R. v. Trotta (A.)

R. v. Trotta (A.) Collection Decisions of the Court of Appeal Date 1999-07-30 Docket numbers C32570, M24625 Judges Laskin, John Ivan Subject Criminal Decision Content DATE: 19990730 DOCKET: M24625 (C32570) COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. ANISSA TROTTA (Applicant) BEFORE: LASKIN J.A. (In Chambers) COUNSEL: Howard Borenstein For the appellant Laurie Lacelle For the respondent HEARD: July 29, 1999 ENDORSEMENT [1] The appellant was convicted of criminal negligence causing death and failing to provide the necessities of life for her 8 month old son. She was sentenced to five years imprisonment. She has served 13 months of her sentence. She now applies for bail pending appeal. [2] In my view, the appellant should be released pending her appeal, provided appropriate terms and conditions are imposed. I grant bail for the following reasons: 1. The appeal is arguable. Mr. Borenstein’s opinion letter demonstrates and the Crown acknowledges that the appeal has merit. 2. The public interest considerations applicable to Mr. Trotta differ from those applicable to Mrs. Trotta. Mrs. Trotta was not the homicidal actor; indeed she was acquitted of manslaughter. She was sentenced to five years imprisonment, not life. Thus, I decline to apply the proposition (applicable to Mr. Trotta) that the appellant should not be released unless her appeal is compelling. 3. The appellant’s assessment team, who have had daily contact with her, recommended her release into the community on parole. Her psychological risk assessment shows that she is a low risk for general or violent recidivism. The report’s qualification that she remains a high risk for future negligent conduct if she co-habits with her husband and children is irrelevant for this application because I have denied her husband bail and appropriate terms can be imposed concerning any contact with her children. 4. Although the appellant still apparently has little insight into her husband’s abusive behaviour and perhaps no real understanding of what she did, her values are said to be pro-social not anti- social, she has no problem with drugs or alcohol, and she at least recognizes that she must continue a program of counselling. 5. For the purpose of this application I discount the decision of the parole board. In denying parole, the board relied on the appellant’s desire to pursue her appeal and consequent refusal (on the advice of her counsel) not to discuss the facts surrounding her offences. These considerations may be material to the parole board, but they have no part to play in my decision. Moreover, the board seems to have mischaracterized the psychological risk assessment when it stated that the appellant’s “risk of future episodes of criminal negligence remains high”. That risk remains high, according to the assessment team’s report, only when she is in a relationship with her husband or another abuser, a qualification not noted by the board. 6. Although the appellant did flee to Quebec with her husband, to have another child and avoid apprehension by the Children’s Aid Society, I am satisfied that the appellant will surrender into custody when ordered by the court. The appellant’s difficulties with the law have occurred when she was co-habiting with her husband. No cohabitation will occur pending appeal because Mr. Trotta remains in custody. 7. Indeed as I view the situation, the real risk to the community and the real public interest concern would occur if both Mr. and Mrs. Trotta were released. That, as the Crown fairly submits, would be a “recipe for disaster”. This “disaster” will not occur because Mr. Trotta is not entitled to bail. 8. I have some concern about the ability of the proposed sureties to supervise the appellant, but on balance I do not think that this concern should stand in the way of bail. 9. Finally, the transcripts of the trial are not ready and realistically this appeal is not likely to be argued this year. Because the appellant has met the statutory criteria for release it would be unjust that she remain in custody. [3] Accordingly, I have concluded that the appeal is not frivolous, that the appellant will surrender into custody in accordance with the terms of her release and that the appellant’s detention is not necessary in the public interest. The application is granted. Counsel may speak to me about appropriate terms of release. “John Laskin J.A.” July 30, 1999