Court File and Parties
COURT FILE NO.: CR-16-4000599-0000
DATE: 20180412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JORGE ARTURO TORRES
COUNSEL:
Geleta McLoughlin for the Crown
Renee E.M. Gregor for the Accused
HEARD: April 4, 2018
REASONS FOR DECISION
DIAMOND J.:
[1] Jorge Arturo Torres is charged that on or about October 10, 2013 in the city of Toronto, he failed to attend the Ontario Superior Court of Justice as required by his recognizance contrary to section 145(2)(b) of the Criminal Code.
[2] The trial evidence before me consisted of (a) viva voce testimony from Detective Constable Laura McFatridge (Badge #8952), (b) the filing of an Agreed Statement of Facts, and (c) the tendering of three additional exhibits.
[3] The three filed exhibits were certified copies of:
(a) an Indictment originally dated March 14, 2005 with respect to unrelated criminal charges that led to the accused being committed to trial on those charges;
(b) a Recognizance of Bail dated May 30, 2003, and
(c) a Recognizance of Bail dated May 7, 2012
[4] I permitted those three exhibits to be filed on the basis that the Crown had complied with section 23 of the Canada Evidence Act, R.S.C. 1985 c. C5. In addition, at common law, the Court has the ability to review its own records and take judicial notice of their contents. To the extent that those exhibits contained information that was not relevant to the guilt or innocence of the accused at the trial before me, I either did not review that irrelevant information or disabused it from my mind.
[5] Based on my review of the relevant excerpts from the three exhibits, the following is a summary of the facts in 2012-2013 as I have found them:
● Pursuant to the May 7, 2012 Recognizance of Bail, the accused undertook to attend court on May 28, 2012 at 9:30 am, and further attend thereafter as required by the court in order to be dealt with according to law.
● During an August 21, 2013 Practice Court attendance, the trial of the unrelated criminal charges (previously estimated to last approximately five weeks) was set to commence on September 10, 2013.
● The accused was arraigned before Justice Dambrot on September 10, 2013, and a plea of not guilty was entered. Pre-trial motions proceeded on September 10, 11 and 17, 2013.
● The jury was empanelled on September 19, 2013.
● Trial evidence began on September 20, 2013. It continued on September 23, 24, 25, 26, 27, 30, October 1, 2, 3, 4, 7, 10, 11, 15, 17, 18, 19 and 20, 2013.
● The accused was present at trial on September 20, 23, 24, 25, 26, 27, 30, October 1, 2, 3, 4, and 7, 2013.
● On Thursday, October 10, 2013, the accused did not attend trial and a warrant was issued by Justice Dambrot for his arrest.
● On October 15, 2013, Justice Dambrot issued an order pursuant to section 475(1) of the Criminal Code continuing the trial and proceeding to a verdict in the absence of the accused.
● On that same date (October 15, 2013), the accused’s counsel withdrew as the accused’s lawyer of record.
● Justice Dambrot ultimately declared a hung jury.
[6] Officer McFatridge gave evidence that she was assigned to the case against the accused when the trial of the unrelated criminal charges proceeded before Justice Dambrot in the fall of 2013. She attended the trial every day, and the accused was also present every day until Thursday, October 10, 2013. To her surprise, the accused never showed up that day.
[7] According to Officer McFatridge, the Crown was scheduled to close its case on October 10, 2013. She recalled the accused being present at trial on Monday, October 7, 2013 (the last day before the day he failed to attend),
[8] Officer McFatridge further testified that Crown counsel and defence counsel were also present at trial on October 10, 2013, and that Justice Dambrot waited several hours for the accused to appear. During that time, Officer McFatridge took numerous steps to try and locate the accused including calling local hospitals, Immigration Canada, the Canadian and US Customs Border Services. She also visited the accused’s residence, but to no avail. I admitted this evidence for the purpose of investigative narrative, but I did not consider it for the truth of its contents. Justice Dambrot ultimately issued a warrant for the accused’s arrest.
[9] Officer McFatrdidge recalled that on October 15, 2013, counsel for the accused removed himself from the record. Justice Dambrot declared the accused to have absconded and issued his section 475 Order. The accused never returned to court during the balance of the trial of the unrelated criminal charges.
[10] I find Officer McFatridge to be a credible and trustworthy witness and accept her evidence in its entirety.
[11] Pursuant to the Agreed Statement of Facts filed as Exhibit One, in or around August 2015 Vancouver Police executed a Canada-wide arrest warrant for the accused. On August 24, 2015, Detective Constable Wong took custody of the accused in Toronto and processed the charges in relation to one count of failing to attend court contrary to section 145(2)(b) of the Criminal Code. None of these facts are in dispute.
[12] In R. v. Legere 1995 1551 (ONCA), the Court of Appeal for Ontario reviewed the mens rea element of the offence. The Crown must prove that the accused subjectively intended not to appear. While recklessness or willful blindness is sufficient, mere negligence is not.
[13] On the record before me, it is uncontroverted that the actus reus of the offence has been proven beyond a reasonable doubt. Indeed, defence counsel’s submissions were focused upon the Crown not having proven the mens rea element of the offence. Defence counsel specifically argued that the Crown did not prove beyond a reasonable doubt that the accused knew that he had to attend in court on October 10, 2013.
[14] As the Crown’s case is based upon circumstantial evidence, defence counsel argued that since there are other reasonable inferences to be drawn from the evidence other than the accused not intending to attend court on October 10, 2013, an acquittal is the proper result. Defence counsel relies upon the decision of Justice Baig in R. v. Fang 2007 ONCJ 97, and in particular the finding therein that there was no evidence before the court that the accused was aware of the trial date.
[15] In my view, and on the record before me, there is no other reasonable inference to be drawn from the evidence other than a finding that the accused subjectively did not intend to appear on October 10, 2013. Defence counsel argued that there was no transcript of the October 7, 2013 proceedings filed before me which could have confirmed that the accused was remanded over to October 10, 2013. While the filing of a transcript would have been beneficial, the fact is that the accused was present on October 7, 2013, and court resumed on October 10, 2013 in the presence of Justice Dambrot with Crown counsel, Officer McFatridge and the accused’s defence counsel all present. There is no other reasonable inference available other than a finding that the trial, and the accused, were properly remanded to October 10, 2013.
[16] On October 10, 2013, the trial before Justice Dambrot was on its thirteenth day, and the trial was scheduled to last up to five weeks. There is evidence before me that the Crown was about to close its case when the accused failed to attend. Under his Recognizance of Bail, the accused was to attend in court until the trial completed. Not only did he fail to attend on October 10, 2013, but he never returned to court and the trial proceeded in his absence.
[17] I do not find there to be any other reasonable inference to be drawn from the evidence before me other than a finding that the defendant intended not to appear on October 10, 2013. As such, the elements of the offence haven been proven beyond a reasonable doubt and I find the accused guilty of failing to attend court on October 10, 2013 contrary to section 145(2)(b) of the Criminal Code.
Diamond J.
Released: April 12, 2018
COURT FILE NO.: CR-16-4000599-0000
DATE: 20180412
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JORGE ARTURO TORRES
REASONS FOR DECISION
Diamond J.
Released: April 12, 2018