Court of Appeal for Ontario

Date: 2019-09-10 Docket: C66590

Judges: Pardu, Brown and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Alex Beseiso Appellant

Counsel

Alex Beseiso, acting in person

Andrew Hotke, for the respondent

Heard

September 3, 2019

Appeal Information

On appeal from the conviction entered on January 9, 2019 and the sentence imposed on January 28, 2019 by Justice Jennifer Woollcombe of the Superior Court of Justice.

Reasons for Decision

[1] Conviction and Sentence

The appellant, Alex Beseiso, was convicted on January 9, 2019 by Woollcombe J. of the Superior Court of Justice of intimidation of a justice system participant contrary to s. 423.1(1)(b) of the Criminal Code. Sentence was suspended and a one-year probation order was imposed.

[2] Grounds of Appeal

In his notice of appeal, Mr. Beseiso appeals his conviction and seeks leave to appeal his sentence, which he states was manifestly unfit. In his factum, Mr. Beseiso does not make any submissions regarding his sentence. He makes two submissions in respect of his conviction. First, he submits that the trial judge failed to provide sufficient reasons for her decision and did not review any of his evidence. Second, he argues that the trial judge failed to apply the last step in the analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742. Instead, the trial judge jumped directly from rejecting his evidence to a finding of guilt.

[3] Court's Assessment

We are not persuaded by Mr. Beseiso's submissions.

[4] Adequacy of Trial Judge's Reasons

The trial judge's lengthy reasons contain a detailed review of his testimony at trial. For example, on the important issue of whether Mr. Beseiso knew that his conduct was harassing the complainant, the trial judge gave extensive reasons for concluding that he did: at para. 123. As well, she reviewed his evidence on the issue of whether he intended to impede the complainant in the performance of his duties: at para. 132 to 136. Finally, the trial judge gave sufficient reasons: when read in their entirety, the reasons fully informed the parties about why she found Mr. Beseiso guilty on the second count.

[5] Application of W.(D.) Test

The trial judge properly instructed herself on the elements of W.(D.): at para. 98. Her reasons disclose that she never lost sight of the Crown's obligation to establish Mr. Beseiso's guilt beyond a reasonable doubt. Indeed, the trial judge acquitted Mr. Beseiso on the first count in the indictment under Criminal Code s. 264(2)(b) because she was not persuaded that the Crown had proven beyond a reasonable doubt that the complainant was in fact fearful for his safety: at paras. 129-131.

[6] Analysis of Second Count

On the issue in the second count of whether Mr. Beseiso intended to invoke fear in the complainant and to use that fear to impede him in his function as a prosecutor, the trial judge not only explained why she did not accept Mr. Beseiso's explanation for the contents of his emails, but went on to explain why the remaining evidence satisfied her of his guilt beyond a reasonable doubt: at paras. 136, 138.

[7] Disposition of Appeal

The appeal is dismissed.

[8] Victim Fine Surcharges Motion

The appellant also asked this court to set aside victim fine surcharges imposed in another matter. He unsuccessfully appealed from those matters to a summary conviction appeal judge: R. v. Beseiso, 2018 ONSC 5042. After the Supreme Court of Canada declared victim fine surcharges to be unconstitutional in R. v. Boudreault, 2018 SCC 58, 369 C.C.C. (3d) 358, the appellant brought a separate Charter application before Durno J. asking to set aside those surcharges. The decision of Durno J. is not part of the record before us and the matter is not properly before this court by way of appeal, either from the decision of Durno J. or the summary conviction appeal judge. Both an extension of time and leave to appeal would be required to appeal from the summary conviction appeal judge. Accordingly, the motion asking this court to set aside the victim fine surcharges is dismissed.

"G. Pardu J.A."

"David Brown J.A."

"Gary Trotter J.A."