Court File and Parties
COURT FILE NO.: CR-20-0178 DATE: 2020 12 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Ali Amiri
BEFORE: D. E. Harris J.
COUNSEL: Ali Amiri, self-represented, Applicant Robin Prihar, for the Crown Respondent
HEARD: December 15, 2020 by Zoom video conference
ENDORSEMENT
[1] Mr. Amiri applied for certiorari to quash the information charging him with failing to comply with his bail order. The application was dismissed at the oral hearing for reasons which I will presently explain.
[2] Mr. Amiri was charged on February 28, 2020 with two counts of utter threats to harm his wife and was released on a surety bail with conditions the next day. One of the conditions was “do not contact or communicate, directly or indirectly, by any physical, electronic or other means, with Sana Nazer: EXCEPT in the presence of or through legal counsel.” The emphasis is mine. In April, 2020, a back and forth email exchange took place between the Applicant and his wife’s lawyer for the purposes of discussing settlement of the ongoing family matter. The Applicant was self-represented in the family dispute. After several exchanges, Mr. Amiri began cc’ing his wife in these messages to the lawyer. There were approximately five emails in which she was cc’ed over a period of a few weeks.
[3] Eventually, the wife’s lawyer advised Mr. Amiri by email that his wife considered the cc to her as a means of direct communication and a violation of his bail. Mr. Amiri ceased this mode of communication as a result. On May 15, 2020, the complainant wife attended the police station to report the breach. The next day the Applicant was charged with fail to comply with his bail release. He was released on an undertaking with a condition that he was not to communicate with his wife directly or indirectly “except through legal counsel.” The “presence” clause as it still stands on the previous bail was excised from the new release.
[4] Mr. Amiri now argues that the cc to his wife in emails written by him to her lawyer was not a violation of the bail as it was a communication “in the presence of legal counsel.” In other words, in his view, virtual presence of counsel in an email fulfilled the “in the presence” exception. While this may be arguable, the laying of an information alleging that his conduct contravened his bail condition does not constitute either legal error or, most certainly, jurisdictional error: R. v Awashish, 2018 SCC 45 at paras 11, 33; R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635. The Justice of the Peace who issued process cannot be said to have failed to obey a mandatory provision of the Code or to have done anything else in the pre-enquete process leading to a loss of jurisdiction. Nor is the Crown’s case on the fail to comply without a legal foundation.
[5] The Applicant has essentially taken a trial issue and dressed it up in the guise of jurisdictional error to undergird a certiorari application. That effort cannot succeed. In short, that is why the application was dismissed.
[6] A judicial pre-trial, I assume because of the pandemic, is still months away, in March 2021. Ms. Prihar, with commendable fairness, has agreed to evaluate the viability and reasonable prospect of conviction of this charge on behalf of the Crown’s office. It has recently been clarified by the Supreme Court that in order to find guilt on a fail to comply allegation, the Applicant must be proven to have subjectively intended or been reckless with respect to breach of his bail condition: R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1. In these circumstances, in other words, the Applicant must be shown to have been aware that cc’ing his wife was in violation of his bail.
[7] In addition, the Supreme Court of Canada in Zora at paragraph 27 was critical of what it called the “over criminalization” of fail to comply charges. The Court championed the new Section 523.1 “judicial referral hearing process” which may lead to a dismissal of these kinds of allegations. Justice Martin wrote for the Court:
70 This legislative framework indicates that Parliament intended for the Crown to primarily use bail review and revocation, rather than criminal charges, to manage accused persons who cannot or will not comply with their bail conditions, especially when those bail conditions address conduct that would not otherwise be criminal. … Parliament has now created a judicial referral hearing process under s. 523.1 to allow prosecutors to divert charges under s. 145(3) that involve no physical or emotional harm to a victim, property damage, or economic loss. This further emphasizes that prosecutions and conviction under s. 145(3) should be a last resort measure to primarily address harmful intentional breaches of bail conditions where the remedies available through bail review and revocation would not be sufficient.
71 Even with this new process, a bail variation or revocation application should be among the responses seriously considered by the Crown when faced with certain types of alleged breaches in an effort to reduce the number of criminal breach charges burdening the courts.
[8] This case may be appropriate for the new procedural tool mandated by Section 523.1. In our overtaxed jurisdiction, judicial referral hearings could well be important in reducing the backlog.
[9] Before leaving the matter, I would note that at the hearing, Mr. Amiri asked the Crown for a bail variation in order to allow him to communicate by text with his wife to arrange for pick-up and drop-off of their son. The Applicant’s wife does not feel comfortable with this variation and so Ms. Prihar was not in a position to agree to it.
[10] I would also observe that it was impressed on Mr. Amiri at the hearing that he must strictly comply with his bail and have no communication whatsoever with his wife. While the original bail may arguably have been ambiguous, there can be no doubt about the current intention and interpretation of the bail no-contact clause.