



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Valle-Quintero, 2021 ONCA 390

DATE: 20210608

DOCKET: C66811

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Guillermo Valle-Quintero

Appellant

Ernest J. Guiste, for the appellant

Andreea Baiasu, for the respondent

Heard: May 17, 2021 by video conference

On appeal from the conviction entered on August 30, 2012 by
    Justice Alfred J. OMarra of the Superior Court of Justice, and from the
    sentence imposed on October 8, 2015 by Justice Brian P. OMarra of the Superior
    Court of Justice, with reasons reported at 2015 ONSC 6164.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of assault on his girlfriend
    on a number of occasions in the course of episodes of anger and jealousy. He
    was also found guilty of wilfully damaging her vehicle, threatening to cause
    her death or bodily harm, failing to comply with a condition of a recognizance,
    attempting to obstruct justice, and breaching a court order prohibiting
    communication with the complainant. Because of his criminal history, the
    respondent Crown brought a dangerous offender application. The appellant was
    ultimately found to be a dangerous offender and sentenced to an indeterminate
    sentence.

[2]

The appellant raises many grounds of appeal. Central to these is the
    submission of reasonable apprehension of bias. He also argues that the trial
    judge erred in finding that the complainant was a credible witness, and that
    the trial judges findings on the breach of recognizance count were tainted by
    abuse of process and jurisdictional error. In addition, he alleges that the period
    from the guilty verdict to the imposition of the sentence, around 37 months,
    was unreasonable and violated his
Charter
s. 11(b) rights.

[3]

For the following reasons, the appeal is dismissed.

A.

Background

[4]

The appellant did not testify at his trial. The charges concerned events
    that had taken place in 2010-2011. The trial judge found that the appellant had
    choked the complainant to unconsciousness, had threatened to kill her when he
    told her [i]f I cant have you, nobody can, and that he said, having choked
    her, that if she had died, he could have hidden her body in the wall so that
    nobody could find her. The trial judge accepted that the complainant was
    fearful for her life. The appellant was convicted of additional counts of assault
    in relation to two other incidents. He also attempted to obstruct justice and violated
    a non-communication order when he attempted to persuade the complainant to
    recant her statement after his arrest.

[5]

Following the appellants conviction on the charges currently under appeal,
    the Crown commenced dangerous offender proceedings, and the court ordered a
    psychiatric assessment which was conducted by Dr. Scott Woodside. Dr. Woodside
    found that the appellant presented a high risk of reoffending with intimate
    partners due to his aggressive, controlling and jealous nature, lack of insight
    as to the nature of his problems, and his view of himself as a victim.

B.

Discussion

(1)

Reasonable Apprehension of Bias

[6]

The appellant argues that a number of factors give rise to a reasonable
    apprehension of bias. First, he complains that A. OMarra J. presided over a
    bail review only two months prior to being nominated as the trial judge. In
    addition, A. OMarra J. declined the appellants recusal motion after he refused
    to permit the appellant to sit at the counsel table after the appellant resiled
    from his earlier willingness to do so with ankle shackles on.

[7]

In oral submissions, the appellants counsel concentrated on the fact
    that A. OMarra J. stepped down after pronouncing the verdict in light of the
    Crowns intention to pursue a dangerous offender application, announcing that
    the sentencing proceedings would be taken over by B. OMarra J. The appellant
    submits that this raises a reasonable apprehension of bias because the two are
    in fact related to one another as first cousins. We disagree.

[8]

First, there is a strong presumption of judicial integrity and
    impartiality that the appellant has not displaced: see
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
    [2015] 2 S.C.R. 282, at para. 25. Presiding over a bail review and seeing
    an accuseds criminal record does not disqualify a judge from presiding over a
    trial. Judges (as they regularly do in
voir dire
proceedings, for
    example) are expected and able to disabuse themselves of any prejudicial
    evidence that they might otherwise have encountered.

[9]

Nor does the trial judges refusal of the defence request that the
    appellant be permitted to sit at the counsel table disclose any reasonable
    basis for an apprehension of bias.

[10]

Further,
    there was no basis to suspect that there was anything improper about continuing
    the proceedings before a different judge: see
Criminal Code
, ss. 669.2(1)
    and (2). The trial judge explained that he was committed to conducting long
    civil trials but that the sentencing would be conducted by B. OMarra J. as he
    had availability. Nothing in these circumstances gives rise to any basis for
    the appellants request for disclosure from the Crown regarding the matter,
    quite apart from the fact that pursuant to the principle of judicial
    independence, judges are not affiliated with the prosecution and cannot be seen
    or treated as belonging to a Crown agency. There is no merit to this ground of
    appeal.

(2)

The Findings on Conviction

[11]

We
    do not agree with the appellants submissions that the trial judge erred in
    finding that the complainant was credible and that the police investigation was
    adequate. These issues were also raised at trial and rejected by the trial
    judge in thorough reasons. The trial judge was alive to all the reasons for
    which the appellant submitted that the complainants evidence should be
    rejected. He found her to be credible, and given the record before him, it was
    open to him to do so. We see no merit in the appellants submission that the
    investigation was inadequate.

[12]

The
    trial judge also rejected the submission that the appellant had not known about
    the non-communication order, referring to a transcript of the bail hearing at
    which the order was imposed which confirmed that duty counsel had explained it
    to him. The trial judge found that the appellant had fully understood the
    prohibition. During the abuse of process application brought by the appellant
    after the trial, he requested a stay on this count, arguing that there was a
    lack of knowledge of the non-communication order. We see no error in the trial
    judges findings or his refusal to enter a stay on this count.

(3)

The s. 810.2 ground

[13]

The
    submission that the condition ordered was made without jurisdiction and
    constituted an abuse of process is without merit.

[14]

The
    appellant had been subject to a condition in his recognizance, granted under s.
    810.2 of the
Criminal Code
, not to enter into any relationship or
    romantic relationship with a female until that person has been identified to
    the Toronto Police Service and there had been an opportunity provided to inform
    that person of the appellants criminal history. Count seven charged that the
    appellant had breached the recognizance by entering into a romantic
    relationship with the complainant without giving the police an opportunity to
    inform her of the appellants criminal history. This count was dealt with
    separately after the trial.

[15]

The
    appellant had a criminal record that included abduction and serious acts of
    violence against former romantic partners. One of these resulted in a charge
    and conviction for attempted murder in 1999. While incarcerated, the appellant
    underwent a number of psychological assessments which indicated that he
    presented a high risk for violent recidivism with a partner in an intimate
    relationship. A similar condition to report romantic relationships was initially
    imposed when he was granted a conditional release in October 2006.

[16]

The
    appellants warrant expiry date was August 13, 2010. Prior to that, he was
    observed getting out of a car driven by a woman. The appellant denied that he
    was in a relationship with the woman. He was reminded of the condition about
    reporting any new relationships, but he did not provide her identity or any
    further information that would allow officers to follow up and ensure that
    there was no relationship. His probation and parole supervisor contacted the Toronto
    Police Service to prepare for a s. 810.2 application to have the appellant
    bound by terms of a recognizance, including a condition that he advise the
    police of any new intimate relationships, because of the concerns related to
    his behaviour and high risk assessment for violence against female partners.

[17]

On
    appeal, the appellant argues, as he did at trial, that the condition was
    imposed without jurisdiction and constituted an abuse of process. The trial
    judge dismissed the appellants abuse of process application and entered a
    conviction on count seven. As the trial judge noted, the seeking of a s. 810.2
    order is governed by a process that is authorized by statute. Here, although
    the police could have arrested the appellant under the warrant, the Crown chose
    a less intrusive route by issuing a summons. Had they arrested him under the
    warrant that had been taken out, he would have had to be held in custody
    pending a bail hearing because the Crown had not been prepared for a s. 810.2 hearing
    but wanted similar conditions to be imposed in the meantime. Horkins J. deemed
    the warrant executed and granted the recognizance which included the condition.

[18]

We
    agree with the trial judge that there was no misconduct or abuse of process,
    and finding otherwise could have the effect of compelling the police in any s.
    810.1 or s. 810.2 application to arrest subjects under warrant in order to
    compel a bail hearing and a detention or release subject to conditions.

(4)

The Dangerous Offender Finding and the Imposition of the Indeterminate
    Sentence

[19]

The
    appellant argues that the sentencing judge erred in finding the appellant to be
    a dangerous offender. His first argument is that Dr. Woodsides assessment
    report was filed late, beyond the statutory deadlines under s. 752.1 of the
Criminal
    Code
, and as such the dangerous offender designation must be set aside. We
    disagree. It is clear from the discussions between the sentencing judge and the
    parties that the 60-day assessment period began on October 28, 2013, the report
    would have been due on January 27, 2014, the time to file was extended on
    January 27, 2014 until January 31, 2014 which is permitted under s. 752.1(3),
    and the report was received on January 31, 2014, within the statutory time limits.

[20]

Alternatively,
    he argues that the sentencing judge erred in failing to consider whether he
    should be designated as a long-term offender prior to being designated as a
    dangerous offender in accordance with
R. v. Johnson
, [2003] 2 S.C.R.
    357. This argument fails because the 2008 amendments removed the exercise of
    discretion at the designation stage. Section 753(1) now states that the court
shall
find the offender to be a dangerous offender if
    the statutory criteria are met. Here, the sentencing judge found that those
    criteria as set out in s. 753(1)(a)(i) and (ii) of the
Criminal Code
were met. There were ample grounds for the sentencing judges findings that the
    past and index offences of domestic violence constituted a pattern of
    repetitive and persistent aggressive behaviour under those sections, and he set
    out the common elements in detail.

[21]

We
    also disagree with the submission that the sentencing judge erred in failing to
    consider the intractability requirement as set out in
R. v. Boutilier
,
    2017 SCC 64, [2017] 2 S.C.R. 936, at paras. 27, 29-32 and 46. Although the
    sentencing judge did not have the benefit of
Boutilier
and did not use
    the word intractable, he carefully considered s. 753(1)(a) and applied it to
    the record before him. He considered the appellants recidivism, his refusal to
    abide by supervision conditions and his resentment of those conditions, as well
    as Dr. Woodsides opinion that the appellant presented a high risk for violent
    re-offence involving intimate partners. The sentencing judge found no reason
    to believe that he would restrain his behaviour in the future. In short, the
    sentencing judges reasons satisfy the
Boutilier
requirement that the
    conduct of a person designated as a dangerous offender must be intractable.

[22]

We
    would not disturb the sentencing judges imposition of an indeterminate
    sentence. The sentencing judge found that based on the evidence before him, a
    measure less than an indeterminate sentence would not adequately protect the
    public, and more particularly, any future intimate partners of the appellant. This
    was an appropriate conclusion, especially in light of Dr. Woodsides evidence
    that he was pessimistic regarding the appellants future manageability within
    the community, even if strict conditions were put in place and the appellant
    agreed to follow through with conditions and treatment.

(5)

Post-Verdict Delay

[23]

Finally,
    we do not agree that the appellants
Charter
s. 11(b) rights were
    breached as a result of the delay of 37 months between the conviction and the
    imposition of sentence. The appellant relies on
R. v. Charley
, 2029
    ONCA 726, 147 O.R. (3d) 497, which set a five-month ceiling applicable to the
    period between conviction and sentence, as well as
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631.

[24]

We
    do not accept this submission. First, in
Charley
, this court observed
    that dangerous or long-term offender proceedings under Part XXIV of the
Criminal
    Code
are properly characterized as exceptional in the sense that they are
    reasonably unavoidable after the Crown has determined that a designation
    should be sought, but the Crown still has an obligation to mitigate any
    resulting delay: at para. 98. A dangerous offender application is an
    exceptional circumstance that may justify delays above the ceiling set out in
Charley
:
    see e.g.
R. v. McLean
, 2020 ONSC 1931, at paras. 12-18;
R. v. J.T
.,
    2021 ONSC 365, at para. 32. Second, the entire post-verdict proceedings took
    place before the release of
Charley
. For that reason, as this court
    noted in
Charley
, at para. 105, the transitional exceptional
    circumstances as set out in
Jordan
also apply to post-verdict delay.
    The appellant made no submissions on the application of transitional
    exceptional circumstances.

[25]

The
    appellant has not, therefore, established that in the circumstances of this
    case, his s. 11(b) rights have been breached.

C.

Disposition

[26]

For
    these reasons, the appeal is dismissed.

David Watt J.A.

M.L. Benotto J.A.

A. Harvison Young
    J.A.


