DATE: 20031209

DOCKET: C40155

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – STEPHEN FAZEKAS (Appellant)

BEFORE: McMurtry C.J.O., Laskin and Rosenberg JJ.A.

COUNSEL: John Norris (Duty Counsel) for the appellant

Eric Siebenmorgen for the respondent

HEARD: November 25, 2003 – in Kingston

RELEASED ORALLY: November 25, 2003

On appeal from the judgment of Justice Robert G.S. Delfrate, sitting as a summary conviction appeal judge, dated March 11, 2003, dismissing an appeal from the conviction entered and the sentence imposed by Justice Peter T. Bishop of the Ontario Court of Justice dated June 25, 2002.

E N D O R S E M E N T

[1] Duty counsel for the appellant raised three grounds of appeal against conviction:

[2] The appellant submits that the conviction for uttering a death threat was unreasonable. We disagree.

[1] Both the trial judge and the summary conviction appeal court judge grappled with the differences in wording to which the three witnesses testified. In our view, they correctly concluded that despite these differences the import was the same: each witness was consistent in describing words that conveyed a threat to kill a Crown Attorney. The conviction therefore was not unreasonable.

[2] Second, the appellant submits that the trial judge failed to apply the correct test for the mens rea for uttering a threat set out by the Supreme Court of Canada in R. v. Clemente. We do not accept this submission.

[3] The trial judge found that the appellant had considerable animosity for the police and that the witnesses took his threat seriously. From these findings we can reasonably infer that the trial judge concluded the threat was intended to be taken seriously.

[4] Finally, the appellant submits that in the light of the Supreme Court of Canada’s decision in R. v. Lohnes the conviction for causing a disturbance cannot be supported. Again, we disagree.

[5] The appellants’ yelling and shouting took place throughout the day and were so significant that they caused the Crown to close her case and the court reporter to leave the courtroom. The conviction for this offence was reasonable.

[6] For these brief reasons the conviction appeal is dismissed.

[7] Although we think that the sentence for threatening was at the high end of the range we are not persuaded that it was demonstrably unfit. Accordingly, although leave to appeal sentence is granted, the appeal is dismissed.

“McMurtry C.J.O.”

“John Laskin J.A.”

“M. Rosenberg J.A.”