R. v. A.V.J., 2019 ONCJ 660

CITATION : R. v. A.V.J. , 2019 ONCJ 660 DATE : July 4, 2019 Court File Nos . 19-75003148, 19-15004263, 19-15004156, 19-15004559-02, 19-15060163 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. A.V.J. ********** P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE D.A. FAIRGRIEVE on July 4, 2019, in TORONTO, Ontario ********** INFORMATIO N CONTAINE D HEREI N CANNO T B E PUBLISHED, BROADCAS T O R TRANSMITTE D PURSUAN T TO

SECTION S 486. 4 AN D 51 7 O F TH E CRIMINA L COD E O F CANADA B Y ORDE R O F JUSTIC E D.A . FAIRGRIEV E O N JUL Y 3 , 2019 APPEARANCES: L. Kromm Counsel for the Crown M. Caterina Counsel for A.V.J. FAIRGRIEVE, J. (Orally): This is a bail hearing with respect to 13 recently laid charges against A.V.J. These charges are contained in two informations that were sworn on June 28 and June 29 of this year. The charges which are the subject of this bail hearing are counts 45 to 54 of the June 28 information.

They include four counts of assaulting her step-son, A., using or while carrying a weapon, specified in the separate counts as a broomstick, a knife, pliers and a hammer; specifically, they are counts 48, 49, 50 and 51.

The new charges also include two counts of assaulting the boy that caused him bodily harm, at counts 53 and count 54. There are two counts of criminal negligence causing bodily harm, alleging a failure to provide medical attention - this is according to the indication of the Crown - failure to provide medical attention after having inflicted burns or other injuries on the child, counts 46 and 45.

There is also one count of what is alleged to be a threat to cause bodily harm to A., which was stated by the Crown to be a reference to a threat allegedly made by the defendant when she held a knife, pointing it at the boy, that she could kill him, that she had killed someone else before in Mexico and that if he, a reference to A. .... Can I just ask defence counsel not to distract the Crown? We’re in the middle of something and it is quite... UNIDENTIFIED MALE: Of course.

THE COURT: ...distracting for me trying to speak to the accused behind you when you’re engaged in conversation with the Crown who’s participating in this case. UNIDENTIFIED MALE: Very sorry, Your Honour. THE COURT: Yes. So please have a seat somewhere. So, I was just referring to what the Crown stated was intended to be the transaction to which the threat of bodily harm was to refer. That is, a threat to kill him while pointing a knife at him and telling him that if he were to leave or escape or flee to his grandmother’s, she would find him and hurt him. This is count 47 in the information sworn June 28.

It was explained that most of the counts in this information duplicate the counts in earlier informations that have already been dealt with by way of a bail hearing, or they relate to a co-accused or something other than the new charges against A.V.J. that are the subject of this bail hearing. In addition to the June 28 information, there are three counts set out in the information sworn on June 29. Count one alleges an assault on the defendant’s husband, A.N., causing bodily harm.

The second count alleges an assault with a weapon, specified as a knife, at the same time, apparently, and possession of that knife for the purpose of committing those offences. So, three counts in that information. With respect to the history of this case, I think it is important and necessary to refer briefly to another bail hearing that proceeded a couple of weeks ago in relation to related charges.

That led, on June 25, 2019, to Justice Bovard ordering the defendant’s release upon her entering into her own recognizance in the amount of $500.00, without deposit, with reporting to the bail supervision program at College Park, and prohibiting contact or communication with her two step-sons, A. - who is stated to be 16 now - and B. - who is stated to be 13 - who are the alleged victims of the charges that were before Justice Bovard.

This non-communication condition also applied to her three biological children, all of which was subject to any order permitting contact between the defendant and the five children that might be made later, that is, after Justice Bovard made his release order, by the Family Court.

This $500.00 recognizance related to – and I am just reading the list of offences from the recognizance that was photocopied - but it relates to four counts of assault, five counts of assault with a weapon, three counts of aggravated assault, two counts of sexual assault, two counts of threatening death, four counts of forcible confinement, and four counts of failing to provide the necessaries of life, as well as two counts of assault causing bodily harm. That is, 26 counts in total.

It should be noted that all of these charges, both those before Justice Bovard and the new ones on which the defendant was arrested on June 29, are alleged to have been committed within the same time period, specified as between January 1, 2016, and June 12, 2019, the day before she was first arrested.

It is also important to point out this is not a review of Justice Bovard’s release order. I have no jurisdiction to interfere with my colleague’s decision concerning the bail hearing that was conducted by him. His oral reasons, which are said to have taken two hours to deliver, have not been transcribed as yet, and I do not know what reasons he gave for justifying the conclusion that he reached.

I assume that he made reference to Antic - that is, a reference to the Supreme Court of Canada case called Antic, A-N-T-I-C - for the principles stated there, and made his determination based on his application of those principles to the evidence and information and submissions that were presented to him. Although it has been indicated that the Crown intends to bring an application in the Superior Court to challenge Justice Bovard’s release order, that apparently has not yet been done.

I was informed that the bail review application has not yet been filed, and it was unclear whether the necessary transcripts required for a hearing of that kind have even been ordered at this point. There obviously was a concern about the timing of the new informations that were laid. They were laid three or four days after the defendant’s release on bail, and I think it fair to say that there was a concern that the Crown might be seeking to re-litigate the issues that had already been decided by Justice Bovard - issues and a decision that is reviewable only by a Superior Court judge. To use Ms.

Kromm’s phrase, she acknowledged that it might appear that this was an attempt by the Crown to get a, “second kick at the can.” An explanation was provided, which I accept, that there was new disclosure of further incidents by A., the 16-year-old stepson, in a statement that he gave to the police subsequent to the release of the defendant. I think reference was made to this subsequent statement having been made on June 27, and that the details included in that subsequent statement led to the laying of these new charges.

The Crown accepts that Justice Bovard’s decision stands, and that the release order in relation to the 26 counts that he dealt with remains in place. This is not a situation where

Section 524 of the Criminal Code has any application. It is not alleged that any offences have been committed by the defendant since she was released from custody. I am simply dealing with new charges relating to conduct involving offences allegedly committed within the same timeframe as the charges that were dealt with by Justice Bovard earlier. It was also conceded by the Crown that the reference to the evidence before Justice Bovard, as well as the photographs that were filed as Exhibits 1 and 2 at this hearing, were merely to provide context and background with respect to the 13 new charges. The

summary of the previous allegations appears in two separate parts of what was marked here as Exhibit 3, the “Toronto Police Service Narrative Text Hard Copy”, to use their title, and basically includes all of the contents of Exhibit 3 except for what appears under the heading “New Charges or Further Charges.” Similarly, the references in Exhibit 4 to the three counts involving alleged assaults or the weapon charge in relation to her husband, her co-accused in relation to the child abuse charges, appears merely by way of background in the exhibit marked as number four.

The allegations concerning the three new charges are set out at the bottom of the first page and continue on to the second page in just a few paragraphs. So, that is the explanation for why this court is conducting this hearing now. We had a full day of evidence yesterday. Submissions commenced yesterday afternoon and continued this morning. And, to repeat it, this hearing is only with respect to the new charges that have been laid since the defendant was released on June 25. It seems to me that the starting point for the analysis required at this stage is a reference to

Section 11(

e) of the Charter . A.V.J. has a right “not to be denied reasonable bail without just cause.” The Crown accepts that the Crown has the burden of establishing that the detention sought by the Crown must be justified under Section 515(10) of the Criminal Code .

Ms. Kromm’s position is that detention is required on either the secondary ground, that is paragraph (

b) of 515(10), or the tertiary groundunder paragraph (c), that is, to maintain confidence in the administration of justice and the proper functioning of the bail system. Ms. Caterina’s position is essentially that the additional charges do not really change the situation from the one that was presented toJustice Bovard and the decision that he made at the hearing that he conducted.

And again, without seeing his reasons, I am prepared to assume that he referred to the principles stated in Antic, that he considered theso-called ladder in Section 515(2), and determined - that is, Justice Bovard determined - that the defendant should be released on thecharges before him on her own recognizance with the involvement of the bail supervision program. Now I am referring to Ms.

Caterina’s position: she is taking the position that either her client should be released on the same conditionson her own recognizance that were ordered by Justice Bovard, or, if necessary, a recognizance with one surety - namely, Mr. R., whotestified yesterday - who was willing to sign as a surety. It seems to me that at this point explicit reference should be made to the cases that have been referred to. Because the principles are sofamiliar and not really the subject of any dispute here, I do not think it is necessary to quote them at length. Ms.

Caterina fairly produced the judgment of the Supreme Court of Canada in The Queen and St-Cloud, which is reported at 2015 SCC27 , [2015] 2 S.C.R. 328. I think it is sufficient just to quote from paragraph 87 of that judgment, where now Chief JusticeWagner - then not Chief Justice, but speaking on behalf of the Court - dealt with the proper

interpretation of Section 515(10) paragraph(c). And this is his

summary at paragraph 87 of his reasons. [87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) ... as follows: And then his bullet points: • Section 515(10)(c) ... does not create a residual ground for detention that applies only where the first two grounds for detention((

a) and (b)) are not satisfied.

It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. • Section 515(10)(c) ... must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases orexceptional circumstances or only to certain types of crimes. • The four circumstances listed in s. 515(10)(c) ... are not exhaustive. • A court must not order detention automatically even where the four listed circumstances support such a result. • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis. • No single circumstance is determinative.

The justice must consider the combined effect of all the circumstances of each case todetermine whether detention is justified. Next bullet point, and I did not indicate each one separately so far, but I can make it available to the reporter. • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked bythe court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s.515(10)(c).

• To answer this question, the court must adopt the perspective of the “public”, that is, 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.

Continuing the quote with the next bullet point: • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. And then paragraph 88. [88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. Ms.

Caterina also referred to a judgment of the Court of Appeal, R. v. A.A.C. , [2015] ONCA 483, a judgment provided by Justice Cronk. There are passages that I could read, but, in essence, from the defence perspective here, it was an example of a case where someone charged with murder, where issues had arisen as to his intent, was released on bail, the reviewing court having found that his detention was not required on the tertiary ground. So I think, rather than setting out new principles, this was simply an example provided by Ms.

Caterina of a judgment from the Court of Appeal applying the principles that the Supreme Court had stated in a case call Hall and then explained further in St-Cloud. In my view, the principles stated by Chief Justice Wagner dictate the balancing process that is required here. In my view, the Crown has discharged its burden of establishing why A.V.J.’s detention is required on the tertiary ground with respect, I hasten to add, to the 13 new charges only.

In my view, any release order in relation to these charges would adversely affect the public’s confidence in the administration of justice and the proper functioning of the bail system. I say this having regard to all of the circumstances of this case, including the specified factors enumerated in Section 515(10) paragraph (c). I am not overlooking the fact that my colleague, Justice Bovard, has made a different determination concerning related charges that were before him a couple of weeks ago. I do not think that this is the first time that judges have disagreed about certain issues.

Sometimes, they are members of the same court on a panel of judges hearing the same case; sometimes, they are different judges hearing different stages of proceedings in relation to similar or related matters. I am obliged to consider the specified factors in Section 515(10) paragraph (

c) as applied to the new charges that the Crown has filed with the court. I think it is fair to say that some aspects of the considerations that are referred to in the statutory provision are not the subject of particular dispute here. Ms. Caterina has conceded that the seriousness of the charges in the new information and counts 45 to 54 of the other new information are serious allegations. Ms. Caterina has conceded that the charges reflect further instances of criminal offences allegedly committed as part of a horrifying pattern of abuse perpetrated on the two step-sons by her client.

At this time, it is not necessary to refer to any of the allegations concerning the co-accused. There is no dispute that the charges here are of the most serious nature. No one has died, gratefully, but the information that has been brought to my attention as part of the context that led to the laying of the new charges certainly discloses unspeakable cruelty and abuse that is attributed to the defendant.

With respect to the apparent strength of the Crown’s case, another of the specific considerations in the statutory provision, it is apparent that the Crown’s case depends on the evidence of A., the 16-year-old complainant. I accept what Ms. Caterina says, that there are potential credibility issues concerning him. He, for example, apparently admitted having

misled the Children’s Aid Society on prior occasions because he had been threatened by his stepmother of the consequences of failing to do that. It is conceded that when he provided his first statement to the police, he minimized the role of his father and misled the police concerning that. It is also apparent that after the initial statement to the police, and following the earlier bail hearing, he provided further details concerning other specific examples of the abuse that he and his younger brother suffered.

So, I accept that there are potential triable issues in this case, and they are not going to be determined at this hearing. On the other hand, it seems to me that the court is obliged to take note of the fact that there is ample confirmation of the overall veracity of the narrative that A. provided to the police that led to the original charges and that have led to the new charges that are the subject of this hearing. The photographs that were filed graphically depict his injuries.

There are photographs from the house, including photographs of the ropes hanging from the pipe in the basement and the photograph of the kitchen cupboard with the lock, which seems supportive of his evidence as to how he and his stepbrother were deprived of food and not fed or cared for properly. It seems to me that in assessing the strength of the Crown’s case, with all of the - if not necessarily corroboration in the old technical legal sense - c ertainly confirmation, it seems very likely indeed that the defendant will be convicted of many of these offences.

It is also quite apparent that convictions for these offences involving what Ms. Caterina described, albeit in the context of summarizing the case that had been presented to Justice Bovard and arguing that there was really nothing new in the new charges, that the evidence establishes or at least supports the case advanced by the Crown that these boys have been subject to three years of torture and death threats and assaults and sexual assaults. It is clear that the photographs confirm A.’s statement concerning having been hung by their ankles for prolonged periods of time.

The photographs confirm his evidence concerning the serious injuries and lasting injuries - perhaps permanent injuries; that have been caused. In fairness, it should be said that Ms. Caterina did not dispute that the injuries had been caused to the boys. Her submission remained, as I indicated, essentially that the new charges are, basically, to use her phrase, “I think just more of the same.” I do not share that view. Looking only at the new charges, but putting them in the context of this pattern of protracted and very cruel abuse, it strikes me that the circumstances are different.

And just looking at these offences, they are likely to lead to convictions and they are likely to lead to a lengthy penitentiary sentence. With respect to the consideration of the surrounding circumstances - and it is clear that the provision requires consideration of all of the circumstances of the case - it is significant that the charges involve vulnerable victims who have been subject to extreme abuse and violence.

With respect to the so-called domestic assault charges, that is, with the husband and co-accused as the alleged victim, I would offer my opinion that, standing alone, they would probably not lead to the defendant’s detention. However, in the context of this case, they demonstrate, according to the statement obtained by the police from A., the victim of the abuse, the defendant’s capacity to use a knife to inflict injury on a person with whom she has an issue.

I am not in a position to specify exactly what the issue might have been at the time - the suggestion is that it was the husband, the father of these two stepsons, objecting to the degree of abuse that she was inflicting on them at the time. I have to say Ms. Caterina made very forceful, careful submissions with respect to her client’s circumstances that might have led to a more favourable outcome concerning these charges.

I am not overlooking the absence of a prior record, the role that the Family Court could presumably play in preventing harmful future contact between the defendant and her stepsons, as well as her biological children who, with the exception of a five-month-old baby, have presumably been exposed to this alarming environment for a considerable period of time. And I am not overlooking, obviously, the presumption of innocence that applies here. There may be challenges to the credibility of the primary complainant at this point.

And I am not overlooking the fact that she was at large for four days without apparently violating the conditions, minimal though they were, of the release order made by Justice Bovard.

In my view, however, the conclusion is inescapable that any reasonable dispassionate person, not reacting in an emotional way to the allegations, not being inflamed by the photographs, would still conclude that the reputation of the criminal justice system would be seriously affected in an adverse way by the release of the defendant on bail with respect to these charges. There will be a detention order, then, on the 13 new charges on the basis of the tertiary ground set out in Section 515(10) (c).

In these circumstances, I do not think it is necessary to consider the secondary ground which the Crown has also submitted would justify detention. The release order will, of course, stand concerning the 26 counts that were dealt with by Justice Bovard, and we will have the new informations endorsed accordingly. I think we need a return date. E N D O F R E A S O N S F O R D E C I S I O N