ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-1270-00AP
DATE: 20120112
B E T W E E N:
HER MAJESTY THE QUEEN
KELLY SLATE , for the Respondent/Crown
Respondent
- and -
DARREN VAN LEEUWEN
In Person.
Appellant
HEARD: December 5 and 14, 2011
REASONS FOR JUDGMENT
[On appeal from the judgment of The Honourable Justice P. Currie
dated February 14, 2011]
Durno J.
[ 1 ] The appellant was charged with two counts of uttering threats to David Ferrari by telephone; in the first to cause bodily harm to a real estate agent, John Bald and in the second, to destroy the commercial property of Re/Max. David Ferrari testified he made the threats. The appellant denied making any threats and argued David Ferrari and John Bald concocted the allegations because he told them he was going to file a complaint about their conduct while Bald was the listing agent for the appellant’s step-mother’s home.
[ 2 ] The appellant represented himself at the trial as he did on the appeal. On two occasions during the trial, he attempted to introduce letters to the complainants from the Real Estate Council of Ontario (RECO). Written several months after the alleged threats, the letters advised the complainants that as a result of the appellant’s complaint, they were given a warning because of their conduct while listing the appellant’s step-mother’s home for sale. When the appellant first sought to introduce the letter, the trial judge, without an objection by the Crown and without looking at the document, ruled the issue was collateral and would not let the appellant show it to the witness or His Honour. When the appellant tried to refer to the letter during his evidence, Crown counsel told him the issue was collateral.
[ 3 ] The trial judge accepted the complainants’ evidence, rejected the appellant’s evidence, convicted the appellant and imposed a suspended sentence and probation.
[ 4 ] The appellant appeals contending the verdict was unreasonable and that the trial judge erred in refusing to admit the letters into evidence.
[ 5 ] For the following reasons, the appeal is dismissed.
The Evidence
[ 6 ] The appellant was upset with John Bald, the real estate agent that was selling his step-mother’s home because of the price at which he had listed the property and that the price had been reduced without his step-mother’s written directions. Mr. Bald received six or seven e-mails from the appellant about the issue. On March 23, 2010, the appellant e-mailed Mr. Bald, accusing him of “contacting my seller on 89 Main Street, Grimsby,” and suggesting he had broken the RECO rules. He mentioned that Mr. Bald was lucky he did not “beat the tar out of [him]” when he handed paper work to the appellant’s twin brother in front of their father’s dead body. He told Mr. Bald that if he disrespected him one more time, he would “give him a memory.” When Mr. Bald inquired what he meant by “a memory,” the appellant responded, “KMA fuck head.”
[ 7 ] Mr. Bald testified the e-mails were “very aggressive, violent and abusive in nature.” He e-mailed the appellant telling him that his threats had been forwarded to the police, that his Broker would take appropriate action and suggesting the appellant not contact him further. On the same day, the appellant e-mailed Mr. Bald that he had forwarded a complaint to the compliance officer of RECO as well as his board. While the appellant alluded to a RECO complaint in his cross-examination of Mr. Bald, he did not seek to introduce the RECO letter to Mr. Bald.
[ 8 ] David Ferrari, the broker/owner of the Re/Max office that had the listing, received an e-mail from the appellant on March 24 at 9:23 p.m. saying Mr. Bald was a “shyster” and he knew Mr. Bald tampered with the revision that would be required in order to reduce the price of his father’s mansion. He continued, “So if you wish me to contact RECO in the morning, I would start opening lines of further discovery in his other business.” Mr. Ferrari testified that the appellant phoned him and referred to John Bald as a crook, made other derogatory remarks and said, “If I saw John Bald, I’d break his legs.” That remark was the basis of the threat to cause bodily harm count.
[ 9 ] The appellant called Mr. Ferrari seeking some papers relating to the house sale and was told that he should send an e-mail requesting the documents. The appellant called again and was very belligerent. He sent Mr. Ferrari another e-mail that night as well.
[ 10 ] The next morning the appellant called and said he would be at the real estate office in 15 minutes. When he was told the agent could not release the papers to him, the appellant said, “You get those fucking papers or I’ll blow that place up.” That remark was the basis of the threat to damage property count.
[ 11 ] David Ferrari called his secretary and asked her to contact the police. Once he got to his office, he had all the doors locked. The appellant arrived, demanded the papers and was swearing and threatening. The agent refused to give him the papers and the appellant left shortly before the police arrived. Mr. Ferrari admitted that he knew the appellant was going to go to RECO about the listing.
[ 12 ] The appellant testified that he was a real estate agent and had gone to the Re/Max office to pick up paperwork that was supposedly signed by the parties but was not properly signed. He said he had proof from RECO that “both the complainants have been convicted of not proper due course in regards to the way the paperwork was handled, and I did have a legitimate reason for going there.” While admitting he was a large man and he gets hyper, he denied uttering any threats. He understood that people could get a little nervous around him when he got a little upset but that was it. His intentions were good. He just wanted the paperwork to be properly administered.
[ 13 ] In cross-examination, the appellant admitted that he did not own the property, had no power of attorney from his step-mother, did not control the listing, and that it was not his listing. His step-mother agreed to have Mr. Bald as the listing agent. He admitted that he was angry when he called David Ferrari but denied any threats were made. His concern was the price was being dropped by a half million dollars without his step-mother’s signature. He told Mr. Ferrari that he was going to have RECO open up his books to examine Mr. Bald’s past conduct. Mr. Ferrari “knew that RECO would get involved if [the appellant] filed a complaint and in turn he was convicted of that charge.”
[ 14 ] The appellant said he asked Mr. Bald for the paperwork by which his step-mother had agreed to reduce the price and extend the listing dates. When he refused, the appellant raised the issue of going to RECO. He also asked Mr. Bald for the papers and said he would get his step-mother to sign. Later, he said it would be obvious that Bald and Ferrari knew they were going to have a RECO hearing and that they knew they were in the wrong. The allegation of threats was their way of getting back at him although the appellant admitted that the allegations against him were made before anything had started at RECO. He admitted having a criminal record although the offence, date and penalty were never put to him in cross-examination.
[ 15 ] The appellant’s argument at trial was that the complainants concocted the threat allegations because he was going to make a complaint to RECO about them.
Reasons for Judgment
[ 16 ] The trial judge found the appellant made the verbal threats. While he did not think he intended to blow up the building or hurt Mr. Bald, the offences were committed when he made the statements with an intention to intimidate someone else. This finding was consistent with the Supreme Court of Canada judgment in R. v. Clemente (1994), 1994 49 (SCC) , 91 C.C.C. (3d) 1.
[ 17 ] His Honour found the e-mails contained references to physical injury and accepted the complainant’s evidence. He found the appellant made the comments in the course of his anger and frustration at the circumstances that he was dealing with at the time.
Grounds of Appeal
Was the verdict unreasonable?
[ 18 ] In R. v. Willock (2006), 2006 20679 (ON CA) , 210 C.C.C. (3d) 60, the Court of Appeal examined the criteria to be applied in assessing unreasonable verdict grounds of appeal:
[22] Section 686(1) (a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15 () , 143 C.C.C. (3d) 1 at para. 40 (S.C.C.) .
[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. …
[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris , supra, at para. 37 .
[ 19 ] The Supreme Court of Canada has re-iterated the test on appeal where the appellant seeks to overturn a conviction by having the appellate court interfere with findings of fact or inferences drawn in R. v. Clark , (2005), 2005 SCC 2 () , 193 C.C.C. (3d) 289 at para 9 as follows:
… Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: (authorities omitted)
[ 20 ] I am not persuaded the verdict was unreasonable. There were credibility issues between the complainants and the appellant. The appellant denied he made any threats, David Ferrari said he did. The trial judge heard the witnesses and found he was satisfied, beyond a reasonable doubt, that the appellant uttered the threatening words. In doing so, he relied, in part, on the e-mails that contained threats of physical violence to Mr. Bald. There was evidence upon which the trial judge could reasonably make the findings he did. Absent a palpable and overriding error, on appeal I cannot interfere with those findings of fact. There is no error of that, or any other kind in the assessment of the evidence.
Was the RECO letter admissible?
[ 21 ] At two points in the trial the appellant tried to introduce letters from RECO to the complainants, in his cross-examination of David Ferrari and while he was being cross-examined. I will set out the two excerpts to place the issue in context:
[ 22 ] In his cross-examination of David Ferrari the appellant asked:
Q. ... Is it true that you were convicted of fraud by the Real Estate Council of Ontario ...
A. No.
Q. ... for your dealings with my stepmother’s property? You were convicted of fraud.
A. No, I have not committed a fraud.
Q. And given a warning on both you and your ...
A. There’s no fraud in there.
Q. There is fraud.
A. There’s no fraud in there.
Q. Have a look. Misleading, a false representation ...
A. There’s no fraud in there.
Q. ... due diligence. Are you aware that – you’re well aware you were convicted of a charge with the Real Estate Council of Ontario, is that true?
A. No.
Q. Well I have evidence here, to the Crown and yourself, that both these parties have been convicted by the RECO association for false misrepresentation, not preparing amendments properly. The sole purpose why I was there, I ...
A. Darren, what, what does that have to do ...
Q. Are you saying you were not convicted?
A. ... what does that have to do with me releasing the papers to you?
Q. It was why I was there because you guys were committing fraud.
A. But you’re a guy off the street.
Q. Okay. Committing fraud.
A. Your Honour, if I can clarify that?
MR. VAN LEEUWEN: Can I pass this ...
THE COURT: Hang on. This is what’s called – you wouldn’t know this, Mr. Van Leeuwen or Mr. Ferrari, this is what’s called at law a collateral issue. You’ve asked the question, the witness has given you an answer, that’s as far as it goes. We’re not going to get too far down this road.
MR. VAN LEEUWEN: He, he must say that he was convicted of it.
THE COURT: His answer was ...
MR. VAN LEEUWEN: Him and John Bald both.
THE COURT: ... his answer was he was not.
[ 23 ] Later, during his own evidence,
Q. But your mother – your stepmother agreed to have them do the listing.
A. Granted. I never had, I never had a problem with it because that was her, those were her wish – she wants money. So don’t ...
Q. But you did eventually have a problem with it ...
A. I did because ...
Q. ... and that’s why you called Mr. Ferrari?
A. I went to see him because what happens in our business is – because you have a due diligence with your clients, as a seller if they say, okay, I’d like to drop the price by half a million dollars and I would like you to reduce your expiry date from the one year because your price is so extraordinarily high that we’d like to drop it to a few more months. And what happened with these guys is well we don’t like that because it’s our, it’s our listing and they didn’t do what they were told. But they also were submitting informations to the boards without signatures. And the, the, the, the can was opened, Mr. Ferrari knew he was in the wrong. He knew that RECO would get involved if I filed a complaint and in turn he was convicted of that charge.
Q. Well, sir, Mr. Ferrari has indicated in his testimony that he hasn’t been convicted of anything.
A. Yeah, he does, I have it right here.
Q. Well, that’s a collateral issue, sir.
A. Okay. Also the fact that you know why would I jeopardize my restaurants, my real estate business, and my reputation and my family for somebody I didn’t know. I just wanted to make sure that my stepmother is taken, is treated fairly. I didn’t go there for any other reason. That was their way of getting back to me for knowing the outcome of, of our issues that I was going to go to RECO which I had every intention of driving right to that association’s office when I left his.
Q. But, sir, when you first called Mr. Ferrari, all you were asking for was papers, is that what you’re telling ...
A. That’s it.
Q. ... the court today?
A. That’s it.
Q. Then how did that conversation tumble into you reporting them to RECO if that’s all you calmly ...
A. No, because they ...
Q. Sir, I haven’t finished my question. If that’s all you calmly indicated to Mr. Ferrari is what you wanted, how did the conversation then tumble into you telling him that you were going to report him to RECO?
A. Because he would not produce the paperwork that she supposedly did not sign because it was found that she didn’t sign anything. And I said, okay, provide me the amendments and I’ll get my stepmother to sign them. ...
The Letters
[ 24 ] While the Crown argued the letters should not be introduced on the appeal because they did not qualify as “fresh evidence,” the admissibility of the documents does not raise a “fresh evidence” issue in the circumstances of this case. The appellant attempted to introduce the letters at trial. He was precluded from doing so, the trial judge never looked at the letters and never made them lettered exhibits should their admissibility be raised as a ground of appeal. The letters can be examined on appeal without a “fresh evidence” application.
[ 25 ] By letter dated October 28, 2010, the Deputy Registrar of RECO notified David Ferrari that after reviewing the documentation provided by all parties to the complaint, he had determined that a Warning should be issued to Mr. Ferrari. The letter continued:
In this case, as broker of record; you failed to clearly demonstrate knowledge and proper supervision over John Bald’s advertising of a price reduction for a subject property of MLS when there was no written consent.
It is noted that the signed price change Amendment was received at a later date.
[ 26 ] By a letter of the same date, the Deputy Registrar wrote to John Bald in the same introductory language and concluded:
In this case, you admitted not having written consent at the time of an MLS posting on both the Toronto and Hamilton/Burlington Real Estate Boards advising a price reduction for the subject property.
It is noted that the signed price change amendment was received at a later date.
[ 27 ] The letters drew the recipients’ attention to the Real Estate and Business Brokers Act, 2002 provisions regarding conscientious and competent service, inaccurate representations, error, misrepresentation, fraud, etc., and false advertising as well as warning and advising how they should conduct their transactions in the future. Both letters were copied to the appellant.
Analysis
[ 28 ] The appellant argues the trial judge erred in applying the collateral evidence rule in refusing to admit the RECO letters. The Crown argues the trial judge correctly excluded the evidence or, in the alternative, if the letters were admissible, their exclusion occasioned no substantial wrong or miscarriage of justice, that the error was harmless. For the following reasons, I am inclined to the view that the trial judge erred but in any event would find the error occasioned no substantial wrong or miscarriage of justice.
[ 29 ] First, a witness can be cross-examined on disreputable conduct. R. v. Cullen, (1989), 1989 7241 (ON CA) , 52 C.C.C. (3d) 459 (Ont. C.A.); R. v. Titus , 1983 49 (SCC) , [1983] 1 S.C.R. 259; R. v. Hoilett , (1999), 1991 13892 (ON CA) , 4 C.R. (4th) 372 (Ont. C.A.) The appellant cross-examined David Ferrari on the motivation the appellant alleged and on the RECO findings.
[ 30 ] Second, while the trial judge was not required to await an objection from Crown counsel, His Honour erred by not looking at the RECO letters and by ruling on their admissibility without giving the appellant or the Crown an opportunity to make submissions. It was not such a clear-cut an issue that His Honour should have ruled on their admissibility without more. He should have looked at the letter and given both parties an opportunity to make submissions on their admissibility. There is a right to cross-examine on convictions under any federal legislation ( R. v. Watkins (1992), 1992 12750 (ON CA) , 70 C.C.C. (3d) 341 (Ont. C.A.)), foreign convictions that would constitute offences in Canada ( R. v. Stratton (1978), 1978 1644 (ON CA) , 21 O.R. (2d) 258 (Ont. C.A.) and in some circumstances provincial legislation. ( R. v. Green (1943), 1943 404 (BC CA) , 79 C.C.C. 227 (B.C.C.A.)). Given, the appellant’s questions were open to the interpretation that Mr. Ferrari had been convicted of fraud or related misrepresentations under provincial legislation, the prudent first step would have been to look at the letters.
[ 31 ] Fourth, examining the collateral facts rule, the Court of Appeal held in R. v. B.(A.R.) , (1998), 1998 14603 (ON CA) , 128 C.C.C. (3d) 457, affirmed [2000] S.C.J. 30, at para. 13 .
Furthermore, the general rule is that one cannot impugn a witness's credibility by contradicting the witness on matters which are collateral even in a case where the "core" issue is credibility. As stated in Phipson, supra , at para 12-33:
A party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him as to matters of credit or other collateral matters, and his answers thereon will be conclusive. This rule is not absolute. The test whether a matter is collateral or not is this:
... if the answer of a witness is a matter which you would be allowed on your own to prove in evidence - if it had such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him.
[ 32 ] The issue in this trial was credibility. However, that finding does not close the door to the letter’s admissibility. In his text, Manual of Criminal Evidence , 2011, Carswell, Toronto, Watt, J.A. at 22.03, lists exceptions to the collateral fact rule including “proof of a prior conviction not admitted by the witness” and “proof of bias, interest or corruption denied by the witness.”
[ 33 ] Applying those principles to the appellant’s first attempt to introduce the letters is challenging because the appellant chose to represent himself and the wording of his questions noted above left much to be desired. In summary, David Ferrari denied he had not been convicted of fraud by RECO. When the appellant suggested he had been given a warning, he replied that there was “no fraud in there.” The appellant suggested he should “[H]ave a look. Misleading, a false representation, due diligence,” and Mr. Ferrari again said there was “no fraud in there.” When the appellant said he had evidence that both parties had been “ convicted by the RECO association for false misrepresentation, not preparing amendments properly,” Mr. Ferrari denied there was fraud and asked what that had to do with him releasing papers to the appellant. The appellant said he was at the office because the complainants were committing fraud and when he attempted to give the letters to the judge and/or the witness, His Honour interjected that the collateral fact rule precluded the admissibility of the letters.
[ 34 ] The criminal offences were alleged to have occurred on or about March 24, 2010. The letters, dated October 28, 2010, were written pursuant to s. 19 of the Real Estate and Business Brokers Act , S.O., 2002, c. 30, Schedule C , that states:
Complaints
- (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.
Request for information
(2) A request for information under subsection (1) shall indicate the nature of the complaint.
Duty to comply with request
(3) A registrant who receives a written request for information shall provide the information as soon as practicable.
Procedures
(4) In handling complaints, the registrar may do any of the following, as appropriate:
Attempt to mediate or resolve the complaint.
Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.
Require the broker or salesperson to take further educational courses.
Refer the matter, in whole or in part, to the discipline committee.
Take an action under section 13, subject to section 14.
Take further action as is appropriate in accordance with the Act .
[ 35 ] Subsections 13 and 14 give the registrar the authority to refuse to register, suspend or revoke registration and to give notification of the decision.
[ 36 ] While the appellant submitted that at least for those involved in real estate the effect of what occurred at RECO was a charge, a finding of fraud, and a conviction, the legislation does not support that interpretation. There was no charge, no finding of fraud and no convictions.
[ 37 ] However, I am inclined to the view that the RECO letters were admissible and not subject to the collateral fact rule if they had been properly raised. The rule prohibits the introduction of extrinsic evidence to contradict a witness unless the evidence is relevant to some issue in the case other than merely to contradict the witness. R. v. Prebtani , 2008 ONCA 735 .
[ 38 ] While the appellant’s questions should have been clearer and more accurate in terms of what the letters said, the letters went beyond “merely contradicting the witness.” The finding dealt with a misrepresentation in the real estate listing because the listing of the reduced price would imply the agent had the required written approval to lower the price when he did not. It was that issue that precipitated the appellant contacting the agents on all accounts of what transpired. This conduct was not of some incident unrelated to the allegations being tried. The letters had a sufficient connection with the trial issues to be admissible. The RECO letters potentially had some limited relevance to substantiate the appellant’s motivation for going to the Re/Max office, that the listing had not been properly dealt with by the agent and that Br. Bald had reason to be concerned about a complaint to RECO because he had not acted properly. Presumably the same concerns would apply to Mr. Ferrari, Mr. Bald’s supervisor.
[ 39 ] However, the appellant cross-examined Mr. Ferrari regarding his intention to make a complaint to RECO and the conduct that formed the subject matter of his complaint. Mr. Ferrari admitted he knew there was going to be a complaint before he made his complaint to the police. His Honour had ample evidence regarding the complainant’s alleged motivation to fabricate at the time of the complaint , March, 2010, the relevant time period for the alleged concocted charges. The only prohibition was on introducing the warning letters from RECO written seven months later. That the appellant told Mr. Bald and Mr. Ferrari that he was going to complain to RECO before they made their complaints to the police about the appellant was established by all the civilian witnesses at the trial.
[ 40 ] Assuming the trial judge erred in relation to the admissibility issue, I would not order a new trial. Pursuant to s. 686(1) (b)(iii) of the Criminal Code , where an appellate court determines a judge has made an error of law, if the court determines that the error occasioned no substantial wrong or miscarriage of justice, the appeal should be dismissed notwithstanding the error. Put differently, the error was harmless and would not have affected the verdict.
[ 41 ] I find that the error was harmless for the following reasons. First, in relation to the procedural error of not looking at the letters, having looked at the letters there is no finding of fraud. At its highest, Mr. Bald lowered the price without having a signed direction and the direction was signed after the price was lowered. There is no suggestion in the letter one way or the other about whether or not there was verbal consent to the price change before it took place, although I accept that a signed direction was required before the price was changed.
[ 42 ] Second, the timing of the RECO letter is important. It was not, and on appeal is not, the appellant’s position that it was the October 28, 2010, RECO letters that motivated the false accusations. It was the appellant telling them that he was going to make a complaint to RECO in March, 2010. That was firmly established by all the civilian witnesses’ testimony at trial. The RECO letters did not directly impact on the motivation for the allegedly false accusations against the appellant. To the extent that the RECO warning would have substantiated or confirmed the appellant’s complaint so that the agents had reason to be concerned about the pending complaint, at its highest the impact on the credibility findings would have been negligible.
[ 43 ] Third, the key witness against the appellant was David Ferrari. Both threats were made to him on the telephone. The RECO warning to him related to his lack of knowledge and proper supervision over Mr. Bald’s advertising of a price reduction for the property. It was Mr. Bald who lowered the price without written directions from the appellant’s step-mother. Even if the warnings were admissible and could be regarded as “disreputable conduct,” in relation to Mr. Ferrari, it was his supervision of his agent that was found wanting. I find it difficult to see how that would have impacted in any significant way on his credibility.
[ 44 ] Fourth, the RECO findings in relation to both complainants are far from conclusive on the credibility contest at trial. No doubt being told that there would be a RECO complaint might have motivated the complainants to concoct allegations against the appellant. However, that was an issue of which the trial judge was well aware. His Honour found it did not impact on their credibility.
[ 45 ] In addition, the RECO finding months after the charges were laid could also be seen as supportive of the trial judge’s credibility findings. While the RECO findings confirmed the appellant’s allegations of misconduct, it was that conduct that the appellant admitted made him angry and upset when he was dealing with the complainants in March, 2010. Given the threats and intemperate language the appellant used in the e-mails, the trial judge had significant evidence that he could reasonably consider in determining whether the appellant, while extremely agitated about the conduct RECO found occurred, made comments to intimidate without intending to follow through with the threats. Those findings of fact established the offences.
[ 46 ] The appeal is dismissed.
Durno J.
Released: January 12, 2012
COURT FILE NO.: CR-11-1270-00AP
DATE: 20120112
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: Her Majesty the Queen Respondent/Crown - and – Darren Van Leeuwen Appellant REASONS FOR JUDGMENT [On appeal from the judgment of The Honourable Justice P. Currie dated February 14, 2011] Durno J.
Released: January 12, 2012