ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-10000076-00AP

DATE: 20130129

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ASTRIDA RUTA KANKIS

Appellant

Stephania Fericean, for the Respondent

Ms. Kankis is self-represented,

HEARD: January 21, 2013

On appeal from the convictions entered on November 6, 2009 by Justice Bruce Young of the Ontario Court of Justice, and against the DNA order that formed part of the sentence.

MacDonnell, J.

[1] On October 2, 2009, the appellant appeared before the Ontario Court of Justice in Toronto and was arraigned on two counts. The first count alleged that on December 3, 2007, while bound by a recognizance entered into under s. 810 of the Criminal Code, the appellant failed without lawful excuse to comply with a condition of the recognizance prohibiting her from having any contact or communication directly or indirectly with, among others, Josephine Parobec and Grant Parobec, or attending at their place of residence. The second count alleged that on the 17th day of March, 2008, while bound by a recognizance of bail, she failed without lawful excuse to comply with a condition of the recognizance requiring her to abstain from contacting or communicating directly or indirectly with Grant Parobec, Josephine Parobec or Josephine Parobec’s children. The appellant pleaded not guilty to both counts.

[2] After hearing the evidence called by the Crown, the testimony of the appellant and the submissions of the parties, the trial judge found the appellant guilty as charged on both counts. He suspended the passing of sentence and placed the appellant on probation for a period of three years. With respect to the count of failing to comply with bail he also made an order requiring the appellant to provide a sample of her DNA.

[3] The appellant appeals against her convictions and against the DNA order.

A. The Evidence at Trial

[4] For a number of years in the mid 1980s, the appellant had a romantic relationship with Grant Parobec. It appears that after the relationship ended, the appellant became involved in the mental health system and that she has had substantial involvement with that system over the course of the past decade. While she denies that she is mentally ill, there seems to be little doubt, based on the evidence at trial, that in recent years her behaviour in relation to members of the Parobec family has caused them to want no further contact with her.

[5] On October 6, 2006, Grant Parobec swore an information under s. 810 of the Criminal Code in which he averred that he had reasonable grounds to fear that the appellant would cause him injury or damage his property. Based on that information, the appellant was ordered to enter into a recognizance to keep the peace and be of good behaviour. The recognizance included a term that the appellant have no contact or communication directly or indirectly with, among others, Grant Parobec, his mother Josephine Parobec, or their children, and that she not attend at their place of residence.

[6] The s. 810 recognizance was entered into on November 29, 2007. Four days later, on December 3, an envelope addressed to Grant Parobec was dropped into the mailbox at the home of Josephine Parobec. Inside the envelope was a copy of a two-page letter that the appellant had written to the Ontario Court of Justice. An affidavit of the appellant was attached. The letter was headed:

Re: Recognizance to Keep the Peace dated November 29, 2007 is not a legal document and is therefore void (C.E.1615032-1)

[7] The letter is somewhat confusing. It began with a reference to the appellant’s birth certificate, a copy of which was included within the attached affidavit. The appellant asserted that a person’s correct name is as set forth on his or her birth certificate. She then stated:

Therefore a reasonable person using the legal system would ascertain that the name of the addressed individual on the Recognizance to Keep the Peace, Page 10, would be the name found on the birth certificate. The conditions list Grant Parobec, I was examining Grant Walter Parobec in court, therefore this issue also makes the document void.

Therefore the Recognizance is void, unenforceable due to the errors on the document and should not be entered in and if entered taken out of the Government records.

[8] The letter was “cc’d” to Grant Parobec, the Warrants Office at 23 Division, and the Assistant Crown Attorney who was present in court when the appellant was ordered to enter into the recognizance.

[9] On December 7, 2007 the appellant was arrested for failing to comply with the November 29 recognizance. On December 13, 2007, she was released from custody on a recognizance of bail that again included a condition that she abstain from communicating, associating or communicating directly or indirectly with Grant Parobec, Josephine Parobec or Josephine Parobec’s children.

[10] On March 17, an envelope addressed to Josephine Parobec’s son Brian was delivered by the postal service to Mrs. Parobec’s residence. Inside the envelope was a greeting card containing a handwritten note that was signed “Astrida”.

[11] At trial, the appellant readily acknowledged that she had attended at the residence of Josephine Parobec on December 3 to drop off the envelope addressed to Grant Parobec and that she sent the greeting card that arrived at Josephine Parobec’s residence on March 17. She did not dispute that in doing those things she breached the terms of her recognizances. Her position was that she had a lawful excuse for doing so.

[12] Her evidence with respect to the nature of that excuse was at times difficult to follow. She described the letter that she delivered to the Parobec residence on December 3, 2007, as a “court document” and at various points suggested that she had a lawful right to serve a court document. To be clear, neither the letter nor the affidavit purported to provide notice of any proposed court proceeding. In essence, the letter was simply an assertion by the appellant that the s. 810 recognizance was void.

[13] As I read the appellant’s evidence at trial, her real position in relation to the issue of lawful excuse was that the wish of the Parobecs to have no contact with her was irrational. She described the Parobecs’ determination in that respect as a ‘biased and mentally ill’ decision, which they had made “because the police have coloured their minds”. In her opinion, it would be to the Parobecs’ benefit to receive information from her because it would make them smarter and more intelligent.

[14] The trial judge rejected the appellant’s claim of lawful excuse. He held that the Crown had proved both counts and found the appellant guilty.

B. The Conviction Appeal

[15] On her appeal from conviction, the appellant argued that the trial judge erred in rejecting her assertion of a lawful excuse.

[16] With respect to her delivery of the December 3 letter, she submitted that because she had a lawful right to serve a court document, she had a lawful excuse for breaching the term of the s. 810 order prohibiting her from attending at Josephine Parobec’s residence. I reject that submission. The letter was a court document only in the sense that it was addressed to the court. It was not legal process and did not purport to give notice of any court proceeding. Even if the letter could be construed as a step in a proposed proceeding to set the recognizance aside, the appellant was under no obligation to serve it on the Parobecs. Her desire to assert the invalidity of the recognizance did not afford her a lawful excuse for attending at the Parobecs’ residence in defiance of the terms of the recognizance.

[17] With respect to the letter that the appellant sent to Brian Parobec, the only excuse relied upon by the appellant was the one advanced at trial, namely that she was trying to help the Parobecs notwithstanding their desire to be left alone. That does not amount to a lawful excuse for breaching a court order to have no contact or communication with them.

[18] Accordingly, the appeal from conviction must be dismissed.

C. The Sentence Appeal

[19] The trial judge suspended sentence on both counts and placed the appellant on probation for a period of three years. After hearing from the Crown and the appellant, he also made an order authorizing the taking of bodily substances for the purpose of forensic DNA analysis. The sole ground of appeal advanced by the appellant on her sentence appeal is that the DNA order should not have been made.

[20] The DNA order was made as part of the sentence for the offence of breaching the December 13, 2007 recognizance of bail, contrary to s. 145 of the Criminal Code. That offence is a secondary designated offence and accordingly the trial judge was required to be satisfied that a DNA order was in the best interests of the administration of justice, taking into account the matters set forth in s. 487.051(3). In making the order, the trial judge stated that “I want to be sure that investigators have the tools available to them if there should be any repetition of this improper conduct”.

[21] The appellant did not have a criminal record, but it was clear from the evidence that there was a legitimate concern with respect to a continuation of her harassing conduct in relation to the Parobecs. I am not persuaded that the trial judge erred in making the DNA order. The sentence appeal is dismissed.

MacDonnell, J.

Released: January 29, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ASTRIDA RUTA KANKIS

REASONS FOR JUDGMENT

MacDonnell, J.

Released: January 29, 2013