DATE: 20060628

DOCKET: C44652

COURT OF APPEAL FOR ONTARIO

MACPHERSON, CRONK and ARMSTRONG JJ.A.

B E T W E E N :

ROGER PENNELL

Delmar Doucette Duty Counsel

Appellant

Roger Pennell In Person

• and -

HER MAJESTY THE QUEEN

Benita Wassenaar for the respondent

Respondent

Heard: June 19, 2006

On appeal from the convictions entered by Justice Thomas J. Lally of the Superior Court of Justice on November 9, 2005 and the sentences imposed on December 8, 2005.

MACPHERSON and CRONK JJ.A.:

[1] The appellant was convicted on November 9, 2005 of one count each of criminal harassment and making harassing telephone calls in relation to his ex-wife and two counts of breaching the terms of his probation, namely, the requirements that he not communicate, directly or indirectly, with his former wife and that he keep the peace and be of good behaviour. He was sentenced to four months imprisonment, in addition to time served, to be followed by three years probation.

[2] The appellant appeals his convictions. Originally, he also appealed against sentence. However, as he has served his sentence, he now seeks a reduction of the term of probation imposed should he be successful on his convictions appeal.

[3] There is one issue. The appellant argues that the trial judge was biased and pre-judged the merits of the offences charged, with the result that trial fairness was compromised. We disagree.

[4] The appellant relies principally on an exchange between the trial judge and the complainant, which occurred during the examination-in-chief of the complainant, when the trial judge inquired of the complainant what she wanted the courts to do, given the obsessive behaviour of the appellant towards the complainant over several years.

[5] In our view, although the timing of this exchange and certain of the language employed by the trial judge was unfortunate, the impugned exchange does not rise to the high threshold required to establish actual bias, as asserted by the appellant. We say this for several reasons.

[6] First, this was a judge alone trial. When the exchange is viewed in the context of the evidence that preceded it, the trial judge’s remarks may be understood as an inquiry of the complainant concerning the outcome she expected from the criminal justice system if her evidence was accepted and the crimes charged against the appellant were proven.

[7] That this was the import of the trial judge’s comments and the manner in which they were likely understood by the parties at the time is evident from the fact that no objection to the exchange was taken by defence counsel. Nor, on the record before this court, does it appear that a mistrial was sought. It is also telling that defence counsel did not cross-examine the complainant on the exchange.

[8] Second, this was an isolated exchange during the trial. The remainder of the trial proceedings, as reflected in the transcript available to this court, does not suggest that the trial judge’s mind was closed to the presumption of innocence. Indeed, the transcript discloses a number of comments by the trial judge that suggest sympathy to the appellant and the defence position.

[9] Third, and importantly, the trial judge’s references to the appellant’s “obsession” with the complainant appear to have been based on the evidence of the appellant’s prior convictions, in each of 2002, 2004 and 2005, for similar conduct in respect of the complainant. This evidence was admitted as part of the narrative of the relationship between the appellant and his ex-wife, and to assist the trier of fact in assessing the complainant’s claim that she lived in fear of the appellant. No challenge to the admissibility of this evidence is made on this appeal. This evidence, by itself, demonstrated a pattern of past obsessive conduct by the appellant towards the complainant.

[10] Accordingly, for the reasons given, the appeal from conviction is dismissed. It follows that it is unnecessary to deal with the sentence appeal, which, effectively, was abandoned by the appellant.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

ARMSTRONG J.A. (Dissenting):

[11] I have read the reasons of my colleagues, MacPherson and Cronk JJ.A., and, with respect, I disagree with their conclusion.

[12] As my colleagues point out, the exchange between the trial judge and the complainant occurred during her examination-in-chief and obviously before she was cross-examined. The complainant was the main witness for the Crown.

[13] The trial judge asked the complainant on four separate occasions what it was that should be done with the accused. In one of the exchanges the trial judge told the complainant that putting the accused in jail “accomplishes nothing” and asked her “what do you want the courts to do?”

[14] In my view the language of the trial judge clearly indicates that he had concluded not only was the accused guilty of harassment on prior occasions but that he was similarly guilty of the charges he was then facing.

[15] In my view the trial judge had made up his mind of the guilt of the accused before the completion of the examination-in-chief of the complainant. I would therefore set aside his convictions and order a new trial.

RELEASED: “JCM” June 28, 2006

“R.P. Armstrong J.A.”