ONTARIO SUPERIOR COURT OF JUSTICE

Date: 2012-11-13

Between:
HER MAJESTY THE QUEEN Respondent – and – ARTHUR ANDERSEN Applicant

Counsel:
Paul Zambonini, for the Respondent
David Bayliss, for the Applicant

Heard: November 2, 2012

C.M. SPEYER J.

[ 1 ] The central issue to be resolved at this bail review is whether the detention of the applicant is “necessary to maintain confidence in the administration of justice” as governed by the tertiary ground for detention set forth in s. 515(10) (c) of the Criminal Code .

[ 2 ] Arthur Andersen is charged with attempted murder and aggravated assault. The Crown alleges Mr. Andersen slashed the face of Odorico Violante with a filleting knife that Mr. Andersen purchased at a Canadian Tire store earlier the same day that Mr. Violante was attacked. Further, the Crown says, Mr. Violante sustained two lesser, yet serious wounds attributed to Mr. Andersen during the altercation; specifically, puncture-like injuries caused by Mr. Andersen stabbing Mr. Violante in the abdominal region of his body.

[ 3 ] At Mr. Andersen’s bail hearing, the Crown sought the accused’s detention on both secondary and tertiary grounds. Following a full hearing, during which a proposed surety for Mr. Andersen was examined and cross-examined, Justice of the Peace Flaherty ordered the applicant detained based on secondary ground concerns. Given his finding, no consideration was given by the Justice of the Peace to the tertiary ground. In brief but entirely satisfactory reasons for his decision, Justice of the Peace Flaherty found the proposed surety was unable to provide the measure of supervision that Mr. Andersen’s daily activities required. A review of the surety’s evidence makes this finding unassailable.

Bail Review Hearing

Amplification of Background Facts

(i) The events giving rise to the charges

[ 4 ] A woman named Virginie Beun links the applicant and the victim. On May 23, 2012, the date of these allegations, Ms. Beun was married to, but separated from, Mr. Violante. The couple has a 10 year old daughter. Issues relating to custody of the daughter are alleged by the Crown to have reached a high level of acrimony. Indeed, the Crown contends Ms. Beun threatened her husband, the victim, Mr. Violante, on one occasion by telling him “he was going to pay” while, at the same time, making a motion with her hand indicative of slitting one’s throat.

[ 5 ] Mr. Andersen is a very close friend of Virginie Beun. Mr. Andersen’s proposed surety at the bail hearing believed Ms. Beun to be Mr. Andersen’s girlfriend. While Mr. Andersen had met Mr. Violante on perhaps two prior occasions, the preliminary record before me discloses no prior history of bad blood between the men.

[ 6 ] The Crown’s case concerning the events of May 23 rd is this: Mr. Violante was returning home at 10:30 in the evening. He was walking up his driveway when Mr. Andersen approached him from the dark shadows saying, “My friend, I need to talk to you.” Mr. Violante was immediately concerned, backed up and took out his phone to call 911. Mr. Andersen knocked the phone out of Mr. Violante’s hand and slashed him across the face with the filleting knife. A struggle ensued and, as indicated, Mr. Violante received two more stab wounds.

[ 7 ] Mr. Violante bit Mr. Andersen’s finger causing him to drop the knife. Mr. Violante escaped at this point and ran screaming down the street. His screams attracted the attention of neighbours. Two neighbours followed Mr. Andersen to his car. Although there was ample parking on the street, Mr. Andersen had parked at a 7-11 store. His vehicle was approximately 250 metres from Mr. Violante’s residence. It was the neighbours who called 911.

[ 8 ] Later that night, having left the area where the events took place, Mr. Andersen approached two police officers and told them he had been attacked. He showed the officers the bite to his finger. Mr. Andersen subsequently told the detective investigating the case that he had gone to Mr. Violante’s house to confront him about not allowing Mr. Violante’s daughter to travel to France. The applicant told the investigating officer that it was Mr. Violante who attacked him with a knife and that he was able to deflect the blow with his cane. He could not adequately explain to the police why witnesses said they saw him with a knife tucked in the back of his pants. He told police the witnesses may have mistaken a knife for his cane. Mr. Andersen repeatedly denied having in his possession a knife. The police found Mr. Andersen in possession of a receipt from Canadian Tire issued that afternoon, indicating the purchase of a fillet knife. A search warrant was obtained and a black-handled filleting knife was found in Mr. Andersen’s automobile. A surveillance videotape captures Mr. Andersen purchasing the knife at Canadian Tire.

(ii) The seriousness of the injuries

[ 9 ] Mr. Violante sustained a gaping wound extending from just below the right ear, leading in a horizontal direction along his lower chin to a point near the right side of his mouth. A photograph of the wound taken at the hospital depicts the wound as long, deep and nasty. Importantly, the photograph also illustrates just how close the blade of the knife came to Mr. Violante’s carotid artery.

[ 10 ] The two puncture wounds are depicted in a second photograph and, while not as serious, again, it is not difficult to imagine how easily the knife could have punctured a vital organ.

(iii) Evidence of planning and deliberation

[ 11 ] The Crown alleges that a sensitive motion detector that would activate flood lights in Mr. Violante’s driveway in the vicinity of the attack had been rendered inoperative. It is the Crown’s theory that the applicant was responsible for tampering with the proper operation of the floodlights as part of his plan to carry out the attack on Mr. Violante. Second, as noted, the police investigation disclosed that Mr. Andersen had purchased the filleting knife earlier on May 23; again, it is the Crown’s position that this was the method conceived in advance to carry out the planned attack. Third, there is a matter of Mr. Andersen’s attire. The disclosure to date indicates evidence that Mr. Andersen was dressed all in black, wearing military pants tucked into military boots and, at a time relevant to the attack on Mr. Violante, had donned a black knit cap despite the warm spring evening.

The Circumstances of Mr. Andersen

[ 12 ] Mr. Andersen is 68. He was born in Montevideo, Uruguay. He came to Canada in 1982. He received Canadian citizenship in 1992. He has two sons, aged 16 and 18. He is single.

[ 13 ] The applicant has no criminal record. He has always been gainfully employed. From 1987 to 2006, Mr. Andersen worked at several Toronto hospitals in various health-care capacities. From 2006 until his arrest on these charges, Mr. Andersen was employed by the Toronto District School Board on a part-time basis. He worked as a teacher’s assistant with special needs children and as a lunch room supervisor.

[ 14 ] As a result of medical problems related to his sciatic nerve, Mr. Andersen has mobility issues in respect to his back and uses a cane.

[ 15 ] Three matters that bear on Mr. Andersen’s prior good character merit consideration. First, during the SARS crisis in Toronto about a decade ago, Mr. Andersen received a certificate for “workplace excellence” from the University Health Network. He was nominated for this award by fellow co-workers. Second, he has been recognized for his good work at the Toronto District School Board. In this regard, he has received a nomination from the Ontario government for his work. Finally, the applicant has an impressive history of volunteer work with Boy Scouts of Canada. He has been designated as “an advanced scout leader”.

[ 16 ] Mr. Andersen proposes, if released, to reside with a close friend, Suzanne Rusywich, his proposed surety. Ms. Rusywich was not the proposed surety at the applicant’s initial bail hearing. With Ms. Rusywich’s consent, it is proposed he reside with her until the completion of his trial.

The Circumstances of the Proposed Surety, Suzanne Rusywich

[ 17 ] Ms. Rusywich resides in a one-bedroom apartment on Lakeshore Boulevard in west-end Toronto. She is 66 years of age and has remained single since her divorce in 1993. She met Mr. Andersen 20 years ago through their church and a strong friendship was formed.

[ 18 ] Ms. Rusywich is retired although she continues to work ten hours per week at a landscaping business she owns. She employs three workers. Ms. Rusywich is active in raising funds for Rotary Club International and is also an active member of her church.

Decision on Secondary Ground

[ 19 ] I was most impressed with the evidence of Ms. Rusywich. She struck me as a solid citizen who has worked hard throughout her life. She has no criminal record. She would be able to superintend Mr. Andersen’s activities in a manner that the proposed surety at the bail hearing clearly could not. I am satisfied she would make a reliable and responsible surety if Mr. Andersen were released.

[ 20 ] Mr. Andersen is 68 years of age and, other than the alleged events giving rise to these charges, has lived an exemplary life. He has no criminal record. He has a very good history of employment and volunteerism. These circumstances must be taken into account in determining whether Mr. Andersen’s detention is necessary for the protection or safety of the public.

[ 21 ] I find that the combination of Ms. Rusywich as a responsible surety in tandem with appropriately restrictive terms of bail make Mr. Andersen a candidate for release in respect of the secondary ground.

The Tertiary Ground

[ 22 ] Crown counsel, Mr. Zambonini, did not concede that the applicant had satisfied secondary ground concerns. That said, as indicated at the beginning of these reasons, the focus of this bail review relates to whether Mr. Andersen should be detained on the tertiary ground.

[ 23 ] Section 515(10)(c) provides:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

( c ) if the detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[ 24 ] In his very able submissions, Mr. Zambonini advanced the proposition that if the Crown establishes that each of the four statutory factors set out in s. 515(10) (c) are established at the highest level, a detention order is “entirely to be expected”. In support of this submission, Crown counsel relied on the cases of R. v. Mordue (2006), 223 C.C.C. (3d) 407 (Ont. C.A.) and R. v. S.(B.), 2007 ONCA 560, 255 C.C.C. (3d) 571.

[ 25 ] In weighing all relevant factors, statutory or otherwise, and deciding whether to grant or refuse bail based on tertiary ground factors, it is wise to keep in mind the overarching principle, firmly rooted in the case law, that detention based on tertiary ground concerns is to “be used sparingly” or “justified only in rare cases”. The exceptional use of the tertiary ground finds its genesis in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at paras. 27 and 31, and is followed and fortified by a host of Ontario Court of Appeal decisions: see R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.), at para. 30; R. v. R.D., 2010 ONCA 899, 106 O.R. (3d) 755, at paras. 51-53; and R. v. Gale, 2011 ONCA 144, at para. 25.

[ 26 ] In addition to the “use sparingly” principle, the following other considerations ought to be taken into account. First, in assessing tertiary ground concerns, it is also important to adhere to the wisdom found at para. 55 of R.D.:

[C]onfidence in the administration of justice does not turn only on the circumstances of the offence and the alleged offender. Public confidence is measured by the standard of a reasonable member of the community (Hall at para. 41) and, in my view, includes recognition that bail is granted within a context of constitutional guarantees, most especially the presumption of innocence and the right to reasonable bail.

[ 27 ] The task of the bail judge in considering the tertiary ground is, in the words of Doherty J.A. in Gale at para. 25, to “take the pulse of the reasonable, informed member of the community.”

[ 28 ] Second, as noted by Rosenberg J.A. in R.D., “[t]he grounds enumerated in s. 515(10) (c), do not exhaust the factors the court must consider where the Crown seeks to rely upon the tertiary ground” (at para. 54). I agree that if each of the four statutory factors are established to the highest degree, the cumulative effect of such a finding may go a long way to satisfying the tertiary ground for detention. However, those factors alone, while of particular importance, do not exhaust all the considerations that may be required to determine if detention is justified in order to maintain confidence in the administration of justice.

[ 29 ] Section 515(10)(c) directs the court to consider “all the circumstances”, including the enumerated factors. “All the circumstances may, in appropriate cases, include the personal circumstances of the accused”: R.D., at para. 54. Such personal circumstances may include the accused’s age, health, the availability of support systems of family and friends, and positive or negative antecedents. It is worth noting that the Court of Appeal gave consideration to the accused’s age and positive history in two recent cases: R.D., at para. 68 (young accused); and R. v. Heyden, 2009 ONCA 494, at para. 26 (65 year old accused).

Application of the Principles

[ 30 ] It is self-evident that a charge of attempted murder is an extremely serious offence. It is even more serious in circumstances where, as in the present case, there appears to be cogent evidence of planning and deliberation. That said, this is not a murder case, where the gravity of the offence would be even higher. In addition, while the wounds inflicted on Mr. Violante were serious and had the potential to be life-threatening, thankfully, they are not permanent in nature.

[ 31 ] While the case for the prosecution has yet to be tested, on the material before me, a preliminary assessment indicates that the Crown appears to have a strong case. Eyewitnesses and the applicant’s own statement link him to the scene of the offence. There is also evidence that the applicant possessed a knife at the time of the attack, which he denied having when questioned by police.

[ 32 ] It must be acknowledged that if the prosecution case is proved, the viciousness of a planned, unprovoked knife attack on an unsuspecting victim will be a serious aggravating factor in the consideration of the appropriate sentence.

[ 33 ] On the other hand, a sentencing judge would take into account the advanced age of the applicant, his unblemished record, his stellar work history, and his history of volunteerism. These mitigating circumstances may significantly lessen his sentence. Still, because of the seriousness of the offence, it is fair to conclude that, if convicted, the applicant would likely face a significant term of imprisonment.

[ 34 ] The applicant’s general good character and positive antecedents are also circumstances to consider in this case. I also give consideration to his advanced age, apparent back problems and the strength of his proposed surety.

[ 35 ] Let me turn for a moment to the Crown’s argument that a detention order is “entirely to be expected” if each of the four factors enumerated in s. 515(10) (c) are at the highest level. In my view, the four factors do not reach that level in this case. The gravity of the offence and the length of the potential sentence are less than they would be in a murder case. Similarly, while the premeditation and grievous injuries are serious aggravating circumstances, the victim survived the attack and his wounds are not permanent. That is not to say that the tertiary ground can only apply in murder cases or where the circumstances are the most heinous; that is clearly not the case (see R.D., at para. 53). I simply note that here, the four statutory factors are not at maximum force. As such, even if I did accept the Crown’s argument that detention is expected where each of the factors are at their highest, that is not the situation in this case.

[ 36 ] Having considered all the circumstances, including the statutory and other factors, from the viewpoint of a reasonable, informed member of this community, I find that the applicant’s detention is not necessary in order to maintain public confidence in the administration of justice. To borrow the language of Cronk J.A. at para. 36 of LaFramboise, the alleged facts in this case are not sufficient to “elevate this case to that narrow category of cases where detention may be justified, exclusively under s. 515(10)(c) of the Code.”

[ 37 ] In my view, this is not one of those rare cases where an accused ought to be detained on the tertiary ground. Without in any way diminishing the seriousness of the allegations, having in mind the presumption of innocence, I do not believe a reasonably informed member of the community would be shocked by Mr. Andersen’s release. I am satisfied that his release would not erode public confidence in the administration of justice. I allow the application and order that the applicant be granted judicial interim release in the penal sum of $5000, without deposit, and with Suzanne Rusywich as surety, upon the following conditions:

1. To keep the peace and be of good behaviour.
2. To refrain from communicating, directly or indirectly, with Virginie Beun, Odorico Violante, Ruthie Violante, Ashley Evora da Silva, Kostas Bovoletis, Angela Bovoletis, Louie Salandra, Luca Torresan, and Cynthia Davidian.
3. To abide by a curfew from 7 p.m. to 7 a.m., except in the case of medical emergencies.
4. Not to possess any weapon as defined by the Criminal Code .
5. To reside with his surety, Suzanne Rusywich, at 2719 Lakeshore Blvd., Apt. 1 in the City of Toronto and abide by the rules of the home as set down by his surety.
6. Not to attend within three city blocks of any place Mr. Andersen knows that Odorico Violante, Ruthie Violante, or Virginie Beun live, work or attend school or any place he knows those people to be present.

C.M. Speyer J.

Released: November 13, 2012

DATE: 2012-11-13

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ARTHUR ANDERSEN Applicant

REASONS FOR DECISION

C.M. Speyer J.

Released: November 13, 2012