DATE: 20040408
DOCKET: C38908
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – JAMES STILIADIS (Appellant)
BEFORE: WEILER, CRONK and GILLESE JJ.A.
COUNSEL: Michael W. Lacy
for the appellant
Lorna Bolton
for the respondent
HEARD: March 26, 2004
RELEASED ORALLY: March 26, 2004
On appeal from the order of Justice Nicholson D. McRae of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 13, 2002, dismissing an appeal from the conviction entered by Justice Ivan J.A. Fernandes of the Ontario Court of Justice dated February 5, 2001.
E N D O R S E M E N T
[1] The appellant, James Stiliadis was convicted by Justice I.J.A. Fernandes in the Ontario Court of Justice on February 5, 2001 of threatening death, contrary to s. 264.1 (1)(a) of the Criminal Code, and was sentenced to 30 days to be served in the community, followed by 18 months probation. On September 13, 2002, Justice McRae of the Summary Conviction Appeal Court dismissed the appellant’s appeal against conviction but allowed his appeal against sentence and substituted a suspended sentence plus 18 months probation. The appellant appeals the dismissal of his conviction appeal.
[1] The appellant was charged with knowingly uttering a threat to cause death to his former partner, Valerie Holland. They had an 18-year relationship and two children together. The complainant testified at trial that on August 31, 1998, during an argument over the phone regarding access to the children and support, the appellant threatened to kill her by saying, “I’m going to come over and stick something up your nose and blow your head off.” Ms. Holland’s father testified at trial and confirmed the words of that threat. Ms. Holland testified that she could hear traffic in the background during the telephone conversation and she was afraid that the appellant was on a cell phone and on the way to her house. She said that she hung up and then picked up the phone again, to call the police. She said that the appellant was still on the line when she picked up the phone again and that he repeated his earlier threat. During this second part of their discussion she said, “please hang up, I’m calling the police”. The appellant’s response was, “Go ahead. You’ll be dead before they get there”. He then repeated the comment about blowing her head off.
[2] The appellant did not dispute Mr. Holland’s testimony regarding the first threat but did dispute the second threat. He testified that his response when the complainant said, “Please hang up, I’m calling the police”, was, “Fine, call the police. I’ll come right over and meet the police.”
[3] Ms. Holland’s father, David Holland, was on another extension listening, and overheard the part of the phone call that took place before his daughter first hung up. In his evidence he said that he wasn’t privy to the second conversation but that his daughter told him, “that she had heard from Mr. Stiliadis that he felt that if that were so, i.e. that she had called the police, that he could get there before they would.”
[4] The trial judge explicitly rejected the appellant’s claim that he did not utter the words he did with intent to intimidate.
[5] The trial judge then said, “The fact that Mr. David Holland did not hear the second threat is not entirely surprising, since he testified, ‘I didn’t stay on the telephone because I didn’t want to interrupt the conversation.’ ” The Crown concedes that Mr. Holland did not say this in his evidence. The appellant submits that this misapprehension of the evidence affected the core of the trial judge’s reasoning process and that a new trial is warranted.
[6] When this argument was advanced on appeal, the summary conviction appeal judge concluded that there was ample evidence upon which the trial judge could infer that the offence of threatening was made out and upheld the conviction. However, his reasons are so brief that we cannot tell whether he dealt with the ground of appeal of misapprehension of the evidence respecting intent. As a result, we must address the error in the trial judge’s reasons and determine its effect.
[7] Contrary to the appellant’s assertion, we are of the opinion that it was open to the trial judge on the evidence given by Mr. Holland to conclude that he was not on the telephone for the whole time. Although Mr. Holland testified that he did not hear the appellant make the second series of threats, he said that his daughter told him about a second and different threat made by the appellant during their telephone conversation. There would have been no reason for her to disclose this to her father if he had been on the telephone for the entire discussion.
[8] We are satisfied that, absent the trial judge’s misapprehension concerning Mr. Holland’s testimony, the trial judge would inevitably have convicted the appellant. The statements were made in anger in an acrimonious relationship and it was admittedly unusual for the appellant to threaten in such a manner. The words used were specific. The appellant did not challenge the complainant’s evidence that the first threat was repeated in the initial phone call. Both the complainant and her father took the words seriously. The trial judge specifically accepted the complainant’s evidence and rejected the appellant’s version of events prior to commenting on Mr. Holland’s evidence. He did so, in part, on the basis that, on the one hand, the appellant said that he did not recall what he actually said in the first series of comments but then had a “remarkably clear recollection” with respect to the comments made about the police. As well, the appellant claimed that he said that he would come over and meet the police but he did not do this. Thus, his actions were not consonant with what he claimed that he had said.
[9] In our view, the trial judge’s reasons, read as a whole, indicate that his misapprehension of one part of Mr. Holland’s evidence did not affect the core of his reasoning and the verdict would inevitably have been the same. The appeal is therefore dismissed.
“Karen M. Weiler J.A.”
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”