R. v. Deutsch, 2008 ONCA 727

CITATION: R. v. Deutsch, 2008 ONCA 727

DATE: 20081023

DOCKET: C48522

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MELVIN DEUTSCH

Appellant

Melvin Deutsch, in person

Scott Hutchison, duty counsel

Alison Wheeler, for the respondent

Heard: April 29, 2008

On appeal from the conviction for perjury entered on October 23, 2006 and the sentence imposed on November 22, 2006 and reported at 2007 48986 (Ont. S.C.) by Justice Todd Ducharme of the Superior Court of Justice.

ARMSTRONG J.A.:

INTRODUCTION

[1] Mr. Deutsch appeals his conviction for perjury and applies for leave to appeal his sentence of fourteen months.

BACKGROUND

[2] The appellant appeared before Justice Thomson in Small Claims Court and sought to represent one of the parties to a civil action. Justice Thomson ordered that there be a hearing as to the competence of Mr. Deutsch to appear before the court. At the hearing which followed, Mr. Deutsch testified under oath that he was a member of the New York State Bar who had licenced him to practice law. As a result, Mr. Deutsch was subsequently charged with the following offence:

MELVIN DEUTSCH stands charged that he, on or about the 9th day of January in the year 2002, at the City of Toronto, in the Toronto Region, did commit perjury at the trial in the Superior Court of Justice situated at 47 Sheppard Avenue East, in the judicial proceeding of Fleet Rent a Car and Vadim Bidnyk a.k.a. Vadym Bidnyk by swearing falsely and with intent to mislead the court that he was licenced to practice law in the State of New York, contrary to the Criminal Code. [Emphasis added.]

[3] Mr. Deutsch proceeded to trial on the perjury charge and several other charges under the Criminal Code before Justice Todd Ducharme of the Superior Court of Justice. He was convicted of the perjury charge and acquitted of all other charges.

[4] In support of the perjury charge, the Crown called Samuel Younger, an employee of the Office of Court Administration, the Unified Court System of the State of New York. Mr. Younger was the Chief Management Analyst of the Attorney Registration Unit in the Office of Court Administration. He testified that one of his primary responsibilities was to maintain the centralized roll of attorneys in the State of New York. He explained that in order to practice before the courts of the State of New York, a person "must be a member of the New York bar and be listed in the central registry of attorneys maintained by [his] office". He testified that he had checked the centralized roll of attorneys and found no record for Mr. Deutsch.

[5] The trial judge ruled that the viva voce evidence of Mr. Younger concerning the lack of registration for Mr. Deutsch was inadmissible hearsay. The trial judge also held that the copy of a printout of the result of a search of the computer records for the name Melvin Deutsch was inadmissible as the document was not accompanied by the affidavits required by s. 30(3) of the Canada Evidence Act R.S.C. 1985, c. C-5.

[6] Subsequent to the trial judge's ruling, the Crown tendered in evidence a sworn certificate of Mr. Younger in which he deposed:

I, Samuel H. Younger, am a/the custodian of records and do certify that these records are true and accurate copies of records maintained by the Office of Court Administration in the regular course of business, and it is this institution's regular business to maintain such records.

[7] Attached to the certificate was a computer printout of a name search of the New York State Unified Court System indicating that no records were found for Melvin Deutsch.

[8] The trial judge ruled that the document was admissible as a business record pursuant to s. 30 of the Canada Evidence Act.

[9] On the basis of this evidence, the trial judge concluded:

As a result I find that Mr. Deutsch by claiming to be a member of the New York State Bar made several false statements while testifying under oath before Justice [Thomson], a person authorized to receive such sworn testimony. In assessing Mr. Deutsch's understanding of these statements I accept Mr. Younger's evidence as to the requirements for admission to the New York State Bar. Given these requirements Mr. Deutsch could not have been mistaken as to whether or not he was indeed a member of the New York State Bar. Consequently I find that Mr. Deutsch must have known the statements were false at the time he made them. The nature of the statements and the context in which they were made also satisfy me beyond a reasonable doubt that Mr. Deutsch made these statements with an intention to mislead. Specifically I find that Mr. Deutsch made the statements with the intention of misleading Justice [Thomson] into believing he was a properly qualified attorney. Therefore I am satisfied that the Crown has proven all the elements of perjury beyond a reasonable doubt.

[10] The trial judge made reference to s. 133 of the Criminal Code which provides:

No person shall be convicted of an offence under s. 132 [perjury] on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

[11] The trial judge ruled that corroboration under s. 133 was not required as Mr. Deutsch was not convicted "on the evidence of only one witness". It was the trial judge's opinion that the falsity of Mr. Deutsch's statements was proven by the business record that was admitted pursuant to the Canada Evidence Act.

[12] In respect of sentence, the trial judge concluded that a fit sentence was fourteen months in custody. The trial judge gave Mr. Deutsch two months credit for his pre-trial custody and imposed a sentence of twelve months to be served consecutively to any sentence he was then serving.

THE APPEAL FROM CONVICTION

[13] On the appeal, Mr. Deutsch made submissions on his own behalf and Mr. Scott Hutchison, duty counsel, made submissions concerning the requirement of corroboration pursuant to s. 133 of the Criminal Code. Mr. Hutchison submitted that the trial judge erred in holding that the printout of the name search admitted in evidence pursuant to s. 30 of the Evidence Act did not require corroboration pursuant to s. 133 of the Criminal Code.

[14] Mr. Deutsch also filed a factum in which he raised a multitude of issues which included:

(i) at the preliminary hearing, the Crown was guilty of prosecutorial misconduct;

(ii) Mr. Deutsch was denied a trial in French;

(iii) the evidence before the trial judge and at the pre-liminary hearing established that he was a member of the New York State Bar;

(iv) the Crown led evidence at trial that Mr. Deutsch was a notary public in the State of New York based on the fact that he was an attorney in the State of New York which the trial judge should have accepted;

(v) Mr. Younger admitted that his records did not relate to attorneys who practiced in the Federal Courts in the State of New York and that it was possible that an attorney who was qualified to practice in the Federal Courts would not be included in the records of the New York State Unified Court System;

(vi) the evidence of Mr. Younger should not have been accepted by the trial judge on a number of grounds including that Mr. Deutsch was denied the right of cross-examination of Mr. Younger on the sworn certificate.

Mr. Deutsch made brief reference in his oral submissions to some of the above grounds of appeal.

[15] Mr. Deutsch also raised an issue concerning trial fairness arising out of his inability to hear the trial proceedings. He claimed he did not have his hearing aids because they were lost by the correctional staff. We were not directed to any evidence in the record to support this submission.

[16] As indicated below, the only issue raised by Mr. Deutsch that I find it necessary to address is the admission by Mr. Younger that his records did not relate to attorneys who practiced in the Federal courts of the State of New York – the "Federal courts" issue.

The Federal Courts Issue

[17] As is often the case in inmate appeals, we were not provided with a transcript of the evidence of the trial – in spite of the fact that Mr. Deutsch had brought a motion to require the Crown to order the transcript. The Crown successfully opposed that motion.

[18] After the oral hearing was completed and upon reviewing the grounds of appeal asserted by Mr. Deutsch, we determined that we at least had to have the transcript of Mr. Younger's evidence to do justice to this case. A transcript of Mr. Younger's evidence was provided with the assistance of the Crown.

[19] One part of Mr. Younger's evidence, which I reproduce here, gave us concern:

Q. Mr. Younger, one, there are Federal courts in the State of New York, is that right?

A. There are Federal courts in the uh, jurisdictions that include New York State, that's correct.

Q. There are Federal courts in the State of New York?

A. Yes, there are.

Q. And one need not be registered with your office to practice in Federal court?

A. Uh, no, you do not need to be registered to practice in the New York courts in order to appear in front of a Federal judge, that's correct.

Q. And in fact, you have to register with each Federal court in order to be competent to practice in that particular court?

A. That's correct.

Q. There are a number of Federal courts throughout the country?

A. Yes, there are.

Q. There's no universal registry…

A. For the…

Q. …for the Federal court system.

A. …Federal courts, no.

Q. And so one could be a competent lawyer, practicing in Federal court in the State of New York and not be registered with your office?

A. It's possible, yes.

[20] The above evidence addresses the point raised by Mr. Deutsch that Mr. Younger admitted that his records did not relate to attorneys qualified to practice in the Federal courts in the State of New York. Bearing in mind that the indictment charged Mr. Deutsch with committing perjury "by swearing falsely and with intent to mislead the court that he was licensed to practice law in the State of New York, contrary to the Criminal Code", we were concerned that this evidence of Mr. Younger simply did not prove beyond a reasonable doubt the charge before the court.

[21] We invited further submissions in writing from Crown counsel, Alison Wheeler, Mr. Hutchison and Mr. Deutsch.

[22] Ms. Wheeler, fairly and frankly, conceded that the reasons for judgment of the trial judge, which were delivered orally, did not address this issue. In delivering his oral reasons, the trial judge had stated: "I wish to be clear that my reasons for judgment will be the written reasons I release, not the written summary I provide today". No written reasons were later released. Ms. Wheeler submitted, however, that the trial judge's oral reasons reflect an understanding of the case, shared by defence counsel, that the issue at trial was whether the Crown had proved beyond a reasonable doubt that Mr. Deutsch was not licensed to practice law by the New York State Bar and that the trial had proceeded on that basis.

[23] Counsel for the Crown further submitted:

The trial judge's reasons do not address the issue "licensed to practice in the State of New York" as opposed to "licensed to practice by the New York State Bar Association".

[24] The Crown proposed that one solution to the problem posed was to amend the indictment pursuant to s. 683(1)(g) of the Criminal Code which provides:

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

The Crown suggested that the indictment could be amended to charge Mr. Deutsch with "swearing falsely and with intent to mislead the court that he was licensed to practice law by the New York State Bar". Accordingly, if such amendment were made by this court, the appropriate result would simply be to dismiss the appeal.

[25] The Crown relied on this court's judgment in R. v. Irwin (1998), 1998 2957 (ON CA), 123 C.C.C. (3d) 316 (Ont. C.A.) at para. 31 where Doherty J.A. said:

If as St. Clair holds, s. 683(1)(g) is broad enough to permit an amendment which adds an offence to an indictment, it must be broad enough to permit an amendment which substitutes one charge for another. I would hold that s. 683(1)(g) permits an amendment on appeal where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge.

[26] Ms. Wheeler fairly acknowledged that if the "Federal courts" issue was in fact argued at trial by defence counsel and not addressed in the trial judge's reasons, it was unlikely that the Crown could now seek the suggested amendment to the indictment. However, she further submitted that if the court was satisfied that defence counsel had "put forward every argument that related to proof of a falsehood in connection with Mr. Deutsch's sworn evidence that he was licensed to practice by the New York State Bar, there would be no prejudice to the defence in amending the indictment to conform with the evidence." In order to advance this argument, the Crown ordered the transcript of the submissions of counsel.

[27] The additional transcript indicated that the "Federal courts" issue was addressed by defence counsel in argument at trial. In the exchange between the bench and defence counsel on this point, it is apparent that the trial judge was not persuaded by the argument. However, as already said, he did not address the issue in his oral reasons for judgment. Also, as the Crown acknowledges, there was no discussion of the precise wording of the indictment during the course of the argument. Nevertheless, the Crown reasserted its position as follows:

It is the Crown's position that the indictment should be amended on appeal, to replace the words "that he was licenced to practice law in the State of New York" with the words "that he was licenced to practice law by the New York State Bar."

The "Federal courts" issue was addressed in argument, and the trial judge expressed his view then as to why the argument should fail, such that there was no further need for him to return to the point in the reasons for judgment. There was no discussion of the exact wording of the indictment.

The case otherwise hinged on the documentary evidence and whether it showed that Mr. Deutsch was not a member of the New York State Bar. Defence had already made full submissions on the evidentiary value of the business record relied upon by the Crown at the time of the directed verdict motion. Counsel's submissions reflected an understanding that he had to meet the Crown's case on the issue of "licenced by" the State of New York. Defence counsel said all that there was to say in attacking the inferences that could flow from the business record tendered by the Crown, in respect of whether Mr. Deutsch was a member of the New York State Bar. By no means did counsel pin the case on the "Federal courts" issue.

On this basis, it is the Crown's position that there would be no prejudice to the defence in amending the indictment on appeal to conform with the evidence, and that the appeal should be dismissed.

[28] In further written submissions, Mr. Deutsch pointed out that the disposition of his appeal has been delayed by the various requests for further submissions and transcript and that as of September 11, 2008, he had only three months of his sentence left to serve.

[29] Mr. Hutchison, as duty counsel, filed further written submissions as requested. He pointed out that "the distinction between Federal and State Courts and licensure was hardly a side issue during the course of the trial". He observed that the distinction between the two levels of court was central to the cross-examination of Mr. Younger and the attack on his evidence.

[30] Mr. Hutchison forcefully argued that it was apparent from the cross-examination of Mr. Younger, "that at least one element of the defence theory as it was being developed at trial was that there were two potential sources of authority for a licence to practice in the State of New York and that Mr. Younger was only capable of speaking to one of them … [T]aken at its highest Mr. Younger's evidence could only establish that his organization had not provided a licence to practice law to Mr. Deutsch."

[31] While I do not think that Mr. Younger testified in terms of his organization providing licences to practice law to eligible persons, the point made by Mr. Hutchison that there were two potential sources of authority for eligibility to practice in the State of New York is well taken.

[32] Whether the court accepts the Crown's analysis or duty counsel's analysis, the result is the same – the charge as framed in the indictment was not established by the evidence.

[33] What remains to consider is the Crown's request to amend the indictment to conform to the evidence. Duty counsel submits that the amendment sought by the Crown changes the gravamen of the offence by specifying a different untruth. According to Mr. Hutchison, such an amendment would go beyond the scope of s. 683(1)(g).

CONCLUSION

[34] I start with the observation of Cory J. in R. v. Tremblay (1993), 1993 115 (SCC), 84 C.C.C. (3d) 97 (S.C.C.) at 114:

It is, I think, an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended.

[35] I would not invoke the court's jurisdiction to grant the amendment sought by the Crown. I am not persuaded that if the amendment were made, it would necessarily follow that the appeal would or should be dismissed. I say this because, in my view, the oral evidence of Mr. Younger and the documentary evidence of the name search, admitted pursuant to s. 30 of the Evidence Act, would not be sufficient to establish the guilt of Mr. Deutsch. In this respect I agree with the "two potential sources of authority" submission advanced by duty counsel. The evidence of Mr. Younger and the name search only addressed Mr. Deutsch's lack of authority to practice before the state courts. Such evidence did not address the "Federal courts" issue in a way that would support the Crown's case.

[36] If the amendment were made, I believe it would raise further questions. What is "the New York State Bar"? What evidence is there that such a body, if it exists, did or did not grant Mr. Deutsch a licence to practice law? Mr. Younger's evidence does not answer these questions. Mr. Younger's evidence speaks mainly to the registration of those who may practice in the state courts. I observe that Mr. Younger testified that his office did not certify the good standing of attorneys in New York State. According to his evidence it is the four appellate divisions of the Supreme Court who have jurisdiction over the admission and discipline of attorneys and who certify their good standing.

[37] In the result, I would allow the appeal, set aside the conviction for perjury and enter an acquittal. It is therefore unnecessary to deal with the sentence appeal.

[38] In the view I take of this case, it is also unnecessary to deal with the issue of corroboration pursuant to s. 133 of the Criminal Code. This issue is better left to a future case.

RELEASED:

"OCT 23 2008" "Robert P. Armstrong J.A."

"KF" "I agree K. Feldman J.A."

"I agree Robert J. Sharpe J.A."