R. v. Roberts, 2015 ONSC 3031
COURT FILE NO.: CR-14-30000134-00AP
DATE: 20150521
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW ROBERTS
Appellant
Darren Hogan, for the Respondent
Diana M. Lumba, for the Appellant
HEARD: April 14, 2015
REASONS FOR JUDGMENT
[on appeal from the judgment of justice T. CLEARY of the ontario court of justice dated OCTOBER 1, 2014]
B. P. O’MARRA, j
[1] On October 1, 2014 the appellant was convicted after trial on an Information charging that he:
on or about the 16th day of April in the year 2014 at the City of Toronto in the Toronto Region did, being at large on a recognizance entered into before a justice and being bound to comply with a condition thereof, namely remain in your residence except while at work or school, unless you are in the continuous presence of your surety, fail without lawful excuse, to comply with that condition, contrary to s. 145(3) of the Criminal Code of Canada.
[2] The defence had argued that the Crown failed to prove beyond a reasonable doubt that the appellant was not at home, work or school when the police conducted a compliance check on April 16, 2014. The defence also argued that the Crown had failed to prove that the house arrest condition was in effect on that date.
EVIDENCE AT TRIAL
[3] The Crown called two witnesses at trial. Officer Ryan Beatty and Officer Jim Oakes testified that they conducted the bail compliance check at the appellant’s residence on April 16, 2014. The Crown tendered the following four exhibits:
Exhibit 1 - an uncertified copy of the recognizance of bail that the officers said they checked before attending the appellant’s residence.
Exhibit 2 - a statement written by the surety on April 16, 2014. It read, “I told him not to leave. He still left”.
Exhibit 3 - an audio recording of the appellant’s bail hearing on December 16, 2013, confirming that a condition of the bail he entered into was house arrest, except in the presence of a surety, or when at work or school.
Exhibit 4 - a certified copy of the underlying Information.
[4] The defence called no evidence at trial.
[5] Officers Beatty and Oakes testified that they attended the appellant’s residence on April 16, 2014 at 5:15 p.m. They had conducted compliance checks on the appellant before in regard to the same bail at that address. Officer Beatty testified that during those checks he asked to see the appellant and the appellant came to the door. Officer Oakes testified that he had done seven compliance checks on the appellant. On four or five of those checks he had seen and spoken to the appellant when he came to the door.
[6] The officers knocked and the appellant’s surety answered. Based on prior attendances at the address, Officer Beatty was satisfied that in fact he was dealing with the surety.
[7] The officers spoke to the surety and received a written note from her. Since the surety did not testify the words in the note were obviously hearsay. Officer Beatty testified that the surety was visibly upset. She told him that the appellant was failing to comply. She went on to say that the appellant had left approximately 30 minutes before they arrived. She also said she had told the appellant not to leave but he did. She said that she did not wish to be a surety anymore because it was too stressful and she had health issues. All of the comments from the surety were hearsay and not admissible to prove the truth of the contents.
[8] Officer Oakes made no mention of the surety immediately saying that the appellant was failing to comply. He did recall that she said that he had left approximately 30 minutes prior to their arrival and that she had told him not to go. Officer Oakes asked her to write a statement, which was tendered as Exhibit 2.
[9] Officer Beatty testified that they did not have an opportunity to speak to the appellant as he did not come to the door. The officers returned to the station. They did not go to the appellant’s workplace or school. Officer Beatty did not know where the appellant worked or attended school or if he in fact attended school. Officer Beatty agreed that he did not know if the appellant was at work. Aside from what the surety told him, he had no other information as to whether the appellant was in the house or not.
[10] Officer Oakes testified that he did not know where the appellant worked or if he worked. He did not know that the appellant went to school in the McCowan and Midland area in Toronto. The next day, other officers made inquiries with the school. Officer Oakes heard that the appellant had not been to the school in some time, but he did not check the school records himself. Obviously, any information that he received from other sources was hearsay and was not admissible to prove the facts contained therein.
REASONS FOR JUDGMENT IN THE ONTARIO COURT OF JUSTICE
[11] The trial judge made the following findings.
i) The recognizance was in effect on April 16, 2014 with the terms set out in the Information.
ii) There was no evidence that the terms of recognizance had been varied before April 16, 2014.
iii) The appellant was not in his residence when the police attended there on April 16, 2014.
iv) In terms of the exceptions to house arrest for work or school the trial judge indicated the following:
One can’t consider it unless there is some air of reality to it, something in the facts, or a reasonable inference that can be drawn from the facts, that could lead some evidence that might raise a reasonable doubt because of that defence, or, in this case, the accused doesn’t have to prove anything, but if the submissions are that the Crown has not proved that Mr. Roberts was not at work, or was not at school, I find that the binding case law on me indicates that there has to be something from the evidence, in whatever form that’s admissible, which would give rise to at least that possibility, other than speculation. That it is what Mr. Justice Watt said in the other case, “theoretically possible.”
v) There was no information or evidence to raise a reasonable doubt related to the exceptions to the house arrest term related to work or education.
[11] The defence submitted that questions put to the officers raised the possibility that the exceptions applied and that there was an air of reality to the defence.
[12] The officers indicated that they did not check to see whether Mr. Roberts was at school or at work. Once they heard from the surety, they concluded their investigation and determined that the appellant was not complying with his recognizance.
[13] The trial judge was satisfied beyond a reasonable doubt that the exemption from house arrest relating to work or school could not be considered in the circumstances and the possibility of the exemption of Mr. Roberts being in the presence of his surety had been raised but quashed by the interaction that the officers had with the surety on April 16, 2014.
ANALYSIS
[14] There was an evidentiary basis for the trial judge to find that the recognizance with the stipulated terms was in effect on April 16, 2014. There was also a circumstantial basis for the finding that the appellant was not in his residence when police attended that day.
[15] Justice Code of this Court dealt with the issue of the evidentiary or persuasive burden where there are stipulated exceptions in a court order.
[16] In R. v. J.G., [2012] O.J. No. 657, 2012 ONSC 1090 the accused was bound by a probation order not to be in the company of a co-accused. There was an exception for vocational, educational, employment programs or for counselling purposes.
[17] J.G. was observed by police to be talking to the co-accused as they stood outside a counselling centre and as they walked down the street. The trial judge acquitted J.G. on the basis that the Crown had failed to prove that J.G. did not come within the exception to the non-contact term.
[18] Justice Code addressed the issue of an “air of reality” to an “exception” or “exemption” as follows:
On the facts of this case, there was simply no “air of reality” to the suggestion that J.G. was within the counseling exception to the “no contact” term of his probation order. Whether he had been inside the Harm Reduction Centre at some earlier point in time and whether he and his co-accused had been jointly involved in a required counseling program, at that earlier time, was simply irrelevant. The Crown alleged a breach of the probation order at the time when the officers observed J.G. and Pickering seated outside the Centre, talking to each other with no one else present, and then walking down the street together and continuing their conversation. There could be no possible suggestion that this conduct came within the counseling exception and the issue should never have been raised. See: R. v. Kelsey (1953), 1953 5 (SCC), 105 C.C.C. 97 at 102 (S.C.C.); R. v. Squire (1976), 1976 26 (SCC), 29 C.C.C. (2d) 497 at 501-4 (S.C.C.); R. v. Laybourn et al (1987), 1987 56 (SCC), 33 C.C.C. (3d) 385 at 390-392 (S.C.C.); R. v. Osolin (1993), 1993 54 (SCC), 86 C.C.C. (3d) 481 at 510-511 and 526-531 (S.C.C.).
In other words, even if the burden was on the Crown to prove a negative, namely, that J.G. was not within the counseling exception, the evidence of the officers satisfied this burden. The trial judge accepted their evidence as credible and their evidence was to the effect that there was no counseling going on at the relevant time when J.G. and Pickering were observed, talking and walking together on the Queen Street East sidewalk.
I am tentatively of the view that the Crown bore the legal burden of negativing the counseling exception, had there been a proper factual basis for raising it as a defence. See J.G. at para 11
[19] The appeal by the Crown was allowed and a conviction was entered since there were no live issues in dispute on the facts of the case.
[20] In R. v. Blaker, [2012] O.J. No. 5370, 2012 ONSC 6397, the accused was subject to a “no contact” probation order. The exceptions related to the written revocable consent of the complainant or to a family court order. The probation officer testified. He said he was not aware of any written revocable consent and such consent would normally come to his attention. He also said he was not aware of any family court order. In cross-examination he agreed he could not exclude the possibility there was such a family court order. The defence applied for a directed verdict before declaring whether to call evidence.
[21] The trial judge found that the exception related to a possible family court order was an essential element to be proven by the Crown. He directed a verdict of acquittal since the Crown had failed to call some evidence to negative the possibility that there was a family court order permitting contact.
[22] On appeal, Justice Code found that the trial judge erred in treating the possible existence of a family court order as an “essential element” of the offence that the Crown must always negative as part of its case. It is simply a potential defence that may or may not arise on the particular facts of a particular case. Once it arises and reaches the “air of reality” threshold, then the Crown must negative it beyond a reasonable doubt by the end of the case. See R. v. Blaker, para. 6.
[23] The Crown appeal in Blaker was allowed on the basis that the evidence of the probation officer amount to a prima facie case that there was no permissive family court order. Rather than order a new trial, the acquittal was set aside and the case was remitted to continue before the trial judge at the point where it had been left off. The accused would then elect whether to call any defence evidence.
[24] On the facts in J.G. there was no air of reality to the exception. In Blaker the exception was specifically pleaded by the Crown and there was at least prima facie evidence that the exception did not apply on the particular facts. In my view, both of these cases are distinguishable from the current appeal.
[25] The Crown in this case specifically pleaded the exceptions to the house arrest term. Neither Officer Beatty nor Officer Oakes knew where the appellant worked or if he worked. There was no investigation, let alone evidence, indicating that the appellant was not at work or school on April 16, 2014. Officer Oakes had some information that the appellant had attended school at some stage but made no specific inquiries about April 16, 2014. Both officers were cross-examined about the exceptions for work and school.
[26] In Blaker the probation officer supervised the accused and had contact with the complainant. By virtue of his involvement in the case he would at least be in a position to know whether either exception to the non-contact term existed. He had no such knowledge and could only speculate that there was possibly a family court order in effect.
[27] Unlike the probation officer in Blaker, there was no evidence or basis to believe that Officers Beatty or Oakes would be informed by anyone that the appellant was or was not at work or school.
[28] The Crown in this case set out the specific exceptions for work or school in the Information. Evidence that Mr. Roberts was not at his residence did not prove that he was at neither work or school. Unlike Blaker, there was not even prima facie evidence that the exceptions did not apply. On the particular facts, these were essential elements that had to be proven beyond a reasonable doubt.
RESULT
[29] The appeal is allowed and a new trial ordered before a different judge.
Mr. Justice B. P. O’Marra
Released: May 21, 2015
CITATION: R. v. Roberts, 2015 ONSC 3031
COURT FILE NO.: CR-14-30000134-00AP
DATE: 20150521
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANDREW ROBERTS
Appellant
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: May 21, 2015