Her Majesty the Queen - v. -, 2012 SKPC 084

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 084 Date: May 15, 2012 Information: 39986126 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jessica Anne Chelynne Viczko Appearing: M. Miazga For the Crown R. Claxton For the Accused DECISION S. P. WHELAN, J , J Introduction [ 1 ] This decision concerns an application in Saskatoon’s Domestic Violence Court to alter the release conditions imposed pursuant to s. 493 of the Criminal Code by an officer in charge.

The accused person’s counsel argued that the conditions pertaining to “no contact” and abstention from alcohol should be removed and that there should be no conditions, beyond the obligation to report to Court. I have decided not to eliminate the “no contact” and abstention conditions but to amend them to reflect the individual circumstances of this case.

Background [2] Ms. Viczko, age 18, was charged with assault with a weapon, contrary to s. 267(

a) of the Criminal Code. The Crown elected toproceed summarily. It maintained that the conditions currently in place are reasonable in the circumstances and very typical of releaseconditions imposed in domestic violence situations. [3] Apparently the accused and the complainant, age 17, had been in a relationship, although at the time of the alleged incident itseems that they had “split up” because the complainant was seeing other women.

They have a nine month old son and while the accusedhas been the primary caregiver, the complainant has had substantial access including weekend visits. [4] On the occasion of the alleged assault, the complainant and accused were both drinking alcohol and in the company of others atwhat was described as a party. Witnesses heard them arguing; one witness heard Ms. Viczko yell something about his cheating on her.The complainant told an officer and provided a witness statement indicating that the accused threw a glass at him, injuring him.

Hereceived two cuts in the neck and collarbone area and a total of nine stitches. [5] Defence counsel filed a letter from the complainant in which he expressed the desire that the charges not proceed and doubtabout the accuracy of his statement because he was “extremely intoxicated”. He wrote that he did not remember many parts of the nightand questioned his ability to give accurate information. He asked that the no contact conditions be removed as they are “a hassle” whendealing with their son. He said he is not afraid of the accused and does not expect anything like this to happen again.

The complainantand his mother attended Court last day. [6] The application to remove the conditions imposed on Ms. Viczko began on the April 24th appearance in Domestic ViolenceCourt. At that time, the Crown maintained that the Court should not make a decision regarding release until a report was received fromthe support services attached to this treatment Court. A report was provided, directed to the Prosecutor, which states in full: This file is not applicable to the ODARA as it is a male victim. Mr. Chelak and Ms. Viczko share a 7 month old son. Theyhave third party exchange in place at present.

This is very early in the court process and the incident was quite serious. This workerdoes not recommend any changes to the contact conditions at this time. However, is willing to re- assess further down theroad. [7] Counsel for Ms. Viczko was critical of the report because there was no attempt to interview pertinent parties and because itappeared to be treating the matter as routine, without regard to the individual circumstances of the case. In this regard he referred to adecision of Judge Turpel-Lafond in R. v. S.K., (SKPC) and her remarks at paragraph 17: 17.

The exercise of arguing for conditions on release is not one which should be random or routine. In each instance, theCrown must demonstrate the conditions and show their connection to the alleged offences. . . I agree with counsel and the remarks of my colleague, Judge Turpel-Lafond; the report does not meet expectations in that it relies upon ageneral state of affairs without an assessment of the individual circumstances. In retrospect, this Court might have heard the applicationwithout adjournment for the report.

This will be discussed further below. [8] The complainant and accused live with their respective parents on farms located near Cudworth, Saskatchewan. Their parentshave been involved in childcare and since the imposition of the “no contact” conditions they have been engaged in the exchange of theirgrandson between their children. [9] The infant was not present at the time of the incident. The Crown has depicted what might be described as an impulsive act or anact done in the heat of the moment. The injury to the complainant was much less serious than was initially anticipated by medicalpersonnel.

Issues [10] These are the issues which have arisen in this hearing:

a) Cogency and its relevance to judicial interim release.

b) The appropriateness of no contact and abstention conditions in the circumstances.

i) The “no contact” conditions report ii) Potential for interference with the witnesses iii) Appropriate conditions Discussion [11] The Crown bears the burden of proof on a balance of probabilities in these proceedings. See: R. v. Julian (1972), (NS SC), 20 C.R.N.S. 227 (N.S.S.C). This accused person has no prior record. The Crown’s onus applies both to the question ofrelease as well as to the conditions to be imposed upon release. See R. v. Keenan, infra. [12] Until there has been a finding of guilt, either after plea or trial, an accused person is presumed to be innocent. See: R. v. N.L.T.,[2003] S.J.

No. 720 (Q.B.), Albright J. [13] I reviewed the provisions of the Criminal Code concerning judicial interim release, including the following, having underlined themost pertinent passages: Order of release -- s. 515(1) 515.

(1) Subject to this section, where an accused who is charged with an offence other than an offence listed in

section 469 istaken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that theaccused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonableopportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why anorder under any other provision of this

section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice. Release on undertaking with conditions, etc. -- s. 515(2)

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of theaccused is justified, order that the accused be released (

a) on his giving an undertaking with such conditions as the justice directs; (

b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justicedirects but without deposit of money or other valuable security; (

c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justicedirects but without deposit of money or other valuable security; (

d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and withsuch conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as thejustice directs; or (

e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within twohundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without suretiesin such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other

valuable security as the justice directs. . . . Idem -- s. 515(3)

(3) The justice shall not make an order under any of paragraphs (2)(

b) to (

e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made. Conditions authorized -- s. 515(4)

(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order: (

a) report at times to be stated in the order to a peace officer or other person designated in the order; (

b) remain within a territorial jurisdiction specified in the order; (

c) notify the peace officer or other person designated under paragraph (

a) of any change in his address or his employment or occupation; (

d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary; (

e) where the accused is the holder of a passport, deposit his passport as specified in the order; (e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence ; and (

f) comply with such other reasonable conditions specified in the order as the justice considers desirable. Condition prohibiting possession of firearms, etc. -- s. 515(4.1)

(4.1) When making an order under subsection (2), in the case of an accused who is charged with (

a) an offence in the commission of which violence against a person was used, threatened or attempted, (a.1) a terrorism offence, (

b) an offence under

section 264 (criminal harassment), (b.1) an offence under

section 423.1 (intimidation of a justice system participant), (

c) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, (

d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or (

e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or

section 23 of that Act that is committed in relation to on offence under subsection 20(1) of that Act, the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person . . . . Reasons -- s. 515(4.12)

(4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition. Additional conditions -- s. 515(4.2)

(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order (

a) that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or

refrain from going to any place specified in the order; or (

b) that the accused comply with any other condition specified in the order that the justice considers necessary to ensure the safety andsecurity of those persons. Offences -- s. 515(4.3)

(4.3) The offences for the purposes of subsection (4.2) are (

a) a terrorism offence; (

b) an offence described in

section 264 or 423.1; (

c) an offence in the commission of which violence against a person was used, threatened or attempted; and (

d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or

section 23 ofthat Act that is committed in relation to an offence under subsection 20(1) of that Act. . . . Justification for detention in custody -- s. 515(10)

(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 anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased 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 thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [14] There are two cases to which I have referred which discuss the imposition of conditions that are designed to prevent therepetition of similar offending while at large in the community pending trial.

When imposing conditions pursuant to s. 515(2) and inparticular pursuant to s. 515(4)(

f) when imposing “such other reasonable conditions . . . as the justice considers desirable”; the Courtshould only apply conditions which are related to a purpose which would otherwise justify detention pending trial. Those purposes areset out in s. 515(10), found above. For this discussion the focus is upon the secondary ground, restated below: (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to theoffence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that theaccused will, if released from custody, commit a criminal offence or interfere with the administration of justice; [15] In R. v. Keenan (1979), (QC CA), 57 C.C.C. (2d) 267, 12 C.R. (3d) 135 (Que.

C.A.), Lamer J. as he then was,discussed the role of the judge when setting bail conditions under a predecessor to s. 515(2) of the Criminal Code, at pages 276 to 278: . . .To this end let us further narrow the problem. At the outset it should be noted that the Judge who decides on bail is in a verydifferent situation from that in which he determines the conditions of a probation order.

Once the presumption of innocence has been setaside and the crime proved, the Judge is then authorized in the name of society to intervene in the privacy of the guilty party so as tomove, as necessary, towards the neutralization of the danger which, presumably the trial would have disclosed. He could not, in myview, even though his powers might be very great, impose upon the convicted individual terms which bore no relation to the events withwhich he was seized. . .

The Criminal Code, in setting out the criteria which apply to the incarceration of an accused, describes for us in s-s. (7) of s. 457 thenature of the role which the Judge fulfils in respect of undertakings. For those who might doubt the relevance of these criteria in

delineating the powers of the Judge to impose conditions, I must remind them that the accused who chooses not to enter into anundertaking which the Judge decides upon is incarcerated. The conditions included in this undertaking must, therefore, respect thecriteria of s-s. (7) of s. 457 since, if they do not, incarceration would no longer be "justified" for an accused who refused to enter into anundertaking, the conditions of which, as an assumption, might have been dictated by factors which would not have justified the Judge inordering purely and simply his detention.

In my opinion, therefore, in ss. (7) of s. 457, one finds a description of the purposes which the Act seeks to attain by its rules for "bail".One perceives that there are various purposes and they could be consolidated as follows: 1. To ensure the presence of the accused before the Court; 2. To protect the public interest and to do so, among other means, by ensuring that he will not interfere illegally inthe progress of the proceedings; 3. To protect the public by preventing him from taking advantage of his freedom to commit criminal acts.

It is obvious that the first two purposes sought by bail differ greatly from the third in that by the latter, society ventures to anticipate thecircumstances of the case and to evaluate the risks of repetition of the offence in that he may commit another crime in the context of thecircumstances of the offence with which he is charged and his personality. The power to incarcerate or to impose conditions upon therelease of the accused is justified and is limited by this concern to neutralize the time required for these factors which, by hypothesis, aredangerous for society.

In short, this relationship which must exist generally in sentencing matters and in matters of bail must, when theprotection of the public from the "apprehended" danger is involved be of a causal nature in that the danger which one takes it upononeself to control by imposing a condition must in some way be one of the causes of the crime with which he is charged or possibly ofanother. [16] R. v. Bielefeld, (BC SC), 64 C.C.C. (2d) 216, [1981] B.C.J.

No. 1261 (B.S.C.C.) at pages 217 and 218 alsodiscusses the imposition of conditions, pursuant to a predecessor to s. 515 of the Criminal Code, which are designed to prevent thecommission of offences: But I find that the policy disclosed in s. 457 does not reflect that view. It is plain that a person may be detained in custody unders. 457(7) for the purpose of preventing the further commission of offences.

It is, therefore, plain that it cannot be contrary to the policy of the bail provisions of the Criminal Code that restrictions be imposed on an accused person for the purpose ofpreventing the commission of offences. Turning to s. 457(4), which is the provision with which I am immediately concerned, I must decide whether, although notspecifically mentioned in that subsection, the prevention of the commission of offences or further offences is a consideration towhich a Justice may have regard in setting the terms of a recognizance. Subsection (4) lists six matters in respect of whichconditions may be imposed.

Of these, it is plain that the purpose of four, those dealt with in paras. (a), (b), (

c) and (e), areconcerned with assuring the appearance of the accused person at trial. But para. (

d) is concerned with other matters. It refersto conditions requiring that the accused person abstain from communicating with any witness or any other person. It is clear thatpara. (

d) contemplates the imposition of conditions calculated, not to ensure the appearance of the accused at trial, but to preventinterference in the course of justice, in the case of witnesses, and breaches of the peace in the case of other persons. I turn then topara. (

f) which authorizes the Justice to impose conditions requiring that the accused: (

f) comply with such other reasonable conditions specified in the order as the justice considers desirable. It is under this paragraph that the present order restrictive condition is sought to be justified. . . . I find that the policy of the

section as a whole contemplates that, in imposing restrictions on an accused person, the Courtis entitled to consider the need to prevent the commission of offences by the accused while awaiting trial. [17] It is important to consider the seriousness of the offence from the perspective of Parliament and the Crown. Ms. Viczko wascharged pursuant to s. 267(

a) of the Criminal Code, and the Crown elected to proceed summarily. That

section provides: 267. Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof,

. . . is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 18 ] Parliament has expressed its concern with respect to offences in which the victim is a spouse or common-law partner, by providing that it is an aggravating factor.

Section 781.2(a)(ii) of the Criminal Code provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, The complainant and accused person were not in a common-law relationship but they were in a relationship which may be defined as domestic in nature. Reasoning

a) Cogency and its relevance to judicial interim release. [ 19 ] The tertiary ground for detention after a bail hearing, at s. 515(10) of the Criminal Code specifically includes cogency as a relevant circumstance: (

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. [ 20 ] While cogency is not specifically listed as a factor when considering the secondary ground, it is nonetheless relevant to release and the terms of release.

Having regard to the presumption of innocence in bail proceedings, it is incumbent upon the Crown to establish a cogent case on a balance of probabilities. The secondary ground, which is in issue in this hearing provides: 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: . . . (

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 . . . [ 21 ] A Court cannot, particularly in a case where the alleged offender has no prior record, reach a conclusion about release or the appropriateness of conditions for release on the secondary ground unless there is a consideration of the cogency of the Crown’s case.

How, otherwise could the court conclude that detention or indeed a condition would be necessary for the protection or safety of the public? The Court is to consider all circumstances including “any substantial likelihood that the accused will, if released from custody, commit a criminal offence . . .”

[22] In the text, The Law of Bail in Canada, Third Edition, 2010 Thomson Reuters Canada Limited, Toronto, beginning at page 3-16, the author, Justice Gary T. Trotter, discusses under heading: 3.3 Section 515(10)(b) – The Secondary Ground (

b) The Protection ofSafety of the Public, some of the factors relevant to the apprehension of further offences. The factors enumerated are: (

i) CriminalRecord of the Accused, (ii) The Accused is Already on Bail or on Probation, (iii) The Nature of the Offence and Strength of the Evidence,and (iv) The Stability of the Accused Person. At paragraph 3-19, with respect to (iii) the text highlights the concern that some cases of spousal violence raise with respect to thepotential for repetition: Another type of conduct which causes an apprehension of repetition is violence between spouses, particularly if there has been ahistory of this type of behavior. . . .

The text continues by referencing the “cycle of violence” and failures of the criminal justice system which have created concern aboutoffending while on bail for spousal assault. The author remarked that other offence features can be probative of the secondary groundincluding the manner in which an offence is committed, particularly cases involving extreme violence. There is no history of violencealleged in this case and it does not come within the author’s apparent definition for extreme violence. [23] At page 3-22 the text turns to a discussion of R. v. Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474 (Que.

C.A.),which links the nature of the offence and the strength of the prosecution’s case to the secondary ground: Rondeau is instructive because it links the nature of the offence and the strength of the prosecution’s case to the secondaryground. The allegations respecting the index offence(

s) are relevant to assessing the accused person’s future dangerousness. Thestrength of the Crown’s case determines the weight that may be attributed to the index offence in this assessment. Althoughthe accused person must be presumed innocent of the index offence, it cannot prevent a court from considering the nature of theoffence and the degree to which the evidence foreshadows the future determination of culpability. [24] With respect to the secondary ground the cogency of the Crown’s case is relevant. The Crown’s onus in this regard is on a balanceof probabilities. Having regard to the submissions, I find that the Crown has met that onus. I noted:

i) The complainant gave a written statement which implicates the accused. I considered the letter authored by the complainant inwhich he questions the reliability of his statement and agree that this presents as an evidentiary challenge for the Crown. ii) The Crown alleges a verbal admission by the accused and while admissibility may be in doubt, it may nonetheless be of assistance tothe Crown. iii) The Crown may seek to establish its case having regard to the circumstantial evidence available, including: indirect evidence of thedispute from bystanders and observations of the complainant before and after the dispute.

b) The appropriateness of no contact and abstention conditions in the circumstances.

i) The “no contact” conditions report [25] It is not unusual for this Court to invoke “no contact” provisions at the earliest stage of proceedings that allege assaultive behaviourtoward a spouse or partner.

Often in Domestic Violence Court in Saskatoon, once a guilty plea has been recorded, the offender has beenaccepted into the treatment program, a working relationship has been established with the offender, and he / she is seen to progressthrough the program; positive recommendations are made to the Court to relax and sometimes eliminate the “no contact” conditions.Many such reports are prepared in this Court. [26] It is important to make the distinction that the report process associated with the Domestic Violence Court is done in the context ofthe accused having entered a guilty plea and agreeing to embark upon the treatment program offered.

In that scenario and stage, noting s.523(2) of the Criminal Code, the Court may not effect changes to the “no contact” conditions, without agreement from the Crown andthe accused. The situation being considered now is very different as the Court is not being asked to amend the order of another justice orjudge of this Court, but to alter the release conditions imposed by an officer in charge at a stage when the accused has yet to make adecision about plea or treatment.

[ 27 ] Prior to the establishment of Domestic Violence Court in this Judicial Centre, the Court often received applications to amend the “no contact” conditions in an undertaking or recognizance, based only upon the information provided by the Crown and the accused person, sometimes through his or her counsel. This often did not permit verification of the information received.

One of the benefits to receiving a report from a qualified and independent third party, assuming that there is an attempt to interview the important contacts and provide an assessment, is that it can provide verification or at least the informed insights of a specialist who is familiar with the circumstances. The Court did not receive such an assessment in this case. [ 28 ] It would seem that as the accused person had not entered into the Domestic Violence Treatment Program, such a report was inappropriate to the current context.

The Crown’s consent to changes to the release conditions is not required in this instance. The report provided last day was addressed not to the Court but to the Crown prosecutor and the parameters of the report, it seemed, were influenced by the program. ii) Potential for interference with the witnesses [ 29 ] The Crown asked that the complainant be excluded from the room while the application was argued, expressing concern for the integrity of the witnesses. The concern was directed, not at the accused person but rather at the Crown’s witness, the complainant.

This is not the type of circumstance envisaged by Parliament under s. 515(10) (

b) of the Criminal Code ; a Court has no control over the actions of the complainant in this regard. There is no suggestion that conditions need be imposed upon the accused so as to protect the integrity of a witness to the offence. iii) Appropriate conditions [30] I will address the appropriateness of conditions, having regard to the factors enumerated above by Justice Gary Trotter in The Law of Bail in Canada, supra. 1) Criminal Record of the Accused [31] Ms. Viczko does not have a criminal record. 2) The Accused is Already on Bail or on Probation [32] This has no application to Ms.

Viczko. 3) The Nature of the Offence and Strength of the Evidence [33] As indicated in the discussion regarding cogency, I have found the case to be cogent for the purpose of a bail hearing, having regard to the burden of proof on the Crown, which is on a balance of probabilities. That is all that is required in my view at this stage.

It is not sufficient for conviction, nor is the Court being asked to address cogency with respect to the prospect of conviction. [34] The Crown has established on a balance of probabilities, for the purpose of the bail hearing, that there are very real concerns with the following circumstances: - the violence alleged, presented the potential for serious injury given the cuts to the neck area, and - the setting, which included contact in a social or party setting where alcohol was available and consumed, presented circumstances conducive to jealousy or anger on the part of the accused. [35] In this regard, I have considered pertinent provisions of the Criminal Code which call for consideration of a firearms prohibition and a no contact clause, where there is an allegation of violence in the commission of the offence.

I did not find it necessary to impose a

weapons prohibition and noted that the Crown did not request same. I noted s. 515(4.2), which requires consideration of a condition requiring that the accused abstain from communicating with a victim. 4) The Stability of the Accused Person [36] Ms. Viczko is described as being very stable. She has achieved grade 12 and was reportedly an excellent student. She is employed at two jobs in her community and cares for her baby the majority of the time. She lives in her parents’ home.

She and the complainant and their respective parents have apparently worked out amicable and reasonable arrangements for the child’s care. The community in which she lives is a relatively small farming community of about 800 people and there are many opportunities for incidental contact between the complainant and the accused and with their respective family members; which with appropriate assurances in place is seen to be both responsible and desirable. There is likely little that does not take place involving Ms.

Viczko that is not supported or observed by the two families; she works in a business which is managed locally by the complainant’s father. Conclusion [37] In all of the circumstances, I am satisfied that the accused may have brief direct contact with the complainant, provided it relates to the care and exchange of their child. I am not concerned with nonphysical contact, such as by phone, text or email, which may be unrestricted. However contact related to their child, which involves being in each other’s physical presence should be for a few minutes only, on any given occasion.

She must not have any contact with the complainant in a private social setting, such as a party or gathering in a home, unless one of her parents or a parent of the complainant is present. She must abstain from the consumption of alcohol. I am prepared to discuss the practical implications and wording with counsel before cancelling the current release conditions and directing release on an undertaking issued by this Court. ____________________________________ S. P. Whelan, J