DATE: 20031229
DOCKET: C36985
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and GOUDGE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JOHN CHRISANTHOPOULOS
Appellant
Graham T. Clark for the appellant
Shawn Porter for the respondent
HEARD: December 19, 2003
On appeal from conviction by Justice Eugene Ewaschuk of the Superior Court of Justice, and a jury, on February 18, 1999.
BY THE COURT:
[1] The appellant appeals from his convictions for kidnapping, extortion, assault and uttering a death threat. He raises a number of grounds of appeal. Before addressing those grounds, we begin with a brief overview of the case for the Crown and the case for the defence.
OVERVIEW OF THE CROWN’S CASE
[2] The charges against the appellant arose out of an incident in which the appellant, his nephew Angelo Zaferis and a third party, Hassan Farhat, allegedly kidnapped the victim, Mazin Jaber, in the belief that Jaber could lead them to Farhat’s uncle, Yassin El-Harake. The appellant wanted to find El-Harake because he was owed money by Farhat and he believed that El-Harake would pay his nephew’s debt.
[3] In the belief that Jaber knew where El-Harake could be found, the appellant and his cohorts kidnapped Jaber and forced him into the appellant’s car. They then drove around looking for Mr. El-Harake but with no success.
[4] While forcibly confined in the car, Jaber was assaulted and threatened. At one point, he was placed in the trunk of the car. This event formed the subject of a 911 call to the police by an unknown stranger.
[5] After driving around for some time with Jaber in the trunk of the car, the car stopped and Jaber was removed from the trunk and returned to the back seat. By now, the car was heading westbound on Highway 401 towards Hamilton. The appellant was driving.
[6] By chance, an O.P.P. officer decided to stop the appellant’s vehicle and she directed the appellant to pull over to the side of the road. The appellant complied and Jaber took the opportunity to make good his escape. As Jaber stood with the officer at the rear of the car, the appellant got out and told Jaber to return to his seat in the car. The officer told the appellant to get back into the car and he complied. He then drove away and was arrested the next day, along with Farhat and Zaferis.
OVERVIEW OF THE DEFENCE’S CASE
[7] The appellant did not testify. His defence essentially amounted to a submission that the Crown had failed to prove the essential elements of the various offences beyond a reasonable doubt. In support of that submission, he relied primarily on the fact that the two main Crown witnesses – Farhat and Jaber – were utterly incredible and unreliable and that their evidence should be given little or no weight by the jury.
GROUNDS OF APPEAL
Ground 1: The 911 call
[8] The appellant submits that the trial judge erred in admitting evidence of a 911 call for the truth of its contents under the principled exception to the hearsay rule. In particular, he argues that the trial judge improperly considered corroborating evidence in arriving at his conclusion that the call was sufficiently reliable to warrant its reception as original evidence.
[9] We disagree. It is apparent from the trial judge’s reasons that in performing the threshold reliability assessment, he looked only to the circumstances surrounding the call. Moreover, although we need not finally decide the matter, we are inclined to agree with the Crown that in light of the striking similarities between the event described by the caller and the events which occurred shortly thereafter, this was one of those rare instances, identified in R. v. U. (F.)(J.) (1995), 101 C.C.C. (3d) 97 (S.C.C.), in which it would have been permissible for the trial judge to consider the surrounding evidence as a means of testing the reliability of the 911 call.
[10] In sum, we are satisfied that the 911 call was properly admissible as original evidence.
[11] The appellant further contends that the trial judge erred in preventing his co-accused Zaferis from cross-examining the 911operator as to the possibility that the call in question was a crank call.
[12] We would not give effect to that submission. A general statement by the 911 operator that crank calls occur would not have assisted the jury beyond informing them of that which they already would have known.
[13] Finally, the appellant submits that in his charge, the trial judge usurped the function of the jury by telling the jury that the 911 call was reliable evidence and that it proved what it was tendered to prove.
[14] Again, we disagree. The trial judge left it to the jury to decide the worth of the 911 call. He specifically instructed the jury to consider the following factors in assessing its value:
- The evidence was not under oath.
- The jury was unable to observe the caller’s demeanour during the call.
- The caller was not available for cross-examination.
- The caller was mistaken as to the number of men involved and the description of the car’s licence plate, which he referred to as AJBR 765 as opposed to ABJR 755.
In addition, the trial judge reminded the jury of the appellant’s position that the 911 call was unreliable evidence and that it should be given no weight. In our view, nothing more was required.
[15] To the extent, if any, that the trial judge may have left the jury with the impression that he considered the 911 call to be reliable evidence, we note that earlier in his charge, he forcefully instructed the jury that it was their view of the evidence that counted, not his, and that they were duty bound “to make [their] own decision on the evidence adduced at this trial.” He further instructed the jury that in the event he expressed an opinion about the evidence, either consciously or subconsciously, they were not bound to follow his opinion. Rather, they were to come to their own conclusion in accordance with their role as the sole triers of fact. Accordingly, if the trial judge did express an opinion, there is no reason to think that the jury would have been improperly influenced by it.
Ground 2: The trial judge’s reference to matters conceded or not in dispute
[16] The appellant contends that references in the jury charge to matters being either conceded or not in dispute occasioned prejudice to him. In particular, he submits that it was wrong for the trial judge to suggest that any facts were either “conceded” or “not disputed” in view of his overall position that the two main Crown witnesses were incredible and unreliable and that their evidence should be given no weight.
[17] We would not give effect to this ground of appeal. The trial judge did, on occasion, refer to undisputed or conceded facts. In some instances, this occurred in his review of the Crown’s position. He was merely reminding the jury of submissions made by Crown counsel in his closing address. That was entirely proper.
[18] In other instances, the trial judge on his own directed the jury to facts which he viewed as “undisputed” or “conceded”. In doing so, he was attempting to guide the jury as to the manner in which they should approach their deliberations.
[19] To the extent that the trial judge may have gone too far, for example, in stating that it appeared “to be conceded that [the victim] had been kidnapped” and that he was not a willing passenger in the appellant’s car, we note that in response to an objection from the defence, the trial judge recharged the jury and corrected any misunderstanding that may have resulted from his original remarks. As well, we note that throughout his charge, the trial judge made it known that the defence was conceding nothing and that the Crown bore the onus of proving each and every essential element of the various offences beyond a reasonable doubt. We note as well that the trial judge fully and fairly reviewed the position of the appellant in accordance with his counsel’s closing argument. In our view, given the strength of the Crown’s case and the failure of the appellant to testify, the trial judge did an admirable job in this regard.
[20] Apart from these considerations, we are satisfied that the impugned instructions occasioned no prejudice to the appellant because on this record, the facts to which the trial judge referred as “undisputed” or “conceded” were proved to a virtual certainty. It follows that even if the trial judge should have avoided using words such as “undisputed” and “conceded”, the appellant suffered no harm. Accordingly, this ground of appeal fails.
Ground 3: The charge on the issue of identity
[21] The appellant submits that the trial judge shifted the burden of proof and led the jury to believe that it was up to the appellant to establish that he was not in his car on the night in question.
[22] In our view, there is no merit in this submission. The trial judge made it abundantly clear throughout his charge that identity was an essential element of the various charges and the onus rested with the Crown to prove it, along with the other essential elements, beyond a reasonable doubt.
Ground 4: Prior consistent statements
[23] Hassan Farhat was initially a co-accused of the appellant and Zaferis. On March 15, 1998, a month or so after his arrest, Farhat provided the police with a statement in which he implicated the appellant and Zaferis in the crimes. Later, at a bail review, Farhat testified and essentially confirmed what he had told the police in his March 15 statement. In light of this, the Crown severed Farhat from the appellant and Zaferis with a view to having him testify as a Crown witness against his former co-accused.
[24] At the appellant’s trial, Farhat commenced his testimony by stating that he was with his wife on the night of the kidnapping and that he had no involvement in it. Following several voir dires, the trial judge found Farhat to be a hostile witness and he also permitted the Crown to file Farhat’s March 15 statement as original evidence. In addition, he allowed the Crown to lead Farhat’s evidence at the bail review, not as original evidence but as a prior inconsistent statement.
[25] The next day, after retaining new counsel, Farhat returned to court and testified that he had lied in the witness box to protect himself and his family. He stated that the appellant and Zaferis had threatened him and that Zaferis had broken his ribs when he and Zaferis were in jail together awaiting trial.
[26] In light of this change in circumstances, the trial judge ruled that the Crown could no longer treat Farhat as a hostile witness. The trial judge also removed the March 15 statement from the list of exhibits that would be made available to the jury. Farhat then continued his evidence and testified in a manner that generally accorded with his earlier statements implicating the appellant and Zaferis in the crimes.
[27] In his charge, the trial judge instructed the jury that they could not use Farhat’s March 15 statement or his evidence on the bail review as original evidence. The jury could, however, use the prior consistent statements “as possibly enhancing [Farhat’s] credibility by reason of his consistent testimony before you that the [appellant] threatened him with a view to dissuading [the victim] from testifying at trial and that the [appellant] and [Zaferis] both assaulted and threatened him again with a view to dissuading the [victim] from testifying at trial”.
[28] The appellant takes issue with that instruction. He submits that the trial judge erred in instructing the jury that Farhat’s prior consistent statements could be used to enhance his credibility because there was no basis in law for such an instruction and it effectively invited the jury to engage in impermissible oath-helping.
[29] We would not give effect to that submission. With respect, it fails to recognize the narrow purpose for which the trial judge told the jury they could use the earlier consistent statements. Specifically, it failed to take into account the fact that the trial judge limited the use of those statements to “possibly enhancing” Farhat’s explanation for having denied any involvement in the kidnapping on day one of his evidence.
[30] Viewed that way, the impugned instruction takes on a different character. As the Crown submits, the consistency in content between the previous statements and Farhat’s testimony after day one constituted circumstantial evidence that increased the plausibility of Farhat’s assertion that his testimony on day one was the product of a threat made against him by the appellant. Accordingly, we think that in the unique circumstances of this case, it was open for the trial judge to charge the jury as he did.
[31] Even if we are wrong in this, given the narrow purpose for which the jury was told they could use the prior consistent statements, we have no doubt that the verdict would have been the same had the jury been told that they could make no use of the prior consistent statements. As indicated earlier, the case against the appellant was extremely strong and it is fanciful to think that the verdict would have been different had the jury been told to ignore the prior consistent statements. Accordingly, this ground of appeal fails.
Ground 5: After-the-fact conduct
[32] This ground of appeal was abandoned in oral argument. We simply mention it because it appears as a ground of appeal in the appellant’s factum.
CONCLUSION
[33] In our view, the appellant received a fair trial. The trial judge did not diminish his defence in the eyes of the jury. Instead, he thoroughly reviewed the position of the appellant and the defences upon which he relied.
[34] We are not persuaded that the trial judge made any errors in his charge; but if he did, they were minor and could not possibly have affected the outcome. The Crown’s case against the appellant was virtually insurmountable. We see no basis for interfering with the verdicts. Accordingly, the appeal is dismissed.
Signed: “John Laskin J.A.”
“M. J. Moldaver J.A.”
“S.T. Goudge J.A.”
RELEASED: “JL” DECEMBER 29, 2003