R. v. Zaitzeff, 2017 ONSC 999
COURT FILE NO.: CR-17-0006-BR
DATE: 2017-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Sandy Alexander Zaitzeff
Applicant
C. Tomusiak, for the Crown
S. Hutchison, for the Applicant
HEARD at Thunder Bay by video link to Sudbury: February 1, 2017
CORRECTED DECISION ON BAIL REVIEW
Corrected decision: Court File No. is amended to CR-17-0006-BR on first page and back page.
KURKE, J.
[1] The applicant seeks review pursuant to s. 520 of the Criminal Code of the December 7, 2016 detention order of J. Guthrie, J.P. (the “JP”). After a bail hearing at which the facts relating to numerous allegations of assault in a domestic context, sexual assault, sexual interference, invitation to sexual touching, mischief, and an allegation of breach of recognizance were put before the court by the Crown, the JP ordered the applicant detained on the secondary and tertiary grounds (s. 515(10)(b) and (c)). Only the breach of recognizance charge engaged the reverse onus provision in s. 515(6)(c).
[2] On the review, on the agreement of counsel for Crown and applicant, the Crown put before the court facts relating to additional charges alleged against the applicant. These charges were laid subsequent to the bail hearing, but the facts are either historical, or purportedly arise around the same time as the allegations that were the subject of the bail hearing, that is, October and November 2016. Counsel are agreed that if I order release of the applicant, it will be with respect to all charges, and the Crown will be bound by my decision at bail hearings in relation to the charges laid subsequent to the original bail hearing.
[3] At the review hearing, I invited counsel to provide me with proposals concerning suggested release conditions, should I order release. It was agreed by counsel that such proposals would be submitted to me for consideration after the conclusion of the hearing, and they have been. As this matter is a “conflict” case, and the hearing was conducted by video link between Thunder Bay and Sudbury, this seemed the best way of ensuring that a release could be accommodated without the delay of re-assembling counsel, accused, and court by video link, if that was the decision.
[4] Counsel provided a joint list of proposed conditions that included: attendance at a substance abuse treatment facility, residence with a surety at all times, being amenable to the rules and discipline of the sureties, house arrest with exceptions all requiring presence of a surety, police notification of residence and surety rotation, no contact or communication with complainants or witnesses, no alcohol or drugs, police ability to attend applicant’s residence to check for alcohol or sobriety, and no firearms.
Overview of applicant’s background and facts of the offences at bail hearing and on review
[5] The applicant was a lawyer, a civil litigator, practicing in Thunder Bay for decades, when he was first arrested in November 2016. He is currently 67 years old and owns residences on Skyline Avenue and Farrand Street in Thunder Bay, as well as a camp in Shuniah, Ontario. He appears to be a lifelong resident of Thunder Bay, and has no criminal record.
[6] On June 2, 2014, the applicant’s adult son died suddenly. The applicant did not testify on the bail hearing but indicates in an affidavit on the review that since the death of his son he has struggled with an alcohol addiction that worsened from 2015 onwards, after the anniversary of his son’s death. The applicant has been diagnosed with traumatic grief, which he relates to his abuse of alcohol.
[7] On October 16, 2016, MV, a common-law spouse of the accused attended the applicant’s camp. The applicant was intoxicated. He slapped MV in the face, pinned her against a wall, and pulled her hair. A girlfriend of the applicant, one Heli Kijanen, was present for the incident, and provided an electronic acknowledgement to MV that she had witnessed the applicant’s conduct.
[8] On October 19, 2016, MV and the applicant had guests at the Skyline house. The applicant was under the influence of alcohol. He insulted MV with a crass racist and sexist epithet, slapped her in the face, and punched her in the throat, causing MV to have difficulty breathing. MV hid in a closet, and heard the applicant call for MV’s 15-year-old daughter GV. GV awoke in her bed in her basement room, to find the applicant standing over her, wanting to talk. GV asked the applicant to leave, as she had school the next day, and wanted to sleep. The applicant pulled off GV’s covers, and GV told him to leave. The applicant curtly told her with an expletive to shut up, and slapped her in the face, causing GV to scream. MV came down, saw what was going on, and pulled the applicant off of GV. The applicant went upstairs.
[9] That same night, the applicant again went to GV’s bedroom, yelling and trying to get in. GV and MV blocked the door with their persons and furniture. The applicant broke the door hinges, but could not get in. For four hours the applicant, from outside the room, made lewd sexual propositions and demands addressed at GV and her genitalia. He was drunk.
[10] In the Crown’s possession are recordings made by GV on a computer in her room, of the assault, the attempts at entry by the applicant, and his shouting from outside the room. They were played at the bail hearing. After some brief descriptions of the contents of the recordings, the JP summarized, “All references are in the language of one who is very drunk and who is fixated on his own penis.”
[11] Later in the morning following the events that have just been described, on October 20, 2016, when GV attempted to leave for school, she met the applicant, who told her to spread her legs. He then forced her to do so, complimented her on her genitalia, and said that he wanted it.
[12] On October 24, 2016, LM, a client of the applicant’s in a civil proceeding, went to Skyline Drive with a friend, TT. Although LM’s allegations were before the court on the bail hearing, TT’s were only added on the review. LM alleged an arrangement with the applicant, by which he had bought her a house, for which LM would repay him from the anticipated proceeds of her ongoing litigation. She shared the house with her five children.
[13] LM, TT, and the applicant went to a restaurant, where TT sat at table between the applicant and LM. When TT indicated a desire to leave, the applicant grabbed her by the crotch, and stated that he would decide when she could leave. TT climbed over the bench seat to get away, and told the applicant not to touch her or talk to her that way. She got a ride home, while LM remained at the restaurant with the applicant.
[14] The applicant, who was drunk, was ejected from the restaurant because of his misbehaviour. LM had to return to the Skyline house to retrieve her cellphone. In the house, the applicant started trying to kiss LM, exposed and grabbed one of her nipples, and made clear that he wanted her sexually. He demanded that LM service him sexually if she wanted to keep her house. At this point, LM’s ringing cellphone provided a distraction, and she was able to escape the house. However, she delayed reporting the incident to police out of her continuing fear of losing her home.
[15] TT described a sequel to the October 24 incident. According to TT, in November 2016 she and LM were at the applicant’s home. TT signed an affidavit at the insistence of LM and the applicant, apparently denying what had gone on October 24. LM signed such an affidavit also. For this, TT was paid $1000.
[16] Again only from the bail review are the facts concerning complainant MH. On October 25, 2016, at about 1:00 p.m., MH and her husband attended the Skyline house for a business meeting. The applicant called MH to his second floor office. The applicant met MH at the top of the stairs in a robe, which he opened to expose himself. MH told the applicant that he was disgusting. At some point, when MH went to sit down, the applicant grabbed her buttocks. MH threatened to text her husband, and the applicant put his head in her lap, attempting to spread her legs. The arrival upstairs of MH’s husband put an end to this, although when the husband returned downstairs, the applicant again exposed himself to MH. Alcohol played a role in that offence as well.
[17] MV also alleges that on November 15, 2016, while he was drunk, the applicant again addressed her with crude sexist and racist epithets, and threw water on her. He was upset by MV’s initial refusal to allow partial nude photos of her to be taken to send to the applicant’s other girlfriends. Worried that the assault would go further, MV agreed to the photos.
[18] On November 19, 2016, because MV would not perform oral sex on him, the applicant punched MV in the face hard enough to cause her to fall to the ground. When she got up and tried to run, the applicant grabbed her by the hair, and threw her back to the ground. The applicant used sufficient force to pull some braids out of MV’s head, which MV provided to police.
[19] The facts concerning JW, which were offered at the bail review, cover the broadest period of time. It appears that JW’s husband had a business relationship with the applicant. Counsel to the applicant indicated that the facts concerning JW were vehemently denied.
a. In 2012, the applicant approached JW in her husband’s office, and grabbed her buttocks. He rubbed himself against her, and rubbed her breasts under her top.
b. In the first half of 2013, JW and her husband attended at the Skyline house for dinner. When her husband went to the store, the applicant confronted JW, pushed her legs apart, put his hand on her vagina, and told her that he was going to have intercourse with her. JW pushed him away. Later in the evening, the applicant accosted JW, grabbed her by the throat, pushed her onto a bed, felt her breast and vagina, and forcefully inserted his penis into her vagina, and had intercourse with her. She does not know whether he ejaculated. JW hit him in the jaw, ran downstairs, and left. JW did not tell her husband. Although she was bleeding vaginally from the force of the assault, she did not seek medical attention.
c. In the summer of 2013, the applicant pushed JW into a stall in the ladies’ washroom in the basement of her husband’s office, and put his hands up her shirt and fondled her breasts. He stopped when someone could be heard coming down the hall.
d. In the early afternoon of April 25, 2015, the applicant confronted JW at her husband’s office. He made a crude sexual remark to her, and fondled her breasts under her top. He inserted his finger into her vagina and then licked the finger. He pushed her to her knees, took out his penis and tried to force it into her mouth telling her that she was going to perform oral sex on him and that she would “pay” if she did not. JW pulled away and stood up. The applicant threatened to ruin her husband’s law practice, or to have her disabled son taken away from her, if she told anyone.
[20] Concerning the breach of recognizance, the bail court was given the following facts. On November 21, 2016, following his initial arrest, the applicant was released from custody on a recognizance with a surety on the charges relating to MV and GV. Conditions of that order included that he not communicate with MV, among other people, and that he not attend the Skyline house except on two occasions to retrieve personal belongings in the presence of a uniformed police officer.
[21] A scant five days later, on November 26, 2016, MV received a call from an employee of the applicant, who told her that the applicant wanted to show the Skyline house in order to sell it. A friend of MV got on the phone and reminded this person of the “no contact” condition. The same date Thunder Bay police attended Skyline at the request of the applicant, as he wanted to retrieve personal belongings. Police who attended found the applicant there with two people to whom he had intended to show the house for a potential sale. Police did not permit these potential purchasers to enter. When the applicant did go in to collect personal belongings, he thanked MV, asked her to open the garage door, and spoke to her about a pressure washer.
Other evidence at bail
[22] On the bail hearing, the applicant filed an acceptance letter from “Seaside Palm Beach”, an accredited substance abuse facility in Florida. The letter was dated November 28, 2016. However, conditions of the applicant’s initial bail order: that he remain in the District of Thunder Bay and deposit his passport with authorities, limited his opportunity to attend this program.
[23] Accordingly, the applicant also filed an acceptance letter from the “Greenestone Clinic Muskoka Inc.” facility (“Greenestone”) in Bala, Ontario. The letter described the program offered at the facility and indicated that the applicant had been accepted into the program. No start date or end date was indicated, although the letter advised that treatment typically lasts about 45 days.
The proposed plan and further evidence on the bail review
[24] The plan advanced at the bail hearing by the applicant involved three new sureties instead of the one on the initial release and alcohol abuse treatment at Greenestone as core aspects. Indeed, proposed surety Alisa Makela testified that she would feel a little bit frightened of the applicant unless he completed such a treatment program. All three proposed sureties testified that the applicant’s conduct had changed since the death of his son and his descent into alcoholism, such that his conduct on GV’s recording bore little resemblance to the man they knew and befriended.
[25] After the applicant’s detention in December 2016, Greenestone withdrew its acceptance of the applicant into the program.
[26] On the bail review, the applicant filed an acceptance letter from “Bellwood Health Services” (“Bellwood”) which corrected the vagueness of the Greenestone letter by indicating a start date of February 1, 2017, and a treatment length of six to nine weeks for substance use disorder treatment. This was supplemented on consent at the hearing by counsel’s indication that Bellwood was an accredited facility with much experience serving persons such as the applicant, who were charged with offences and seeking treatment as a condition of bail.
[27] Also on the bail review, the same three proposed sureties filed a joint affidavit, setting out in some detail how they would interact with each other and the applicant to ensure adequate supervision before, during and after the applicant’s stay at Bellwood, and that one of them would be residing with the applicant at one of his homes at all times. While the proposal indicates their willingness to reside with the applicant, it does not require them to remain at the residence with the applicant at all times. Indeed, Ms. Makela has a heavy work schedule as a nurse. Counsel for the applicant suggested that to assist with enforceability by police, the applicant would have a duty to reside with one of the three sureties at all times, and to provide to police in advance a schedule of which residence he would be in, and which surety would be residing with him. This proposal is reflected in the proposed conditions of bail.
The JP’s ruling and review under s. 520
[28] The learned JP detained the applicant on the secondary and tertiary grounds.
[29] The applicant alleges jurisdictional error with respect to the JP’s dismissive attitude towards the bail plan that had been put forward. As I read the JP’s reasons, he was dissatisfied about aspects of the plan that had not been offered or had yet to be worked out: more exact admission and attendance data from Greenestone, the interaction among the three sureties, and between the sureties and the Greenestone treatment facility, in order to ensure seamless transitions, and uninterrupted coverage. The JP indicated that if the plan had been “tighter” he “might have been persuaded.” The Crown agrees that the information about Bellwood and the details offered by the proposed sureties in their joint affidavit on the review were sufficient to represent a material and relevant change in the circumstances of the case.
[30] The applicant also alleges that, although the learned JP set out in his ruling some paragraphs from the decision of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27, he did not actually conduct any particular analysis of the facts and circumstances of this case in the manner set out by the Supreme Court in the St-Cloud decision. The Crown concedes this point and agrees that it represents legal error.
[31] Together, the error with respect to the tertiary ground and the new information from the review suffice to permit me the power to review the decision of the JP: R. v. St-Cloud, at paras. 120-121, 139; R. v. Wong, [2008] O.J. No. 5189 (Sup. Ct.), at para. 12.
Law respecting the secondary and tertiary grounds of bail
[32] The provisions for the grounds justifying detention come from s. 515(10) of the Criminal Code:
515 (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[33] As the original detention order was made only on the secondary and tertiary grounds (s. 515(10)(b) and (c)), and no submissions were made on the primary ground on the bail review, I will not consider the primary ground here.
[34] Concerning the secondary ground, its use for detention is constitutionally circumscribed: the requirement of a “substantial likelihood” of interfering with the administration of justice or committing further criminal offences has been established as the threshold, though exactitude in such calculations is not expected or required: R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.J. No. 98, at paras. 39-46. A “substantial likelihood” must be read as a different standard from a mere risk of reoffending, and may perhaps express “a slightly enhanced balance of probabilities standard”: Wong, at para. 15.
[35] The tertiary ground remains a self-standing ground for denying bail and is not limited in its focus to a certain class of crimes or exceptional circumstances. The ultimate question to be answered is whether detention is necessary to maintain confidence in the administration of justice. That question is to be answered by resort to a consideration of the combined effect of the four listed factors, and all other relevant circumstances in the case, including the personal circumstances of the accused, the status of the victim and the impact on society of a crime committed against that person, and the facts that a trial may be significantly delayed: R. v. St-Cloud, 2015 SCC 27, at paras. 50, 53-71, 87; R. v. A.A.C., 2015 ONCA 3450, at paras. 45-50.
Analysis
The secondary ground
[36] There are significant concerns on the secondary ground.
[37] The facts before the court must cause concern about the safety of any female with whom the applicant comes into contact. The variety of his alleged victims is noteworthy. His common-law spouse, her 15-year-old daughter, the wives of those conducting business dealings with the applicant, a client, and the client’s female friend have all made complaints about the applicant’s conduct. All of those complaints are either sexual in nature, or have significant sexual undertones.
[38] The facts describe five sexual assault complainants and two assault complainants. GV, the 15-year old-daughter of the applicant’s common-law spouse, is a complainant in both assault and sexual assault allegations. Incidents are grouped most densely in October and November 2016: offences are claimed for October 16, 19, 20, 24, and 25, and November 15 and 19, 2016. The allegation of breach of recognizance is placed on November 26, 2016, within five days of the applicant’s initial release on bail with a surety. A mischief charge, in a minor way captures the applicant’s very disturbing October 19, 2016, conduct towards GV at her bedroom door.
[39] It has been submitted that abuse of alcohol lies behind the charges. And indeed, the facts of offences alleged from October and November 2016 all seem to indicate that the applicant was intoxicated at the time, except for the allegation of breach of recognizance. On the other hand, the allegations involving JW begin in 2012. Three of the incidents claimed by that complainant pre-date the death of the applicant’s son, and all of them precede the time period advanced for the applicant’s most precipitous slide into alcoholism.
[40] MV describes domestic assaults on October 16 and 19, and November 15 and 19, 2016. The incidents in November, at least, appear motivated by sexual demands made by the applicant on MV. Her refusal or reluctance to comply allegedly resulted in physical violence to her person. These assaults are characterized by gratuitous violence and racial insults.
[41] Many of the offences demonstrate the exploitation of victim vulnerabilities. MV is a domestic partner of the applicant. GV is MV’s daughter, and only 15 years old. LM is the applicant’s debtor, and depends for her housing on the applicant’s goodwill. JW is a wife concerned about her husband and a mother concerned about her disabled child. She alleges that the applicant threatened her with respect to both husband and child.
[42] The allegations indicate that the presence of other persons on the premises did not significantly deter the applicant’s misconduct:
a. The applicant tried to force entry into GV’s room to accomplish his lewd purpose when both GV and MV were blocking the door.
b. On one occasion, the applicant assaulted MV while another of his girlfriends, Heli Kijanen, was present.
c. LM sat at table with the applicant and TT when the applicant grabbed TT by her crotch. Indeed, it appears that the applicant used LM’s assistance to get TT to produce evidence to minimize or obscure the applicant’s conduct on October 24, 2016.
d. With respect to MH, her husband was in the applicant’s home when the applicant is alleged to have mistreated MH therein; it was only the husband’s attendance on the second floor that slowed the applicant’s conduct.
e. In JW’s account, some of the assaults happened in her husband’s workplace, where other persons would be expected to be, and where the applicant discontinued an assault when another person approached.
[43] Given the seriousness of these allegations, I have grave concerns about the proposed plan of bail.
[44] To begin, the enforceability of the plan is an issue. While there is a condition that the applicant is to reside with his sureties, the wording of that condition obscures the weakness of the plan that has been presented. The applicant is not to reside at the homes of the sureties, which is a common arrangement of bail, and which is easily enough monitored by authorities. Rather, the sureties are to reside under one of the applicant’s several roofs.
[45] How can authorities monitor this arrangement with any sense of certainty? While the court relies on sureties to assist in ensuring an accused’s compliance with conditions, it nevertheless looks to the authorities to enforce that compliance. The arrangement proposed here is overly reliant on the good faith of sureties, all friends of the applicant. How can it be proven if a surety is genuinely residing with the applicant or simply stopping in to watch a game, or not residing there at all? Given the number of risk factors inherent in this case, this must be considered a real concern.
[46] What has been suggested are conditions requiring the applicant to alert the police as to which home he will be residing in, and which surety will be residing with him. There is also a condition for house arrest, and a condition requiring the applicant to present himself at the door of the residence when police attend. But there can be no condition requiring that the sureties do anything themselves. Residence and house arrest conditions certainly do not require that the sureties be in attendance in the applicant’s home at any particular point of the day or night. How can police know or prove that a surety who is supposed to “reside” there during a given period is or is not actually residing there?
[47] And unless the sureties are generally present, I am not satisfied that the applicant will abstain from substance abuse or sexual misconduct. A treatment program of some weeks in length may begin to address a bad alcohol dependency, but cannot overcome it. The chronic effects of the applicant’s grief over the death of his son may never wane, and the applicant’s decision to self-medicate by substance use remains a substantial concern. If the will is there, alcohol and drugs are easily obtained through sources about which the court knows nothing. Women and girls who are not aware of their risk may attend at the applicant’s home even when a surety is “residing” with the applicant, but away from the premises.
[48] Most disconcerting is the situation of proposed surety Alisa Makela, who is female. Her willingness to be part of the plan hinges on the applicant’s successful completion of a treatment program, as though that would somehow end the threat posed by the applicant’s alcohol addiction. Her proposed amount of bail is a mere $1000, as she can ill afford to lose the money she scrapes together for her child’s education. How can Ms. Makela’s safety be protected when her gender renders her a potential victim, and her straitened finances make her vulnerable?
[49] This leads me to my additional concerns about interference with the administration of justice. Under this heading, I consider the affidavit evidence allegedly bought by the applicant from at least TT. I next consider the applicant’s alleged breach of recognizance, committed within a week of his release. His bail order permitted him the limited opportunity of attending at the Skyline house for the restricted purpose of collecting personal belongings. Part of the facts of the breach include the applicant’s attempt to use that opportunity as a means of showing the house for sale. Other facts have him making small talk with MV, contrary to a non-communication condition. In the context of allegations of domestic violence, even small talk cannot be considered benign.
[50] Based on this constellation of evidence from the bail hearing, I conclude that there is a substantial likelihood that the applicant will continually look for ways to sidestep the wording or intent of the conditions of his bail plan to suit his own ends. Such conduct subverts the purpose of bail; an accused’s duty is be guided by his conditions of bail to refrain from even the possibility of criminal conduct. Here we have an accused person who seeks to permit himself an opportunity for attendance where he is not supposed to be, for an impermissible purpose, by complying with the letter, but not the spirit of his order.
[51] By such conduct as the applicant exhibits, he will more often breach his conditions of bail than he will be caught and charged. While violation of the spirit but not the letter of the recognizance may not lead to criminal conviction, at the front end it requires me to be skeptical about the viability of any plan of bail: R. v. Gibbons, 2014 ONSC 4269, [2014] O.J. No. 3508 (Sup. Ct.), at para. 19; R. v. Ali, [1996] O.J. No. 4855 (C.A.), at para. 3. I have little confidence that the applicant’s sureties will be properly positioned as they go about their own lives or happen to be present in the applicant’s home to discourage or catch out such conduct. Police will generally only be permitted passing interaction with the applicant. What is required here, where the risks are so great, is constant vigilance.
[52] I conclude that the applicant must be detained on the secondary ground of bail. There is a substantial likelihood that he will commit further crimes or interfere with the administration of justice if he is released.
The tertiary ground
[53] In assessing the tertiary ground, I begin with a consideration of the four factors set out in s. 515(10)(c).
(a) Apparent Strength of the Prosecution’s case
[54] Any analysis at the bail stage must acknowledge how difficult it is to assess the strength of the Crown’s case. Some account must be taken of the nature and quality of the Crown’s evidence and of any defences raised by the defence at this stage: St-Cloud, at paras. 58-59. I have generally not been told what evidence exists to corroborate the accounts of the various complainants. I have been told, however, that the applicant will vigorously defend against the claims made by JW and the other complainants.
[55] The applicant urges the court to release him on the grounds that he was drinking heavily and intoxicated during the vast bulk of the offences in October and November 2016. Such a claim, though it may assist in fashioning a release, leads me to conclude that the applicant’s evidence about events during that period, should he testify, will likely be rendered less reliable because of the effects of his consumption of alcohol.
[56] I have spoken above about how the presence of other persons on the premises during many of the incidents seems not to have deterred the applicant from the conduct alleged. Accordingly:
a. There may be cross-corroborative aspects in the evidence of TT and LM, whose claims to police appear to have been developed independently of each other.
b. Heli Kijanen, who is said to have confirmed the applicant’s domestic misconduct in an electronic confirmation to MV, is able to corroborate at least one domestic assault. The braided hair detached by the applicant from MV’s head can corroborate another.
c. MV can corroborate aspects of GV’s account.
d. The computer in GV’s room recorded significant aspects of the applicant’s conduct towards GV the evening of October 19-20, 2016, including apparently the assault committed on her, the cause of damage to the door, and the lewd suggestions of the applicant about what he wanted to do sexually with GV. Even though police have only charged mischief to the door hinge to describe the serious misconduct of the applicant outside GV’s bedroom door, that conduct will assist in substantiating GV’s claims about the applicant’s treatment of her later that morning, for which the applicant is charged with sexual assault, among other things.
(b) Gravity of the offences
[57] This factor is to be assessed by resort to maximum and minimum penalties provided by the Criminal Code for the various offences: St-Cloud, at para. 60. If the Crown proceeds by indictment on the charges involving GV, the charges under ss. 151, 152, and 271 offer a maximum penalty of 14 years jail, and minimum sentences of 1 year. With respect to adult complainants, the sexual assault charges involve potential penalties of 10 years’ incarceration. These are not minor offences that are alleged.
(c) Circumstances surrounding the commission of the offences
[58] In examining this factor, a court may consider such things as whether the offence was violent, heinous, or hateful; involved domestic violence; was perpetrated against vulnerable victims; and factors that would aggravate or mitigate in the sentencing context: St-Cloud, at para. 61.
[59] The circumstances surrounding the commission of the offence will include the applicant’s apparent scorn for and demeaning treatment of his victims, his willingness to exploit their weaknesses, the frequency of the allegations, the repeated victimization of at least two complainants: MV and JW, and the lengthy siege of GV in her bedroom after the applicant’s alleged assault upon her.
[60] With respect to GV and MV alone, should the applicant be found guilty, a sentencing court could well take into account statutory aggravating factors found in s. 718.2(a)(i)(ii)(ii.1), and (iii) of the Criminal Code. To show that these statutory factors are engaged, I need rehearse here simply the allegations that the applicant spoke to MV in hateful sexist and racist language during two of the incidents, that the applicant was in a domestic relationship with MV, that GV was a child of 15, and that the applicant was apparently in a position of trust or authority with respect to GV, as he was her mother’s common-law partner.
[61] With respect to JW, the allegations include, among other things, repeated molestations, and an instance of non-consensual penetrative vaginal intercourse.
[62] With respect to LM, there is an overtone of extortion to the applicant’s demands of sex in exchange for her continued use of a house for herself and her children.
[63] In my view, the circumstances surrounding the commission of the offences are very serious.
(d) Liability for a potentially lengthy term of imprisonment
[64] This factor requires a subjective assessment. My duty is not to usurp the role of a trial or sentencing judge. Rather, I am to assess the general weight to be attributed to apparent aggravating or mitigating factors in the context of the offences charged, in order to determine whether the potential exists for a lengthy term of imprisonment: St-Cloud, at paras. 62-65.
[65] With respect to this factor, I can conclude that if the applicant is convicted of multiple instances of domestic violence and multiple sex offences, including those involving GV which attract minimum penalties, he will likely be sentenced to a lengthy term of imprisonment.
(e) Other relevant circumstances
[66] With respect to other circumstances of the case, I must take into account that the applicant is 67 years old, a lawyer for many years, with no criminal record, who recently experienced the death of his son, and apparently turned to alcohol as a means of assuaging his grief. He is established in the Thunder Bay community, and has several friends who have come forward to assist him. As his counsel points out, the trials of these various charges may take some time to complete; if the applicant is detained, he may be detained for a lengthy pre-trial period.
[67] In considering all of the circumstances of the case I conclude that the applicant’s detention is required on the tertiary ground of bail. Undeniably, the applicant’s personal factors offer an image of a person otherwise deserving understanding and respect. And without doubt, these charges may take some time to completion.
[68] However, I am instructed to assess the tertiary ground from the perspective of “a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused”: St-Cloud, at para. 87. I have determined that such a person’s confidence in the administration of justice would be undermined by the applicant’s release, given the force of the four factors that I have considered above, in the context of the other relevant circumstances of the case.
Conclusion
[69] The application is dismissed.
The Honourable Mr. Justice A.D. Kurke
Released: February 10, 2017
CITATION: R. v. Zaitzeff, 2017 ONSC 999
COURT FILE NO.: CR-17-0006-BR
DATE: 2017-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Sandy Alexander Zaitzeff
Corrected decision ON BAIL REVIEW
Corrected decision: Court File No. is amended to
CR-17-0006-BR on first page and back page
A.D. Kurke, J.
Released: February 10, 2017