DATE: 20030526

DOCKET: C37477

COURT OF APPEAL FOR ONTARIO

CHARRON, MOLDAVER and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

PAUL DE LA CRUZ Appellant

David E. Harris for the appellant

Christine Bartlett-Hughes for the respondent

Heard: May 1, 2003

On appeal from conviction dated June 13, 2001 by the Justice M. Morten of the Ontario Court of Justice and from sentence imposed on August 23, 2001.

BY THE COURT:

[1] On June 13, 2001, after a two-day trial before the Honourable Mr. Justice Morten of the Ontario Court of Justice, the appellant was convicted of one count of assault, one count of criminal harassment, one count of breach of recognizance and one count of breach of probation. On August 23, 2001 the appellant was sentenced as follows:

• for the offence of assault, time served (five and one-half months) plus three years probation;[^1]

• for the offence of criminal harassment, three years imprisonment;

• for the offence of breach of recognizance, 12 months consecutive; and

• for the offence of breach of probation, 9 months concurrent.

In addition, two orders were made against the appellant, one being a prohibition order for ten years under s. 109 of the Criminal Code, the other a DNA order. The appellant appeals against conviction and sentence.

OVERVIEW

[2] The offences for which the appellant stands convicted span a four-month time period from February 2001 to May 2001. They arise as a result of the termination of his lengthy common-law relationship (seven or eight years) with the complainant, Ms. C. Deguzman.

[3] According to the complainant, she and the appellant got along well for the first five and a half years of their relationship. During that time frame, two children were born. Thereafter, the relationship began to deteriorate. There were arguments and sometimes the appellant would hit the complainant. Matters came to a head at the beginning of February 2001 when the appellant assaulted her and threatened to either abscond with the children or harm them.

[4] Fearing for her safety and the safety of her children, Ms. Deguzman took the children and moved to her brother’s home in Brampton. A day or so later, the appellant arrived unannounced and demanded to see her and the children. Ms. Deguzman called the police and upon their arrival, she explained that she was frightened of the appellant and that he had assaulted her several days earlier. She showed the police a large bruise on her right arm, which she had sustained during the assault.

[5] Later that evening, the appellant was arrested for assault and detained in custody. He was released several days later on a recognizance with conditions, including a term that he have no contact with the complainant.

[6] A few days later, on February 13, the appellant attempted to contact Ms. Deguzman by telephone and on February 14, he was arrested and charged with breach of recognizance. After spending several days in custody, he entered a plea of guilty to that charge. On his plea, he was sentenced to time served and placed on probation for two years. The probation order contained various conditions, including a term that he have no contact with the complainant.

[7] On February 26, within days of his release, the appellant broke into the complaint’s apartment and he and the complainant spent the day with each other. According to the complainant, she did not want to be with the appellant but she was afraid of him and feared that if she called the police, he would harm her and the children. Later that afternoon, the complainant managed to secretly alert her employer to the problem she was having with the appellant. As a result, her employer called the police and upon attending the complainant’s apartment that night, the police found the appellant and arrested him for breaking and entering and for breach of recognizance.

[8] After serving five days in custody, the appellant pleaded guilty to both charges. He received a 50-day intermittent sentence and he was released from jail on March 5th.

[9] No sooner had he been released than he again attempted to contact the complainant. On the night of March 5, Ms. Deguzman received five ‘hang-up’ calls. On the morning of March 6, the appellant tried several times to call her on her cell phone and on one occasion, she spoke briefly with him. The complainant then contacted the police and the appellant was arrested later that day and charged with breach of probation, breach of recognizance and criminal harassment. Those charges, along with the original assault charge of February 4, form the subject matter of this appeal.

[10] With respect to the charge of criminal harassment, it should be noted that the conduct giving rise to it includes the original assault, the breaches of recognizance and the break and enter to which the appellant pleaded guilty and generally, the appellant’s persistent efforts to contact the complainant up to the eventual date of his arrest on March 6th.

CONVICTION APPEAL

[11] The appellant raises three grounds of appeal against conviction.

[12] First, he submits that the trial judge improperly relied upon bad character evidence and impermissible propensity reasoning to convict him on the charge of criminal harassment.

[13] We disagree. The reasons for judgement are admittedly not a model of perfection. More analysis would have been preferable. That said, when the reasons are read fairly as a whole, we are not persuaded that the trial judge misused the bad character evidence, which, of necessity, formed part of the record on the criminal harassment charge. Rather, he used it properly to explain the appellant’s motivation, his animus towards the complainant and his need to dominate and control her. These were legitimate factors which the trial judge was entitled to take into account in assessing the conduct of the appellant and in determining whether he knew or was reckless as to whether the complainant was harassed and whether she had reason to fear for her safety or the safety of others. Accordingly, this ground of appeal fails.

[14] Second, the appellant submits that the trial was a nullity because his election to be tried by a judge of the Ontario Court of Justice was involuntary and thus invalid.

[15] In our view, this ground of appeal (and others relating to it that form part of the sentence appeal) are entirely without merit.

[16] The appellant initially pleaded guilty before Mr. Justice Forsythe of the Ontario Court of Justice to the charges of assault, criminal harassment and breach of recognizance. He was represented by counsel and as part of the plea negotiations, it was agreed that the Crown would proceed summarily on all of the charges. Part way through the proceeding, it became apparent to Justice Forsythe that the appellant was not prepared to admit the facts necessary to support a conviction for the charges of assault and criminal harassment. Accordingly, he struck the pleas. At the request of the Crown, he also struck the Crown election to proceed summarily. Crown counsel made it known at the time that the decision to proceed summarily was part and parcel of the plea negotiations and now that the pleas had been struck, so too should the election. The trial judge agreed and the appellant raised no concerns.

[17] Several weeks later, when the matter came on for trial before Justice Morten, the appellant appeared with new counsel [not Mr. Harris]. Upon arraignment, the Crown elected to proceed by indictment on the various charges. Defence counsel then made it known that he “wasn’t advised the Crown was proceeding by indictment” and that he would need a few minutes to consult with his client to obtain instructions. He requested 15 minutes.

[18] In response, the trial judge indicated his displeasure with the fact that this had not been resolved earlier and he gave defence counsel five minutes to sort the matter out with the appellant. This was done and defence counsel reported that the appellant wished to proceed to trial “today in front of your Honour”. The trial judge asked the appellant if that was correct, to which the appellant replied “yes, sir”. The trial then proceeded.

[19] Against this backdrop, the appellant now submits that his election was uninformed and involuntary and therefore invalid. He has filed no affidavit material in support of his submission. Absent such material, there is nothing in the record to suggest that his counsel did not fully apprise him of his rights and that he did not exercise his rights freely and voluntarily. Accordingly, we are satisfied that his election was valid.

[20] We are further of the view that the Crown was entitled to proceed to trial by way of indictment. The earlier election to proceed summarily was contingent upon the appellant pleading guilty to three of the counts. The appellant reneged on his end of the bargain and the plea was struck. In these circumstances, absent impropriety on the part of the Crown (and there was none here in our opinion), the Crown was entitled as of right to have its election to proceed summarily struck as well. To hold otherwise would make a mockery of justice. It would allow an accused to renege on his or her agreement while at the same time requiring the Crown to uphold a part of its agreement beneficial to the accused.

[21] In the alternative, if the Crown needed judicial approval to withdraw its original election, such approval was given here and quite properly so.

[22] Third, the appellant submits that the trial judge misapplied the rule in Brown v. Dunn (1893), 6 R. 67 (H.L.) and in doing so, he effectively deprived the appellant of his sole defence on the assault charge.

[23] In our view, there is merit in this submission. The appellant’s sole defence to the charge of assault was self-defence. The appellant did not deny striking the complainant but he claimed that he did so because the complainant was attacking him with a knife and he feared for his life and safety. That scenario was put to the complainant in cross-examination as follows:

Q. And so, I’m going to suggest to you, when you came back in the living room with the knife …

A. I did not have a knife.

Q. … that Paul had one of your daughters, Marissa, in his arm. Isn’t that right?

A. I don’t recall that.

Q. Well, are you saying it might have happened?

A. I’m just saying I don’t recall it. I don’t remember that -- that -- that thing happening.

Q. And I’m going to suggest that you pointed the knife at him …

A. No, I did not.

Q. … agitating the knife at his chest?

A. No, I did not.

Q. And I’m going to suggest to you further that he pushed you?

A. That he pushed me?

Q. Right.

A. Because I put the knife against him?

Q. Yes.

A. No, I don’t recall that at all.

[24] In-chief, the appellant testified that the complainant attacked him with a knife and he defended himself by striking her arm with his right elbow. The force of that blow caused the complainant to drop the knife and he retrieved it. The appellant then went on to state that the complainant was crying and trying to break his record collection. At that point, Crown counsel objected and the following exchange occurred between the Crown and the trial judge:

[CROWN] I think my friend’s questions are eliciting answers that are violating the rule in Brown and Dunn, since none of this was put to Ms. Deguzman when she was on the stand.

THE COURT: Quite true. Especially the self defence aspects about poking in the chest with the knife and being assailed without any provocation. All of that, I’ve borne that in mind … [emphasis added].

[CROWN] Okay, Thank you.

THE COURT: … I’m just listening

[25] The appellant’s examination-in-chief continued into the next day. At a certain point, while testifying about his activities with the complainant on February 19 and 20, a week or so before he allegedly broke into the complainant’s apartment, the trial judge interjected and the following exchange occurred between the trial judge and defence counsel:

THE COURT: This is another line of questioning that was never addressed to the alleged complainant in this matter. It’s improper, totally. Totally.

[DEFENCE COUNSEL]: Your Honour, I did question her with the February …

THE COURT: You never questioned her on these issues whatsoever. I can review my notes, there is nothing about him completing delivery, meeting her, her calling him, going in to an underground parking garage, absolutely nothing and you will not proceed any further with this line of questioning and it will not happen again. Yesterday I allowed it because of out of interest with no weight attached to it because you had not addressed the complainant. Today you will not do any of it, none [emphasis added].[^2]

[26] In view of his determination that the appellant’s evidence regarding the knife attack would receive “no weight” because it had “not [been] addressed to the complainant”, it comes as no surprise that the trial judge rejected the appellant’s defence of self-defence on the assault charge. His reasons in this regard are reproduced below:

You indicate that this scuffle in the apartment involved a knife, I find that there was no knife used by her. She did not threaten you. She did not attempt to over power you. You were not defending yourself. Self-defence is not open to you, it did not happen that way.

[27] The trial judge was wrong in concluding that the rule in Brown and Dunn applied to the appellant’s evidence as it related to the knife attack. As the record indicates, the complainant was questioned about the knife. Indeed, defence counsel put the suggestion directly to her that she had pointed the knife at the appellant and agitated it at his chest. In view of this, there was no basis for the trial judge’s remark, reproduced earlier, that she had not been questioned about “the self-defence aspects about poking in the chest with the knife … .”

[28] In view of this error, the conviction for assault cannot stand. This is not a case in which the proviso can safely be applied to sustain the conviction. In short, we cannot say that the verdict would necessarily have been the same had the trial judge tested the appellant’s evidence without reference to the rule in Brown and Dunn. Accordingly, we would allow the appeal, quash the conviction for assault and order a new trial on that count.

[29] The appellant submits that if the assault charge falls, the conviction for criminal harassment must fall as well because the assault formed an integral part of the harassment charge. We disagree. While it is true that the alleged assault formed part of the conduct in respect of the criminal harassment charge, the remainder of the appellant’s conduct more than amply supports the harassment conviction.

[30] In the result, we would dismiss the appeal against conviction in respect of the charges of criminal harassment, breach of recognizance and breach of probation.

SENTENCE APPEAL

[31] The appellant was sentenced to time served (five and one-half months) on the assault charge. On the other offences – criminal harassment, breach of recognizance and breach of probation – he received a global sentence of four years in the penitentiary. The appellant submits that the four-year sentence was manifestly unfit and he seeks to have it reduced. We agree, especially in view of our disposition of the assault charge for which the five and one-half months pre-trial custody was assigned. The appellant is now entitled to have that block of time credited to the charges that remain.

[32] Apart from any reduction for time spent in pre-trial custody, we believe that the three-year sentence for the offence of criminal harassment was manifestly excessive in the circumstances. In our view, it failed to adequately reflect the fact that the appellant had already been sentenced for some of the conduct (the break and enter and the two breaches of recognizance) which, combined with other conduct, formed the essence of the criminal harassment charge. The sentence imposed by the trial judge did not take this into account and resulted in the appellant receiving something akin to double punishment. By and large, the same can be said for the one-year consecutive sentence imposed for the offence for breach of recognizance. That crime formed part of the conduct making up the criminal harassment charge and in our view, it should have attracted a concurrent sentence.

[33] Finally, in assessing the appropriate sentence for the charge of criminal harassment, we note that the appellant did not have a criminal record prior to the four-month time period under consideration. It is also noteworthy that the effect on the complainant, as evidenced by Crown counsel’s comment at the time of sentencing, did not appear to be as serious as is often seen in cases of this nature.

[34] That said, we should not be taken as minimizing the seriousness of the appellant’s crimes. In our view, the crime of criminal harassment is always serious and there are some disturbing features in this case that give us cause for concern.

[35] First, we find it significant that the appellant continued his harassment by contacting or attempting to contact the complainant from jail after being arrested and detained in custody on March 6, and later, from a hospital where he was undergoing a psychiatric evaluation. Of particular concern in this regard is a letter written by the appellant, addressed to his children, in which he portrayed the complainant as an evil person and blamed her for having him locked-up in jail. In a word, his effort to poison the minds of the children against their mother was reprehensible.

[36] We are also troubled by aspects of the psychiatric report and pre-sentence report filed at the sentence hearing. The author of the pre-sentence report states that the appellant “blames the victim for his circumstances and does not accept responsibility for the offences.” The report continues that “the writer has concerns for the victim’s safety. To date the offender has not abided by any court orders.”

[37] The psychiatric report, dated August 3, 2001 and prepared by the forensic unit at the St. Joseph’s Health Care Centre, contains even more disturbing aspects. The appellant is described as “narcissistic”, “grandiose”, “lacking in empathy and exploitative of others”, “impulsive, superficial and at times untruthful with staff.” The report continues that he has “great difficulty in accepting the consequences of his behaviour” and he “projects all his problems onto his wife, the police [and the] legal system which in his opinion have unduly persecuted him.” The report further indicates that “he has consistently not displayed any remorse in the slightest for his actions”, “he has expressed little need for change in his behaviour” and “his inability to appreciate consequences for his behaviour is of concern.” In the end, he is described as presenting a “moderate” risk of committing spousal assault and he is potentially capable of harming himself and the children.

[38] These observations are chilling and give us serious cause for concern. Taking them into account, along with the principles of sentencing that must take precedence in cases of this nature – denunciation and general and specific deterrence – we think that the appellant should have received a global sentence of two years less one day, plus probation for three years. In arriving at that sentence, we have credited the appellant for time served in pre-trial custody.

[39] To give effect to this disposition, we would reduce the sentence on the criminal harassment charge from three years to two years less one day, plus three years probation. On the charge of breach of recognizance, we would vary the sentence from one year consecutive to one year concurrent. In all other respects, we would not interfere with the sentence imposed at trial.

[40] With respect to the probation order, it shall contain the following terms and conditions. The appellant shall:

(1) Keep the peace and be of good behaviour.

(2) Not communicate directly or indirectly with the complainant Catherine Deguzman or her children, except through counsel for legal purposes or as permitted by lawful order of a court of competent jurisdiction.

(3) Report to a probation officer forthwith upon his release and thereafter as required.

(4) Undergo counselling as prescribed by his probation officer.

(5) Not possess any weapons as that term is defined in the Criminal Code.

Signature: “Louise Charron J.A.”

“M.J. Moldaver J.A.”

“K. Feldman J.A.”

RELEASED: ‘MJM’ MAY 26, 2003

[^1]: The probation order was of no force or effect in view of the penitentiary term totalling four years imposed in relation to the other offences.

[^2]: Although we need not finally resolve the matter, we know of no case that holds that a breach of the rule in Brown v. Dunn may be remedied by disallowing the witness from giving evidence that is otherwise relevant and admissible.