SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-0017-BR

DATE: 2012-02-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Karen Scullion, for the Crown

• and -

BARRY HAWRYLUIK

Don L.J. Rusnak , for the Applicant

Applicant

HEARD: January 31, 2012, at Thunder Bay, Ontario

Mr. Justice D.C. Shaw

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 517 OF THE CRIMINAL CODE OF CANADA

Reasons On Application for Review of Detention Order

The Facts

[ 1 ] This is an application by the accused, Barry Hawryluik, pursuant to s. 520 of the Criminal Code of Canada for a review of the detention order made by Justice of the Peace, B. Caron, on January 19, 2012.

[ 2 ] The detention order was made on the secondary ground.

[ 3 ] Mr. Hawryluik is charged that in committing an assault on his spouse Jacqueline Hawryluik, he threatened to use a weapon, contrary to s. 267 (a) of the Criminal Code and that he uttered a threat to her to cause her death or bodily harm,, contrary to s. 264.1(1) of the Criminal Code . The offences are alleged to have occurred on January 11, 2012.

Background

[ 4 ] The facts alleged by the Crown are as follows:

[ 5 ] On January 11, 2012, Mr. and Mrs. Hawryluik, who had been married for 19 years, were involved in a domestic dispute.

[ 6 ] Shortly after 10:00 p.m., Mr. Hawryluik placed a call to 911. In the call he stated that he had a fight with his wife, that he had pulled a knife on her and that he had told her he was going to kill her.

[ 7 ] Police attended at the Hawryluik residence. They found Mr. Hawryluik. Ms. Hawryluik had left the residence. Mr. Hawryluik was arrested.

[ 8 ] Police located Ms. Hawryluik at her son’s residence. She told police that around 5:00 p.m. or 6:00 p.m. she was asleep in the bedroom. She was awakened by Mr. Hawryluik who was yelling at her. He told her he did not want to be in a relationship with her. He left their home to take their dog for a walk. At about 8:00 p.m. to 9:00 p.m., Ms. Hawryluik was awakened by Mr. Hawryluik who screamed obscenities at her and was verbally abusive. Mr. Hawryluik grabbed a kitchen knife and held it over his head in a threatening manner. He screamed at her, “You’re going to fucking get it now; I’m going to kill you.” After approximately three minutes he stabbed the knife down into an end table in the living room located beside her. She left the home. During their discussion with Ms. Hawryluik, the police observed that she was crying and upset.

[ 9 ] Ms. Hawryluik told police that the relationship between her and Mr. Hawryluik was rocky and that about five years before he had threatened her with a knife. She indicated that Mr. Hawryluik has attempted suicide and that he has mental health and substance abuse issues. In 1997 she had called police during an argument, but no charges were laid.

[ 10 ] Ms. Hawryluik advised police that there had been a recent separation, that Mr. Hawryluik exhibited losing touch with reality, that he was jealous towards her, that he had stalked her, made harassing phone calls, contacted her through a third party, threatened to destroy property, abused alcohol and drugs, frequented her workplace and shown anger, impulsiveness and poor behaviour control. She said she was fearful that he would carry out his threat and was fearful that if he was released, he would kill her.

[ 11 ] Mr. Hawryluik has a dated criminal record, ending in 1992, including assault, assault causing bodily harm, failing to comply with a probation order and failing to comply with a recognizance.

[ 12 ] Mr. Hawryluik’s mother testified as a potential surety. She stated that she did not see Mr. Hawryluik “a lot” or hear from him very much. She said that he had a drinking problem and was taking pills for depression. About three years before, Mr. Hawryluik had undergone a one month drug and alcohol program at the Smith Clinic and had remained sober for about two years until his father died, when he resumed drinking.

[ 13 ] Mr. Hawryluik’s mother said she would take Mr. Hawryluik to live with her in her house if he returned to the Smith Clinic, which she said he had agreed to do.

[ 14 ] Mr. Hawryluik’s mother said she was very involved with her religion and was not at home a lot during the week. She lives approximately six blocks from her son’s home.

[ 15 ] When she was asked if Mr. Hawryluik would respect her rules and be honest with her, Mr. Hawryluik’s mother replied that she did not know if he would, but thought that he loved her enough to do so.

[ 16 ] Mr. Hawryluik’s mother owns her own home, with equity of about $170,000. She testified that she would be prepared to enter into a surety for $500 without deposit, but that she could not give a higher amount because her house, which she has to sell in a few years, is all that she has to live on. She would not risk putting a lien on her home.

[ 17 ] Mr. Hawryluik’s mother testified that Mr. Hawryluik takes Percocets and Oxycontin for a problem with his shoulder, but instead of taking one pill at a time as he is supposed to, he will take two or three. She said that her son’s problems stem back to the time when he lost his long term job at the paper mill when the mill shut down.

[ 18 ] Mr. Hawryluik testified at the bail hearing. His evidence included the following:

[ 19 ] He is 51 years of age. He had worked at a local mill for 30 years. When it closed in 2007, he could not find another job and “went off the rails.” He went to the Smith Clinic for treatment of alcohol abuse. He stayed sober for two years and then started drinking again after his father passed away. He quit, and then just before Christmas 2011 he had a relapse.

[ 20 ] After the mill closed, Mr. Hawryluik went back to school for a program as an Addictions Counsellor. He is one course short of completing the program.

[ 21 ] Mr. Hawryluik traces his drug addiction to surgery on his shoulder. He has a prescription for six Percocets and three Oxycontins a day, but sometimes instead of taking six Percocets he takes eight.

[ 22 ] He admitted to being depressed and stated that his depression, for which he takes medication, has escalated over the past few years. He believes that he should be under psychiatric care. He agreed he has anger issues which he blamed on his depression. He believes that he has other mental health issues and that he needs to be diagnosed. He attempted suicide in 2007 by taking an overdose of anti-depressant medication.

Reasons of the Justice of the Peace for a Detention Order

[ 23 ] The Justice of the Peace expressed great faith in Mr. Hawryluik’s mother as a proposed surety, commending her for her honesty in testifying that there was no certainty that Mr. Hawryluik would absolutely follow every one of her rules. However, the Justice of the Peace was concerned about Mr. Hawryluik’s mental health issues and the fact that Mr. Hawryluik did not have a clear grasp of those issues, or an understanding of what he needed to do to address those issues. He referred to the fact that Mr. Hawryluik may lose his temper because of his mental illness. The Justice of the Peace stated that if the defence had presented a clear plan of alcohol and drug rehabilitation and a plan to address the mental health component, he would have released Mr. Hawryluik into the supervision of his mother. The Justice of the Peace noted the escalation in the indicators of domestic violence, where, again, Mr. Hawryluik’s mental health was in issue. He observed that there had been nothing to trigger Mr. Hawryluik’s burst of violence and that it occurred after he had had time to cool off. The Justice of the Peace found that the Crown had satisfied the onus of establishing the secondary ground of a substantial likelihood of committing further criminal offences against Ms. Hawryluik.

Submissions

[ 24 ] Firstly, the defence submits that the Justice of the Peace misapprehended the evidence. In very brief submissions, the defence contends that there was no evidence as to Mr. Hawryluik’s mental health issues other than the evidence of Mr. Hawryluik himself, who is not an expert on the matter, and that it was an error in principle for the Justice of the Peace to rely on this evidence in detaining Mr. Hawryluik. The defence notes that Mr. Hawryluik is willing to continue to see his doctor or a psychiatrist and that he is also willing to address his alcohol problems and, in fact, had an appointment at the Smith Clinic scheduled for the same day as the bail hearing.

[ 25 ] The Crown responds that the Justice of the Peace did not misapprehend the evidence, outlined above in these Reasons. The Crown submits that the Justice of the Peace turned his mind to the secondary ground and considered the risks presented by Mr. Hawryluik’s mental health issues and his alcohol and drug problems, concerns which the Justice of the Peace did not believe had been alleviated by the plan put forth by the defence.

[ 26 ] Secondly, the defence submits that there has been a material change in circumstances in that Mr. Hawryluik’s sister has come forward prepared to act as a surety in the amount of $500, without deposit and that Mr. Hawryluik’s mother has increased her pledge from $500 to $1000.

[ 27 ] The Crown submits that notwithstanding that Mr. Hawryluik’s sister is prepared to act as a surety, his plan of release is essentially the same as presented at the bail hearing.

Discussion

[ 28 ] In my view, the defence has not established that the Justice of the Peace misapprehended the evidence and has not established that there has been a material change in circumstances.

[ 29 ] The standard of review on an application under s. 520 of the Criminal Code is set out by Hill J. in R v. Reid , [2000] O.J. No. 3603 (S.C.J.) , at para. 7 ,

A detention review pursuant to s. 520 of the Code is not a de novo hearing. The application for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances since the original proceedings.

[ 30 ] I do not find that the Justice of the Peace erred in principle in his reasoning.

[ 31 ] In determining whether there was a substantial likelihood that Mr. Hawryluik would, if released, commit an offence which endangered the protection or safety of Mr. Hawryluik’s wife, the Justice of the Peace properly considered the admissions of Mr. Hawryluik as to his mental health. It was not necessary, for the purposes of admissibility, that Mr. Hawryluik be an expert in the area of mental health.

[ 32 ] At the bail hearing, counsel for Mr. Hawryluik dealt with the issue of Mr. Hawryluik’s mental health in his examination in chief of Mr. Hawryluik, starting at p.30, line 13 of the transcript:

“Q. Any previous mental health issues Barry?

A. Yeah, I’m depressed, I take depression pills. That’s just be (sic) escalating over the past few year’s (sic). Personally I think I should be under psychiatric care.”

[ 33 ] Shortly after this acknowledgement, Mr. Hawryluik, in cross examination starting at p. 31, line 1 of the transcript, stated,

A. “Yeah you know, I, I do have anger issues, but I blame that on depression problems I have.”

[ 34 ] Further in cross examination, starting at p. 34, line 15, Mr. Hawryluik was asked if he had been diagnosed with anything apart from depression – He answered:

“A. No, but like I said before, I think I should see a psychiatrist, or go to the mental health, I, I do have other mental health issues. I know I do … I just need this diagnosed.”

[ 35 ] Mr. Hawryluik admissions that he is depressed, that he is taking medication for his depression, that his depression is escalating, that he has anger issues related to his depression, that he knows he has other mental health issues, that he should be under psychiatric care and that he has untreated drug and alcohol problems, in the context of apparently unprovoked armed rage against his wife, could not reasonably be ignored by the Justice of the Peace on the basis that Mr. Hawryluik was testifying as a layperson. In conducting his analysis of whether there was a substantial likelihood that Mr. Hawryluik would, if released, commit a further offence putting the safety of his wife in danger, the Justice of the Peace did not need an expert to verify Mr. Hawryluik’s own evidence that he had problems with anger, depression, drugs and alcohol, as well as other mental health issues for which he believed he needed psychiatric help. This evidence of Mr. Hawryluik was relevant and admissible. The Justice of the Peace appreciated the significance of the evidence. He made no unreasonable findings. It was confirmed in large part by the evidence of Mr. Hawryluik’s mother and by the summary of the statement of Mr. Hawryluik’s wife read into the record on the bail hearing. This evidence about Mr. Hawryluik’s behaviour was also received in the context of the facts of the alleged offences and Ms. Hawryluik’s concerns that she had previously been stalked, harassed and threatened by her husband. The Justice of the Peace made his decision based on the actual evidence, not on a misapprehended or a mistaken version of it.

[ 36 ] On the bail hearing, Mr. Hawryluik’s mother agreed to be bound as a surety in the amount of $500, no deposit. Mr. Hawryluik agreed to post $500. On this bail review, Mr. Hawryluik’s mother stated that she is now prepared to pledge $1000, no deposit and Mr. Hawryluik’s sister stated that she is prepared to be a surety bound in the sum of $500, no deposit.

[ 37 ] The increase of $500 which Mr. Hawryluik’s mother is prepared to pledge, and the $500 which Mr. Hawryluik’s sister is prepared to pledge, do not, in my opinion, amount to a material change in circumstances from the bail hearing.

[ 38 ] Firstly, these changes do not address the basis on which Mr. Hawryluik was detained in custody. The Justice of the Peace indicated he would have released Mr. Hawryluik if Mr. Hawryluik had presented a clear plan that addressed his drug and alcohol rehabilitation and the mental health issues. The Justice of the Peace had no difficulties with Mr. Hawryluik’s mother as a surety. The issue for the Justice of the Peace was not that her pledge of $500 was insufficient.

[ 39 ] Secondly, it would be an unusual situation where the addition of a $500 surety who was available at the time of the bail hearing, plus a pledge of an additional $500 by the original surety could be seen as a “material change in circumstances”. This is not such a situation.

[ 40 ] For the reasons given, the application of Mr. Hawryluik is dismissed.

______ “original signed by”_ ___

The Honourable Justice D. C. Shaw

Released: February 03, 2012

COURT FILE NO.: CR-12-0017-BR

DATE: 2012-02-03

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – BARRY HAWRYLUIK Applicant REASONS ON APPLICATION Shaw J.

Released: February 03, 2012

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