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Case Name:
R. v. Andersen

Between
Her Majesty the Queen, Respondent, and
Arthur Andersen, Applicant

[2012] O.J. No. 5340

2012 ONSC 6358

Ontario Superior Court of Justice

C.M. Speyer J.

Heard: November 2, 2012.

Judgment: November 13, 2012.

(37 paras.)

Criminal law -- Compelling appearance, detention and release -- Judicial interim release or bail --
Review of -- Application by the accused for bail review allowed -- Accused was charged with
attempted murder and aggravated assault -- Crown alleged accused slashed victim's face with a
knife and stabbed him in the abdominal region -- Accused, 68, had no prior record and had a very
good history of employment and volunteerism -- Responsible surety and restrictive terms of bail
adequately addressed secondary ground -- Accused's detention was not necessary on tertiary
ground.

Application by the accused for bail review. The accused was charged with attempted murder and
aggravated assault. The Crown alleged the accused slashed victim's face with a knife and stabbed
him in the abdominal region. The Justice of the Peace ordered the accused detained on secondary
ground concerns. He found that the proposed surety was unable to provide the measure of
supervision that the accused's daily activities required. The accused, 68, had no prior record. He had
a very good history of employment and volunteerism. The accused's proposed surety was a close
friend of the accused. She was retired and had known the accused for 20 years. She would be able to
supervise the accused's activities in a manner that the proposed surety at the bail hearing clearly
could not.
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HELD: Application allowed. The combination of the surety as a responsible surety in tandem with
appropriately restrictive terms of bail made the accused a candidate for release in respect of the
secondary ground. Although the accused faced extremely serious charges and the Crown's case
seemed strong, the accused's detention was not necessary in order to maintain public confidence in
the administration of justice. This was not one of those rare cases where an accused ought to be
detained on the tertiary ground.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 515(10)(c)

Counsel:

Paul Zambonini, for the Respondent.

David Bayliss, for the Applicant.

REASONS FOR DECISION

1 C.M. SPEYER J.:-- The central issue to be resolved at this bail review is whether the detention
of the applicant is "necessary to maintain confidence in the administration of justice" as governed
by the tertiary ground for detention set forth in s. 515(10)(c) of the Criminal Code.

2 Arthur Andersen is charged with attempted murder and aggravated assault. The Crown alleges
Mr. Andersen slashed the face of Odorico Violante with a filleting knife that Mr. Andersen
purchased at a Canadian Tire store earlier the same day that Mr. Violante was attacked. Further, the
Crown says, Mr. Violante sustained two lesser, yet serious wounds attributed to Mr. Andersen
during the altercation; specifically, puncture-like injuries caused by Mr. Andersen stabbing Mr.
Violante in the abdominal region of his body.

3 At Mr. Andersen's bail hearing, the Crown sought the accused's detention on both secondary
and tertiary grounds. Following a full hearing, during which a proposed surety for Mr. Andersen
was examined and cross-examined, Justice of the Peace Flaherty ordered the applicant detained
based on secondary ground concerns. Given his finding, no consideration was given by the Justice
of the Peace to the tertiary ground. In brief but entirely satisfactory reasons for his decision, Justice
of the Peace Flaherty found the proposed surety was unable to provide the measure of supervision
that Mr. Andersen's daily activities required. A review of the surety's evidence makes this finding
unassailable.

Bail Review Hearing

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Amplification of Background Facts

(i) The events giving rise to the charges

4 A woman named Virginie Beun links the applicant and the victim. On May 23, 2012, the date
of these allegations, Ms. Beun was married to, but separated from, Mr. Violante. The couple has a
10 year old daughter. Issues relating to custody of the daughter are alleged by the Crown to have
reached a high level of acrimony. Indeed, the Crown contends Ms. Beun threatened her husband,
the victim, Mr. Violante, on one occasion by telling him "he was going to pay" while, at the same
time, making a motion with her hand indicative of slitting one's throat.

5 Mr. Andersen is a very close friend of Virginie Beun. Mr. Andersen's proposed surety at the
bail hearing believed Ms. Beun to be Mr. Andersen's girlfriend. While Mr. Andersen had met Mr.
Violante on perhaps two prior occasions, the preliminary record before me discloses no prior history
of bad blood between the men.

6 The Crown's case concerning the events of May 23rd is this: Mr. Violante was returning home
at 10:30 in the evening. He was walking up his driveway when Mr. Andersen approached him from
the dark shadows saying, "My friend, I need to talk to you." Mr. Violante was immediately
concerned, backed up and took out his phone to call 911. Mr. Andersen knocked the phone out of
Mr. Violante's hand and slashed him across the face with the filleting knife. A struggle ensued and,
as indicated, Mr. Violante received two more stab wounds.

7 Mr. Violante bit Mr. Andersen's finger causing him to drop the knife. Mr. Violante escaped at
this point and ran screaming down the street. His screams attracted the attention of neighbours. Two
neighbours followed Mr. Andersen to his car. Although there was ample parking on the street, Mr.
Andersen had parked at a 7-11 store. His vehicle was approximately 250 metres from Mr. Violante's
residence. It was the neighbours who called 911.

8 Later that night, having left the area where the events took place, Mr. Andersen approached two
police officers and told them he had been attacked. He showed the officers the bite to his finger. Mr.
Andersen subsequently told the detective investigating the case that he had gone to Mr. Violante's
house to confront him about not allowing Mr. Violante's daughter to travel to France. The applicant
told the investigating officer that it was Mr. Violante who attacked him with a knife and that he was
able to deflect the blow with his cane. He could not adequately explain to the police why witnesses
said they saw him with a knife tucked in the back of his pants. He told police the witnesses may
have mistaken a knife for his cane. Mr. Andersen repeatedly denied having in his possession a
knife. The police found Mr. Andersen in possession of a receipt from Canadian Tire issued that
afternoon, indicating the purchase of a fillet knife. A search warrant was obtained and a
black-handled filleting knife was found in Mr. Andersen's automobile. A surveillance videotape
captures Mr. Andersen purchasing the knife at Canadian Tire.

(ii) The seriousness of the injuries

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9 Mr. Violante sustained a gaping wound extending from just below the right ear, leading in a
horizontal direction along his lower chin to a point near the right side of his mouth. A photograph of
the wound taken at the hospital depicts the wound as long, deep and nasty. Importantly, the
photograph also illustrates just how close the blade of the knife came to Mr. Violante's carotid
artery.

10 The two puncture wounds are depicted in a second photograph and, while not as serious,
again, it is not difficult to imagine how easily the knife could have punctured a vital organ.

(iii) Evidence of planning and deliberation

11 The Crown alleges that a sensitive motion detector that would activate flood lights in Mr.
Violante's driveway in the vicinity of the attack had been rendered inoperative. It is the Crown's
theory that the applicant was responsible for tampering with the proper operation of the floodlights
as part of his plan to carry out the attack on Mr. Violante. Second, as noted, the police investigation
disclosed that Mr. Andersen had purchased the filleting knife earlier on May 23; again, it is the
Crown's position that this was the method conceived in advance to carry out the planned attack.
Third, there is a matter of Mr. Andersen's attire. The disclosure to date indicates evidence that Mr.
Andersen was dressed all in black, wearing military pants tucked into military boots and, at a time
relevant to the attack on Mr. Violante, had donned a black knit cap despite the warm spring
evening.

The Circumstances of Mr. Andersen

12 Mr. Andersen is 68. He was born in Montevideo, Uruguay. He came to Canada in 1982. He
received Canadian citizenship in 1992. He has two sons, aged 16 and 18. He is single.

13 The applicant has no criminal record. He has always been gainfully employed. From 1987 to
2006, Mr. Andersen worked at several Toronto hospitals in various health-care capacities. From
2006 until his arrest on these charges, Mr. Andersen was employed by the Toronto District School
Board on a part-time basis. He worked as a teacher's assistant with special needs children and as a
lunch room supervisor.

14 As a result of medical problems related to his sciatic nerve, Mr. Andersen has mobility issues
in respect to his back and uses a cane.

15 Three matters that bear on Mr. Andersen's prior good character merit consideration. First,
during the SARS crisis in Toronto about a decade ago, Mr. Andersen received a certificate for
"workplace excellence" from the University Health Network. He was nominated for this award by
fellow co-workers. Second, he has been recognized for his good work at the Toronto District School
Board. In this regard, he has received a nomination from the Ontario government for his work.
Finally, the applicant has an impressive history of volunteer work with Boy Scouts of Canada. He
has been designated as "an advanced scout leader".
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16 Mr. Andersen proposes, if released, to reside with a close friend, Suzanne Rusywich, his
proposed surety. Ms. Rusywich was not the proposed surety at the applicant's initial bail hearing.
With Ms. Rusywich's consent, it is proposed he reside with her until the completion of his trial.

The Circumstances of the Proposed Surety, Suzanne Rusywich

17 Ms. Rusywich resides in a one-bedroom apartment on Lakeshore Boulevard in west-end

Toronto. She is 66 years of age and has remained single since her divorce in 1993. She met Mr.
Andersen 20 years ago through their church and a strong friendship was formed.

18 Ms. Rusywich is retired although she continues to work ten hours per week at a landscaping
business she owns. She employs three workers. Ms. Rusywich is active in raising funds for Rotary
Club International and is also an active member of her church.

Decision on Secondary Ground

19 I was most impressed with the evidence of Ms. Rusywich. She struck me as a solid citizen
who has worked hard throughout her life. She has no criminal record. She would be able to
superintend Mr. Andersen's activities in a manner that the proposed surety at the bail hearing clearly
could not. I am satisfied she would make a reliable and responsible surety if Mr. Andersen were
released.

20 Mr. Andersen is 68 years of age and, other than the alleged events giving rise to these charges,
has lived an exemplary life. He has no criminal record. He has a very good history of employment
and volunteerism. These circumstances must be taken into account in determining whether Mr.
Andersen's detention is necessary for the protection or safety of the public.

21 I find that the combination of Ms. Rusywich as a responsible surety in tandem with
appropriately restrictive terms of bail make Mr. Andersen a candidate for release in respect of the
secondary ground.

The Tertiary Ground

22 Crown counsel, Mr. Zambonini, did not concede that the applicant had satisfied secondary
ground concerns. That said, as indicated at the beginning of these reasons, the focus of this bail
review relates to whether Mr. Andersen should be detained on the tertiary ground.

23 Section 515(10)(c) provides:

For the purposes of this section, the detention of an accused in custody is

justified only on one or more of the following grounds:

...
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(c) if the detention is necessary to maintain confidence in the administration of

justice, having regard to all of 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.

24 In his very able submissions, Mr. Zambonini advanced the proposition that if the Crown
establishes that each of the four statutory factors set out in s. 515(10)(c) are established at the
highest level, a detention order is "entirely to be expected". In support of this submission, Crown
counsel relied on the cases of R. v. Mordue (2006), 223 C.C.C. (3d) 407 (Ont. C.A.) and R. v. S.(B.),
2007 ONCA 560, 255 C.C.C. (3d) 571.

25 In weighing all relevant factors, statutory or otherwise, and deciding whether to grant or refuse
bail based on tertiary ground factors, it is wise to keep in mind the overarching principle, firmly
rooted in the case law, that detention based on tertiary ground concerns is to "be used sparingly" or
"justified only in rare cases". The exceptional use of the tertiary ground finds its genesis in R. v.
Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at paras. 27 and 31, and is followed and fortified by a host
of Ontario Court of Appeal decisions: see R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont.
C.A.), at para. 30; R. v. R.D., 2010 ONCA 899, 106 O.R. (3d) 755, at paras. 51-53; and R. v. Gale,
2011 ONCA 144, [2011] O.J. No. 6410, at para. 25. In a nutshell, I subscribe to the statement found
at p. 3-55 of Justice Trotter's text, The Law of Bail in Canada, looseleaf, 3rd ed. (Toronto: Thomson
Reuters Canada Limited, 2010):

Given the passage of time since Hall, decided in 2002, and the experience of
courts with s. 515(10)(c), the message now seems clear - when neither the risk of
flight nor public protection warrant detention, detention to maintain confidence
in the administration of justice will hardly ever be justified.

26 In addition to the "use sparingly" principle, the following other considerations ought to be
taken into account. First, in assessing tertiary ground concerns, it is also important to adhere to the
wisdom found at para. 55 of R.D.:

[C]onfidence in the administration of justice does not turn only on the

circumstances of the offence and the alleged offender. Public confidence is
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measured by the standard of a reasonable member of the community (Hall at

para. 41) and, in my view, includes recognition that bail is granted within a
context of constitutional guarantees, most especially the presumption of
innocence and the right to reasonable bail.

27 The task of the bail judge in considering the tertiary ground is, in the words of Doherty J.A. in
Gale at para. 25, to "take the pulse of the reasonable, informed member of the community."

28 Second, as noted by Rosenberg J.A. in R.D., "[t]he grounds enumerated in s. 515(10)(c), do

not exhaust the factors the court must consider where the Crown seeks to rely upon the tertiary
ground" (at para. 54). I agree that if each of the four statutory factors are established to the highest
degree, the cumulative effect of such a finding may go a long way to satisfying the tertiary ground
for detention. However, those factors alone, while of particular importance, do not exhaust all the
considerations that may be required to determine if detention is justified in order to maintain
confidence in the administration of justice.

29 Section 515(10)(c) directs the court to consider "all the circumstances", including the
enumerated factors. "All the circumstances may, in appropriate cases, include the personal
circumstances of the accused": R.D., at para. 54. Such personal circumstances may include the
accused's age, health, the availability of support systems of family and friends, and positive or
negative antecedents. It is worth noting that the Court of Appeal gave consideration to the accused's
age and positive history in two recent cases: R.D., at para. 68 (young accused); and R. v. Heyden,
2009 ONCA 494, 252 C.C.C. (3d) 167, at para. 26 (65 year old accused). Continuing fear in the
community, or the lack thereof, may be another relevant circumstance not enumerated in s.
515(10)(c). Whether these factors are relevant will depend on the particulars of the case. Justice
Trotter, at p. 3-57 of his text, puts it this way:

The criteria enumerated in s. 515(10)(c) should not be approached as if they are

free-standing thresholds, capable of justifying detention. Instead, they are
designed to be a non-exhaustive collection of factors to be used in determining
whether detention is "necessary to maintain public confidence in the
administration of justice." At the end of the day, this is the issue that must be
resolved in s. 515(10)(c). This approach to s. 515(10)(c) will result in cases of
both release and detention. ... It will all depend on the circumstances of the case.
[Footnotes omitted.]

Application of the Principles

30 It is self-evident that a charge of attempted murder is an extremely serious offence. It is even

more serious in circumstances where, as in the present case, there appears to be cogent evidence of
planning and deliberation. That said, this is not a murder case, where the gravity of the offence
would be even higher. In addition, while the wounds inflicted on Mr. Violante were serious and had
the potential to be life-threatening, thankfully, they are not permanent in nature.
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31 While the case for the prosecution has yet to be tested, on the material before me, a
preliminary assessment indicates that the Crown appears to have a strong case. Eyewitnesses and
the applicant's own statement link him to the scene of the offence. There is also evidence that the
applicant possessed a knife at the time of the attack, which he denied having when questioned by
police.

32 It must be acknowledged that if the prosecution case is proved, the viciousness of a planned,
unprovoked knife attack on an unsuspecting victim will be a serious aggravating factor in the
consideration of the appropriate sentence.

33 On the other hand, a sentencing judge would take into account the advanced age of the
applicant, his unblemished record, his stellar work history, and his history of volunteerism. These
mitigating circumstances may significantly lessen his sentence. Still, because of the seriousness of
the offence, it is fair to conclude that, if convicted, the applicant would likely face a significant term
of imprisonment.

34 The applicant's general good character and positive antecedents are also circumstances to
consider in this case. I also give consideration to his advanced age, apparent back problems and the
strength of his proposed surety.

35 Let me turn for a moment to the Crown's argument that a detention order is "entirely to be
expected" if each of the four factors enumerated in s. 515(10)(c) are at the highest level. In my
view, the four factors do not reach that level in this case. The gravity of the offence and the length
of the potential sentence are less than they would be in a murder case. Similarly, while the
premeditation and grievous injuries are serious aggravating circumstances, the victim survived the
attack and his wounds are not permanent. That is not to say that the tertiary ground can only apply
in murder cases or where the circumstances are the most heinous; that is clearly not the case (see
R.D., at para. 53). I simply note that here, the four statutory factors are not at maximum force. As
such, even if I did accept the Crown's argument that detention is expected where each of the factors
are at their highest, that is not the situation in this case.

36 Having considered all the circumstances, including the statutory and other factors, from the
viewpoint of a reasonable, informed member of this community, I find that the applicant's detention
is not necessary in order to maintain public confidence in the administration of justice. To borrow
the language of Cronk J.A. at para. 36 of LaFramboise, the alleged facts in this case are not
sufficient to "elevate this case to that narrow category of cases where detention may be justified,
exclusively under s. 515(10)(c) of the Code."

37 In my view, this is not one of those rare cases where an accused ought to be detained on the
tertiary ground. Without in any way diminishing the seriousness of the allegations, having in mind
the presumption of innocence, I do not believe a reasonably informed member of the community
would be shocked by Mr. Andersen's release. I am satisfied that his release would not erode public
confidence in the administration of justice. I allow the application and order that the applicant be
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granted judicial interim release in the penal sum of $5000, without deposit, and with Suzanne
Rusywich as surety, upon the following conditions:

1. To keep the peace and be of good behaviour.

2. To refrain from communicating, directly or indirectly, with Virginie Beun,
Odorico Violante, Ruthie Violante, Ashley Evora da Silva, Kostas Bovoletis,
Angela Bovoletis, Louie Salandra, Luca Torresan, and Cynthia Davidian.
3. To abide by a curfew from 7 p.m. to 7 a.m., except in the case of medical
emergencies.
4. Not to possess any weapon as defined by the Criminal Code.
5. To reside with his surety, Suzanne Rusywich, at 2719 Lakeshore Blvd., Apt. 1 in
the City of Toronto and abide by the rules of the home as set down by his surety.
6. Not to attend within three city blocks of any place Mr. Andersen knows that
Odorico Violante, Ruthie Violante, or Virginie Beun live, work or attend school
or any place he knows those people to be present.

C.M. SPEYER J.

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