defendant, if true, certainly represent significant criminal conduct. They allege the sexual violation of young children and are gravely serious. It is reasonable to be concerned, if he did that in the past, that he might do so again in the future. I must consider all the evidence before me in determining if the Defendant represents a significant threat to the safety of the public.

[21] At the time of the alleged offences, the Defendant was living with his mother in their private residence. It is unclear from the record exactly what kind of supports he was receiving in the period from 2006 – 2016. Ms. Garon-Purdy began working with the Defendant, if I add her time as his worker to her time with CLEC, approximately 8 ½ years ago. That would mean her work began around 2016. Dr. Komer’s July report stated the Defendant has had the same CLEC worker “for over twenty years”, so it would seem he has been receiving at least some level of support for a long time, including the time period of the alleged offences.

[22] Currently, his level of support is high. He lives in a residence with 24-hour care. He has the support of Ms. Garon-Purdy, a PSW, his mother, and a friend. He also continues to enjoy the assistance of CLEC and Developmental Services Ontario. While he is on a waitlist for CLEC housing, his current situation in St. Joachim provides close supervision and support. He is also welcome to stay there for as long as he wishes.

[23] It seems from Dr. Komer’s reports that the Defendant continues to show limited insight into the allegations. That is a concern, but I must recognize his unfitness to stand trial in determining how much weight I should give that point.

[24] If I am understanding the Crown’s position correctly, it is that the Defendant poses a significant threat to public safety not necessarily out of malice, but rather out of a lack of understanding of what is and isn’t appropriate behaviour. Supervision in the past wasn’t enough to prevent two sets of allegations, years apart. Given the serious nature of the allegations, the potential for real physical and psychological harm to children is great so long as this lack of understanding persists. All are agreed the unfitness is permanent; so too, therefore, is the risk.

[25] This is a compelling argument. Courts must act proactively to protect society when appropriate. Examples of restricting liberty in advance on the basis of risk abound in the criminal law. Peace bonds, probation orders, even dangerous offender designations all curtail personal liberty at least in part to prevent further offending. Risk management is a very real aspect of the Court’s business.

[26] The Court cannot, however, simply assume the worst in every case. Each defendant has the right to be treated as an individual.

[27] In the present case, there have been no allegations against the Defendant for the last eight years. These charges were not laid until 2022, six years after the most recent allegations. I have heard no evidence of other misconduct in those six years, nor in the two years since his arrest. This is an important point. To find the Defendant poses a significant risk to public safety, I must find there is a real risk of serious physical or psychological harm to the public. It is an onerous standard that must not be based on speculation.

[28] In my view, the passage of eight years since the last allegations shows that while a risk does remain, it is not the grave and foreseeable risk envisioned by Justice Goldstein in Leblanc, supra. With proper supervision, as the Defendant currently enjoys, the risk can be managed. I find that in his present situation, the Defendant does not pose a significant risk to public safety. It could be argued that were he to leave the St. Joachim residence, his risk level may change. I don’t disagree, but my assessment must be based on his current situation, not on one that might occur in the future. I will, however, consider that point when addressing the interests of justice.

The Interests of the Proper Administration of Justice

[29] The final question to be asked is if a stay of proceedings would be in the interests of the proper administration of justice. This is a broad inquiry. Parliament has provided guidance on the factors to be considered at this stage through s. 672.851(8) of the Criminal Code, noted above.

[30] I have heard the submissions of counsel and evidence on behalf of the Defendant. Taking all the factors listed in the above section into account, I find a stay of proceedings would not be in the interests of the proper administration of justice. I will explain why that is.

[31] The offences the Defendant is accused of committing are very serious. He is charged with sexually abusing three young girls. The offences seem to have escalated from having a child sit in his lap and move around, causing him to get an erection, to the touching of two young girls’ breasts and vaginas, and the digital penetration of a child who was between the ages of 7 and 9 at the time. In the case of the later complainants, their family befriended the Defendant and invited him into their home. He abused them, it is claimed, five to ten times. Were the Defendant to be convicted of these offences, he would almost certainly be facing a penitentiary sentence. The Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. 100 has been emphatic that child sexual abuse must be punished harshly. The impact and fallout from offences like these can be severe and long-lasting. There is an enormous public interest in seeing children protected from those who would victimize them.

[32] While a stay of proceedings would be beneficial to the Defendant, I am not convinced it would foster confidence in the administration of justice. To end this prosecution and stay these charges without any ongoing control or monitoring by the state would, in my view, send the wrong message. It would tell the public that the Defendant is sufficiently impaired as to not understand the nature of what he’s accused of doing, but not so impaired that he needs state supervision. That seems incongruous and not something that would inspire confidence in the justice system.

[33] While these allegations are somewhat historical by this point, I have heard no evidence that they could not be prosecuted. I have not heard that witnesses are no longer available or that the case against the Defendant is otherwise compromised. Though there has not been an inquiry under s. 672.33, I have been advised of nothing that would suggest there is insufficient evidence to put the Defendant on trial.

[34] In the context of “other factors the court considers relevant”, I would add the possibility that the supervision the Defendant currently receives at the St. Joachim residence may not be permanent. He is on a waitlist for CLEC housing. That housing would not include accommodation for his mother, with whom he has resided for decades. He is free to turn down that housing, should it be offered, and free to leave the St. Joachim residence at any time should he find another place to live. This would remove one of the pillars of support on which my finding of significant risk currently rests. It increases the need for some kind of state involvement in the Defendant’s care.

[35] I wish to address one of the cases provided by counsel for the Defendant, R. v. Pollard, 2007 ONCJ 615. That case involved a permanently unfit accused who, after the alleged offence, began residing in a care home and receiving support. In that sense, the situation is similar to the present case. The allegations in that case, however, are very different from the case at bar. There, Mr. Pollard was accused of aggravated assault in the shaking of his newborn baby. Justice Kenkel, in granting a stay application, noted that Mr. Pollard had never been aggressive with anyone outside the relationship he had with the baby’s mother. In my view, this is an important distinction. The offence in Pollard was within the confines of a stressful prior romantic relationship. In the present case, the complainants are children the Defendant came to know. They were not, so far as I have heard, connected to him in any significant way. The connection to the former partner and Mr. Pollard’s lack of violence with anyone else factored strongly in Justice Kenkel’s decision. That is not the situation I have before me.

Result

[36] In the result, I find a stay of proceedings should not be granted. The Defendant is permanently unfit and not currently a significant threat to public safety, but staying the charges at this point would not be in the interests of justice. The application for a stay is dismissed.

[37] We will schedule a disposition hearing.

Released: 1 November 2024 Signed: Justice S. G. Pratt