ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-50484
DATE: 2012-06-06

ONTARIO
SUPERIOR COURT OF JUSTICE

(Appeal from Honourable Justice D. Nicolas)

BETWEEN:

HER MAJESTY THE QUEEN – and – GIOVANNI PALUMBO Defendant/ Appellant

Moiz Karimjee, for the Crown, respondent
Gary R. Barnes, for the defendant/appellant

HEARD: June 6, 2012

REASONS FOR DECISION

T.D. Ray, J

[ 1 ] The defendant appeals his conviction dated March 16, 2011, by the Honourable Justice Nicolas at Ottawa, of one count of breach of probation contrary to s. 733.1 C.C.C. of failing to attend and actively participate in counselling recommended by his probation officer, as follows:

That between the 26th day of August 2009 and the 17th day of November, 2009, in the City of Ottawa, in the said Region, unlawfully did while bound by a probation order made at the Ontario Court of Justice, before the Honourable Justice R. Lajoie, on April 1 st 2009, without reasonable excuse, failed, or refused to comply with the said order, to wit: did fail to attend and actively participate in such rehabilitative programs for, i.e., anger management, alcoholism, spousal, as recommended by your probation office, and in particular, attend all appointments with Doctor Helen Ward, or a designate as required, contrary to section 733.1 of the Criminal Code of Canada .

[ 2 ] The defendant was sentenced to a conditional discharge. The sentence is not being appealed.

[ 3 ] The defendant’s appeal is based on the proposition that on the evidence the defendant did not possess the requisite mens rea for commission of the offence on the ground that during three meetings with his probation officer, he never actually refused to attend at the New Directions counselling as directed by the probation officer; and furthermore that the evidence shows the probation officer had given the defendant the option of bringing an application to vary the term in question, as an alternative, before he would be charged with being in breach.

[ 4 ] The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result. [1] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness. [2] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. [3]

[ 5 ] The evidence before the trial judge included that of the probation officer, and a letter dated October 20, 2009 which he hand delivered to the defendant on October, 20, 2009. After stating the condition contained in the probation order, the letter reads in part:

“Further to verbal instructions already provided, you are instructed to contact New Directions, schedule an intake appointment with New Directions and complete the New Directions Program. This program is designed to address issues associated with Spousal Abuse. See attached information sheet for necessary contact info.

Failure to comply may result in a charge of failure to comply with probation under Sec. 733.1 of the Criminal Code of Canada . The maximum penalty for failure to comply with probation is a maximum of two years imprisonment.

[ 6 ] The defendant did not give evidence.

[ 7 ] The evidence at trial was that the defendant met with his probation officer on July 23, 2009, August 19, 2009, September 16, 2009, October 20, 2009, and finally on November 17, 2009. The defendant was charged November 25, 2009. The evidence was that throughout these five meetings over the four month period, the defendant took no steps and made no efforts to attend the New Directions program. Essentially the defendant told the probation officer during the meetings that he didn’t think it was necessary. The probation officer responded that he must attend New Directions or alternatively bring an application to vary the probation term. In fact when the defendant eventually brought his motion to vary, he sought to have the entire probation order terminated, not just the term. The defendant’s application was dismissed November 25, 2009.

[ 8 ] Since the defendant did not give evidence, the trial judge had only the probation officer’s evidence as to what the defendant did, did not do, or what he believed.

[ 9 ] The trial judge reviewed the probation officer’s evidence of the meetings between him and the defendant in some detail. It is not contended that she misunderstood or misstated the evidence. She found:

It is clear from the outset that Dr. Palumbo had little or no interest and was not complying with that condition. The matter was the subject of every single meeting. On every single meeting, there was a reason or explanation for not doing it demanding written reasons, asking that they pay for it. And, probation was fairly patient. Even after the letter of October 20th outlining the condition in writing, when they met in November it had still not been done........................

There are multiple instances of him being reminded on every meeting that all he had to do was schedule an intake appointment, and despite all those repeated chances, he did not do it and he failed to comply. [4]

[ 10 ] Clearly the trial judge was alive to the state of mind of the defendant during the relevant period, and was alive to the demands, repeated in writing that he comply or that he would be charged. The Supreme Court of Canada has held the requisite mens rea to be that an accused intended to breach his probation order; and that absent direct evidence the trial judge may infer intent from the fact of the conduct. [5] I am satisfied that the trial judge was alive to the issue of the defendant’s intention. While not explicit, it was implicit in her reasons that she was satisfied from the probation officer’s evidence that the defendant had the requisite mens rea .

[ 11 ] The appeal is dismissed.

Honourable Justice Timothy Ray

Released: June 6, 2012

COURT FILE NO.: 09-50484
DATE: 2012-06-06

ONTARIO SUPERIOR COURT OF JUSTICE (Appeal from the Honourable Justice D Nicolas) HER MAJESTY THE QUEEN Respondent – and – GIOVANNI PALUMBO Appellant REASONS FOR Decision Honourable Justice Timothy Ray

Released: June 6, 2012

[^1]: Housen v.Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235.

[^2]: R v Shepherd 2009 SCC 35 , 2009 S.C.C 35, para 20 .

[^3]: R v Burns , 1994 , [1994] S.C.J. No. 30 (SCC).

[^4]: Reasons, Justice Nicolas, transcript, page 149, line 3.

[^5]: R v Docherty , 1989 , [1989] 2 S.C.R. 941 para 29 .