R v Duivenvoorde, 2023 ABCJ 132

In the Alberta Court of Justice Citation: R v Duivenvoorde, 2023 ABCJ 132 Date: 20230613 Docket: 230167439P1 Registry: Grande Prairie Between: His Majesty the King Crown - and - Ronald J. Duivenvoorde Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify a child referenced by this decision must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Assistant Chief Ju stice D.R. Shynkar Introduction [ 1 ] Ronald Duivenvoorde is charged with two counts of breaching an Order under

section 161 of the Criminal Code by attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present. [ 2 ] The Crown’s case was led as an Agreed Statement of Facts, which was made an exhibit. I briefly summarize that statement as follows:

a) Mr. Duivenvoorde was sentenced to 28 months gaol for sexual interference in October of 2017 in Ontario, at which time a two year

Probation Order and a lifetime

section 161 Order were imposed;

b) The

section 161 Order prohibits him from attending at public parks or swimming areas where persons under 16 could reasonably be expected to be present, or having contact or communications with anyone under 16 unsupervised, among other, similar, restrictions;

c) Since the issuance of the Orders, Mr. Duivenvoorde has had multiple and extensive contacts with children under the age of 16, unsupervised, at his home and elsewhere, including the Eastlink Centre (“Eastlink”); these were children in his neighborhood, and the friends of those children;

d) Eastlink is a swimming pool and community recreation centre in Grande Prairie, where children under 16 can reasonably be expected to be present;

e) Mr. Duivenvoorde attended Eastlink 575 times between January of 2019 and January of 2023; on multiple occasions, he was accompanied by children and he was the supervising adult;

f) There is no evidence that any offences have been committed in relation to any of the children, other than breaches of the

section 161 Order. Evidence of the Accused and Credibility Assessment [ 3 ] Mr. Duivenvoorde’s evidence is essentially that he did not know or did not remember that the

section 161 Order carried the restrictions it did, or perhaps know or recall that it was in force and understood that once the Probation Order had run its course there were no remaining conditions. [ 4 ] I do not accept that Mr. Duivenvoorde was unaware that the

section 161 Order was in force when he attended multiple times at Eastlink, whether accompanied by the children referenced by the Agreed Statement of Facts or alone. On all of the evidence, it defies belief that he could be unaware that he continued to be subject to the Order in question, mistakenly believing the restrictions on his attendance at public parks or swimming areas appeared only in the Probation Order to which he was subject. Or that he forgot about those restrictions. [ 5 ] Mr. Duivenvoorde had been placed on probation in 2006 for a related conviction, and at that time was also subject to an Order under

section 161. I am satisfied on the evidence that at that time, the nature of that

section 161 Order was made clear to him in open Court. [ 6 ] I am also satisfied on the evidence that at the time of his sentencing for the offence in October of 2017, he was similarly made aware of the nature of the

section 161 Order, including its restrictions on his attendance at “a public swimming area,” and that he expressed his understanding in open court. I find that he signed the Order and was aware of it. A copy of the Order was found in a search of his residence on March 13 th , 2023. The Order specifies clearly that it applies for the rest of Mr. Duivenvoorde’s life, and its terms are those that had had been explained to him in open Court in 2017. [ 7 ] As Mr. Duivenvoorde acknowledged, such convictions, and the associated restrictions on his movements, were of enormous consequence to him.

They resulted in his serving a custodial sentence, most or all of it apparently in remand, which he described as “very unpleasant,” and during which time he lost about 25 pounds. He described being released with nothing but the clothes on his back, taking a bus to Toronto, and staying in a homeless shelter. He described an intention to appeal, and ordering copies of all of his “paperwork,” including a copy of the

section 161 Order, which had gone missing at the shelter. He spent 4 months in a homeless shelter after his release. [ 8 ] Similarly, the

section 161 Order imposed lifetime prohibitions of considerable significance to him. Those included not being able to attend at public parks or swimming areas where children under 16 could reasonably be expected to be present (in other words, very likely all public parks and swimming areas), nor at daycare centres, school grounds, playgrounds or community centres; nor could he be employed or act as a volunteer in any capacity in relation to persons under 16; nor could he even communicate or have contact with persons under 16 without supervision approved by the Court.

He testified that swimming has been a very important activity for him, and he has swum on a regular basis, off and on, all of his life. A lifetime prohibition on going to swimming pools is neither something he would fail to notice nor something he would forget about. [ 9 ] In that context, it is not believable that he would simply forget how the

section 161 Order operated, or what exactly it contained, or conflate it with the Probation Order to which he was also subject. In fairness, in his evidence, he was not inclined to say he had conflated the two Orders, insisting instead that he was simply “unaware” of the

section 161 Order, or perhaps its terms or duration, until he was reminded of it, or alerted to it, by being arrested on these charges. It is telling that he acknowledged attending Eastlink during a time when he knew the Probation Order was in force and that he “tried to rationalize it” because he was attending the adult workout area. It is telling also that he made no mention to his probation officer of attending at Eastlink. I find that he knew full well he could not be there. [ 10 ] As defence counsel ably argued, one

interpretation of Mr. Duivenvoorde’s multiple attendances at Eastlink over the last 4 years or so, and of his sending photos of the children accompanying him to their mother, and generally taking no steps to hide his activities (including many associations with those children and others which would clearly be breaches of the

section 161 Order), is that he honestly was not aware of the existence of the Order or perhaps its provisions or duration. The

interpretation I find applicable is that he felt he was somehow “under the radar” and not subject to ongoing scrutiny from any quarter once his period of probation ended. His assertion that he was unaware of the Order or had forgotten about it or forgotten about its terms, is simply not believable. [ 11 ] There is nothing in the evidence to suggest Mr. Duivenvoorde is in any way cognitively challenged, other than his professed lack of memory of the

section 161 Order. In examination, he was well-spoken and entirely coherent. This is not a situation in which one

might suspect the potential for him not understanding the

section 161 Order. And absent evidence of any reason for deficits of memory, not a situation in which he might conceivably have forgotten about it. [ 12 ] Even if I were to take at face value Mr. Duivenvoorde’s evidence that he was genuinely unaware of the effect or existence of the

section 161 Order, I find that in all of the circumstances the only way he could possibly have been unaware of the restrictions imposed on him by that Order would be if he were wilfully blind or reckless as to the existence and effect of it. Counsel referenced R v Zora 2020 SCC 14 , and agreed in argument that this offence is properly considered one for which mens rea is assessed on the basis of an accused’s subjective belief; such an assessment will nevertheless still result in conviction if an accused’s subjective belief arises from wilful blindness as to the conditions imposed on him.

Given the outcome of my credibility assessment, I need not address this area further, nor comment on the mistake of fact versus mistake of law issue adeptly referenced by the crown. Result [ 13 ] I find that Mr. Duivenvoorde knew full well he was prohibited by Order from attending at Eastlink, and that he nevertheless did so on multiple occasions between the dates specified in the Information; the allegations in counts 1 and 2 have been proven beyond a reasonable doubt, and convictions follow on both counts. Heard on the 7 th day of June, 2023.

Dated at the City of Grande Prairie, Alberta this 13 th day of June, 2023 D.R. Shynkar A Justice of the Alberta Court of Justice Appearances: M. McClelland for the Crown B. Hurley for the Accused