CITATION: R. v. Holley, 2007 ONCA 682
DATE: 20071009
DOCKET: C45195
COURT OF APPEAL FOR ONTARIO
BORINS, SHARPE JJ.A. and WATT J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
PATRICK HOLLEY
Appellant
Dean Paquette for the appellant
Jamie Klukach for the respondent
Heard: June 12, 2007
On appeal from the conviction entered on March 27, 2006 and the sentence imposed on May 31, 2006 by Justice Gary F. Hearn of the Ontario Court of Justice.
WATT J. (ad hoc)
OVERVIEW
[1] In November 2004, Jennifer Hill worked as a Band representative and service co-coordinator for Six Nations Child and Family Services. She was the Band representative responsible for the Children’s Aid Society case involving the children of Patrick Holley.
[2] Jennifer Hill by chance, met Patrick Holley at a Brantford courthouse on the morning of November 26, 2004. During a conversation in an interview room at the courthouse, Patrick Holley threatened to kill or injure several persons whom he identified. Each person was associated with law enforcement or the administration of justice in the Brantford area.
[3] Patrick Holley denied meeting Jennifer Hill at the courthouse on the morning of November 26, 2004 and threatening to kill or harm anyone as she claimed. Mr. Holley and several witnesses said that he was at his lawyer’s office preparing material for an upcoming legal proceeding when, according to Ms. Hill, they spoke in the courthouse interview room.
[4] The trial judge accepted the evidence of Jennifer Hill about the events of the morning of November 26, 2004 and specifically rejected Patrick Holley’s denial and claim that he was elsewhere at the material time. After entering a finding of guilt and conviction, the trial judge sentenced Patrick Holley to imprisonment for a term of sixty (60) days to be followed by probation for two (2) years.
[5] Patrick Holley appeals both conviction for threatening contrary to s. 264.1(1)(a) of the Criminal Code and sentence.
A. THE FACTS
1 Introduction
[6] For all practical purposes, the case for the prosecution depended upon the evidence of Jennifer Hill. Some confirmatory evidence about events that followed her meeting with Patrick Holley made its way into trial proceedings, but proof of the essential elements of the offence and Patrick Holley’s participation in it depended entirely on her testimony.
[7] Patrick Holley’s response to the allegations contained in the information was an unqualified denial. He and several other witnesses accounted for his whereabouts and activities at various times throughout the day. He acknowledged meeting Ms. Hill by chance later in the day, but denied saying anything of the kind she claimed he had uttered earlier. And the scent of a malevolent conspiracy permeated the prosecution, according to Mr. Holley.
2 The Prosecution’s Case
[8] Jennifer Hill was late arriving for a family law proceeding in a second floor courtroom at a Brantford courthouse on November 26, 2004. The matter for which she had attended had already been adjourned. The courthouse was not busy. After a brief wait, Ms. Hill walked downstairs. She stopped to look at the list on the wall outside another courtroom. There she ran into Patrick Holley who was looking for his lawyer, Mr. Karkkainen. Mr. Holley’s case was not on the court list that day.
[9] Patrick Holley asked Ms. Hill whether she had a few minutes to talk about his case. She agreed. They went into an interview room. Holley recounted some concerns he had about his case. In time, as his narrative continued, Holley became agitated and angry, recounting an endless stream of official wrong-doing and missteps in connection with his file.
[10] As Patrick Holley continued his rant about the wrongs he had suffered, he threatened to torture his tormentors by pouring boiling grease over their heads in front of their children. He recited the names of several Children’s Aid workers and police officers on the Six Nations reserve, and mentioned a Hells Angels member from Detroit, a man whose last name was “Lewis”, as someone who could help him in his pursuit.
[11] Patrick Holley mentioned that his mother was waiting outside the courthouse for him. When Ms. Hill and Holley parted company, Ms. Hill walked upstairs passing by two local lawyers, Joy Marr and Elizabeth Porter, on her way. Patrick Holley headed for the front doors of the courthouse. Ms. Hill, upset and somewhat afraid, recruited a court officer to escort her to her car.
[12] Jennifer Hill established the time of the conversation with Patrick Holley as sometime between 11:00 and 11:44 a.m. on November 26, 2004. She noticed the clock in her car read 11:44 when she returned there with the security officer. When her supervisor returned from lunch, she reported the incident to him, then to the Six Nations and finally to the Brantford Police Service.
[13] In cross-examination, Jennifer Hill agreed that she had not told investigators about going downstairs at the courthouse before meeting Mr. Holley near where a court list was posted. She had said that she had met him as she came out of a courtroom on the second floor. Ms. Hill met her supervisor at about 12:30 p.m., then drove to the Six Nations police station where she made a complaint between 1:00 and 1:30 p.m. She left there around 2:00 p.m. Ms. Hill did not see Patrick Holley after their chance meeting of the morning. She spoke with investigators from the Brantford Police Service at around 5:00 p.m. on the same afternoon.
[14] John Wilkinson, a court constable employed by the Brantford Police Service, was at work in a second floor courtroom at the courthouse on November 26, 2004. He was approached by a woman who was concerned for her safety and escorted her to her car. He could not recall her name but she (Ms. Hill) identified him by sight and voice on January 11, 2005. He did recall escorting somebody out of the courtroom during the Fall of 2004.
[15] Barbra Holley is Patrick Holley’s mother. She and her son left their Cayuga residence at 9:30 a.m. on November 26, 2004 to drive to Brantford where Patrick Holley had an appointment with his lawyer. Mrs. Holley dropped Patrick off at Mr. Karkkainen’s office at about 10:15 a.m. and Mrs. Holley waited in her car, which she parked directly in front of the lawyer’s office. She stayed outside the office until about 11:30 a.m.
[16] Barbra Holley took Patrick to the courthouse around 3:00 p.m. on November 26, 2004 and waited for him for about 15 minutes. When Patrick returned, he was happy. He said he had spoken to Jennifer Hill. It was about 3:15 p.m. The purpose of the courthouse visit was for Patrick to do “something about private information” and to deliver some reports to Mr. Karkkainen for some family law proceedings that would later take place.
[17] In cross-examination, Mrs. Holley recalled that Mark Karkkainen came out of his office at about 11:30 a.m. to advise her that she could return at 1:30 p.m. She returned at 1:15 p.m. Patrick Holley joined her between 1:15 and 1:30 p.m. and they went out for lunch.
[18] Elizabeth Porter, a lawyer in Brantford, was at the courthouse on November 26, 2004. She thought she completed her obligations in family court by 11:30 a.m. or noon on that day. She could not recall having seen Patrick Holley on that day, although she frequently saw him at the courthouse. She was not asked whether she had seen Jennifer Hill.
3 The Defence Case
[19] Patrick Holley testified that he and Dr. Tobey plinked some gas lines in the building where they lived before Mr. Holley’s mother, Barbra, picked him up at 9:30 a.m. to drive him to Brantford to meet his lawyer, Mark Karkkainen. Mr. Holley arrived at the law office at around 10:15 a.m. He talked to Mr. Karkkainen’s spouse and secretary, Marianne, as well as some other people in the office, for about one-half hour. Mark Karkkainen returned from Superior Court at about 10:45 a.m.
[20] According to the appellant, he and Mark Karkkainen then prepared some materials, including affidavits and information for use in the family court proceeding to be heard on the following Monday. He and Mr. Karkkainen went to the courthouse to file the documents around noon and remained there for about 5 or 10 minutes before going to Tim Horton’s for coffee. Mr. Holley did not see Jennifer Hill at the courthouse that morning.
[21] In answer to leading questions asked by his own counsel, Patrick Holley confirmed that
i. from 10:15 a.m. until 1:15 p.m. he was with Mr. Karkkainen and/or his wife; and
ii. between 11:00 a.m. and noon he was not in the courthouse.
At 1:15 p.m., Mr. Holley met his mother at his lawyer’s office and they went out for lunch.
[22] Patrick Holley also pointed out that after he had been charged with threatening, he laid a private information charging Jennifer Hill with public mischief. Several months later, in October 2005, he filed a Statement of Claim against several defendants including the complainant, the prosecutor, and the Children’s Aid Society involved in proceedings relating to his children. The prosecutor later intervened in the private prosecution of Ms. Hill and withdrew the charge.
[23] In cross-examination, Patrick Holley acknowledged that he had several outstanding proceedings relating to his children and their custody. He considered the Six Nations Children’s Aid Society as being very corrupt and complained of mistreatment by the Six Nations Police Service.
[24] In cross-examination, Patrick Holley recalled a chance meeting with Jennifer Hill around 3:00 p.m. on November 26, 2004. He described what happened in these terms:
I went in to get a couple of your private information sheets to be, to return to court on Tuesday with, to lay some private charges. And I saw Jennifer Hill there. And she was walking around in there and she said, Hey Pat, and I said, What? And she said, I can I speak with you? And I said, Sure. We were standing right in front of the glass door going into the court clerk’s office. She says, You know I met with the CAS. I said, Oh yeah, that’s good; And I was there when the children disclosure, I said, Yes. And she said, I’m doing up with affidavit, she said, Things are going to change, don’t worry. She said, I’ve gotten an idea of what going on here, and she said, I’ve gone to my supervisor and, and you’re going to be really surprised with what going to happen Monday.
[25] Patrick Holley has prior convictions for public mischief and fraud.
[26] Dr. John Tobey, a minister and lecturer at a local college, confirmed that Patrick Holley helped him to install a new furnace at a residence where Dr. Tobey lived with Mr. Holley and Holley’s mother on November 26, 2004. Patrick Holley and his mother left Cayuga at about 9:30 a.m. on November 26, 2004.
[27] Mark Karkkainen represents Patrick Holley in various family law proceedings. He met Mr. Holley at his office at about 10:45 a.m. on November 26, 2004, after Mr. Karkkainen had returned from an appearance in the Superior Court. Mr. Karkkainen spoke to Barbra Holley shortly after he returned to the office to tell her that he and her son would be occupied for a couple of hours in preparing materials for a future court appearance.
[28] Patrick Holley and Mark Karkkainen went over to the courthouse around noon or 12:15 p.m. to file their materials, then headed off to Tim Horton’s for coffee and a sandwich. Mr. Karkkainen did not see Jennifer Hill at the courthouse. He agreed that it would not have been possible for Patrick Holley to have come to the courthouse alone and met Ms. Hill at any time between 10:00 a.m. and 1:15 p.m. on November 26, 2004.
[29] In cross-examination, Mr. Karkkainen gave evidence that he had no contact with Patrick Holley around 3:15 p.m. on November 26, 2004. Materials for the application to be heard on the following Monday had to be filed before 2:00 p.m. on the preceding Friday.
[30] Marianne Karkkainen, the spouse and secretary of Mark Karkkainen, recalled that she dropped her husband off at the Superior Court at or shortly after 10:00 a.m. on November 26, 2004. Patrick Holley was at the law office when she returned between 10:10 and 10:15 a.m. Mark Karkkainen returned to the office at around 10:45 a.m. and worked together with Patrick Holley until both men left the office at around noon for lunch. She did not see Patrick Holley again that day.
[31] Detective Donald Pancoe of the Brantford Police Service testified that he had been provided with affidavits from Mark and Marianne Karkkainen describing their contact with Patrick Holley on November 26, 2004. The officer did not interview either affiant because he considered the contents of the affidavits to be at odds with evidence given at Patrick Holley’s judicial interim release hearing.
[32] Detective Pancoe first interviewed Jennifer Hill on November 26, 2004 at around 5:15 p.m. She told him that the meeting with Patrick Holley had taken place on the second floor of the courthouse. He interviewed her again on December 11, 2004, about two weeks before he received the Karkkainen affidavits.
B. THE REASONS OF THE TRIAL JUDGE
1. Introduction
[33] Some references to the reasons of the learned trial judge are essential to an understanding of the grounds of appeal and their determination.
[34] The reasons were delivered about two months after the evidence was adduced and submissions made.
2. The Preliminaries
[35] After a brief review of the procedural history of the prosecution, the learned trial judge rehearsed several principles that informed his decision. These principles included, but were not limited to the following:
i. the presumption of innocence;
ii. the burden and standard of proof;
iii. the inapplicability of the standard of proof to individual items of evidence, rather its applicability to the evidence as a whole;
iv. the sources of reasonable doubt in evidence or lack of evidence;
v. the prohibition against decisions made simply by choosing witnesses; and
vi. the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397
3. The Evidentiary Review
[36] The learned trial judge then turned to the evidence adduced at trial, which he reviewed witness-by-witness without comment or factual finding.
4. Analysis of Law and Facts
[37] In the third part of his reasons, Analysis of Law and Facts, the trial judge recorded his findings of fact. In essence, he found that the events occurred as Jennifer Hill had described them and during the morning of November 26, 2004. He specifically rejected the evidence of Patrick Holley and, in particular, his account, which only emerged in cross-examination, of a friendly chance meeting with Ms. Hill during the afternoon of November 26, 2004.
[38] Of some importance because of the grounds of appeal advanced is the learned trial judge’s treatment of the evidence of Mark Karkkainen and his spouse, Marianne Karkkainen. The following passages reflect his consideration of their evidence:
(a) I am satisfied as well that about 11:30 a.m., Mr. Karkkainen advised Ms. Holley who remained in her vehicle outside the office that he would be longer than expected with Mr. Holley and that she was free to leave. Mr. Karkkainen says he arrived back at the office at about 10:45 and had that discussion with Mrs. Holley about a half an hour later. Mr. Karkkainen’s timing would put that conversation at 11:15; Mr. Holley puts it at 11:30, just another indication as to how witnesses can often be mistaken as to precise time when recalling events. I am satisfied that Ms. Holley did leave, and did not meet with her son until about 1:15 p.m. I am also satisfied that she was not in a position to know exactly all of the movements of her son between the time of their arrival in Brantford, and the time she initially left the outside of Mr. Karkkainen’s office at 11:30. Further, she has no personal knowledge of the whereabouts of her son from 11:30 a.m. until 1:15 p.m.
(b) Mr. and Mrs. Karkkainen gave evidence. As with other evidence provided by the defence, their evidence in many ways enhances the testimony of Ms. Hill. I am not suggesting in any way that Mr. Karkkainen has misled the court with respect to the timing, but there is enough uncertainty in the presentation of his evidence with respect to his attendance with Mr. Holley at the courthouse at or about noon, that it is quite possible that he was not always with him at the courthouse if, in fact, the meeting with Ms. Hill took place while Mr. Karkkainen was in the courthouse. Mr. Karkkainen himself indicates that there was to be a Superior Court matter that morning and that was to be adjourned at the last moment, and that he had attempted to contact Mr. Holley to advise that they would not meet at Superior Court. He confirms then that there was to be a meeting a Superior Court and that the meeting had now been changed to his office. It is more than a coincidence that Ms. Hill testifies to that very meeting at Mr. Karkkainen’s office or at the Superior Court on the morning of November 26th. That information could only have come from Mr. Holley. Again, Mr. Karkkainen’s evidence with respect to timing is not as solid as one might believe given his estimation of time from his arrival back at the office until one half hour later when he told Mrs. Holley that they would be longer than expected. The fact that Ms. Hill was supplied with that information about the meeting at the courthouse, or the meeting at Superior Court or at Mr. Karkkainen’s office, and the fact that she was supplied that information I find by Mr. Holley, and that information was in fact confirmed by Mr. Karkkainen, clearly supports the position that she indeed did meet Mr. Holley on November 26th.
(c) Mrs. Karkkainen indicates that Mr. Holley came to the office at 10:00 to 10:15 on the morning of November 26th, and Mr. Karkkainen returned at about 10:45. This may be accurate, but I find that her evidence with respect to whether or not Mr. Holley left the office during that period of time he was waiting for Mr. Karkkainen to return is not reliable. This is not say again, that she is fabricating her evidence, but in light of all he other circumstances, I find that she is in error and I find that Mr. Holley could very well have left the office at that time and gone looking for Mr. Karkkainen as suggested in the evidence of Ms. Hill and then returned to the office.
C. THE GROUNDS OF APPEAL
1. Introduction
[39] Patrick Holley appeals both conviction and sentence. He alleges judicial error in the trial judge’s approach to the evidence and in the conclusion reached about its cumulative effect. He also asserts that the sentence imposed was harsh and excessive in the circumstances.
2. The Appeal Against Conviction
[40] On the appeal from conviction, Mr. Paquette for the appellant advances five discrete yet related grounds:
i. failure to properly apply R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742 to the evidence adduced at trial;
ii. failure to properly assess the alibi evidence;
iii. failure to find that the alibi evidence did not raise a reasonable doubt about the appellant’s guilt;
iv. improper reversal of the onus of proof; and
v. an unreasonable verdict, one unsupported by or based on a misapprehension of the evidence.
3. The Appeal From Sentence
[41] In general terms, the appellant’s complaint about the sentence imposed is that it was harsh and excessive. The sentencing judge, the appellant says, erred in principle in concluding that this was not a case for conditional sentence, or in the alternative, if incarceration was warranted, not a case for a sentence that would permit the appellant to serve it intermittently. And besides, the trial judge failed to give sufficient weight to the appellant’s aboriginal status when determining the nature and length of the sentence to be imposed.
D. ANALYSIS
1. The Appeal Against Conviction
a. Overview
[42] For discussion purposes, it is helpful to summarize the grounds of appeal against conviction as follows:
i. the W.(D.) error;
ii. the improper rejection of the appellant’s alibi; and
iii. the unreasonableness of the verdict
b. The R. v. W.(D.) Error
[43] The decision in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 prohibited the trial judge from treating the standard of proof as a comparison between the prosecution’s witnesses, essentially Jennifer Hill, on the one hand, and the appellant and his witnesses, on the other. The trial judge was not entitled to find the guilt of the appellant established on the basis that he preferred the evidence of Jennifer Hill over that of the appellant and his witnesses.
[44] Patrick Holley was entitled to an acquittal if the trial judge believed Holley’s claim that he did not utter the threats charged. Likewise, Patrick Holley was entitled to an acquittal, even if the trial judge did not believe Holley’s denial, if the trial judge harboured a reasonable doubt of Patrick Holley’s guilt after considering the defence evidence in the context of the evidence as a whole. Even if the trial judge did not have a reasonable doubt of Patrick Holley’s guilt based on the defence evidence, the trial judge was only entitled to find Patrick Holley guilty if the evidence the judge accepted satisfied him beyond a reasonable doubt of Holley’s guilt. See, R. v. W.(D.), above, at page 758 per Cory J.
[45] The learned trial judge expressly instructed himself on the principles articulated in R. v. W.(D.), and other relevant principles that establish the onus and standard of proof required in criminal cases. The essence of the complaint, at least as it seems to me, is that he erred in their application to the circumstances of this case.
[46] The trial judge said that the evidence of Jennifer Hill satisfied him “well beyond a reasonable doubt” of Patrick Holley’s guilt. He expressly rejected Holley’s evidence. The trial judge did not believe Patrick Holley’s evidence, nor did it raise a reasonable doubt about his guilt. The trial judge found:
I do not accept and specifically reject the evidence of Mr. Holley in that regard. Not only do I not accept the evidence of Mr. Holley, I am not left in a reasonable doubt by it.
[47] The trial judge considered the remainder of the evidence and concluded:
As I indicated previously, the evidence of Mr. Holley is not accepted by the court, and the evidence of the defence, including the evidence of Mr. Holley does not leave the court in reasonable doubt. Mr. Holley’s evidence is specifically rejected. Upon rejecting the evidence of Mr. Holley and not being left in reasonable doubt by the evidence of the defence in general, the court must still assess that balance of the evidence and determine whether or not the Crown has proven the charge beyond a reasonable doubt.
[48] The trial judge correctly stated and, in my respectful view, properly applied the principles of R. v. W.(D.) to the evidence adduced in this case. I would not give effect to this ground of appeal.
c. The Improper Rejection of the Alibi Evidence
[49] The next assignment of error has to do with the trial judge’s rejection of the alibi evidence of various defence witnesses who testified about the appellant’s activities elsewhere at the time Jennifer Hill swore he uttered the threats charged in an interview room on the first floor of the Brantford courthouse.
[50] The term “alibi” is a Latin adverb that means “elsewhere”, or “at another place”. In the criminal law, a person charged with an offence who asserts an alibi claims that she or he was not at the place and time where the prosecution alleges the crime was committed, rather was elsewhere, at another place. The true alibi rests upon evidence that is determinative of the final issue of guilt or innocence. See, R. v. Sgambelluri and Sgambelluri Ltd. (1978), 1978 2514 (ON CA), 43 C.C.C. (2d) 496, 500 (Ont. C.A.) per MacKinnon ACJO leave to appeal refused (1978), 43 C.C.C. (2d) 496n (S.C.C.). A person who was elsewhere at the time and place a crime was committed could not have committed the crime.
[51] This ground of appeal includes, but is not limited to, a submission that the learned trial judge:
• failed to articulate reasons for rejecting the alibi evidence;
• subjected the alibi to an inappropriate level of scrutiny in comparison with the other evidence; and
• made findings incompatible with the onus and standard of proof without clear rejection of the alibi evidence
[52] It is as well to acknowledge at the outset that a failure to adequately explain the reasons for rejecting exculpatory evidence may make it impossible for a reviewing court to be satisfied that a conviction was founded on an application of the correct legal principles to findings of fact that were reasonably open to the trial judge on the evidence adduced. See, R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, 262-3 (Ont. C.A.) per Doherty J.A. leave to appeal refused (2007), 217 C.C.C. (3d) iv (S.C.C.).
[53] The reasons of the learned trial judge, read in their entirety, reveal a clear understanding of the essential elements of the offence charged which, if the evidence of Jennifer Hill were accepted, and its persuasive force met the standard of proof required, were plainly made out. The reasons also evidence full comprehension of the onus and standard of proof and, as we have already seen, the way in which the reasonable doubt standard is to be applied to cases involving diametrically-opposed version of events, one of which is that the other never occurred, in part because the person charged was elsewhere.
[54] In his consideration of the evidence of Jennifer Hill, the learned trial judge acknowledged the apparent inconsistency between her earlier and sworn account about where she encountered Patrick Holley at the courthouse. He drew some comfort from the coincidence of her evidence with other events described by defence witnesses and articulated his reasons for accepting her evidence in sufficient detail to permit meaningful appellate review. The learned trial judge also demonstrated his appreciation of the discrepancy between credibility, on the one hand, and proof beyond a reasonable doubt, on the other.
[55] The learned trial judge explained why he categorically rejected Patrick Holley’s testimony. Reduced to its essentials, the appellant’s evidence was that he never uttered any threats to Jennifer Hill at any time on November 26, 2004, and did not see her in the morning, as she alleged, because he was at his lawyer’s office preparing materials for court until well after the time she claimed they met by chance in a courthouse corridor. It was open to the trial judge to reject Holley’s evidence on the ground of a patent bias against the child welfare agency of which Jennifer Hill was a member and, more generally, the law enforcement community responsible for his prosecution. It was likewise open to the trial judge to conclude that the claim of a benign encounter with Ms. Hill, which first surfaced in Holley’s cross-examination by Crown counsel, was sheer fiction.
[56] In recording his findings of fact, the learned trial judge said that he was satisfied beyond a reasonable doubt that Patrick Holley uttered the threat to Jennifer Hill at some time between 10:00 a.m. and noon on November 26, 2004. At other points in his reasons, the learned trial judge seems to narrow the timeframe somewhat, but never extends it beyond his initial finding.
[57] As a general rule, the time at which an offence is alleged to have occurred is not an essential element of the offence. But the time at which an offence was committed may be critical where the person charged defends the case by providing evidence of an alibi for the period alleged. See, R. v. B.(G.) (1990), 1990 7308 (SCC), 56 C.C.C. (3d) 200, 218 (S.C.C.) per Wilson J. To decide otherwise would be to deny the person charged his or her right to make full answer and defence.
[58] The trial judge clearly rejected Patrick Holley’s denial of the threat alleged, likewise his claim that he could not have made the threat because he was elsewhere at the time Ms. Hill said it was uttered. His explanation for doing so is adequate to the task of providing sufficient detail to permit meaningful appellant review. That his reasons for rejecting the evidence of Mark and Marianne Karkkainen might have been fuller, his considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence of Jennifer Hill is as much an explanation for the rejection of the Karkkainens’ evidence as is a rejection based on a problem identified with the way they testified or the substance of their evidence. See, R. v. D.(J.J.R.), above, at page 266, per Doherty J.A.
[59] In the result, I would not give affect to any ground of appeal alleging error in consideration or rejection of the alibi evidence.
d. The Unreasonableness of the Verdict
[60] The final ground of appeal against conviction is that the conviction was unreasonable and either unsupported by or based on a misapprehension of the evidence adduced at trial. To some extent, this ground is linked to an earlier complaint that inadequacies in the reasons for judgment reflect errors and gaps in legal reasoning or in processing the evidence.
[61] The standard against which this familiar ground of appeal must be tested is whether the finding of guilt was a conclusion that a properly instructed trier of fact acting judicially could reasonably reach. See, R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, 185, 36 C.C.C. (3d) 417 per McIntyre J.; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143, C.C.C. (3d) 1, 21 per Arbour J. A review under section 686(1)(a)(i) of the Criminal Code is not so narrow as to be confined to a determination of whether there was any evidence to support the conviction, or so expansive as to permit a de novo assessment of the evidence. The provision operates as a protection against perverse or unsafe convictions. It is not a licence to be used by appellate courts as a means of bringing trial verdicts or decisions in line with the appellate court’s estimations of the merits of individual cases. See, R. v. Quercia, 1990 2595 (ON CA), [1990] O.J. No. 2063 at [6], per Doherty J.A. (Osborne J.A. concurring).
[62] The command of section 686(1)(a)(i) is that an appellate court determine what verdict a reasonable jury, properly instructed, could judicially have reached, and in doing so, review, analyze and, within the limits of appellate disadvantage, weigh the evidence. See, R. v. Biniaris, above, at page 21 C.C.C. per Arbour J.
[63] The evidence introduced at trial left it open to a reasonable trier of fact, properly instructed, to judicially conclude that Patrick Holley uttered the threats described by Jennifer Hill during the morning of November 26, 2004. That there was evidence that permitted a contrary conclusion does not nullify the availability of the finding made.
[64] The trial judge properly applied the analysis described in R. v. W.(D) to the evidence of Patrick Holley and his witnesses and provided reasons for rejecting that evidence sufficient for meaningful appellate review. The trial judge was cognizant of Ms. Hill’s uncertainty about the precise time at which the threat was uttered and took this imprecision into account in deciding whether the whole of the evidence measured up to the standard of proof required in criminal cases. He did not subject the defence evidence to a higher level of scrutiny than the evidence of the prosecution, or misapprehend any evidence or its effect, and thereby reach an unreasonable conclusion.
[65] In the result, I would not give effect to this ground of appeal and would dismiss the appeal against conviction.
2. The Appeal from Sentence
a. Overview
[66] Counsel at trial, who were not counsel on appeal, differed significantly about the sentence that should be imposed upon conviction. Counsel for Patrick Holley urged the trial judge to suspend the passing of sentence and order that Mr. Holley comply with the terms of the probation order. The prosecutor contended that a fit sentence was imprisonment for six to nine months to be followed by a period of probation for one year and a consequential weapons prohibition under section 110 of the Criminal Code.
[67] In addition to the submissions of counsel, the trial judge had the benefit of a pre-sentence report and a victim impact statement authored by Jennifer Hill.
[68] The trial judge sentenced Patrick Holley to imprisonment for sixty (60) days followed by required compliance with the terms of a probation order for a period of two (2) years.
[69] For Patrick Holley, Mr. Paquette says that the sentence imposed is harsh and excessive, the product of several errors:
i. failure to give adequate weight to Patrick Holley’s Aboriginal status;
ii. failure to recognize that a conditional sentence of imprisonment would satisfy the applicable sentencing principles, including general deterrence and denunciation; and
iii. failure to adequately consider the service of the imposed sentence on an intermittent basis.
b. The Aboriginal Status of Patrick Holley
[70] The trial judge was well aware of the Aboriginal status of Patrick Holley. The evidence adduced at trial was saturated with references to the local Aboriginal community. Jennifer Hill was a Band representative and service coordinator for Six Nations Child and Family Services. She was the Band representative for the Children’s Aid Society case involving Patrick Holley’s children. The targets of the threats uttered by Mr. Holley included police officers and Children’s Aid Society workers on the Six Nations Reserve. And counsel for Mr. Holley reminded the trial judge, in his reply submissions on sentence, of Mr. Holley’s Aboriginal Status.
[71] The Pre-Sentence Report elucidates Patrick Holley’s background including his Aboriginal Status and activities on behalf of his own and other First Nations groups. No separate report or further evidence was adduced about Patrick Holley’s Aboriginal status.
[72] The learned trial judge took Patrick Holley’s Aboriginal status into account in determining the nature of the sentence he would impose. He did not undervalue or give less than warranted influence to the provisions of section 718.2(e) of the Criminal Code. The trial judge appreciated that his fundamental duty was to impose a sentence fit for the offence and for Patrick Holley.
[73] In this case, the trial judge was dealing with an offender who had threatened to cause bodily harm to several justice system participants whom he regarded as corrupt. What he proposed to do would revulse any right-thinking person. At the time he made the threat, Patrick Holley was involved in ongoing litigation with some of the agencies whose members he identified in his threat. He was also bound by a peace bond, entered into two months before this offence was committed, and arising from other threatening behaviour. Patrick Holley’s evidence at trial revealed an ongoing animosity toward agencies in the local Aboriginal community.
[74] In my respectful view, the learned trial judge did not err in his appreciation of the sentencing principle described in section 718.2(e) of the Criminal Code or in its effect as a sentencing determinant in the circumstances of this case.
c. Failure to Impose a Conditional Sentence.
[75] The trial judge considered but rejected a submission that any custodial sentence should be served in the community. The rejection was based on principle: the predominance of denunciation and deterrence as sentencing objectives, and the inadequacy of a conditional sentence of imprisonment, in the circumstances of this case, to service those objectives. The conclusion reached is amply supported by the record of proceedings and does not reflect error.
d. Failure to Permit Intermittent Service
[76] Under section 732(1) of the Criminal Code, it was open to the trial judge to order that Patrick Holley serve the custodial portion of his sentence intermittently. Factors relevant for this decision included:
i. the age of the offender;
ii. the character of the offender;
iii. the nature of the offence;
iv. the circumstances surrounding the commission of the offence; and
v. the availability of appropriate accommodation to ensure compliance with the sentence.
[77] The trial judge considered whether Patrick Holley should be permitted to serve his custodial sentence intermittently. The principal footing upon which the case for intermittent service was advanced, as with the claim for a conditional sentence, was that Mr. Holley’s employment, his research activities, would be interrupted by “straight time” without advancement of any legitimate sentencing objectives or principles.
[78] The precise obligations of the appellant, especially the frequency and duration of his travel to the United States, were unclear. No documentation of the fact or nature of the appellant’s engagement was ever forthcoming. The trial judge’s inquiries evoked responses that were at once vague and inconsistent. Absent error, the trial judge’s refusal to permit intermittent service of the custodial portion of the sentence is entitled to deference.
e. Conclusion
[79] The sentence imposed in this case on a 39-year old non-violent recidivist falls within the range of sentence applicable in such cases. Indeed, it could easily be said to fall within the lower end of that range. At all events, it does not reveal error. I would grant leave to appeal sentence, but dismiss the appeal.
E. DISPOSITION
[80] The appeals from conviction and sentence are dismissed.
RELEASED: October 9, 2007 (“S.B.”)
“David Watt J. (ad hoc)”
“I agree. S. Borins J.A.”
“I agree Robert J. Sharpe J.A.”