DATE: 20030505

DOCKET: C38710

COURT OF APPEAL FOR ONTARIO

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

BEFORE: CHARRON, MOLDAVER and FELDMAN JJ.A.

COUNSEL: John Norris for the appellant

Philip Downes for the respondent

HEARD: APRIL 29, 2003 (In Kingston)

E N D O R S E M E N T

[1] The appellant raised numerous grounds of appeal against conviction and sentence. In response, Crown counsel grouped the grounds respecting the conviction appeal into three categories.

CONVICTION

[2] The first ground relates to the duration of the trial. The appellant represented himself at the trial. He says that the trial was originally scheduled for ten days but was reduced to five days. He says that he was prejudiced because he had intended to call 15 jail guards but only called two because of the limited time available, and that the trial judge drew inferences about his opportunity to make phone calls from the fact that not all of the people who guarded him over the entire relevant period were called.

[1] A review of the transcript of the opening of the trial discloses that the trial judge specifically checked on the time that had been originally set for the trial and confirmed her understanding that it was five days. She further offered to re-attend at the end of August if the appellant required more time to present his defence at the end of the scheduled period. At the end of the evidence portion of the trial, the appellant confirmed that only three of his witnesses had not testified and that it appeared that they were not going to show up. The matter was put over to the following week for submissions. It is clear that the appellant was not precluded from calling any relevant evidence or witnesses by the time scheduled for the trial and that the trial judge made every effort to accommodate him.

[2] The second ground relates to the sufficiency of the evidence and the trial judge’s findings based on the evidence. We agree with the Crown that the trial judge was extremely thorough in considering all of the evidence and in making her findings. In several cases she agreed with the appellant that the evidence did not support a finding of proof beyond a reasonable doubt and dismissed those counts as a result. The trial judge was entitled to find that the complainant feared for her safety. We are satisfied that the trial judge drew reasonable inferences from the evidence and that there is no basis for interfering with her findings.

[3] Many of the appellant’s grounds relate to matters which arose on previous charges which were not before the trial judge and are not before this court on the appeal. The appellant also complains about an allegedly unlawful arrest in respect of which the charges were withdrawn and are not before the court.

[4] Crown counsel brought to the court’s attention an error made by the trial judge with respect to count 9, breach of probation. The trial judge held that the appellant was in breach of a term of his probation not to call the complainant when he called her from prison, where he remained on other charges when his probation period would otherwise have commenced. Because probation does not commence until the person is released from prison (s. 732.2(1)(b)), his probation period had not commenced at the time of the charge and the conviction is in error.

[5] The conviction for count 9 will therefore be quashed. In all other respects, the appeal against conviction is dismissed.

SENTENCE

[6] The appellant objected that the Crown had changed its requested sentence from two years one month before the trial, to five years following conviction. In support, he filed a pretrial screening form which contained the Crown’s position on sentence if a guilty plea were entered prior to a date for trial or a preliminary hearing being set. This offer did not bind the Crown following a trial.

[7] The appellant had counsel assist him at the sentence. Counsel proposed a sentence of two years after credit of 12 months for pretrial custody of five months, part of which was served in difficult conditions during the OPSEU strike. The Crown asked for a sentence of 50 months after credit of 10 months for the pretrial custody.

[8] In imposing sentence, the trial judge was particularly concerned that the appellant did not appear to understand the impact of his actions on the complainant and on other persons. The trial judge was concerned about the repetitive nature of the appellant’s offences in the face of court orders, and noted the need to provide some peace for the complainant. The trial judge concluded that an appropriate sentence was 33 months. She then reduced that by the pretrial custody, using only a one for one basis, because the appellant continued to make the harassing calls from prison during that period. The appellant was therefore required to serve a further 28 months.

[9] In our view the trial judge made no error in her determination of the appropriate sentence and there is no basis to interfere with it.

[10] The only issue remaining is whether the removal of the conviction for the breach of probation count should result in a reduction of the sentence. It is clear that the trial judge imposed a global sentence of 28 months for all of the conduct, which she made concurrent on each count. In our view, in all the circumstances of these offences, there is no basis to reduce this global sentence.

[11] The appeal against sentence is therefore dismissed.

“Louise Charron J.A.”

“M.J. Moldaver J.A.”

“K. Feldman J.A.”