DATE: 20030310

DOCKET: C37430

COURT OF APPEAL FOR ONTARIO

CHARRON, GOUDGE AND CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Paul Calarco for the appellant

Respondent

• and -

ANTHONY DONATO

Kelly Slate for the respondent

Appellant

Heard: February 28, 2003

On appeal from the conviction of Justice John D. Bark of the Ontario Court of Justice dated October 22, 2001 and on appeal from the sentence imposed by Justice John D. Bark on December 10, 2001.

BY THE COURT:

[1] The appellant appeals his convictions for wilfully attempting to obstruct justice and failing to comply with a recognizance. He also seeks to appeal his sentence of 60 days in jail.

[2] Both convictions rest on three conversations which the appellant had with John Apostolis on March 22, 2000.

[3] On that day, the appellant and Mr. Apostolis were at the Newmarket Courthouse awaiting the appellant’s trial on a charge of breaking and entering. Mr. Apostolis was to be a Crown witness. At that time the appellant was bound by a recognizance that prohibited him from communicating with Mr. Apostolis.

[4] The breach of recognizance charge required the Crown to establish not only the act of noncompliance but that the appellant intended to violate the recognizance.

[5] In deciding the mens rea issue, the trial judge was required to address the appellant’s evidence that, because he was acting for himself, he believed he could talk to the witnesses just as the Crown Attorney did, and therefore he did not believe that he was breaching his recognizance when he spoke to Mr. Apostolis.

[6] The trial judge did not do so. While the Crown argues that, in effect, he simply disbelieved the appellant’s explanation, we do not think his reasons can be read that way. Rather, his language makes clear that he eliminated any possibility of the appellant’s explanation providing a defence to this charge.

[7] In removing this defence as a matter of law, he erred. It was incumbent on him to critically assess the appellant’s credibility and make proper findings of fact as to his intention in approaching Mr. Apostolis.

[8] Thus, the conviction on this count must be set aside and a new trial ordered.

[9] For similar reasons, the same result is required for the conviction for wilfully attempting to obstruct justice.

[10] In assessing the appellant’s intention in conversing with Mr. Apostolis, the trial judge relied in significant measure on his finding that Mr. Apostolis felt that he was being intimidated not to testify. In so doing, the trial judge misapprehended the evidence. There was no evidence that Mr. Apostolis felt intimidated, as the Crown fairly concedes, or that he sought out a police officer to report that he felt that way.

[11] While intimidation is not an essential element of this offence, it is required that there be a proper assessment of the evidence, to determine, inter alia, the appellant’s intention in conversing with Mr. Apostolis.

[12] We do not agree with the appellant that, properly assessed, the evidence before the trial judge could not have supported a conviction. Thus, this conviction must also be set aside and a new trial ordered.

[13] In the result the convictions appeal is allowed, the convictions set aside and a new trial is ordered. There is therefore no need to deal with the sentence appeal.

Released: March 10, 2003 “LC”

“Louise Charron J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”