ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 85/12
DATE: 20130618

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Steve Gebrhwiet

BEFORE: Mr. Justice K.L. Campbell

COUNSEL: Kim Walker, for the Crown, respondent
Gordon Cudjoe, for the accused, appellant

HEARD: June 12, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Steve Gebrhwiet, was tried by the Honourable Mr. Justice P. Taylor of the Ontario Court of Justice on a single charge of failing to appear in court as required on October 6, 2011, contrary to s. 145(2)(b) of the Criminal Code, R.S.C. 1985, chap. C-46. The appellant formally admitted the actus reus of the offence. More particularly, the appellant conceded that he was required to appear in court that day in relation to his pending charges of carrying a concealed weapon and possession of a weapon for a purpose dangerous to the public peace and he did not, in fact, attend court as required.

[2] Indeed, the appellant had failed to attend court on two earlier occasions in relation to these same weapons charges. First, on August 8, 2011 he was required to attend court but failed to do so. A bench warrant was issued for his arrest. The appellant appeared in court the following day, at which point the court rescinded the warrant. The appellant remained on judicial interim release. He was required to return to court on September 29, 2011. However, again, the appellant failed to appear in court as required. A bench warrant with discretion was issued, returnable on October 6, 2011. While his lawyer advised him of this next appearance date on October 6, 2011, the appellant failed to attend court that day as well. Accordingly, this missed October 6, 2011 court date was the third time the appellant had failed to appear in court as required in relation to these same weapons offences. Ultimately, the appellant was arrested on the outstanding warrant in mid-October, 2011.

[3] The only issue at trial was whether or not the appellant had a “lawful excuse” for failing to attend court on October 6, 2011. Following the admissions that were made, the appellant gave viva voce testimony as to the circumstances surrounding his missed court appearance. Indeed, he was the only witness to testify at the trial of this matter. He explained, essentially, that he initially knew he was required to attend on October 6, 2011 and had intended to appear, but he lost the piece of paper upon which he had written that next court date. However, he admitted that, upon discovering that he had lost the piece of paper recording this court date, he took no steps to contact either his lawyer or the court to ascertain the date. His subsequent assumption about when he was required to next attend court was mistaken,

[4] On June 7, 2012 Taylor J. delivered Reasons for Judgment rejecting the testimony of the appellant as incredible and finding him guilty of failing to attend court. Later that same day, the trial judge sentenced the appellant to seven days imprisonment (after taking into account the fact that the appellant had already served some three days in pre-sentence custody).

[5] The appellant now appeals against his conviction. He advances a single ground of appeal. The appellant contends that the trial judge erred in that, in rejecting his testimony as incredible, the trial judge misapprehended an aspect of the evidence.

B. The Appellant’s Trial Testimony

[6] The appellant testified that he missed the September 29, 2011 court appearance. He thought that his lawyer was going to be attending, but she also missed the attendance. Subsequently, she contacted him about the missed appearance, and told the appellant that he missed the court date, that a bench warrant had been issued for his arrest, and that he was required to appear on October 6, 2011, about a week later. She said that she would also be appearing that date.

[7] The appellant testified that he wrote the October 6, 2011 date down on a little piece of paper or “sticky note,” and put it on the mirror in his bedroom, but it was somehow misplaced. He did not recall what he did with his note. Further, according to the appellant, the date that he had written on the sheet of paper just “slipped [his] mind.”

[8] The appellant agreed that after he lost the note, he did not come to court to find out the new date that he was required to attend, nor did he call his lawyer so that she could remind him of the date. Rather, he just went with his own “mind state” thinking that the date was in three to four weeks. According to the appellant, when he was arrested on the outstanding bench warrant, he thought that his next court appearance date was still sometime in the future. He claimed that he had been planning to attend court on October 20, 2011.

C. The Positions of the Parties at Trial

[9] Based on this evidence, defence counsel conceded that the appellant was negligent in failing to appear in court as required, but argued that the appellant did not have the specific intent required for the offence of failing to appear in court, as he mistakenly believed that the required court appearance was later in the month of October. The Crown on the other hand argued that the appellant was “trying to say anything that [would] get him out of this conviction,” and that his testimony should not be believed. Further, the Crown argued that the conduct of the appellant went beyond mere negligence and amounted to at least willful blindness. The Crown argued that the evidence showed that the appellant “knew that he was required to be in court and did nothing about it.”

D. The Reasons for Judgment of the Trial Judge

[10] In his oral Reasons for Judgment, the learned trial judge accurately reviewed the testimony of the appellant and the positions of the parties. Taylor J. also accurately outlined the three-pronged analysis articulated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, to ensure that the burden of proof on the Crown was properly applied given that the appellant had given evidence. Taylor J. also noted that the alleged offence of failing to appear in court was a “true criminal offence” that required “proof of mens rea” on the part of the accused, and that “mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction.” Taylor J. cited the decisions in R. v. Legere (1995), 1995 1551 (ON CA), 95 C.C.C. (3d) 555 (Ont.C.A.) at p. 565, and R. v. Custance, 2005 MBCA 23, 194 C.C.C. (3d) 225, at paras. 10-26; leave denied: [2005] S.C.C.A. No. 156, in support of this proposition.

[11] In the application of these principles, the trial judge wholly rejected the testimony of the appellant. He expressly stated that he did not believe his evidence, and found that it was not capable of raising a reasonable doubt. He described the testimony of the appellant as “riddled with inconsistencies” and as making “absolutely no sense.” Taylor J. offered a number of reasons for why he reached this conclusion. Without exhaustively reviewing all of those reasons, most importantly Taylor J. found that the explanation offered by the appellant was inherently incredible and made no sense. More particularly, Taylor J. stated:

The accused says that he wrote down the date of October the 6th. At the time that date would have been given to him, it would have been less than one week away. He said it was important for him to remember the date; he says he placed it on his mirror; he says he checked it from time to time. Obviously, the time is moving ever, ever closer to the court date.

Somehow the note disappears; he does nothing, but simply says, notwithstanding he knew the court date was in the very near future, and was less than a week away, and that he was checking it, and it was the most important thing in his life to attend court on time, he simply assumed that the court date was a few weeks away.

His evidence is nonsense. He knows that it is less than a week away; he is playing close attention to it; it is the most serious thing in his life; it’s very close to the event; he does nothing. As I said, his evidence, at this point, makes absolutely no sense.

E. The Alleged Misapprehension of the Evidence

1. Introduction

[12] The appellant argues that the trial judge erred in rejecting his testimony, at least in part, on the basis of a misapprehension of the evidence. The appellant contends that, if the trial judge had not erred in this fashion, his testimony might have raised a reasonable doubt as to his guilt.

2. The Misapprehension – The August 4, 2011 Date on the Information

[13] In cross-examination the appellant testified that his retained lawyer appeared with him for a single court appearance in either August or September of 2011. At first, the appellant thought this appearance was in August of 2011. Then he indicated that he was wrong, and this appearance was in September of 2011. In the end, the appellant could not recall whether this appearance with his retained lawyer was in August or September of 2011 – but he clearly testified that she appeared with him for an appearance in one of those two months. The appellant testified that, on the other court appearances, he would talk to duty counsel for the purpose of remanding the case to another date.

[14] In his Reasons for Judgment the trial judge listed, as one of the numerous reasons he had for finding the testimony of the appellant incredible and not capable of raising even a reasonable doubt, the following:

The [appellant] testified that his lawyer … was to appear in court with him. Initially, he said in August, and then he changed his mind and said it wasn’t in August, it was, in fact, in September. A review of the information, which was filed as exhibit number one in these proceedings, shows that [retained counsel] never, at any time, appeared for the accused. The counsel, as endorsed at all material times, is D.C., a shorthand form for Duty Counsel.

[15] A review of the information that was filed as the first exhibit at the trial of this matter reveals, in fact, that the appellant was represented by duty counsel on every appearance, except the appearance on August 4, 2011. With respect to that appearance on August 4, 2011 the space on the information where an entry could be made for the person that appeared for the accused is simply left blank.

[16] Accordingly, as the Crown fairly concedes, in suggesting that this information showed that the appellant was “at all material times” represented by “duty counsel,” the trial judge misapprehended the evidence. As I have indicated, the entry for the August 4, 2011 date was blank. The information did not indicate that duty counsel appeared for the appellant on that date. Moreover, that date was a “material date” as the appellant had testified that his retained lawyer appeared on his behalf in either August or September of 2011. The fact that no entry was made for the August 4, 2011 appearance leaves open the possibility that the appellant was testifying honestly in saying that his retained lawyer appeared with him in either August or September of 2011.

3. The Stringent Legal Standard

[17] It is important to recall, however, that it is not every misapprehension of the evidence that will justify appellate interference with the verdict reached. Indeed, the authorities are clear that, in order to justify appellate interference with a conviction on the basis of an alleged misapprehension of the evidence, the appellant must meet a “stringent standard” by establishing some link or nexus between the alleged misapprehension of the evidence and the core elements of the judge’s reasoning process that resulted in the appellant’s conviction. In other words, where such arguments are advanced, the appeal court must: (1) determine whether the alleged misapprehension of the evidence has been established; and (2) whether any misapprehension of the evidence was so substantial or essential to the reasoning process of the trial judge, that it led to an unreasonable verdict or caused a miscarriage of justice. See: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at pp. 538-541; R. v. Wadforth 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Cazzola, 2012 ONSC 7129, at para. 21.

4. Analysis

[18] While I am satisfied that the trial judge, in his Reasons for Judgment, misapprehended the evidence as alleged by the appellant, and conceded by the Crown, I am not satisfied that this misapprehension of the evidence justifies appellate interference with the verdict. In my view, this misapprehension of the evidence simply did not play an essential part of the reasoning process that ultimately resulted in the conviction of the appellant.

[19] First, the trial judge clearly stated that he did not believe the appellant’s testimony and found it incapable of raising a reasonable doubt because it was “riddled with inconsistencies and made absolutely no sense.” The trial judge then sought to “illustrate” the reason he had reached that conclusion from “some of the evidence.” It is apparent that the trial judge was not thereafter attempting to exhaustively outline all of his reasons for reaching this conclusion, or suggesting that he had only come to this conclusion due to the cumulative effect of all of these reasons. Rather, he was simply providing some of the reasons, by way of example, which had caused him to reach this conclusion.

[20] Second, some of the reasons why the trial judge reached the conclusions he did about the incredibility of the version of events provided by the appellant are not tainted by his misapprehension of the evidence, and provide an independent basis to reject the testimony of the appellant. Most importantly in this regard, as I have outlined, the trial judge found that the substance of the explanation that was provided by the appellant as to why he failed to appear in court on October 6, 2011 was “nonsense” and made “absolutely no sense.” It is difficult to disagree with that assessment of the testimony of the appellant. In any event, once the trial judge concluded that the appellant’s evidence was “nonsense,” and that the appellant “knew he had to attend court” on October 6, 2011 and “chose deliberately not to attend court” on that date, the appellant was bound to be convicted. In my view, the trial judge’s misapprehension of the evidence on a tangential issue, about whether his lawyer appeared in court with him on some earlier occasion, had no impact upon these important conclusions.

[21] Third, the trial judge himself appears to have concluded that this misapprehension of the evidence was inconsequential to his overall assessment of the testimony of the appellant. Once Taylor J. had concluded his Reasons for Judgment, defence counsel for the appellant drew the trial judge’s attention to the “blank” entry on the information next to the August 4, 2011 court appearance, and noted that this indicated that “it was not Duty Counsel on each appearance.” The trial judge then examined the information but did not return to the subject or alter his judgment, suggesting that the trial judge himself viewed this misapprehension of the evidence as unimportant to his overall assessment of the credibility of the appellant.

[22] As I am convinced that the trial judge’s misapprehension of the evidence on this collateral point did not play an essential part in his reasoning process that ultimately resulted in the conviction of the appellant, the appeal against conviction must be dismissed.

F. The Abandoned Appeal Against Sentence

[23] In his written materials, the appellant argued that the trial judge erred in sentencing him to a seven day term of imprisonment, and in failing to grant him a conditional discharge. However, in oral argument, defence counsel for the appellant candidly conceded that he could not realistically contend that the sentence imposed upon the appellant was unfit, and he abandoned his sentence appeal. Accordingly, the appeal against sentence is dismissed as an abandoned appeal.

G. Conclusion

[24] In the result the appeals against both conviction and sentence are dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: June 18, 2013