Court of Appeal for Ontario

Date: 2018-06-15 Docket: C62884

Judges: Lauwers, Pardu and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

David Klimitz Appellant

Counsel

David Klimitz, acting in person

Gerald Chan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 5, 2018

On appeal from: the conviction entered on June 30, 2016 and the sentence imposed on November 9, 2016 by Justice John B. McMahon of the Superior Court of Justice.

Reasons for Decision

Facts and Background

[1] The appellant managed his elderly mother's finances. Over approximately two and a half years, her retirement savings were reduced from approximately $557,000 to $83.43. The trial judge found the appellant to have stolen at least $200,000. He convicted the appellant of theft and fraud offences and imposed a sentence of three years' custody and a restitution order of $125,000.

[2] The appellant appeals against both conviction and sentence.

Grounds of Appeal

[3] With respect to the conviction, the appellant advances two primary grounds of appeal: (1) the trial judge erred in admitting into evidence two videotaped statements from the appellant's mother, Royale Klimitz; and (2) the conviction ought to be stayed for delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

First Ground of Appeal: Admissibility of Videotaped Statements

[4] The first ground of appeal relates to the admission into evidence of two out-of-court video-taped statements made by the appellant's mother to police. The appellant's mother was already elderly at the time of the offences and a preliminary hearing in November 2013 was adjourned in part because the complainant, recovering from surgery, was too ill to testify. She died in June, 2014. More than two years earlier, on January 13, 2012, and February 13, 2012, she provided two video-taped statements to police. The appellant was provided with the videotaped statements in December 2013.

[5] The trial judge admitted the statements into evidence in a ruling made May 3, 2016.

[6] Duty counsel argued on behalf of the appellant that the trial judge erred in doing so: the statements failed to satisfy the criteria for threshold reliability in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, and should therefore not have been admitted into evidence for the truth of their contents. Duty counsel argued that although some of the Bradshaw safeguards were present – the statements were made under oath, they were videotaped, and the complainant, Ms. Klimitz, had received a caution about the legal consequences of lying under oath – the appellant did not have the opportunity to exercise the most significant safeguard: cross-examination of the declarant.

[7] Counsel was concerned, in particular, about the reliability of the complainant's statements that she was unaware that the appellant had been using her money, and that if she had been aware, she would not have allowed it. Further, duty counsel argued that there were concerns about the appellant's siblings having influenced the complainant, and that the trial judge overstated the confirmation of the complainant's statements provided by other evidence. Because of these infirmities, duty counsel argued, the complainant's statements did not have the requisite reliability that could make cross-examination unnecessary: Bradshaw, at paras. 28-32, 40.

Court's Analysis on Admissibility

[8] We see no error. The trial judge correctly stated the applicable law on threshold reliability (citing R. v. Khelawon, 2006 SCC 56, [2006] 2 S.C.R. 787), and made no error in its application. He was attentive to the dangers of admitting statements that had not been tested by cross-examination, and he carefully considered both the safeguards that were in place when Ms. Klimitz's statements were made and the existence of other evidence that would allow a trier of fact to assess the reliability of those statements. The trial judge considered the existence of confirmatory evidence such as the documentary evidence and the evidence of other witnesses, including the appellant. He was also alive to the inconsistencies in the complainant's statements, and that she had poor memory as to dates. He expressly adverted to the requirement to focus on the threshold reliability of the statements on the voir dire, rather than ultimate reliability, which was a question to be resolved at trial. In R. v. Bradshaw, the court indicated at para. 4 that the dangers associated with a hearsay statement may be overcome "on the basis of corroborative evidence if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement." Here the surrounding circumstances provide powerful confirmation of the truth of the statement. It is inconceivable that this elderly widow, expecting to spend the rest of her days in a seniors' residence, would have consented to the depletion of her retirement fund to the point that her rent fell into arrears for 5 months and she was evicted from her home. The analysis discloses no error that would permit us to substitute our own conclusion on admissibility for that of the trial judge.

Second Ground of Appeal: Charter Delay

[9] The second ground of appeal can be dealt with summarily. The appellant advances the section 11(b) argument for the first time before this court. Courts are generally reluctant to entertain Charter arguments where they are raised for the first time on appeal. There is good reason for this. Because this issue was not raised below, we do not have the benefit of factual findings from a trial judge as to the reasons for the various delays alleged by the appellant, and to whom any delays should be attributed. Neither did the appellant file any fresh evidence before us that would enable us to make any of the necessary findings. We therefore lack the evidential foundation needed to entertain this ground of appeal and, accordingly, are not willing to permit it to be raised at this time.

Appeal of Sentence

[10] With respect to the appeal of sentence, duty counsel argued that the trial judge committed an error in principle by failing to consider the impact on the appellant of negative media coverage he received, particularly a newspaper article that reported misconduct wider than the trial judge's ultimate findings. Taking into account the ruin and humiliation faced by the appellant, as well as the fact that he has repaid $75,000 of the funds pursuant to the restitution order, counsel argued that the custodial sentence ought to have been no more than two years.

Court's Analysis on Sentence

[11] Although the trial judge did not reference the pre-trial publicity the appellant received, his failure to do so does not constitute an error in principle. Given the significant aggravating factors, the pre-trial publicity would not have had an impact in fashioning a fit sentence. The appellant breached the trust his elderly mother placed in him to administer the funds she needed for her living expenses. It was not a momentary lapse, but a repeated course of conduct encompassing some 80 transactions, and which the appellant took considerable efforts to conceal. The fraud was not discovered until less than $100 remained, and the appellant's mother suffered the embarrassment of being evicted from her retirement home for being – unbeknownst to her – five months in arrears of rent. She felt humiliated, and made efforts to repay the home from her meagre pension income. The appellant deprived his mother of the level of nursing care and comfort that she would otherwise have enjoyed, and shifted the burden of her care onto his siblings. The trial judge made no error in the sentence imposed.

Disposition

[12] The appeals from conviction and sentence are dismissed.

"P. Lauwers J.A."

"G. Pardu J.A."

"B.W. Miller J.A."