Court of Appeal for Ontario

Citation: R. v. Horvat, 2008 ONCA 75

Date: 2008-02-06

Docket: C45716

Between:

Her Majesty the Queen Respondent

and

Robert Horvat Appellant

Before: Laskin, Rosenberg and LaForme JJ.A.

Counsel: Richard Posner and Robert Tomovski for the appellant Daniel Guttman for the respondent

Heard and released orally: January 29, 2008

On appeal from conviction by Justice Myrna L. Lack of the Superior Court of Justice dated March 8 and March 10, 2006 and sentence imposed July 11, 2006.

Endorsement

[1] The central issue in this case is whether the trial judge erred in holding that the appellant was not detained. That holding turned largely on the findings of fact by the trial judge. The appellant attacks these findings on several bases.

[2] First, the appellant submits that the finding that the officer did not have reasonable and probable grounds to arrest was unreasonable given the information available to the officers including, in particular, the appellant’s record many years earlier for similar offences. However, at the time the officers attended at the business, they did not know who had use of a computer that appeared to be connected to the business, not a personal computer. We are not persuaded that it was unreasonable for the trial judge to find that objectively there were not reasonable and probable grounds or that it was unreasonable for her to accept the officer’s own evidence that he did not believe he had reasonable and probable grounds.

[3] Second, the appellant argues that the trial judge failed to give appropriate weight to the fact the appellant was arrested after the questioning. We, however, agree with the trial judge’s approach to this issue. Given the incriminating answers, the fact that an arrest ensued, was a neutral factor.

[4] Third, the appellant argues that the trial judge gave undue weight to the nature of the questions, which she described as simple and straightforward. The nature of the questions, however, is a relevant factor. It was open to the trial judge to find that these questions were per R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) at p. 259: “questions of a general nature designed to obtain information” rather than being a case where the accused “was confronted with evidence pointing to his guilt”.

[5] Finally, the appellant submits that the trial judge erred in finding there was nothing coercive in the circumstances. As counsel aptly put it, much depends on the overall setting and flavour. This is a matter over which the trial judge had a decided advantage. The trial judge took into account the appellant’s own evidence that he did not feel pressured. Counsel submits that the appellant actually meant something different from not feeling pressured or coerced. However, the assessment of the appellant’s evidence was for the trial judge. This court cannot retry the case in this manner.

[6] We have not been persuaded that the trial judge erred in finding that the appellant was not detained. It follows that there was no Charter violation.

[7] The application to admit the CPIC printout as fresh evidence is dismissed. This evidence would not have affected the result since it is merely confirmatory of other evidence in the record.

[8] Accordingly, the appeal from conviction is dismissed.

[9] As to the sentence appeal, the appellant submits that the trial judge gave insufficient credit for the stringent bail conditions. The trial judge considered this matter and we cannot say that her decision to give three months credit was unreasonable. The sentence is not outside the range, given the serious nature of the crimes and the appellant’s record for similar offences. The appellant is to be commended for his efforts at rehabilitation, but this is a matter for the parole board in the circumstances of this case.

[10] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “John Laskin J.A.” “M. Rosenberg J.A.” “H. S. LaForme J.A.”