ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-12-AP

DATE: 20131022

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

BRIAN COLDIN

Appellant

M. Newell, for the Crown

Self-represented

HEARD: October 16, 2013

ON APPEAL FROM THE JUDGMENT OF JUSTICE J.J. DOUGLAS DATED JANUARY 12, 2012

Mccarthy J.:

The Appeal

[1] The Appellant appeals from the judgment of Justice Jon-Jo A. Douglas of the Ontario Court of Justice (“the trial judge”) dated January 12, 2012 in which the trial judge found the Appellant guilty of offences described under sub-sections 174 (1)(a) and (b) of the Criminal Code. The Appellant was found guilty on four counts under two separate Informations dated October 3, 2008 and October 16, 2009 respectively. The trial of the matter took place over a period of nine days at four separate locations throughout the region between September 27, 2010 and September 28, 2011.

The Grounds for the Appeal

[2] The Appellant sets out seven grounds for appeal. They can be summarized as follows:

(a) A request for a trial judge from outside the region was denied;

(b) The verdict is not supported by the evidence or the law;

(c) Bias of the trial judge;

(d) The admission of evidence that should not have been admitted;

(e) The Crown did not get signed authority under s. 174 (3) of the Criminal Code;

(f) That the trial judge erred in law by entering convictions without a finding that the accused had committed an act which constituted the actus reus of being nude in public and being exposed to the public while nude;

(g) That the trial judge erred in law by entering convictions without findings of the required mens rea of those two offences; and

(h) That the trial judge erred in convicting the accused using s. 174(2) under which he was never charged.

The Appellant seeks an order allowing the appeal and directing an acquittal.

The Position of the Respondent Crown

[3] The Crown contends there was no bias exhibited by the trial judge, that there was no basis for any reasonable apprehension of bias, that the trial judge did not normally preside in the District of Muskoka and that, in any event, counsel for the Appellant had agreed to Justice Douglas remaining seized of the matter for the purposes of trial. The Crown further submits that there was no objection taken at trial to the admission of the evidence and that this cannot now constitute a valid ground of appeal. The Appellant is simply seeking to have the evidence re-evaluated. The Crown suggests that the trial judge was alive to the issues, alive to the challenges and concerns presented by the evidence and gave fulsome reasons that were entirely responsive to the issues at trial. The Crown further argues that the witnesses were not challenged in respect of credibility, but rather on the reliability of their evidence. The trial judge was alive to the reliability of the evidence, turned his mind to it and made findings which should be afforded a high degree of deference. Finally, the Crown submits that s. 174 (2) is a deeming provision, that it is entitled to rely on and use that deeming provision and that the nature and suitability of that deeming provision has been determined by the Supreme Court of Canada in R v. Verrette, 1978 208 (SCC), [1978] 2 S.C.R. 838, at page 6.

Analysis

[4] I agree with the Crown that counsel for the Appellant clearly consented to the trial judge remaining seized of the matter on January 12, 2010. The trial judge stated as follows: “I am seizing myself on consent as trial judge, so whatever ruling I give is of that as trial judge. Is that agreed.” The unequivocal response of Mr. Ruby, counsel for the accused, was “yes”. The first ground of appeal must fail.

[5] I am unable to find that the trial judge demonstrated any bias or that there could be any reasonable apprehension of bias. The test for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that the decision maker would not decide fairly. There is simply no evidence of this: accordingly, the Appellant has failed to satisfy the onus on him to demonstrate bias. I agree with the Crown that the trial judge did not insinuate himself into the proceedings, nor did he come close to suggesting that he favoured one side over the other. The second ground for appeal must fail.

[6] There was no error in law made by the trial judge when permitting witnesses to testify. Witnesses are called by the parties, not by the trial judge. There was no objection taken to any witness being called at the time. I was referred to no objections taken to the manner in which evidence was elicited or given. The function of the trial judge is to hear the evidence, decide on the weight to be afforded to it and how it is relevant to the issues before the court. The evidence needs to be assessed for reliability and the witnesses should be evaluated for credibility. In my view, the trial judge discharged this obligation in a reasonable and thoughtful fashion. He was alive to the problems posed by some of the evidence and rejected evidence where he found it to be unreliable or not persuasive on the issue. Overall, the credibility of the witnesses was not challenged in cross-examination; counsel for the accused opted to pursue a cross-examination focused on whether the witnesses actually observed complete nudity and whether they required psychiatric treatment or suffered from post-traumatic stress after the events in question. The trial judge was careful to explain why, despite some concerns about a witness’s reliability on contentious facts pertaining to Count 2 on Information 09-1147, he was nevertheless certain of the Appellant’s guilt. This ground of appeal must fail.

[7] The appeal must also fail on the grounds that the decision was unsupported by the evidence or unsupported by law. In R v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514; 97 C.C.C. (3d) 193 (Ont. C.A.) at pg. 204, Doherty J.A. describes the function of a trial judge’s reasons:

In giving reasons for judgement, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial. Reasons for judgment should offer assurance to the parties that their respective positions were understood and considered by the trial judge in arriving at his or her conclusion.

[8] I find that the trial judge embarked on a detailed analysis of the evidence and that his reasons were responsive to the issues raised at trial. I agree with the Crown that the main focus of the litigation at trial was on the appropriate test to be used when applying s. 174(2) to the facts of this case and the constitutional validity of s. 174. The trial judge determined that the Appellant was not completely nude, but partially nude. The trial judge concluded that the Crown had failed to prove that the Appellant was so clad as to offend against public decency. He went on to find, however, that the Crown had succeeded in proving its case that the Appellant was so clad as to offend public order. At paragraphs 126 and 127 of his judgment, the trial judge explained how the Appellant’s conduct significantly interfered with the autonomy or liberty of others and was incompatible with the proper functioning of society. In my view, the trial judge more than adequately set out both the legal and factual basis for his conviction of the Appellant. His reasons are entitled to deference. There was an evidentiary basis upon which a jury, properly instructed, could have rendered a guilty verdict. I was not drawn to any inference or finding of fact essential to the verdict that was plainly contradicted by, or incompatible with, the evidence at trial. I find that the decision was clearly supported by the evidence and was entirely reasonable.

[9] The remaining grounds for appeal must also fail. I accept the position of the Crown that the Attorney General has delegated authority to initiate a prosecution for public nudity to the Assistant Deputy Attorney General – Criminal Law Division. I am satisfied that the endorsements and signatures on the face of the Informations submitted by the Crown demonstrate sufficient consent from the Attorney General for the commencement of these proceedings.

[10] The trial judge made clear findings in respect of both the actus reus and mens rea of the applicable offences. As set out above, the reasons of the trial judge adequately articulate the evidence and findings he relied upon to reach the conclusion he did.

[11] Lastly, I agree that s. 174 (2) does not describe a criminal offence but is rather a deeming provision, which merely describes the circumstances in which a person who is found to be partially clad will be deemed by law to be nude. This deeming provision was reviewed by the Supreme Court of Canada in R. v. Verrette, supra. A deeming provision serves to extend and enlarge the ordinary meaning of a word. It is not intended to be a subsection under which a charge can be laid or a conviction entered. The trial judge properly applied this deeming provision to arrive at his decision that a conviction should be entered.

Disposition

[12] For the foregoing reasons, the Appeal is dismissed.

Justice J.R. McCarthy

Released: October 22, 2013