ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-BR-10000106
DATE: 20150814
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HAOWEI CHEN
Paul Zambonini, for the Crown
Adam Weisberg, for Mr. Chen
HEARD: May 14, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT ON BAIL REVIEW APPLICATION
BACKGROUND
[1] What should a court do when spouses want to reconcile but allegations of domestic abuse keep them apart? Mr. Chen, the accused, is married to Joanne Wei, the complainant. Ms. Wei called 911 on February 26, 2015. She said that her husband had assaulted her the night before. She said that he had a history of violence with her. The couple, she said, had an 18-month old child. Fortunately the child was unharmed. They shared a condo with her parents. At the time of the assault her parents were in China. The police came. Ms. Wei told them that Mr. Chen had been violent towards her. On the night of February 25, 2015 they had an argument. Ms. Wei said that Mr. Chen punched her repeatedly. She ran into her parent’s bedroom. She tried to call them on her cell phone but they were in China. She told the police that Mr. Chen followed her into the bedroom and then into the adjoining bathroom. He had to force his way in and damaged the door. Mr. Chen demanded the phone. When she refused to give it to him he knocked her down and started choking her. Eventually he stopped. They went to bed. The next day, Ms. Wei called 911. A summary of the 911 call shows that Ms. Wei was clearly upset and felt in danger. Photographs of Ms. Wei show her injuries. Although Ms. Wei did talk to the police, she refused to give a video-taped statement. She said it would just make things worse.
[2] Predictably, Mr. Chen was arrested. He was released on bail. One of the terms is that he is to have no contact with Ms. Wei. This is his first brush with the criminal justice system. He has no record. These are the only charges he faces.
[3] Mr. Chen now wants the condition lifted. His counsel, Mr. Weisberg, says that Ms. Wei now wants to live with Mr. Chen again. She wants to reconcile. She wants to have a normal family life with her husband and their child. Mr. Weisberg argues that she should be allowed to do so.
[4] Indeed, Ms. Wei has retained her own counsel, Ms. Newton-Smith, to advise her on how to proceed. Ms. Newton-Smith has written to Crown counsel indicating that her client wishes to have the no-contact clause removed so that she and Mr. Chen can resume their life together.
[5] Mr. Zambonini, for the Crown, argues that there is a public interest in proceeding with domestic assault prosecutions. There is a danger that Mr. Chen could manipulate the process. He also says that there remains a danger to Ms. Wei.
[6] The couple have separately seen a family counsellor, Joanne A. Smith. She reports that the couple wish to reunite and are willing to participate in individual and joint counselling sessions. Mr. Chen has participated in an anger management program, she says. She does not currently anticipate safety issues.
ANALYSIS:
[7] In my view, the manipulation issue should be given little weight. I have more concerns, however, about the potential for harm coming to Ms. Wei. I will deal with those concerns by removing the non-contact order in part, as I will explain below. I characterize the issues this way:
(1) Is there a substantial likelihood that Mr. Chen will interfere with the administration of justice?
(2) Can the potential risk to Ms. Wei be managed, and if so, how?
[8] I will deal with each of these issues in turn.
1. Is there a substantial likelihood that the accused will interfere with the administration of justice?
[9] I have framed the question this way because that is how it is framed in s. 515(10) of the Criminal Code. Preventing interference with the administration of justice also includes protecting victims and witnesses: R. v. Babalkher, [2011] O.J. No. 4609 (Sup. Ct.).
[10] Although I appreciate the Crown’s legitimate concern that there is a risk that Mr. Chen could manipulate Ms. Wei, there is simply no evidence to suggest that he would. Indeed, Mr. Zambonini does not suggest that Ms. Wei has been manipulated into coming forward, or that there has been pressure or undue influence. The Criminal Code requires that there be a “substantial likelihood”, not a mere possibility. In the absence of any evidence, I give this concern little weight.
[11] I would also point out that the fact that the Crown may have difficulty prosecuting Mr. Chen because he and Ms. Wei want to reconcile does not constitute interference with the administration of justice. I appreciate that Ms. Wei has never recanted her allegations, but recanting – or recalcitrant – complainants in domestic abuse cases are common. Complainants recant for a variety of reasons: it could be out of fear, it could be out of manipulation, or it could be out of a genuine desire to reconcile. Where the evidence suggests a genuine desire to reconcile, as it does here, then I do not think that the mere fact of re-cohabiting must inevitably lead to manipulation.
2. Can the potential risk to Ms. Wei be managed, and if so, how?
[12] The fact that a complainant wishes to have a non-contact order removed is not determinative: R. v. Zaman, 2011 ABQB 679, [2011] ABQB 679, 528 A.R. 93. What governs is s. 515 of the Criminal Code. Obviously the complainant’s wishes play some role. There must be a balance struck between respecting the wishes of adult spouses and the Court’s responsibility to protect victims and the wider public. As Lee J. said in R. v. R.F.N., 2007 ABQB 570, [2007] A.J. No. 1061:
While I appreciate the position of the Crown in this matter, it is not the role of the Court to try to protect mature parties from themselves, especially when they do not want or appear to need the Court's protection.
[13] Mr. Chen and Ms. Wei are mature and educated individuals. They both have master’s degrees. I completely agree with the sentiment that the Court should not be part of the nanny-state when autonomous citizens are capable of looking after themselves. The problem, however, is that the Court has wider responsibilities than just the individuals involved. There is a public interest in ensuring that individual complainants are protected. Furthermore, while Ms. Wei does not want the Court’s protection, the evidence does not satisfy me yet that the danger posed by Mr. Chen can be managed enough to completely remove the no-contact clause.
[14] In R. v. C.K., 2006 ABQB 449, [2006] A.J. No. 752 the accused allegedly assaulted his spouse. There was a non-contact clause. The accused brought a bail review to remove the non-contact clause. The complainant testified that she wanted the non-contact clause removed as she needed the accused’s support in dealing with her alcohol problem. She recanted the allegations. She said she fell down the stairs. Justice Lee of the Alberta Court of Queen’s Bench removed the non-contact clause. Although the Court obviously found the story of falling down the stairs was not credible, the fact that the complainant was no longer cooperating rendered a prosecution very difficult. As a result, the strength of the Crown’s case shrank considerably.
[15] A major difference in this case, obviously, is that Ms. Wei has not recanted the allegations. The Crown’s case remains viable, even if Ms. Wei does not cooperate, given the photographs, the damaged door, and the 911 call.
[16] My colleague Thorburn J. reached a different conclusion from Justice Lee in R. v. J.N., [2008] O.J. No. 3638 (Sup.Ct.). The accused was charged with assaulting his spouse. His bail required him to live with his surety. There was a no-contact clause. He moved back in with his spouse, in violation of his bail conditions. He then brought an application to remove the no-contact clause in order to regularize what he was doing anyway. His spouse also wanted the clause removed. She wanted him back in the matrimonial home. There was evidence that the accused had a serious drinking problem and was a potential danger to the couple’s three small children. Thorburn J. dismissed the application on the grounds that the danger to the children had not been mitigated, without prejudice to his right to bring another application. Her view was that the condition could be removed if the Court was satisfied that the accused had been dealing seriously with his alcohol problem.
[17] Obviously an important difference in this case is that there is no evidence that Mr. Chen presents a danger to his child.
[18] Given the nature of the alleged assaults, including the damage to the door, as well as the complainant’s initial statement about the abuse, I find that there is still a risk posed by Mr. Chen. I cannot fully remove the non-contact clause, at least not at this time.
[19] In balancing the wishes of Ms. Wei and the family generally with the Court’s duty to protect the complainant and the wider public, I believe that there should be a temporary middle ground in order to mitigate the risk. I mentioned this yesterday. Accordingly, the non-contact clause will remain in place for the moment with one exception. Ms. Wei and Mr. Chen are permitted to have contact during joint counselling sessions. The parties will prepare the appropriate bail variation. Conditions relating to Mr. Chen’s access to his child will be remain. In other words, he will continue to be allowed to see his child.
[20] There is a risk, of course, that Mr. Chen will not be able to control his anger. This bail variation is, therefore, a form of risk management. I appreciate that Mr. Chen has completed an anger management course, which gives me some hope that the spouses can be reconciled soon. If, after a period of time in joint counselling, Mr. Chen wishes to bring another application to remove the no-contact clause a favourable report from the counsellor would clearly go a long way to meeting the Court’s concerns. A fresh application can obviously be brought before any judge of this Court but I will certainly make myself available if the parties wish me to hear it.
R.F. Goldstein J.
Released: August 14, 2015
COURT FILE NO.: 15-BR-10000106
DATE: 20150814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HAOWEI CHEN
REASONS FOR JUDGMENT ON BAIL REVIEW APPLICATION
R.F. Goldstein J.