Court Information

Ontario Court of Justice Old City Hall, Toronto Region

Between: Her Majesty the Queen — and — Bradley Feldman

Before: Justice S.R. Shamai

Judgment rendered: November 26, 2013 Released: December 11, 2013

Counsel:

• Mr. Geoff Kerr, for the Crown
• Ms. Joanna Nefs, for the Appellant, Bradley Feldman

Decision

S.R. SHAMAI, J.:

Background and Conviction

[1] Mr. Feldman was convicted on June 14, 2013, on an ex parte trial before Justice of the Peace D.K. Currie. The conviction was in relation to a charge under the Safe Streets Act, section 3(2)(c). Despite submissions of the prosecutor, on finding Mr. Feldman guilty in his absence, His Worship sentenced Mr. Feldman to a sentence of 90 days.

[2] The evidence conveyed to the Court consisted of the testimony of Mr. J. McClure, a Transit Safety Officer with GO Transit. The brief testimony of the officer went as follows:

"I was on routine patrol in uniform of the Union Station Go Transit Bus Terminal, which is located at 141 Bay Street, in the City of Toronto. I happen to encounter a male party, who was soliciting for money from several patrons at our bus terminal. I observed, first hand, the male party approach another female passenger who was sitting on a bench, and motion with his hands for money by placing his hands together in a praying motion. As I approached, I witnessed the female reach into her purse, retrieve two quarters, and place it into the hands of the male party. I approached the male party and identified myself and investigated the matter. He did admit to soliciting for money. I subsequently requested identification, which he did not possess. I obtained it verbally, and through investigative tools, I was able to determine his identity and was satisfied with the name and date of birth given.

The bus terminal consists of several platforms and a roadway which is designated for busses and it is clear that it is a public transit stop…it was also discovered through previous encounters with other officers that he had been dealt with for the same matter…"

Asked where he was when he first observed the defendant, the officer responded that he was "at the west end of the bus terminal, which is number platform 42". He was "soliciting a female" who was seated on a bench.

[3] In his reasons for judgment, the Justice of the Peace refers to the testimony of the officer in these terms: that he saw an individual

"cupping his hands, and the individual that he was speaking with, reached into her purse, providing two quarters for the individual…"

He describes the location of the offence as follows:

"the GO station is publicly [sic] and it is used for the purposes of the public travelling and travelling in safety. As a consequence to the observations of the officer, in regards to the soliciting and the verbal identification given, the officer charged the individual under the Safe Streets Act …His observations, of which he observed visually[sic], he's also indicated his point of contact, on Platform 42. He's also given a verbal description of the area, with the number of passengers and verbally seeing [sic] an individual…"

Appeal and Mental Health Considerations

[4] On appeal, Mr. Feldman is represented by counsel. He appeared personally at his appeal hearing on September 16, 2013. The appeal is argued against conviction, and as well against sentence. The grounds for appeal are stated succinctly in the notice as "Mental Health Considerations". The Appellant's factum includes the Appellant's affidavit, setting out the circumstances of his life, that having been raised as one of three children in his family in Toronto, he suffered a street drug overdose at age 13, and it has affected his mental health since that time. Now 52 years of age, Mr. Feldman describes in his affidavit how the overdose did affect, and continues to affect him. He reports issues of memory damage, damage to his ability to concentrate, a depression diagnosis when he was still a teen, and a suicide attempt. He has since been diagnosed with paranoid schizophrenia at age 26 and medicated, though the results were "not very helpful", he asserts. Since 2007, he has been working with the IMPACT team at Toronto Western Hospital. Medication still does not entirely abate the symptoms. However, he has the benefit of a boarding house, so is no longer living on the street, and has some support through IMPACT and through counseling, for drug dependence. Mr. Feldman's condition was confirmed by Dr. M. Carlier, Medical Director for IMPACT, within the University Health Network in Toronto. The appeal file contains both Mr. Feldman's affidavit and the letter of Dr. Carlier, along with an article entitled "Mental Disorders, Comorbidity, and Postrunaway Arrests among Homeless and Runaway Adolescents", published in Journal of Research on Adolescence, 16(3), 379-402. These three documents were filed on appeal, on consent.

Grounds of Appeal

[5] On behalf of Mr. Feldman, Ms. Nefs contends that in proceeding on an ex parte basis, the trial court committed a miscarriage of justice, denying Mr. Feldman the protection of Section 44 of the Provincial Offences Act. That section is equivalent to the fitness section of the Criminal Code Section 672.11(a) and related provisions. Under the POA, the presiding court may, at any time before a defendant is sentenced, act on the evidence of a legally qualified medical practitioner, or his/her written report, on consent; or the conduct of the defendant. Only a judge may make a finding under this section. A finding that the defendant is because of mental disorder unable to conduct his or her defence, the judge shall order that the proceeding remain suspended.

[6] Ms. Nefs further contends that the Justice of the Peace on trial erred in law, by disregarding the sentencing position of the Prosecutor, and by imposing a sentence that was "grossly excessive".

Analysis of Conviction Appeal

[7] Regarding the conviction, the Appellant's position would have the court impute to the Trial Justice "two common perceptions" which should have led him to appreciate the possibility that a mental health disorder might play in an accused party with Mr. Feldman's profile. She contends that this profile should have emerged from the fact of the numerous prior convictions. While the Appellant urges this court to take notice of Section 44 of the Provincial Offences Act, requiring a proceeding to be suspended and direct the hearing of the issue by a judge on whether the defendant is unable to conduct his defence by reason of mental disorder, she does indicate just how the evidence now proffered to the court, which might satisfy Section 44(a), is to be treated on appeal. While an appeal is available, under Section 116(1)(c), against "a finding as to ability, because of mental disorder, to conduct a defence", there is no statutory provision for the issue to be raised on appeal for the first time. This makes sense, since the condition underlying fitness is notoriously transient, in many who are found unfit.

[8] With regard to sentence, the position of the Appellant leaves less guesswork, in terms of the remedy sought. On this aspect, this court is asked not only to consider the affidavit, doctor letter and learned journal article, but as well to consider "the second common perception" relevant to these circumstances: that "street involved people are the targets of the Ontario Safe Streets Act, and that multiple Safe Streets Act convictions should "reasonably have triggered extra caution on the part of the sentencing justice, and that a period of incarceration should not have been handed down without further inquiry. Counsel relies more generally on the jurisprudence in support of the position that particularly in an ex parte trial, a sentence higher than that sought by the prosecution, especially one of incarceration, requires extra precaution before its imposition. Appellant contends that those latter safeguards were absent in this case.

[9] In order to deal with the issues related to the Appellant's mental health, as counsel frames them, this court would need to traverse a range of preliminary issues: whether the affidavit of Mr. Feldman and letter of Dr. Carlier amounts to "reason to believe" that due to mental disorder, Mr. Feldman was unable to conduct his defence; and how that issue should be dealt with where the issue is raised, as here, by material made available only on appeal; whether such mental disorder, clearly established on Dr. Carlier's letter, led to Mr. Feldman's non-attendance at trial. The issues raised on the appeal against sentence include whether the Justice of the Peace at trial should have been alert to the possibility of mental disorder, given the social context which counsel says emerged from the nature of the offence, and the preponderance of street-involved offenders who suffer mental illness. This issue contains its own subsidiary issue, about matters which the trial justice might have taken into account by way of judicial notice.

[10] More traditional issues emerge from a reading of the transcript, concerning the propriety of a justice, sui motu, imposing a sentence of incarceration in the course of an ex parte trial, where the prosecutor did not seek same.

Misapprehension of Evidence

[11] However, upon reviewing the transcript, a foundational issue emerges. In his review of the brief evidence of the GO transit officer, the sole witness on the trial, the justice of the peace mischaracterizes the evidence. The prosecution's case alleges a violation of Section 3(2) of the Safe Streets Act, 1999. That subsection, titled "Solicitation of captive audience prohibited", provides that:

"No person shall

(c) solicit a person who is waiting at a taxi stand or a public transit stop".

In fact the information in this case alleges that Mr. Feldman solicited a person near a public transit stop. One might query whether the information discloses an offence known to law: the distinction of conduct at the stop as opposed to near a stop may well amount to an allegation of an offence not known to law.

[12] The appreciation of the evidence as it might fall within or outside the conduct prohibited however, becomes fatally troubling upon a reading of the testimony of the GO employee, and then reading the summary of the evidence of the Justice of the Peace.

[13] In his evidence, Jamie McClure testified that he was employed on August 28, 2012 by GO Transit as a Transit Safety Officer. He stated that at the bus terminal, which the officer described is clearly a public transit stop, he witnessed something which caused him to initiate an investigation. He testified:

"I observed, first hand, the male party approach another female passenger, who was sitting on a bench and motion with his hands for money by placing his hands together in a praying motion. As I approached, I witnessed the female reach into her purse, retrieve two quarters, and place it in the hands of the male party."

Mr. McClure continued to say that upon identifying himself and being in full uniform, he investigated "the male party": "He did admit to soliciting for money".

There was no attempt to establish that the admission attributed to Mr. Feldman was a voluntary statement.

[14] In his reasons for Judgment, Justice of the Peace Currie referred to the conclusion of the witness, that Mr. Feldman was soliciting money from "several patrons", and in particular, "motion[ed] with his hands for money by placing his hands together in a cupping motion".

[15] I note that the trial Justice of the Peace misapprehended a simple and central aspect of the facts alleged against Mr. Feldman, characterizing the testimony of Mr. McClure on the manner in which Mr. Feldman approached the complainant. The witness said he saw Mr. Feldman's hands in a praying motion; the Justice of the Peace stated the man's hands were in a cupping motion.

[16] On this basis alone, I am prepared to examine whether the Appellant's actions, mischaracterized as they were, might to yield a different result under the law when his actions are considered as they were in fact described, or whether it makes no material difference. Given all of my conclusions, I will not spend any time on the issue of the inculpatory statement attributed in the evidence to Mr. Feldman, without the benefit of a voir dire as to voluntariness.

Statutory Interpretation of the Safe Streets Act

[17] While counsel urges issues relating to the mental health of her client, the preliminary question must be whether Mr. Feldman was shown beyond reasonable doubt to be guilty of the offence as charged. Section 3(2)(c) of the Safe Streets Act offers protection of a particular class of person in the section titled "Solicitation of captive audience prohibited". Persons at a public transit stop, implicitly not able to move from their position without losing access to the public transit vehicle, are especially protected from solicitation. While the weight to be accorded statutory headings is only slight, it does give some direction, particularly on an ex parte trial, as to just what the meaning of "transit stop" is, in this case. Between the heading and the common meaning of the term "transit stop", I am not persuaded that the evidence shows beyond reasonable doubt that the alleged activity indeed took place at a "public transit stop". Given the context by the heading of "Captive audience" it appears to me that the Union Station GO Transit Bus Terminal, with dozens of platforms, this being Number 42, is hardly a confined area, giving a person no option but to submit to confrontation by a beggar. Moreover, while the officer was located at Platform 42 when he made his observation, there is no indication of where the bench was located, where the woman giving two quarters to Mr. Feldman was located. While I do not know whether the GO bus terminal of Union Station is as vast and grand as the part of the station used for trains, or whether they are indeed part of the same structure, nothing in the evidence suggests that the "terminal" is merely a "public transit stop". Everything about the evidence suggests otherwise.

[18] The general interpretation of the Safe Streets Act is illuminated by the decision by Justice Dambrot in R. v. Banks et al. (, 192 C.C.C.(3d) 289; appeal dismissed in Ontario Court of Appeal, leave to appeal to Supreme Court of Canada denied). In 2005, Justice Dambrot considered the appeal from the decision of Babe J, in the Provincial Appeals Court, dealing with the constitutionality of the Safe Streets Act. The activity captured by the word "solicit" is extensively considered. (para. 50).

[19] In that case the convictions of several individuals under Section 2 and 3(2) of the Safe Streets Act are considered. Section 3, as indicated, focuses on the solicitation of captive audience. The manner of prohibited solicitation is not exemplified in the section, as it is in Section 2. Nonetheless, a review of the ways in which aggressive solicitation might be deemed to occur is useful, again, in order to understand just what the ambit of proscribed activity is. The examples, or deemed solicitation outlined in s.2(3) include: threatening the person solicited with physical harm by word, gesture, or other means, during the solicitation or after the person solicited responds or fails to respond to the solicitation; obstructing the path of the person solicited during the solicitation or after the person solicited responds or fails to respond to the solicitation; using abusive language during; proceeding behind, alongside, or ahead of the person solicited; soliciting while intoxicated; continuing to solicit the person in a persistent manner after the person solicited responds in a negative manner. Clearly not all communications are deemed to be or might similarly be found to be aggressive therefore unlawful solicitations.

[20] In his review, Justice Dambrot considers what solicitation amounts to, and whether every approach with request, implied or direct, is unlawful solicitation, aggressive or not. In paragraph 50, he says:

"while the legislation does prohibit squeegeeing on a roadway and aggressive begging, it leaves the appellants free to solicit alms or earn money in the vast majority of circumstances and settings." (emphasis added)

[21] There is no suggestion that the Appellant was behaving in an aggressive manner; indeed, approaching a woman seated on a bench in the Union Station GO station, hands in a prayer motion, hardly reaches the level of showing unequivocally that the man was asking for alms or begging at all. The evidence about the location was that it was the bus terminal at Union Station, hardly a place which, on the evidence, evokes a "captive audience". The woman put two coins, quarters, in the man's hand. However nothing about the evidence shows that Mr. Feldman was engaging in aggressive begging, importuning the woman, or approaching her at a transit stop, that is, somewhere that she had no option to leave. If there had been clear evidence of his request, or his persistent manner with her, or that she was anywhere that, as a transit stop, she could not easily walk away from him, if it came to it, then a further series of questions might properly have been considered by this court. I must then consider as a guide to statutory interpretation Justice Dambrot's comment highlighted above, that in the vast majority of circumstances and settings, an individual is free to solicit alms.

[22] However, I do not find that the evidence, even if it had been properly captured by the findings of the Justice of the Peace at trial, amounted beyond reasonable doubt to a violation of the Act. I note, just as a matter of illustrating the ambiguity of the evidence of Mr. McClure, that in taking his leave of the Court, Mr. Feldman put his hands together in a praying motion, and took his leave of the Court. I am quite certain that in so doing, he was not asking the Court for alms.

Conclusion on Conviction

[23] On all the evidence, given the ambiguities about the location and the action of Mr. Feldman, quite apart from the untested statement attributed to him, or the leading of evidence of prior transgressions in the testimony of the officer, I am allowing the appeal and entering an acquittal.

Alternative Analysis on Sentencing

[24] Should I be wrong in my appreciation of the evidence on this ex parte trial, and should a further review of the evidence show that the conviction was proper, the issues concerning Mr. Feldman's mental health might be considered in the following light.

[25] I am prepared to consider the letters and affidavit material placed before this court. (section 117(1)(a), Provincial Offences Act). I reject the suggestion that a trial court, particularly on an ex parte basis, might have considered the possibility of a mental health issue in a "street involved person" by way of judicial notice. There was insufficient evidence to ground the inference which counsel contends existed; and the inference is certainly not one so notorious that the Court might have accepted it.

[26] However as a matter of sentence, had I not concluded that the conviction itself cannot stand, I would have relied on the jurisprudence concerning the ambit available to a court to exceed the position advanced on sentencing particularly on an ex parte trial. Our Court of Appeal in the case of R. v. Jenkins 2010 ONCA 278, [2010] O.J. No. 1517.

[27] First, the Court makes it clear that if a prosecutor is seeking a period of incarceration by way of sentence, every alternative to an ex parte trial must be explored before an ex parte trial is conducted. This did not happen in this case: the prosecutor was not seeking a period of incarceration.

[28] Second, the Court of Appeal in Jenkins refers to the Crown position on that appeal, in a Provincial Offences matter:

"Crown counsel has fairly conceded that the trial judge erred in principle in imposing a larger fine than was requested by the prosecutor without giving any reasons for doing so."

[29] In this case, once again, the trial Justice of the Peace misapprehended the evidence: he stated: "The Court doesn't see where probation is working There has to be a deterrent; there has to be a protection to the general public. Especially during July August, September; those are busy months". The prosecutor's submission was that as fines had not served as a deterrent, a probationary period might have some value. Such a sentence had never been imposed. As to the comments about July, August, September, there is no basis in the evidence for understanding the reference of the Justice of the Peace. That cannot amount to reasons for a penalty beyond that submitted by the Prosecutor.

[30] Moreover, I accept the information filed on appeal as evidence relevant to sentence. Mr. Feldman is a man whose declining mental health impacts on the principles of sentencing. The Justice of the Peace on sentencing looked at the record of prior convictions for similar offences, all of which had been met by fines. He deemed the appropriate penalty for this non-violent non-coercive conduct, involving fifty cents, where the complainant was not the individual who contributed the coins, but the patrolling GO officer, to be a term of incarceration. The sentencing justice disregarded the prosecutor's position that a period of probation, on a suspended sentence would be the appropriate "step up", and without reasons, imposed ninety days jail.

[31] Finally, on a review of the evidence presented on behalf of Mr. Feldman on appeal, it is plain that the suspended sentence with a period of probation would have been a sound penalty, as it could have incorporated some bolster for the counseling and medical support which Mr. Feldman receives. Unlike a period of incarceration, a period of probation would permit the stability of his housing to continue. The significance of housing, for a person who has been homeless for extended periods of time, does not require extensive support in evidence to create a basis in principle for preferring an out-of-custody sentence.

[32] However, as I have indicated, my conclusion is that the evidence before the Court on the ex parte trial was misapprehended by the Justice of the Peace: hands in a praying motion per witness, versus hands in a cupping motion per reasons for judgment; and, in any case, the restrictive interpretation which must be afforded the ambit of the legislation on an ex parte trial, in order to give real meaning to the presumption of innocence, must weigh in favour of the absent defendant on the issue of whether the grand halls of Union Station amount to the "transit stop", which in the context of Section 3(2) of the Safe Streets Act, creates a context of a captive audience at a public transit stop. For the foregoing reasons, as noted, I am allowing the appeal and entering an acquittal.

Signed: "Justice S.R. Shamai"