Assault with a weapon: ‘namely Febreze’
A man wanted police to take his mentally ill wife to a hospital. Instead she was jailed
Janice Saville believed her partner, who was being treated for cancer, was surrounded by dangerous radiation.
She sprayed him with Febreze to protect him. She also approached his face with a pillow — again, believing it would protect him.
What happened next is that the then 69-year-old Toronto woman was taken out of her home in handcuffs by police. She was arrested for attempted murder and domestic assault over the objections of her partner — who just wanted his mentally ill wife taken to hospital.
On her charge sheet, one of the offences is listed as assault with a weapon, “namely Febreze.”
She would spend nearly 10 months in pretrial custody, including at the Vanier jail for women in Milton, before finally being released on bail. She would then stand trial for her alleged crimes; the proceedings took just half a day this past February. By the afternoon, the judge had acquitted Saville as she and her partner sobbed and left the courtroom together.
The prosecution’s decision to take Saville’s case to trial against the repeated objections of her alleged victim came as an under-resourced justice system is struggling under a massive case load and as serious criminal matters are being thrown out due to delay.
Saville’s case was heard. Meanwhile, other cases involving charges for sexual assault, gun possession linked to a fatal shooting, human trafficking, and child sexual abuse have all been tossed in recent months.
In the face of that backlog and its consequences, advocates are calling on Crown attorneys to completely rethink which cases are actually worth pursuing and to filter out more matters that are either weak or not in the public interest to prosecute. These calls come at a time of heightened scrutiny on prosecution decisions after the acquittal of Umar Zameer, accused of first-degree murder in the death of Toronto police Const. Jeffrey Northrup, a high-profile case that a judge had told the Crown was weak from the start.
Saville’s case, said her husband, Alex McLarty, “was handled in the most deplorable way possible, right from the beginning.”
McLarty is adamant that the matter should have never gone to court, something he said he raised repeatedly with the police, the Crown and at his wife’s court appearances leading up to the trial — only to be ignored.
“If it means going public to make sure it doesn’t happen to anybody else, I will go in front of Queen’s Park and do a press conference if I have to — I’m serious — and say this shouldn’t have happened,” McLarty told the Star in an emotional interview alongside his wife.
The Star has been reporting on other Ontario criminal cases where the decision to prosecute has been called into question, including the story of a Toronto woman who was prosecuted over the death of her young son despite a judge saying it was not in the public interest to go to trial.
Saville and McLarty, who have been together for about 20 years, laughed often and cracked jokes to each other during their interview with the Star at the office of her lawyer, Mary Murphy, breaking the tension as they described Saville’s ordeal.
It was McLarty — the alleged victim in the eyes of the police and Crown — who was especially upset, at times consoled by Saville, the alleged aggressor.
“Take it easy, take it easy,” she said, patting him on the arm as he began to tear up, unable to express himself. “It’ll come to you if you take a breath or two, dear.”
Saville, now 71, said she feels more anxious after being handcuffed by police in her own home.
“I’m not concerned for myself as I am for Alex. Being a cancer patient, stress can deteriorate the body. Alex’s health improves to a degree, and you don’t need the aggravation,” she said, turning to look at her partner.
“Neither do you, Jan,” he responded. “I am beyond outraged, I am beyond being civil about this. Something has to be done.”
The problems started early last year when the couple couldn’t find Saville’s injectable medication. Things got worse when her doctor said he couldn’t see her for a few weeks to refill the prescription; Saville’s mental health began to deteriorate.
McLarty kept returning to the doctor’s office, where they finally agreed to submit a form for the police to pick Saville up and have her detained in hospital for a psychiatric assessment. When two officers arrived early one morning in January 2023, Saville was in a fullblown crisis, and McLarty was worn out from his cancer treatments and lack of sleep.
The interaction is captured on body-camera footage. Believing that the police are about to take Saville to the hospital, an exhausted McLarty tells the officer about being sprayed with Febreze, and that “she tried to smother me twice,” mentioning radiation. (McLarty would later clarify, including in court, that she did not try to smother him. Murphy emphasized that everything McLarty said in the interaction was in the context of trying to get police to take the mental health call seriously.)
But the officers do not take Saville to hospital. Within minutes of the conversation with McLarty, they approach Saville sitting on her bed.
“All right, so Janice, here’s the deal. You’re going to be placed under arrest for domestic assault,” says Const. Alexandria Parker. As the officer and her partner take a panic-stricken Saville off the bed, she screams for help.
Immediately after, McLarty is clear with Parker about what he wants to see happen.
“I want to drop charges. I want her to go to St. Mike’s (Hospital), please,” he tells the officer.
Parker responds that McLarty has no choice in the matter and they take domestic assault very seriously. “Criminal supersedes mental health,” Parker says.
“What happens a lot of times at the hospitals is that the emergencies are overrun, they’re too busy and the doctors don’t care,” Parker tells McLarty. “We see it every day. We apprehend people and bring them there; they’re walking out of the hospital before we’re done typing the report.”
This way, Parker says, a judge could order that Saville receive mental-health treatment if necessary. When McLarty tells Parker again he wants the charges dropped and for Saville to go to St. Mike’s, the officer responds: “Unfortunately, we can’t. It’s a hard thing with domestics. We have no discretion.”
Saville would end up spending most of 2023 in custody.
The challenge in getting Saville released on bail was the nature of her charges, which at first included attempted murder — the alleged attempted suffocation by pillow — until the Crown withdrew that charge last summer. Murphy, Saville’s lawyer, also didn’t realize initially the alleged victim in the case actually wanted his wife back home.
After her arrest, the jail sent Saville to the Ontario Shores mentalhealth-care facility in Whitby as she remained in a state of crisis. Once Saville returned to the Vanier jail, Murphy ramped up efforts to find a suitable place for her to live so she could secure her bail, such as a shelter bed, but the seriousness of the intimate partner violence charges and the lack of resources made it impossible.
It was only when more evidence from the case was disclosed by the Crown that Murphy discovered McLarty fervently wanted the charges dropped. After that, the lawyer began working to have Saville returned home on bail, a request that was finally granted by the court last October.
By then, Saville had already been in jail or secure mental health custody for 10 months on a case that now consisted of only the two assault charges.
“At that point, with the attempted murder charge gone, she was doing far more time in custody than she would have ever been sentenced to,” Murphy told the Star.
“You can lay the charges as seriously as you want but in the end, it’s a pillow and Febreze. I just think nobody really took a proper look at what was happening with this, who these people were, and what this man was trying to tell the officer and anybody who would listen about what he actually wanted.”
As for the officer’s comments that the doctors “don’t care” when police bring in individuals in crisis, Murphy said they should have tried with Saville anyway; they could have even had a police officer waiting outside her hospital room.
“It’s a tremendous waste of resources, but so is 10 months in jail for a 71-year-old woman,” she said. “Had the officer done what Alex asked her to do, this never would have happened.”
Toronto police spokesperson Stephanie Sayer said Parker would not comment on the case. “As you know, it is the role of police to investigate and pursue charges where the grounds exist,” Sayer said. “It is the Crown’s role to assess the case and make the decision to prosecute or not.”
Murphy said the Crown took no initiative “to try and find a more therapeutic way” to deal with the case, like trying to connect Saville and McLarty with supports and putting the case on track to be withdrawn.
The Crown has complete discretion over which charges — if any — laid by police should proceed in court and is required by policy to go ahead only “if there is a reasonable prospect of conviction and it is in the public interest.” The Star asked the Ministry of the Attorney General for comment on the decision to prosecute Saville, and received a response from Attorney General Doug Downey’s spokesperson, Jack Fazzari, that simply said:
“Decisions made by Crowns are made independently of government and in the proper exercise of their discretion.”
(The Star’s separate questions to the ministry about the Crown’s decision-making in the Zameer case and the case of the mother who was prosecuted despite the warning it was not in the public interest were also met with identical responses from the attorney general’s office.)
The president of the Ontario Crown Attorneys’ Association, Betty Vavougios, said prosecutors are constantly assessing the strength of their cases and filtering out weak ones, while dealing with a “crushing workload” and lack of resources.
The assistant treasurer of the Criminal Lawyers’ Association said the Crown needs to rethink what is actually in the public interest to take to trial. Stephanie DiGiuseppe said it is “shocking” to be pursuing cases like Saville’s, noting that prosecution decisions are often made above the heads of the Crown attorney assigned to the case.
She agreed it’s not always easy to determine if a case should proceed when the alleged victim wants the charges dropped. But a “really straightforward litmus test” to weed out some of these cases would be to look at whether it’s a medical situation, as was the case with Saville.
McLarty was in the unfortunate position of having to testify against his wife during her one-day trial in the Ontario Court of Justice in February.
He told the court that Saville approached his face with the pillow to protect him from radiation. It didn’t make contact with his face and he brushed it away. The spray of Febreze was also to protect him, he said, and he quickly washed his eyes and got some air.
“I just want to say in court, I don’t hold anything against her, because I know that wasn’t her, OK?” McLarty testified. “Because normally she’s loving and caring, very supportive. She would do almost anything to make sure that I’m well, despite her own health.”
He also reiterated: “Not once did I say, ‘I’m pressing charges’; not once did I say I felt threatened.”
Crown attorney Thomas Surmanski asked Justice Brock Jones to acquit on the charge of assault by suffocation, given McLarty’s testimony. But Surmanski argued the Crown had still made its case for assault with Febreze. Jones disagreed and acquitted Saville on that charge, too, saying he had “no difficulty accepting” McLarty’s testimony that Saville believed she was protecting him.
“That’s it, you’re free to go. Thank you, sir, for coming,” the judge said to the couple, as they became emotional. “Good luck to you.”
Saville spent 10 months in custody, mostly in jail, despite never being convicted of a crime.
The rage and sadness that this ordeal has caused remain palpable when McLarty discusses it.
Had the Crown listened, McLarty said, he wouldn’t have put him in the position of having to testify and “made her look like a …” as his voice trailed off.
“… criminal,” Saville chimed in to finish his sentence.
I just think nobody really took a proper look at what was happening with this, who these people were, and what this man was trying to tell the officer and anybody who would listen about what he actually wanted.
MARY MURPHY DEFENCE LAWYER FOR JANICE SAVILLE