Province wants to keep father behind the 810 'gate'

By Christie Blatchford
Thursday, July 29, 2004 - Page A8

ORANGEVILLE, ONT. -- The Ontario government is using an "anticipatory" section of the Criminal Code designed for high-risk offenders against a 43-year-old man involved in a continuing and bitter custody battle.

The section is 810, considered by civil libertarians to be one of the state's harshest tools because if imposed by a judge, there are only two possible results: the person before the court must agree to strict conditions being put on his liberty or, if he refuses, go to jail for as long as a year.

Because breaches of an order made under 810 are considered criminal offences, and punishable by a maximum of two years in prison, defence lawyers often argue that the section actually "creates" criminals.

The section is meant to protect society from people who have not yet committed any crimes -- or in the case of those coming out of jail, any recent crimes -- but are deemed likely to commit sexual or personal-injury offences in the future.

Use of the 810 usually hits the headlines where repeat violent criminals, such as the notorious diagnosed psychopath Martin Ferrier who was recently in the news, complete their prison sentences and are about to be released, unsupervised, into a community.

But in the case of this man -- The Globe and Mail is not using his name out of consideration for his children -- his criminal record is neither particularly long nor violent.

It is the third time since October, 2001, that Ontario has used an 810 order against him.

A cabinet maker by trade, the man has an admitted alcohol problem and a quick temper both, but until his marriage began to crumble in 1999, he had never spent a day in jail and had only three minor convictions.

Even now, despite having spent about 300 days behind bars in the past five years -- mostly for breaking conditions of the earlier 810 orders -- the man's contemporary record consists of four assaults (one is under appeal), nine breaches of various court orders, and one conviction each for obstructing police and making harassing phone calls.

Only three convictions directly relate to his ex-wife -- one minor assault, the harassing calls offence and one breach of an earlier 810 incurred when he rang her doorbell one Father's Day desperate to see his children.

It is his former wife who claims to fear for her safety, and an officer with the Caledon branch of the Ontario Provincial Police who has sworn an affidavit under Section 810.2 saying she believes the man "will commit a serious personal injury" offence against the woman.

Among the grounds Detective-Constable Vanessa Leslie cites are vague allegations from the ex-wife such as damage done to her property, hang-up phone calls and calls for one of the children from an unknown woman -- none of these allegations, Det.-Constable Leslie says, were proven or linked to the man -- and a psychological assessment that found he was not a psychopath, but had problems with alcohol and low impulse control.

Most tests showed he presented a low-to-moderate risk to reoffend, except for what's called the Spousal Assault Risk Assessment Guide, which rated him as a moderate-to-high risk.

Curiously, and illustrative of the Catch-22 in which the man finds himself, both the psychologist and the man's former probation officers were alarmed by his anger toward his ex-wife and his frustration with the legal system.

This week in a Dufferin County courthouse, the ex-wife testified before Ontario Court Judge Katherine McLeod, who is presiding over the new 810 application.

Under questioning by the man's lawyer, John Christie, the woman admitted to having called the police about the man for the most minute of offences.

Once, at a Tim Hortons, when a friend of his said hello to the friend she was with, the woman reported it to the police. "I was upset," she snapped in court, "that he was talking to my friend."

Another time, she reported him to the OPP when he left a message wishing the children a happy Thanksgiving, and once, when the man had to work through a scheduled call from their children and phoned later to ask if they could call him again, she phoned police.

"He telephoned my home," she told Judge McLeod. "That's a breach of his conditions."

Similarly, when a neighbour spotted a car driven by someone "what could have been" her ex, the woman called police.

Indeed, she even complained to police that she was still getting his bills. Asked by Mr. Christie why she'd done so, she said sharply, "I was still receiving mail for him."

For all that the woman claims to be fearful of her ex, what was most evident from her testimony is that she remains rancorous toward him.

The man's access to his children is governed by a family court order. In addition to the weekly phone calls, he is allowed to see them alternate weekends, but says he hasn't actually been able to do so in several years.

As Mr. Christie played a five-year-old family video -- used to demonstrate that the children were not afraid of their father when the couple separated -- the man sat in court, weeping.

Though Section 810 applications are sufficiently unusual that even the process to begin them must be approved by the provincial Attorney-General, Ontario doesn't know how often they are okayed.

Brendan Crawley, a spokesman for the Attorney-General's office, said yesterday that "it's possible such statistics could be generated, but they're not at hand." Mr. Crawley agreed that the section is "a powerful tool" but said that though only a small number of cases garner publicity, the section is "applied quite broadly."

Toronto's senior Crown attorney, however, said that in city courts, Crowns use 810s only with serious violent offenders, or repeat pedophiles, who are emerging from jail and would be otherwise unsupervised.

Julian Falconer, a Toronto criminal lawyer who unsuccessfully fought a battle to have the section declared unconstitutional on behalf of a notorious pedophile named Wray Budreo, said yesterday that the fact the government doesn't know how often the section is used means that "in addition to a vague, awkward tool, we have very little accountability."

Implicit in the Supreme Court decision upholding the section, Mr. Falconer said, is the notion "that we have to trust the state and that it represents an innocuous intrusion" on a person's liberty.

"But it's so susceptible to abuse," he said, "because the basis for getting it is so completely thin, but the ramifications are so intrusive."

Mr. Falconer said 810 "creates the offence. Don't forget -- if there was an offence, the state wouldn't be resorting to the section."

Because the section is so frequently used when people get out of jail, the process is sometimes colloquially called being "gated."

Indeed, the cabinet maker is known in prison as "Gates."

The hearing is slated to resume Oct. 19.