Case Name:

R. v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED] [REDACTED]

[REDACTED]

Ontario Court of Justice

Toronto, Ontario

Judge: [REDACTED]

Oral judgment: [REDACTED].

(65 paras.)

Counsel:

[REDACTED], [REDACTED]: Counsel for the Crown.

[REDACTED], Esq.: Counsel for the Accused.

REASONS FOR JUDGMENT

1 Judge: [REDACTED] (orally):-- Mr. [REDACTED] is charged with Failure to Comply with his Recognizance by failing to be in his residence after 9:00 p.m. or if he was outside of his residence, by failing to be in the company of his surety. There is no material issue about the underlying circumstances of the offence; namely, the fact that he was bound by a recognizance or the fact that he was in factual violation of its terms. He was found by the police, asleep, at the Eglinton West subway station, shortly before 2:00 a.m., just before the subway station itself closed.

2 He was slumped over in a chair in the bus waiting area. A TTC employee's efforts to arouse him had been unsuccessful, and he was eventually awakened by the two police officers who came in, having seen the TTC employee's interaction with him.

3 Mr. [REDACTED] has testified that he had gone downtown for a 7:00 p.m. party for one of his friends, had planned to return home starting at 8:30, it taking half an hour to get home, but that, by virtue of the amount that he had had to drink, he lost track of the time, and that when he realized that he was out beyond his curfew; namely, at 9:45, he headed straight home, but did not get there directly because of various miscues on the subway, including going too far on the line, and falling asleep at various points in the journey.

4 He says that he arrived at the Eglinton West Station around 11:00 p.m., went upstairs to the bus waiting area and then fell asleep, from then until the time that he was awaken by the TTC employee and the police officers. In terms of the evidence, I should state that t do accept Mr. [REDACTED]'s testimony about what happened that evening. He testified in a very straightforward way; he was very fair in his responses under cross-examination. I did not detect any element of guile or deception in the way he testified, and I am left with no reason on which to reject his evidence.

5 I conclude therefore that he did not know at the time of this offence of the extent or effects of his alcohol dependence, which, I gather, became known to him around New Year's of this year, as compared with the 12 October, 2011 offence date in this case. The issue in this case is the meaning of the word recklessness. It seems to be clearly established in the case law that either recklessness or intention will make out the offence. That is not something unique to this particular offence; intention is an element of almost every Canadian criminal offence, and recklessness, alternatively called wilful blindness, is its functional equivalent, as defined by the Supreme Court of Canada in the R. v. Sansregret.

6 Wilful blindness is a very high level of mental state, approaching, if not touching upon, actual intention, and some distance removed from carelessness or negligence. Wilful blindness or recklessness, has been defined as a defendant who sees the risk of breaking the law and nonetheless decides to take the chance, roll the dice, and see if he can get away with it; that is the issue in this case.

7 Whether or not the conduct of Mr. [REDACTED], on the facts of this case, as found by me, constitutes recklessness or falls short of that, perhaps amounting to carelessness or negligence. This case is dependant on its narrow circumstances.

8 Accepting that Mr. [REDACTED] did not realize the extent or effects of his dependence on alcohol at the time, and the risk it put him at of being unable to comply with his curfew, something he is now aware of, question is, has the Crown made out its case?

9 There are two possible ways in which Mr. [REDACTED] could have been reckless on that day, and on which I have reached the following conclusions. First, while it might be said to have been careless or imprudent, or unwise for Mr. [REDACTED] to operate in such a relatively narrow window for compliance, meaning that the party started at 7:00 and he had to be home after a half hour journey by nine o'clock, I do not believe that I can say that that was an outrageous approach; it would have left him an hour and half at the party with his friends, and allowed him to, intervening events notwithstanding, get home and still be in compliance with his bail order and the curfew that was attached to it.

10 The second question is whether when he realized his breach, that is, at 9:45 p.m., and sought to return home by subway, was that, alternatively, a form of recklessness insofar as he ought to have relied upon some other means. In this particular case, it has been suggested that he ought to have called his surety at home and have them come and pick him up, rather than have him return himself by way of the subway.

11 When I considered the two options, and when I consider again, and this is important -- throughout my determination of this case, when I consider knowing what Mr. [REDACTED] knew then about his level of risk, which was less than what he knows now, having found out about the extent of his problem about six or seven weeks after this, I do not believe it can be said that it was any more unreasonable for him to opt to return himself home, and try to minimize his absence than it would have been for him to call his parents and have them pick him up.

12 While he might have had an additional motive, in a sense that he might have hoped to make it home and sneak in, and not be found out as it were as being quite as drunk as he was, I don't believe that it can be said that the choice to get himself home was a particularly unreasonable one in the circumstances.

13 Ultimately it comes down to this conclusion, in light of the language of the wilful blindness cases, at the time of this offence, I do not believe that I can say, with respect to either his attendance at the party or his choice to return by subway rather than by car, that knowing what Mr. [REDACTED] knew then, he "saw the risk and took the chance."

14 The highest I can place his conduct on that day is that it might have amounted to carelessness or negligence; that is not the standard for criminal liability in Canada, that is something distinctly different from the concept of recklessness or wilful blindness. That being said, I have a reasonable doubt about Mr. [REDACTED]'s guilt, and accordingly find him not guilty of the charge.

15 [REDACTED]: Thank you very much, Your Honour. Thank my friend, as well. And the two charges, Your Honour?

16 THE COURT: I do not think they are up for trial today, are they?

17 [REDACTED]: No, I think --

18 MS. GARCIA: No, he's detained, I understand, ...

19 [REDACTED]: On those two --

20 MS. GARCIA: ... until his preliminary hearing.

21 [REDACTED]: Those -- those ones are up on Wednesday, I believe.

22 MS. GARCIA: They ought to be up on Friday, I believe, for the prelim, is that ...

23 [REDACTED]: No.

24 MS. GARCIA: ... not correct?

25 [REDACTED]: One is from January. Those are on Wednesday for set-date, ...

26 MS. GARCIA: Okay.

27 [REDACTED]: ... and then prelim ...

28 MS. GARCIA: Sorry.

29 [REDACTED]: ... is on Friday.

30 MS. GARCIA: So, does my friend wish him to be returned tomorrow to court?

31 [REDACTED]: No, I think his set-date is on Wednesday.

32 MS. GARCIA: Sorry, on Wednesday. Pardon me.

33 [REDACTED]: For the -- the officer is --

34 THE COURT: Does he show up on the system?

35 CLERK OF THE COURT: Yes, Your Honour, but we can't return him on this matter.

36 THE COURT: Right.

37 [REDACTED]: No, this matter is done.

38 CLERK OF THE COURT: We already have a return date ...

39 THE COURT: Right.

40 [REDACTED]: There should be --

41 CLERK OF THE COURT: ... on that matter.

42 [REDACTED]: There should be one for Wednesday and one for Friday, is that correct?

43 CLERIC OF THE COURT: I can tell you in just a moment.

44 [REDACTED]: Certainly.

45 MS. GARCIA: Just so the Judge's order -- sorry, just so that my friend doesn't have to do a Judge's order for those ...

46 [REDACTED]: Yeah. MS. GARCIA: ... days.

47 CLERK OF THE COURT: He shouldn't have to.

48 [REDACTED]: No.

49 MS. GARCIA: All right.

50 THE COURT: All right. Well, we will just make sure that he has been remanded on those other Informations already. So, there is two separate sets, right?

51 MS. GARCIA: Oh, yes.

52 [REDACTED]: There are.

53 THE COURT: One for set-date and one for trial.

54 MS. GARCIA: H'mm, h'mm.

55 CLERIC OF THE COURT: I show him returning to this courthouse, two matters, both are returning on the 17th of February, to 305 court at 10:00 a.m.

56 THE COURT: That is Friday, and nothing returning on the 15th?

57 [REDACTED]: There should be something on the 15th.

58 CLERK OF THE COURT: Not at this courthouse.

59 [REDACTED]: Oh, that's right, my apologies.

60 MS. GARCIA: College Park?

61 [REDACTED]: Yes, it's the other courthouse, ...

62 THE COURT: It is okay.

63 [REDACTED]: ... my apologies. Yes. All right, thank you very much, Your Honour.

64 THE COURT: [REDACTED].

65 [REDACTED]: Thank you, Your Honour.

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