Court File and Parties

Court of Appeal for Ontario Date: 2023-09-18 Docket: C69032

Before: Paciocco, Copeland and Monahan JJ.A.

Between: His Majesty the King, Respondent and Alexsander Budimirovic, Appellant

Counsel: Anil Kapoor and Alexa Ferguson, for the appellant Michael Dunn, for the respondent

Heard: September 11, 2023

On appeal from the conviction entered on October 25, 2018 and the sentence imposed on July 26, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice.

Reasons for Decision

[1] A jury convicted the appellant of two counts of fraud and one count of attempted fraud. He was tried with his wife, Ashley Carlson, and his friend Harold Stewart.

[2] Ms. Ethel Hockett was one of the persons allegedly defrauded. The first charge alleged that the appellant and his co-accused fraudulently used Ms. Hockett’s credit card data. The second charge alleged that the appellant fraudulently convinced Ms. Hockett to get a mortgage on her house and then had her send $138,500 to Mr. Stewart. The third charge for attempted fraud related to the appellant’s attempt to sell a property that he did not own.

[3] Ms. Hockett was 89 years old at the time of the offences. By the time of the trial, she was 91, suffering from dementia, and unable to testify. After a voir dire, the trial judge admitted two videotaped statements she had made to the police (the “Hockett Statements”) under the principled exception to the rule against hearsay.

[4] The appellant appeals his conviction on the following four grounds:

(i) the trial judge erred in failing to give a limiting instruction to the jury to prohibit propensity reasoning between counts on the indictment;

(ii) the trial judge erred in admitting the Hockett Statements for the truth of their contents;

(iii) the trial judge erred in failing to caution the jury that they ought not to rely on the Hockett Statements absent confirmatory evidence; and

(iv) the trial judge should have granted the appellant an adjournment after he discharged his counsel so as to permit him to seek new representation or to prepare.

[5] At the conclusion of the hearing, we advised counsel that the appeal was dismissed with reasons to follow. These are our reasons.

A. No Error in Instruction on Propensity Reasoning

[6] The appellant acknowledges that the trial judge properly charged the jury that the appellant was entitled to be tried separately for each count and only on the evidence admissible on each count. However, he objects to the fact that the trial judge did not go further and specifically instruct the jury that it ought not to use a finding of guilt on one count to support guilt on another.

[7] The proper approach to the review of a charge to jury is well settled. Appellate courts must take a functional approach, reading the charge as a whole, and keeping in mind that it is the substance of the charge that matters, not adherence to a prescribed formula or a particular sequence. R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35. The overriding question is whether the jury understood or was properly equipped with the law to apply to the evidence: R. v. Calnen, 2019 SCC 6, 1 S.C.R. 301, at para. 9.

[8] In this case, the trial judge clearly instructed the jury that their task was to reach their verdicts on each count based solely on the evidence relevant to that specific count. She also highlighted the fact that although three persons were charged with a number of offenses, the jury should return a separate verdict for each person on each charge:

Although three persons are charged and are being tried together, each person charged is entitled to be treated separately on each charge. Each is presumed innocent of each charge. And each is entitled to have his or her case decided on the basis of evidence and legal principles that apply to him or her. It is that evidence and those principles that determine what your decision will be for each person on each charge. In reaching your separate verdict for each accused on each charge, you must consider only the evidence that relates to a particular charge to reach your verdict on that charge. And you must not use the evidence that applies to only one accused to decide the case of any other accused on the same charge or any other charge.

[9] The trial judge further noted that the appellant’s co-accused, Mr. Stewart, had argued that the appellant’s prior convictions supported an inference that the appellant, rather than Stewart, had committed the offenses that were the subject of the indictment. The jury was instructed that it could not use evidence of the appellant’s propensity or disposition to commit crimes in order to prove him guilty of the offenses with which he was charged on this indictment:

A special rule applies to this evidence of pre-disposition or propensity. Crown counsel is not entitled to rely on evidence of the disposition or propensity of any person charged with an offence, in this case Alexsander Budimirovic, to prove him guilty of an offence…[W]hat you must not do is to use this evidence of Mr. Budimirovic’s disposition or propensity to commit the offenses, including the fact, dates or nature of the prior convictions to decide the Crown has proven Mr. Budimirovic’s guilt beyond a reasonable doubt.

[10] As noted above, the appellant concedes that these instructions were correct but argues that the trial judge was required in the circumstances of this case to go further and specifically tell the jury that they could not rely upon a “finding of guilt” on one count in order to support a similar finding on another count.

[11] We do not agree.

[12] As the Supreme Court made plain in Abdullahi, at para. 35, it is the substance of the charge that matters, not adherence to a prescribed formula. Here the trial judge clearly and correctly explained to the jury that they must deliver a separate verdict for each accused on each charge, considering only the evidence that relates to a particular charge. The jury was also told that they could not rely on the disposition of the appellant to commit crimes as a basis for findings of guilt on the offences charge.

[13] In these circumstances, the jury would have understood that they could not use their findings of guilt on one count to convict the appellant on any other count. They were told only to consider the evidence on each count.

[14] We therefore dismiss this ground of appeal.

B. No Error in Admitting the Hockett Statements

[15] Because the Hockett Statements were hearsay, they could only be admitted under the principled approach where they met the twin requirements of necessity and threshold reliability.

[16] Necessity was not an issue in the appeal. The question for the trial judge was whether the Crown had shown that the Hockett Statements met the standard of threshold reliability.

[17] The trial judge found that the Hockett Statements should be admitted on the basis of their procedural reliability. She noted that many hallmarks of procedural reliability were present in this case, including the quality of the video and audio recording, the presence of the oath, and the fact that Ms. Hockett clearly understood her obligation to tell the truth. The jury would also be able to observe Ms. Hockett’s demeanor and how she answered questions when watching the video. The trial judge found that there was a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of Ms. Hockett’s hearsay statements based on these considerations coupled with evident problems with the statements themselves. and admitted them for the truth of their contents.

[18] The trial judge noted that, having admitted the Hockett Statements on the basis of procedural reliability, it was not necessary for her to make a finding in relation to substantive reliability. Nevertheless, she went on to consider whether, in the alternative, they might also be admissible because of their substantive reliability. After accurately identifying the material aspects of the statements and the hearsay dangers, she concluded that the high bar for substantive threshold reliability was not met.

[19] The appellant does not take issue with the trial judge’s finding that the Hockett Statements satisfied the procedural reliability standard. Rather, he argues that the trial judge applied an unduly formalistic approach by treating procedural and substantive reliability as separate and independent considerations. Relying on the statement by Karakatsanis J. in R v Bradshaw, 2017 SCC 35, 1 S.C.R. 865, at para. 32, that procedural and substantive reliability “may work in tandem”, the appellant argues that the fact that the Hockett statements failed to satisfy the substantive reliability standard should have resulted in their exclusion from evidence.

[20] In our view, the appellant has taken the reference in Bradshaw to procedural and reliability working “in tandem” out of context. Karakatsanis J was referring to circumstances in which neither procedural nor substantive reliability on their own provide a sufficient basis to admit a hearsay statement but where together they clear the threshold reliability hurdle. But that is not the circumstance here, given the trial judge’s finding that the Hockett Statements were admissible on the basis of procedural reliability alone.

[21] It is settled law that hearsay statements may be admitted either on the basis of their procedural or their substantive reliability: R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 115. As Watt J.A. noted in Mohamad, procedural and substantive reliability “afford two routes to the same destination…[and] are equivalents in the quest to establish threshold reliability.” If procedural reliability is sufficiently made out, then substantive reliability does not need to be established. Therefore, having found the Hockett Statements to be sufficiently procedurally reliable, the trial judge correctly found that the statements were admissible.

[22] We therefore dismiss this ground of appeal.

C. No Error in the Instruction on the Hockett Statements

[23] The appellant argues that the jury should have been told that it was dangerous to rely on the Hockett Statements in the absence of corroboration.

[24] In our view, no such instruction was necessary. The trial judge provided detailed instructions to the jury about how to assess Ms. Hockett’s evidence. The jury was told to be cautious when determining whether or how much to rely on the evidence. They were also told that it may be more difficult to assess the reliability of this evidence and that it should not be considered by itself but, rather, in the context of the evidence as a whole.

[25] We see no error or deficiency in these detailed and carefully tailored instructions and dismiss this ground of appeal.

D. The Trial Judge Appropriately Exercised her Discretion to Refuse an Adjournment

[26] Although not advanced in oral submissions, the appellant relies on his written argument that the trial judge should have granted his request for an adjournment after he dismissed his counsel.

[27] The appellant dismissed his counsel on the fifth day of a trial scheduled for three weeks. Before the appellant made that decision, the trial judge advised the appellant that there was a real risk that the trial would continue, whether or not the appellant was represented by counsel. The trial judge gave the appellant a weekend to consider his position. When the trial resumed the following week the appellant dismissed his counsel, and the trial judge refused the appellant’s request to adjourn the trial.

[28] The decision to grant an adjournment is discretionary and is entitled to deference on appeal: R. v. Millard, 2023 ONCA 426, at paras. 122-123. The appellant does not allege any error in principle in the judge’s exercise of discretion, nor that any of the factors she considered were inappropriate. He simply argues that the trial judge should have weighed those factors differently. In our view, this is not sufficient to displace the deference due to the trial judge’s decision.

[29] This ground of appeal is therefore dismissed.

E. Disposition

[30] The appellant’s conviction appeal is dismissed.

“David. M. Paciocco J.A.”

“J. Copeland J.A.”

“P.J. Monahan J.A.”