ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 73/12
DATE: 20140226

RE: Her Majesty the Queen v. Zoran Mladenovic

BEFORE: K.L. Campbell J.

COUNSEL:
Lori Hamilton, for the Crown, respondent

Graham Jenner, for the accused, appellant

HEARD: January 15, 2014

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] Does an accused have contact or communicate “directly or indirectly” with a complainant, in violation of the terms of a court-ordered “peace bond” recognizance, when the accused points directly at the nearby complainant and speaks insultingly about her to others in a voice clearly loud enough for her to hear? That is the single issue raised by this appeal.

B. The Factual Background

[2] The appellant, Zoran Mladenovic, was tried by the Honourable Mr. Justice B. Knazan of the Ontario Court of Justice on a single charge of failing to comply with a condition of his “peace bond” recognizance, contrary to s. 811 of the Criminal Code, R.S.C. 1985, chap. C-46. The charge alleged that the appellant breached the condition of his recognizance requiring that he have no contact or communication, directly or indirectly, with either Roy Mladenovic (the appellant’s father) or Dragica Mladenovic (the appellant’s 64-year-old step-mother). The offence was alleged to have taken place in Toronto on or about January 10, 2010.

[3] It seems that there has been a long history of conflict and animosity between the appellant and his father and his father’s wife, and this culminated in a court order being made on November 10, 2009, requiring the appellant to enter into a recognizance, for a period of 12 months, during which he was to have “no contact or communication directly or indirectly with Roy Mladenovic or Dragica Mladenovic.”

[4] Subsequently, on Sunday, January 10, 2010, during the currency of the recognizance, the appellant attended the St. Archangel Michael Serbian Orthodox Church on Delaware Avenue in Toronto for the purposes of a service. His recognizance expressly permitted him to attend such services. Mrs. Mladenovic was also in attendance for the religious service in church that day. When she arrived, Mrs. Mladenovic noticed that the appellant was there, but she tried to avoid contact with him as she wanted no further dispute or aggravation. The appellant, on the other hand, according to Mrs. Mladenovic, was sitting in the church waving some papers at her and making “funny faces” at her.

[5] Mrs. Mladenovic testified that, after the service was completed, she went downstairs to the basement banquet hall area of the church, where members of the congregation typically gathered after such services to socialize and enjoy some refreshments. She did not expect to see the appellant in this area after the service, as she thought that the recognizance prevented him from doing so. In any event, after using the basement washroom facilities, Mrs. Mladenovic saw the appellant sitting at one of the tables in the basement hall with a number of his male friends.

[6] Mrs. Mladenovic testified that, while she still wanted to avoid the appellant, when she passed by his table, she saw him point at her and say to the others seated at the table: “Do you know this whore?” According to Mrs. Mladenovic, when this happened, she was perhaps six feet away from the appellant. Mrs. Mladenovic testified that, upon hearing this comment by the appellant, she immediately left the church.

[7] The appellant did not testify.

[8] In his reasons for judgment, the trial judge accepted the testimony of Mrs. Mladenovic. Knazan J. found her to be a “forthright” and “credible” witness, and he stated that he believed her testimony as to what happened between her and the appellant in the downstairs banquet hall area of the church. The trial judge concluded that he was satisfied that the appellant was guilty of the alleged offence. More particularly, the trial judge held that pointing at the complainant and speaking about her in a voice loud enough for her to hear (regardless of whether or not the content of the comments was insulting), was to have “contact indirectly” with the complainant.

[9] In the result, the trial judge granted the appellant a conditional discharge and placed him on probation for a period of 12 months.

[10] The appellant appeals against this finding of guilt, arguing that the trial judge erred in concluding that his conduct amounted to a form of indirect contact with Mrs. Mladenovic.

C. Analysis

[11] This case requires no complicated legal analysis. It requires only the application of common sense to the facts of the case as found by the trial judge.

[12] By the unequivocal terms of his peace bond recognizance, the appellant was strictly prohibited from having any contact or communication, directly or indirectly, with the complainant. Yet, on January 10, 2010, only a few months into the operation of this year-long recognizance, the appellant clearly had contact and communicated with the complainant in violation of this recognizance. When she was but six feet away from him, the appellant pointed directly at her and called her a “whore” to his friends. He did so in a voice loud enough for her to hear.

[13] If the appellant had not wanted his step-mother to hear his remark, he would not have pointed directly at her from such a short distance, and spoken loudly enough for her to hear what he had to say. The content of the comment also reveals that the appellant intended it for the ears of the complainant. She was the person being insulted by the remark.

[14] While the appellant may have been facing his friends at the time he made this insulting remark, his physical positioning concealed from no one the unmistakable reality that the appellant’s insulting comment was directed at the complainant. He wanted her to hear it – that is why he said it. He wanted her to feel the sting of his public insult in the downstairs banquet hall of their church.

[15] In his reasons for judgment, the trial judge viewed this insult by the appellant as making “indirect contact” with the complainant. In my view, he was correct in drawing this conclusion. However, the appellant’s comment could also have been described, with equal accuracy, as “indirect communication” with the complainant. The judicial authorities that define the scope of prohibited “contact” and “communication” fully support the criminal liability of the appellant on either basis in the factual circumstances of this case. See: R. v. Legere (1995), 1995 1551 (ON CA), 22 O.R. (3d) 89 (C.A.) at pp. 97-99; R. v. F.(J.), [2001] O.J. No. 2054 (S.C.J.) at paras. 22-31; R. v. Vader, 2005 ONCJ 149, 196 C.C.C. (3d) 327, at paras. 9-13.

[16] Accordingly, in truth, it matters not whether the appellant’s insulting comment is characterized as being indirect contact or indirect communication. Both types of conduct were prohibited, and the appellant’s insult fell within the definition of both. This is especially so given that the necessary mental element of the crime of breaching a recognizance is satisfied upon proof of either knowledge or recklessness on the part of the accused. See: R. v. Custance, 2005 MBCA 23, 192 Man.R. (2d) 69, at paras. 10-12; leave denied: [2005] S.C.C.A. No. 156; Gary T. Trotter, The Law of Bail in Canada (3rd ed., Loose-Leaf) at pp. 12-4 to 12-5; R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at pp. 581-582; R. v. Withworth, 2013 ONSC 7413, [2013] O.J. No. 5708, at paras. 12, 18.

D. Conclusion

[17] I see no basis, legal or factual, to interfere with the perfectly reasonable verdict reached by the trial judge in this case. In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: February 26, 2014