Court of Appeal for Ontario

Date: 2019-09-10 Docket: M50087

Judges: Pardu, Brown and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Alex Beseiso Moving Party

Counsel

Alex Beseiso, acting in person

Andrew Hotke, for the respondent

Heard: September 3, 2019

Reasons for Decision

Background and Convictions

[1] The applicant, Alex Beseiso, was convicted on November 28, 2017 by Cooper J. of the Ontario Court of Justice of criminal harassment (Criminal Code s. 264(2)(d)), uttering threats (s. 264.1(1)) and causing a disturbance (s. 175(1)(a)). Sentence was suspended and the court ordered 12 months' probation. Mr. Beseiso's summary conviction appeal was dismissed by D.E. Harris J. on November 26, 2018: 2018 ONSC 7074.

Facts

[2] The appeal judge summarized the main facts at paras. 2 and 3 of his reasons:

Mr. Beseiso contracted with registered court transcriptionist Kim Fess for her to prepare transcripts of a real estate tribunal matter for him. When the transcripts were completed and it was time to pay, the appellant became upset that H.S.T. had been included on the invoice. He expressed his displeasure in a telephone conversation with Ms. Fess and then sent her a barrage of text messages which stated, amongst other things, "you … should order police presence…I'm coming for you, bitch…Fucking bitch…You fucking with me, I'll teach you your place." The appellant called Halton police and said he was going to Fess' home office address and that there was going to be trouble if they did not attend. Fess also called the police and they arrived shortly afterwards at her home office.

By the time the appellant arrived in his pick-up truck, the police were already there. The police officers talked to the appellant but he seemed more concerned with launching profanities at Ms. Fess. He was irate. When the police asked the appellant to leave, he loudly proclaimed that he would, to paraphrase, "get his cousins from overseas and get back at her." The police asked him again to leave but he refused to do so. He was arrested for cause a disturbance and utter threats. Fess and her employees were frightened and devised measures to protect themselves if the appellant returned.

Leave to Appeal Test

[3] Mr. Beseiso seeks leave to appeal his convictions pursuant to Criminal Code s. 839(1). Under that section, leave to appeal may be granted "on any ground that involves a question of law alone." The factors that should guide the exercise of the court's discretion in granting leave were described in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 30 and 31: (i) the significance, beyond the specific case, of the proposed question of law to the administration of justice; and (ii) the strength of the appeal.

Grounds of Appeal Raised

[4] In his factum on this motion, Mr. Beseiso identifies three grounds of appeal that he characterizes as questions of law: (i) the appeal judge showed undue deference to the trial judge's decision to curtail questioning about witnesses' schedules in respect of Mr. Beseiso's abuse of process application; (ii) the appeal judge erred in concluding that Mr. Beseiso had clearly and unequivocally abandoned his s. 11(b) application; and (iii) the appeal judge erred by holding that although the trial judge misstated the legal test for threatening, the error could not have affected the result.

Analysis of First and Second Grounds

[5] The first and second grounds of appeal do not involve questions of law. They concern the appeal judge's review of the factual basis for the trial judge's decision to dismiss Mr. Beseiso's abuse of process application and to not consider his s. 11(b) application.

Analysis of Third Ground: The "Only Reasonable Inference" Issue

[6] The third ground of appeal concerns an issue raised by the appeal judge on his own in order to discharge his obligation to assist an unrepresented appellant. The appeal judge described the issue at paras. 24 and 25 of his reasons:

In reviewing the reasons for judgment in preparation for the oral hearing, there was one aspect which was worrisome. It was alluded to above. In the assessment of the threatening count, in considering the implications of the texts to Ms. Fess and whether they amounted to threats of bodily harm, the trial judge said,

"And if somebody says to somebody else, 'I'm coming for you, bitch' and 'You're fucking with me, I'll teach you your place,' that's reasonably possible for a person, a normal person, to think that bodily harm was going to be inflicted upon them. It's probably the only rational conclusion you could apply. So, there's no doubt in my mind the Crown had proven that case beyond a reasonable doubt."

(Emphasis Added)

The trial judge's insertion of the words "reasonably possible" and "probably the only rational conclusion" diluted the requirement that in cases where an element of the offence depends solely on circumstantial evidence such as here, a conclusion that the element has been proven must be the only reasonable inference available: R. v. Villaroram, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30.

[7] The appeal judge concluded that the trial judge's misstatement of the only reasonable inference cautionary instruction either was not a legal error, when viewed in the full context of the trial judge's reasons, or, if it was an error, it was a minor, insignificant error that could not have affected the result: at para. 31. The appeal judge explained his conclusion at paras. 28-30:

In this case, the trial judge impermissibly relaxed the rigor of the only reasonable inference standard. If this had been a jury instruction, there is little doubt that it would have constituted serious and perhaps reversible error. But I do not believe when the full text of the trial judge's reasons is taken into account, there was any harm caused in this trial.

In this trial, specific alternative suggestions to the conclusion that a threat of bodily harm was intended were advanced by the appellant in his evidence. The trial judge rejected them. He was certainly entitled to do so. The suggestion that "I'm coming for you" actually meant, "I'm coming for the transcripts" was not persuasive. The idea that he was threatening legal action and not bodily harm was also extremely weak.

The trial judge's rejection of these alternative suggestions demonstrates that he did not simply jump to the conclusion that the words spoken conveyed threats of bodily harm. He had tangible alternative suggestions before him which he considered and rejected. The potential error of ignoring alternative inferences which the only reasonable inference formulation is intended to address was, in effect, rebutted in the trial judge's reasons.

Court's Conclusion

[8] This third ground of appeal does not involve a question of law alone. The appeal judge did query whether the trial judge had applied the proper legal test to his assessment of the evidence. However, upon reading the trial judge's reasons as a whole, including his rejection of certain factual inferences, the appeal judge was satisfied that the trial judge's findings of fact supported his conclusion when viewed through the proper legal lens. Accordingly, this issue involves a question of mixed fact and law, not one of law alone. In any event, the trial judge identified the actus reus of the offence as made out if "a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm." He was satisfied that this element had been proven beyond a reasonable doubt. His analysis was sufficient in the circumstances of this case.

[9] Further, this issue has little significance to the administration of justice, beyond the specific case. As well, the merits of the appeal do not appear to be very strong and there is no strong reason to think that Harris J. may have fallen into reversible error of law: R.(R.), at para. 37.

[10] The motion for leave to appeal is dismissed.

"G. Pardu J.A."

"David Brown J.A."

"Gary Trotter J.A."