COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frater, 2020 ONCA 624

DATE: 20201006

DOCKET: C65579

Brown, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Anthony Frater

Appellant

Lynda E. Morgan, for the appellant

Ken R. Lockhart, for the respondent

Heard: September 18, 2020 by video conference

On appeal from the convictions entered on April 7, 2017, and the sentence imposed on June 29, 2017, by Justice Maria Speyer of the Ontario Court of Justice.

REASONS FOR DECISION

[1] Paul Anthony Frater was convicted in the Ontario Court of Justice of multiple charges arising out of the following events occurring on September 1, 2016; September 2, 2016; and October 20, 2016.

[2] On September 1, 2016, the complainant received many text messages. Mr. Frater, the complainant’s former boyfriend, conceded at trial that he sent these texts. In the early hours of September 2, 2016, a man broke open the door to the complainant’s home while holding a knife. The tires of a vehicle in the complainant’s driveway were also slashed. Some hours later, the text messages, conceded to be from Mr. Frater, resumed.

[3] On October 20, 2016, the complainant received threatening, harassing messages from an anonymous sender.

[4] During the trial, the parties focused on whether the Crown’s evidence was credible and reliable enough to prove that Mr. Frater was the man who broke open the door and slashed the tires on September 2, 2016, and authored the messages received on October 20, 2016. The trial judge had no doubt that Mr. Frater was the person responsible on both occasions.

[5] In connection with the September 1, 2016 and September 2, 2016 incidents, she convicted Mr. Frater of breaking and entering a dwelling house with intent, contrary to s. 348(1)(a) of the Criminal Code (count 9); carrying a weapon (a knife) for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code (count 12); mischief by destroying the tires of the vehicle of Mr. Miskovic, who was visiting the complainant at the time, contrary to s. 430(4) of the Criminal Code (count 11); criminally harassing the complainant contrary to s. 264(2)(b) of the Criminal Code (count 7); and breaching a probation order to keep the peace, contrary to s. 733.1(1) of the Criminal Code (count 8).

[6] With respect to the October 20, 2016 incident, she convicted Mr. Frater of two counts of threatening to cause bodily harm to the complainant, contrary to s. 264.1(1)(a) (counts 2 and 3); threatening to cause bodily harm to the complainant’s mother, contrary to s. 264.1(1)(a) (count 4); and breaching a probation order not to communicate with the complainant, contrary to s. 733.1(1) of the Criminal Code (count 1).

[7] Mr. Frater was sentenced to 28 months in jail, less 10 months credit for presentence custody, and he was placed on probation for two years. Along with other incidental orders, victim surcharges totalling $800 were also imposed.

[8] Mr. Frater raises several grounds of appeal from these convictions and seeks leave to appeal the victim surcharges imposed as part of his sentence.

[9] The only ground of appeal we allow relating to Mr. Frater’s convictions addresses the trial judge’s Kienapple error in convicting Mr. Frater on both count 2 and count 3. By convicting Mr. Frater of both offences on the same evidence, the trial judge imposed double jeopardy: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[10] Specifically, Mr. Frater had been charged separately with threatening the complainant with bodily harm (count 2) and threatening her with death (count 3). The Crown relied on the same evidence for both counts but proceeded with both because there was an issue as to whether Mr. Frater, given the slang he used, had only threatened bodily harm or had also threatened death. The trial judge was satisfied that bodily harm was being threatened but was not satisfied that death was threatened. However, instead of relying on count 2 alone to record the threatening to cause bodily harm conviction, she found Mr. Frater guilty of count 2 and registered an additional conviction under count 3 of the included offence of threatening to cause bodily harm. Appropriately, the Crown has conceded that the trial judge erred in doing so. This ground of appeal is allowed.

[11] All the other grounds of appeal against the convictions are dismissed. They amount to attempts to relitigate the issues at trial or to raise, on appeal, matters that were not live issues at trial.

[12] In the first such ground of appeal, Mr. Frater argues that the trial judge erred by using a text exchange that occurred between the complainant and Mr. Frater in the hours before and after the complainant’s door was broken in to convict Mr. Frater of the September 2016 criminal harassment charge and to prove that he was the intruder. This ground of appeal is linked to a caution the trial judge gave herself about relying on uncorroborated or unconfirmed evidence from the complainant. The trial judge said that she would exercise such caution because the complainant had at times been evasive and gave contradicted and inconsistent evidence. Mr. Frater argues that since the uncorroborated and unconfirmed testimony of the complainant is the only evidence that the text exchange admitted into evidence is a genuine and complete record of the actual text exchange that took place, the trial judge should not have treated the text exchange as a dependable record.

[13] This ground of appeal must be rejected. We do not accept that the trial judge was, in effect, declaring the complainant to be a Vetrovec witness: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811. Nor need we consider whether this is a useful concept to apply in a trial by judge alone. Even where a true Vetrovec witness testifies in a jury trial, the law does not require the rejection of her unconfirmed or uncorroborated evidence. A jury is entitled to act on such evidence if it chooses to do so after considering the need for caution: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. The same must hold true where a trial judge cautions themselves respecting a witness. The trial judge was entitled, in spite of the caution she gave herself, to accept that the text exchange was a reliable record of the communications that occurred, particularly given that the complainant was not challenged on this point in cross-examination. Moreover, the trial judge was in a position to evaluate the context, timing and content of the text messages, all of which are factors capable of supporting the complainant’s claim that the messages had not been altered. At base, this is a challenge to a credibility finding made by the trial judge, yet no palpable or overriding error has been demonstrated and no error of law or principle has been shown. This ground of conviction appeal is dismissed.

[14] Mr. Frater’s second ground of conviction appeal contends that the trial judge erred in admitting the text messages of October 20, 2016, given that the Crown failed to discharge its burden under s. 31.2 of the Canada Evidence Act, R.S.C. 1985, c. C-5, to satisfy the “best evidence rule” applicable to electronic documents. We do not accept this. Those text messages were admitted into evidence, on consent, as part of Exhibit 2 in the trial, without qualification. Because of this the Crown was not required to lead evidence to discharge its s. 31.2 burden, and the trial judge was entitled to treat the text messages as admissible evidence before her.

[15] Mr. Frater also argues that the trial judge’s finding that Mr. Frater authored the October 20, 2016 text messages, which were sent using an anonymous internet address, is unreasonable. We disagree. The trial judge’s conclusion was not only reasonable, it was compelling. The messages from the sender were about a police investigation against the sender, caused by the complainant. The sender suggested the charges should be dropped. The style of the October 20, 2016 messages resembled the September 1 and September 2, 2016 exchange that Mr. Frater admitted to participating in. In both sets of communications, the party that the complainant is communicating with is referred to as “Pablo”, on September 2, 2016 by Mr. Frater himself, and on October 20, 2016 by the complainant. When the complainant referred to the party she was communicating with as “Pablo” he took no steps to correct her. The October messages also disclosed personal facts that the complainant testified were known to Mr. Frater, and the trial judge was entitled to accept this testimony. This evidence, taken together, provided a sound foundation for the finding that Mr. Frater authored the October 20, 2016 text messages.

[16] Mr. Frater argues that the trial judge’s findings that he was the September 2, 2016 intruder; that he stepped into the apartment after breaking open the door; that he was armed with a knife at the time; and that he slashed the tires of the vehicle, were all unreasonable. We do not accept these submissions.

[17] The finding that Mr. Frater was the intruder was entirely reasonable. Although the two eye-witnesses to the break-in, Mr. Miskovic and Mr. Bagan, did not provide elaborate descriptions of the intruder or identify Mr. Frater, nothing they said could rule him out, and the text exchange that followed between Mr. Frater and the complainant was decidedly incriminating as to his involvement. Its timing in the hours after the intruder fled, his disclosure in those messages of motive and animus to have been at the complainant’s apartment, his claim that the men inside were pimps, and his statement that he had seen what he needed to see, amply support the trial judge’s finding.

[18] We need not resolve whether the trial judge’s finding that Mr. Frater took a step inside the apartment was unreasonable, although we are inclined to the view that it was not. This finding was supported by the direct evidence of Mr. Miskovic to that effect. We need not resolve this issue because even if such an error had occurred, it would not have changed the outcome. This is because the trial judge went on to find that even if Mr. Frater had not stepped inside, a part of his body would have entered as a natural consequence of breaking in the door, thereby satisfying the constructive entry provided for in s. 350(a) of the Criminal Code. There was an evidentiary foundation for this conclusion. The evidence described an extremely forceful break. Mr. Miskovic said the intruder “busted the door” open with his shoulder or by kicking it. Mr. Bagan said the door was “slammed inside, like [he] killed the door, slammed in”. The trial judge inferred in these circumstances that part of Mr. Frater’s body must have broken the plane of the door. This was the trial judge’s determination to make.

[19] Inconsistencies between witnesses in the description of the knife or the hand that the intruder used to hold the knife do not make the trial judge’s finding that the intruder had a knife unreasonable. Both witnesses agreed that he had a knife.

[20] Nor was the trial judge’s finding that Mr. Frater slashed the tires unreasonable. The testimony of Crown witnesses that the tires were slashed went unchallenged, as the trial judge noted. She also had before her a record showing that calls were made to a number identified in the call log as “Zabi (Tow Truck)”. Once it was found that Mr. Frater was the intruder, the conclusion that it was Mr. Frater who slashed the tires was inevitable. His text messages betrayed his anger about the presence of the complainant’s male guests, and it was the car of one of those guests that was vandalized at or around the time Mr. Frater was seen to be holding a knife while breaking open the door. The trial judge’s finding was not unreasonable. The circumstantial case against Mr. Frater on this charge was strong.

[21] The final ground of appeal relating to the convictions is Mr. Frater’s submission that the trial judge erred in applying the burden of proof. By rejecting Mr. Frater’s unreasonable verdict arguments, we have already signalled that we reject his claim that the trial judge committed an error contrary to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, by convicting Mr. Frater on inadequate circumstantial evidence. The trial judge was entitled to find Mr. Frater guilty beyond a reasonable doubt on the evidence before her.

[22] Nor are we satisfied that the trial judge breached the rule in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, by failing to consider whether Mr. Frater’s denial, in the September text exchange, that he was the one who broke down the complainant’s door raised a reasonable doubt. We accept that the rule in W.(D.) applies to evidence inconsistent with guilt that is disclosed in the Crown’s case, such as Mr. Frater’s text message denial: see R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241, at para. 114. However, it is evident that the trial judge did not advert expressly to the W.(D.) rule because, in her decision, she was addressing the issues that had been litigated before her. Mr. Frater did not rely on this denial in his defence. Indeed, he took the position that the text messages should not be relied upon at all by the trial judge because she could not be satisfied that they had not been tampered with. The case litigated before the trial judge was about whether the Crown’s affirmative evidence was sufficient to convict Mr. Frater. The trial judge wrote a decision that responded to that case, as she was entitled to do.

[23] In any event, we agree with the Crown that the trial judge’s finding that “[i]t is inconceivable to me that the break in and the slashing of the tires was carried out by a stranger or someone other than Mr. Frater” necessarily entails that she was left in no doubt by Mr. Frater’s denial, embedded as it was in his inculpatory text message exchange. No W.(D.) error occurred.

[24] Mr. Frater’s conviction appeal is therefore dismissed, save for his Kienapple appeal relating to count 3. That ground of appeal is allowed and his conviction under count 3 of threatening to cause bodily harm to the complainant contrary to s. 264.1(1)(a) of the Criminal Code is set aside.

[25] We also grant leave to Mr. Frater to appeal the victim surcharge portion of his sentence. The Crown agrees that the victim surcharges were imposed contrary to the Charter. They are set aside.

[26] Notably, Mr. Frater, who has completed serving his sentence, has not sought a sentence reduction because of the Kienapple error, so we leave the balance of his sentence undisturbed.

“David Brown J.A.”

“Gary Trotter J.A.”

“David M. Paciocco J.A.”