ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0070-00
DATE: April 15, 2013
B E T W E E N:
HER MAJESTY THE QUEEN
Piera Pasloski, for the Crown
- and -
BARTOLOMEO RUSSO
Neil McCartney, for the Defendant
HEARD: February 4 and 5, 2013,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486(3) OF THE CRIMINAL CODE OF CANADA
Reasons For Judgment
[1] The accused, Bartolomeo Russo, pleaded not guilty to four charges before the court:
that he sexually assaulted D.M. on or between January 1, 1986 and December 31, 1987, contrary to s. 246.1(1) of the Criminal Code;
that he criminally harassed D.M. on or about April 6, 2011, contrary to s. 264(1) of the Code;
that on or about July 20, 2011, he breached a term of his recognizance requiring him to reside with his surety, contrary to s. 145(3) of the Code; and
that he breached a term of his recognizance between March 6 – 7th, 2012 by failing to abstain from contact, directly or indirectly, with D.M., J.M. or any member of their family, contrary to s. 145(3) of the Code.
[2] The accused did not testify at trial. The burden is on the Crown to prove all elements of each offence beyond a reasonable doubt. The accused is presumed innocent until the burden of proof is discharged by the Crown.
[3] The complainant’s ability to identify the accused is conceded. At the time the alleged sexual assault took place, the age of consent to sexual activity in Canada was 14. It has since been raised to 16, except in limited circumstances. In this case, the accused and the complainant were involved in a relationship but there is no suggestion that their sexual relationship began before she turned 14.
[4] The Crown alleges that a single incident of sexual intercourse occurred against the complainant’s will which the Crown says constituted sexual assault. The accused disputes that non-consensual sex took place. He concedes that he offered the complainant money, food and other consideration in exchange for sexual favours when she was of an age to consent, but submits that such transactions were not then contrary to law. Defence counsel characterized the relationship between the accused and the complainant as one of “mutual opportunism,” which might have been morally blameworthy, but which did not amount to an offence at law.
Sexual Assault
[5] Count #1 alleges that the accused sexually assaulted D.M. In order to prove sexual assault, the Crown must prove, beyond a reasonable doubt, that the accused intentionally touched the complainant in a sexual manner without her consent.
[6] The complainant was born January 28, 1972, making her 41 when she testified at trial. The accused was born February 15, 1927; he was almost 86 at the time of trial.
[7] The complainant came from a poor family. Her mother raised the complainant and her five siblings on public assistance. Sometimes the family went without food and their bills for heat and hydro were not always paid. The complainant’s mother experienced residential school and was incapable of nurturing the complainant as a child in a way that met her needs.
[8] The complainant testified that before she met the accused, she was sexually abused by three others. She stated that she felt shame and guilt from those experiences and had low self-esteem that prompted her to isolate herself from children her own age. Perhaps this background induced her to drift into a relationship with the accused. It is without doubt that he offered her money and other consideration which she accepted, in return for sexual favours.
[9] The peculiar nature of the relationship between the accused and the complainant is relevant to understanding the allegations in this case, and in assessing the credibility of the complainant.
[10] The complainant testified in her examination-in-chief that she met the accused in 1984. If this is correct, she would have been 12 years old at that time. However, she also stated in examination-in-chief that she met the accused when she was 14. If this is correct, she would have met him in 1986.
[11] The complainant was introduced to the accused by her brother’s father one day when they were in the mall. This was a random encounter. The accused was about 45 years older than the complainant. She described him as a gentle person who was soft-spoken and seemed nice. This was the beginning of a relationship that lasted until about 2011.
[12] The complainant was in the habit of skipping school about this time; often she would go to the mall. I conclude that she was about 14 at that time, as it is more likely that she would skip school on a consistent basis in her teen years. She knew that the accused could be found in the food court of the mall between 1 – 2 p.m.; she also knew that if she was hungry, he would buy her French fries.
[13] The accused befriended the complainant. She stated that he seemed caring, asking how her day had been and about her family. She felt that he had her best interests at heart. In time, the accused gave her his phone number and told her that if she was hungry in the evening, he would take her to McDonald’s. The complainant took him up on this offer.
[14] The complainant testified that when she was still 14, the accused told her that he had girls who were special friends. He told her that if these girls did special things for him, he would pay them and take care of them. He said that if they did what he wanted, he would give them more money and buy clothes for them. He told her that she could be one of these special girls. The complainant stated that, at 14, she didn’t understand what he meant.
[15] The complainant described an incident when the accused took her for a ride in his car. He turned onto a dark street and she became frightened and jumped out of the car. He reassured her that they didn’t have to do anything and persuaded her to get back into his car. Then he drove her home. The complainant did not describe any unwanted touching on that occasion.
[16] In cross-examination, the complainant denied that the accused offered to pay her $50 to go with him on that occasion; however, she agreed that offer was made upon hearing her videotaped statement replayed.
[17] The complainant testified that as time went on, the accused would give her $5 and insinuate that she could be one of the special girls whom he paid to do special things for him. In time, the complainant accepted his proposition and provided sexual favours in return for money or goods, such as clothing. In cross-examination, the complainant agreed that because she was naïve, and lacking in adult guidance, she didn’t see a problem at the time in exchanging sex for money. She stated that now, from the perspective of an adult, she can see that it was wrong on his part.
[18] The sexual interaction between the two began at the accused’s home where he would kiss her and touch her breasts. This escalated to the complainant taking her clothes off for him in return for money. She described him touching her body and kissing her chest. The complainant did not object to this conduct at the time.
[19] The level of intimacy between them increased. Both would appear naked. The complainant described the accused inserting his penis between her thighs in simulated intercourse. He would withdraw and ejaculate on her stomach. On other occasions, the accused instructed her to lie on her stomach. He would place his penis between her legs, simulating anal intercourse, and ejaculate. As well, the complainant described the accused placing his penis between her breasts until he ejaculated. The complainant testified that the accused later taught her how to fellate him in the way that he enjoyed. She did not testify that any of this sexual activity took place against her will.
[20] In fact, the complainant testified that when she refused to meet his sexual demands, the accused would become frustrated and upset. She agreed in cross-examination that he was bigger than her and could have held her down and forced her, but he didn’t. On occasion when he asked her to have intercourse, she refused. She stated that he was emphatic that they could not have intercourse until she was 16.
[21] The complainant testified that she told the accused repeatedly that she didn’t want to have sex with him. From the context of her previous testimony, I conclude she meant that she didn’t want to have full sexual intercourse with him.
[22] At trial, the complainant testified that, in 1985, when she was 15, she was having a sexual encounter with the accused. She stated that she pulled away from him when his penis was close to her vagina, saying “No!” However, she stated that he insisted, penetrating her vagina, and then withdrew and ejaculated on her stomach. After, he said to her, “Let’s go shopping. Let’s buy some clothes.”
[23] This is the only instance of sexual interaction to which the complainant stated she did not consent. The court must be satisfied beyond a reasonable doubt that this incident occurred.
[24] The complainant testified that she and the accused continued to have a sexual relationship, including sexual intercourse, 2 – 3 times per week until she was 20, when she met her boyfriend whom she later married. Then she insisted that her sexual relationship with the accused stop, and it did.
[25] During their sexual relationship, which the complainant said lasted from the time she was 15 – 20, she lived in separate quarters in the accused’s home, paying him rent. He provided her with clothes, a leather jacket, a television set, and a VCR. He taught her how to drive, provided her with a car, took her on a trip to Duluth, and even told her that he might leave his house to her in his will. The complainant acknowledged that at one time, the accused transferred the house to her, although this did not continue. Shortly after the complainant met her boyfriend, he moved into the accused’s house and lived there with her until their family moved out in 2009. He and the complainant fixed up the house.
[26] When their sexual relationship ended, the accused asked the complainant if he could act as her father and she agreed. The complainant married at 28; at her invitation, the accused escorted her into the ceremony. When the complainant had children and foster children, he acted as a grandfather to them, minding them when the complainant went to the corner store. The accused evidently became attached to the complainant, her husband, and their family, spending time with them when they all lived under the same roof.
[27] There are several reasons why the complainant’s testimony about a single incident of forced sexual intercourse at 15 raises a reasonable doubt.
[28] The first issue is credibility. It is true that more than two decades have passed since the alleged sexual assault; it is also true that the complainant was a child at the time. However, there are contradictions and inconsistencies in her evidence given as an adult. For example, at trial, the complainant denied that the accused gave her $50 to go with him in his car to a dark street behind Simpson Street whereas on her video-taped statement, she reported that he offered $50.
[29] The complainant testified that her first disclosure about having sex with the accused was made to her husband in June, 2010. However, Officer Ratz testified that D.M. told the officer about it in January, 2009, more than a year before she disclosed to her husband. Therefore, the complainant’s statement that her sexual history with the accused was a big secret until she told her husband in June, 2010 is not correct.
[30] The complainant also stated that she decided to report the sexual abuse to the police one year after she told her husband about it. She gave a statement to the investigating officer, Laura Cooper, on July 5, 2011. However, Officer Ratz testified that, in addition to the January, 2009 report, the complainant advised her about sexual abuse involving the accused in July, 2010, approximately one month after she spoke to her husband.
[31] As well, Officer Murphy stated that the complainant told him on July 1, 2010 that she had been sexually abused by the accused. Officer Morrison testified that the complainant told him in April, 2011 that the accused asked her for sex when she was 14 and 15. These reports all pre-date the statement to Officer Cooper. I prefer the evidence of the officers, who noted these conversations, to the memory of the complainant.
[32] The complainant testified that the accused sexually assaulted her when she was 15; however, Officer Ratz testified that when she spoke to her in July, 2010, the complainant was specific that she had no sex with the accused until she was 16, and “at 16, it happened.” This is a significant departure from the complainant’s video-taped statement that sexual intercourse occurred when she was fifteen. It is not a minor inconsistency. Her statement to the officer is, however, consistent with her testimony that the accused was fixed on the notion that they could not have sexual intercourse until she was 16.
[33] The complainant’s evidence varies as to whether sex with the accused began when she was 14, 15, or 16.
[34] As I will describe later in these reasons, the complainant’s evidence is also confused about what year she and her family moved out of the accused’s home.
[35] From these examples, it is evident that the complainant’s memory about certain events, even events that are not emotional in nature, is unreliable.
[36] Secondly, the complainant gave a detailed videotaped statement to the police on July 5, 2011. The statement lasted longer than 2 hours and is replete with details. The investigating officer encouraged her to give as many details as she could. Strikingly absent from this detailed account is any mention of the accused forcing intercourse on the complainant. As this is the only time that forced intercourse is alleged, one wonders why this important detail is missing.
[37] The complainant told Officer Ratz in July, 2010, that she had exchanged sex for money. She told Officer Murphy on July 1, 2010, that the accused had sexually abused her, and she told Officer Morrison in April, 2011, that she exchanged sex for money from the accused. None of these officers record her as saying she was forced to have sexual intercourse against her will.
[38] Thirdly, at the time of the complainant’s statement, the investigating officer believed that police could prosecute for sexual activity between the ages of 14 – 16. However, she was not certain and told the complainant she would check on the age.
[39] During the complainant’s statement, the officer is heard to say, “This you had no control over. It’s something that happened to you. It’s not something you chose to do.”
[40] In cross-examination, the officer stated that she did not believe that the complainant’s consent to sex at 14 was valid because, in her view, the complainant was a vulnerable young person who was picked out by the accused and groomed as the perfect target.
[41] The officer’s perception of the case and the tenor of her remarks may have signalled to the complainant that her evidence should be couched in a framework indicating a lack of choice. In legal terms, this is consent. There is no account in the first video statement of the accused forcing sex on the complainant and therefore no grounds to prosecute based on her statement and the state of the law at the time. However, the officer’s well-intentioned remarks may have subtly encouraged the complainant to re-cast her evidence as recalled through the lens of time, and to emphasize non-consensual sex. The risk that this may have occurred is seen subsequently in the investigation.
[42] On July 13, 2011, the officer called the complainant to discuss the case and to advise her that the age of consent at the relevant time was 14. She estimated the call lasted between 15 – 20 minutes. The complainant testified that she told the officer, during this conversation, that the accused forced her to have sexual intercourse against her wishes.
[43] Despite agreeing that it is important to record significant facts in an investigation in her notebook, the officer’s notes do not indicate that the complainant told her about forced sexual intercourse during that conversation. The officer testified that she did not record this because she intended to take a second video-taped statement from the complainant. However, the officer’s notes do not indicate this intention and no subsequent video statement was ever taken from the complainant. This evidence of forced intercourse was given for the first time at the preliminary inquiry.
[44] Fourthly, the complainant’s testimony about one incident of forced sex sticks out as uncharacteristic of the parties’ sexual relationship. On the occasion when the accused drove her to a dark street and she became frightened, he did not insist on any sexual contact and drove her home. The complainant also testified that the accused would become frustrated and upset when, at times, she did not wish to engage in certain sex acts. She acknowledged that he was bigger than she was and could have restrained her but he did not. Although she testified that he would coax her with the prospect of money or shopping trips, the pattern of their interaction suggests that he did not force himself on her against her wishes. The accused’s statement to police was to the effect that he took care of her.
[45] The court recognizes that the responses of those who have been sexually assaulted may vary widely. However, the continuation of their sexual relationship, including sexual intercourse, after the event complained of, is a relevant circumstance when considering reasonable doubt. The complainant was not in a relationship from which she was could not withdraw. The accused was not a relative and not in a position of control over her. The complainant was employed during much of the time when she was sexually involved with the accused as so presumably, had access to money. The accused and complainant continued a sexual relationship until she was 20. When she demanded that their sexual relationship end, it did. Thus, it appears that the accused accepted her wishes in sexual matters.
[46] The continuation of their adult relationship on a non-sexual basis also raises a reasonable doubt. Their relationship was not merely sexual; it had an emotional basis that was reciprocal. The fact that the complainant invited the accused to escort her on her wedding day is very telling of the emotional ties between them. It is also telling that the complainant entrusted the accused with care of her children on occasion, apparently without apprehension that they might be assaulted. The complainant accepted a familial relationship with the accused and promoted it to her husband and children. In my view, this is incongruent with the sexual assault the complainant describes.
[47] The heart of the matter seems to be that the accused became more difficult and demanding of the complainant’s time as he aged. He would upset her by his “crazy talk” accusing her of having affairs. These stressors may have led her to re-evaluate her relationship with the accused.
[48] In cross-examination, the complainant was asked, “The reason for you to go through all this [meaning the sexual assault testimony] is because you want him to leave you alone?” The complainant answered, “Yes.” The Crown, in her submissions, stated that “Indeed if [the accused] had been able to leave this woman alone, none of us would be here today.”
[49] The admission of the complainant and the submission of the Crown that the charges before the court are really about harassment give rise to a troubling suggestion: that the allegation of sexual assault is made to bootstrap the charge of criminal harassment. If so, it is a shocking basis for prosecution.
[50] There is no doubt that the conduct of the accused was morally blameworthy, and the conduct of the complainant was not. It is probably because of circumstances like these that Parliament saw fit to raise the age of consent generally from 14 to 16. However, the court is bound to assess proof of guilt based on the law in place at the time. For the reasons set out above, I have a reasonable doubt that the accused sexually assaulted D.M. Count # 1 is therefore dismissed.
Criminal Harassment
[51] Count # 2 on the indictment alleges that the accused:
“…on or about the 6th day of April in the year 2011, at the City of Thunder Bay, in the said Region, did without lawful authority, and knowing that D.M., the victim, is harassed or being reckless as to whether D.M. is the [sic] harassed, did without lawful authority repeatedly communicate, either directly or indirectly, the victim [sic] or anyone known to the victim, thereby causing D.M. to reasonably, in all circumstances, fear for her safety and/or the safety of others, contrary to Section 264(1) of the Criminal Code.”
[52] The complainant testified that she and her family lived in the accused’s house for 15 – 20 years after her sexual relationship with the accused ended. The complainant and her husband decided to move from his home because the complainant felt he was belittling her and her husband found the accused’s need for companionship very demanding. She was uncertain whether the move took place in January, 2009 or January, 2010 and her chronology about when events occurred is confused. Based on the testimony of the police officers, I conclude the family moved from the accused’s home in early 2009. In any event, the complainant and her family moved abruptly without telling the accused where they were going.
[53] After the complainant and her family moved, the accused called her cell phone. The complainant called the police station and spoke to Officer Ratz on January 7, 2009. The officer stated that the family were concerned about the accused’s deteriorating mental and physical health and felt guilty about leaving him alone. The officer indicated the family was indecisive about police action; she suggested a referral to the elder abuse officer.
[54] The complainant also testified that the accused would drive by their home. As the complainant lives on a major artery in Thunder Bay, it is difficult to conclude that the accused intended to harass the complainant based on that fact alone.
[55] D.M. testified that she missed the accused and called him in the summer. She was uncertain whether this occurred in the summer of 2009 or 2010.
[56] In late spring, probably of 2010, the complainant went to the accused’s house to drop off some tape. She stated that the accused started to call her down again.
[57] On July 1, 2010, the complainant spoke to Officer Murphy about the accused harassing her. He appeared in her back yard, yelling and attempting to return a jacket left at his home. She locked the doors and told him to leave. Officer Murphy attended on the accused in July, 2010 and cautioned the accused not to contact D.M.. The complainant stated that the accused would not accept a termination of contact and he continued to drive by the house.
[58] Officer Ratz telephoned the complainant on July 5, 2010 as a follow-up from a Justice of the Peace concerning harassment. The complainant told the officer that she had exchanged sex with the accused for money when she was a teenager but that she didn’t want to make a report.
[59] After Officer Murphy’s caution, the complainant missed the accused. She initiated contact with him. The accused wanted to continue their father-daughter relationship and the complainant agreed. She proposed that she and the children would visit him weekly. She followed through and took the children to visit the accused twice at his home. However, when he began to accuse her of having affairs, she had doubts about his mental faculties and told him again not to call her. In cross-examination, the complainant agreed that the accused’s strange behaviour might have something to do with his advanced age.
[60] After the first police caution, the complainant’s husband persuaded her to give the accused another chance. She relented and they went to visit him. When her husband was out of the room, the accused resumed his accusations that she was having affairs.
[61] The complainant agreed that the accused might be confused when she and her husband initiated contact with him after the police had cautioned him not to have contact. She stated bluntly, “I was confused!” She acknowledged that she had borrowed $700 from the accused after they moved out of his house and agreed to accept it as a gift.
[62] On October 22, 2010, Officer Woods took a further report from the complainant regarding unwanted contact by the accused. As there was no allegation of threatening behaviour, the police did not lay charges. He visited the accused on December 3, 2010 and cautioned him not to have contact with the complainant by any means. Officer Woods formed the impression that the accused did not seem to understand his warning.
[63] Two days later, on December 5, 2010, Officer Beaulieu was on duty when the accused spoke to her about the police caution to have no contact with the complainant or her family. She was of the view that he seemed to understand but didn’t agree. She agreed that the police report about the caution did not include a note that the complainant had initiated contact with the accused after the accused was cautioned by police to have no contact.
[64] Officer Morrison spoke to the complainant on April 7, 2011 about harassment by the accused. Specifically, she reported a visit she claimed the accused had made to her neighbour. He attended on the accused the same day and cautioned him not to have contact with the complainant or her husband either directly or through a third party. Officer Morrison stated that the accused told him he wanted to get his tools back. He also stated that the accused didn’t seem to understand what he was trying to communicate.
[65] A neighbour to the complainant, Erin Smith, testified that between 4 – 4:30 a.m. on April 2, 2011, she was awakened from a sound sleep by an old man banging on her door and ringing her door bell. She peeked out of the corner of the bedroom curtain for about two seconds and saw a man in his 60’s of aboriginal or Italian descent, wearing a cap. She stated there was a gold or silver car in the driveway. The man gestured to her to open the door. She refused and he left. She stated she had not seen the man before. She did not call the police at the time.
[66] At trial, Ms. Smith identified the accused who was seated at the counsel table as the man who appeared at her door early that morning. As defence counsel rightly observes, Mr. Russo was the only person in the body of the court not wearing barrister’s robes. I attach no weight to Ms. Smith’s identification in these circumstances. Her opportunity to view the person was fleeting. It was at night. Her estimate of the man’s age is 20 years younger than that of the accused. She was not shown a photo line-up. Although she stated she was terrified, she did not see fit to call the police at the time. In my view, it would be dangerous to convict on such scanty identification evidence.
[67] Gabrielle Cross runs a fast food outlet. She is acquainted with the complainant and her husband and she knew the accused. She testified that about two years ago, the accused arrived at her business during the noon hour rush, placed an order, and told her, “I need to talk to [the complainant’s husband].” Ms. Cross offered to relay a message to him. Within the hour, the accused returned and Ms. Cross advised him that she had relayed the message. She stated that she found it strange that he seemed upset that she had passed on a message that the accused was looking for him.
[68] In my view, the Crown has not met its onus to prove count #2 beyond a reasonable doubt for the following reasons.
[69] First, there is no evidence that the accused harassed the complainant or anyone associated with her on April 6, 2011. The Crown does not allege the accused was reckless.
[70] The court has discretion to amend an indictment to conform with the evidence called at trial. In this instance, the Crown did not move for such an amendment until after the Crown had closed its case and all the submissions were made, including the defence submission that there was no evidence of criminal harassment on the date specified in the indictment. Such an amendment at the conclusion of the trial would prejudice the accused. Consequently, the Crown’s motion to amend was refused.
[71] Apart from the frailties in her identification evidence, Ms. Smith testified that an old man appeared at her door on April 2, 2011, not April 6th. There is no evidence that this encounter was troubling to the complainant or her family on April 6, 2011.
[72] There is no specific evidence as to when the accused came to see Ms. Cross. She simply stated it was two years ago. The tenor of her evidence did not suggest that their encounter was at all troubling. There is no evidence that the accused directed her to relay a message to the complainant’s husband. She confirmed that the accused was upset when she did so as he believed he would be in trouble. Her evidence suggests that she undertook the contact at her own initiative.
[73] The evidence called by the Crown on this count does not prove, beyond a reasonable doubt, that the accused intended to harass D.M. or those close to her. Nor does it prove that the complainant feared for her safety or the safety of others. We know this because the complainant and her husband initiated contact with the accused at various times, even after they knew that the police had cautioned him not to contact them. They conducted an “off-again, on-again” relationship with him, interspersed by police cautions when they found him to be a nuisance.
[74] After the complainant and her family moved from the accused’s house, D.M. and her husband expressed to Officer Ratz their concern about the accused’s failing physical and mental health and their guilt about leaving him. The complainant borrowed money from the accused, and then accepted it as a gift. She called him when she missed him, perhaps more than once. She dropped off tape at his house. She took her children to his home to visit him on two occasions. She went to visit him with her husband on yet another occasion. The complainant frankly acknowledged that these mixed messages would be confusing to the accused, as she herself was confused about the state of their relationship.
[75] Against this background, I do not accept the evidence of the complainant that she was afraid of the accused or that she was fearful for others. He did not threaten her or others near to her. She left her children with him for short periods. The accused had not behaved violently toward D.M., her husband or children over the many years of their close relationship. If she was fearful, her fear was not reasonable.
[76] The law relating to criminal harassment is not intended to criminalize inconvenient behaviour by lonely elderly people, as is the case here. Count #2 is dismissed.
Breach of Recognizance by Virtue of Failing to Live with Surety
[77] The accused entered into a recognizance dated April 20, 2011 in which he agreed to reside with his surety, Ryan Howie, who was his tenant. In count #3, the Crown alleges that the accused breached his recognizance by failing to reside with his surety at 429 East Mary Street in Thunder Bay. To prove this count, the Crown offered Jeannine Beerthuizen as its witness. Mr. Howie was not called as a witness.
[78] Ms. Beerthuizen is a neighbour of the accused, living at 425 East Mary Street. She testified that she didn’t concern herself with the accused’s tenants and didn’t know them. She did not say when she saw the tenants move out. In my view, this evidence is not probative of the allegation that the accused failed to reside with his surety.
[79] The defence agreed to admit a portion of an interview with the accused dated July 20, 2011. The quality of the recording was such that it was difficult to make out the exchanges between the accused and the investigating officer Cooper. However, a transcript was prepared for my use by the court reporter. In addition, I have had the advantage of comparing the transcript with the digital audio recording of the interview played at trial.
[80] During the interview, the accused acknowledges that his surety, Ryan Howie, moved out of his residence at 429 East Mary Street about two or three weeks before the interview with police and that a new surety had not been substituted.
[81] In the interview, the accused stated that he talked to the Justice of the Peace before Mr. Howie moved out to indicate that he had another surety who would be moving in. The accused indicated that the Justice of the Peace advised him to bring the departing surety and the new surety to the court in order to make the change on the recognizance.
[82] The accused agreed with the officer that the substitution didn’t happen and explained why. He stated that when he told Mr. Howie that the new surety and Mr. Howie were to go with him to court to make the change, Mr. Howie declined to go, saying, “Well, you don’t have to worry about – you got nothing to worry about. Even if I move out, you got nothing to worry about. I don’t report that I moved out and…”
[83] This evidence, made part of the Crown’s case, is not contradicted. It is evident that the accused did not intentionally breach his recognizance as alleged. To the contrary, he sought advice from the Justice of the Peace and attempted to substitute a surety before his existing surety moved out. Had his existing surety been more cooperative, it is likely that a new surety would have been brought before the court. Although the Crown has proven the actus reus of the offence, that the accused was not living with his surety, it has not proven beyond a reasonable doubt that the accused acted with an intention to violate the terms of the recognizance, which is the mens rea of the offence.
[84] Count #3 is dismissed.
Breach of Recognizance by Failing to Abstain from Communication
[85] On August 10, 2011, the accused entered into a recognizance that he “abstain from communication, contact, association, directly or indirectly” with D.M., her husband, or any member of their family. The Crown alleges that the accused breached this term of the recognizance between March 6 and 7, 2012, based on the evidence of Jacqueline Vibert.
[86] Ms. Vibert works at a child welfare agency where the complainant and her husband are foster parents. Ms. Vibert testified that on either March 6 or 7, 2012, the accused dropped by her office. Mr. Russo introduced himself and advised that the complainant used to live at his house. He gave her a letter addressed to D.M. from Citibank and asked her to give it to D.M. and to remind her to change her address. Mr. Russo was tearful and said that he missed D.M and the children but that he couldn’t call her, although he would welcome contact from D.M.
[87] This is not an instance where the accused was attempting to effect contact with the complainant. He was forthright with Ms. Vibert in disclosing that he could not contact D.M. This exchange does not, in my view, show an intention by the accused to breach the non-contact terms of the recognizance. The accused knew that D.M. was a foster parent who would be known to the agency and that delivering mail for her there would be an effective way of passing it along without upsetting her. The accused should not be criminalized in these circumstances by the simple courtesy of forwarding business mail.
[88] Count #4 is dismissed.
Regional Senior Justice H.M. Pierce
Released: April 15, 2013
COURT FILE NO.: CR-12-0070-00
DATE: April 15, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BARTOLOMEO RUSSO
REASONS FOR JUDGMENT
Pierce J.
Released: April 15, 2013
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