ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-40000142-00
DATE: 20140626
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARLOS KOUAM
Appellant
Rick Nathanson, for the Crown, Respondent
Carlos Kouam, Appellant, on his behalf
HEARD: June 18, 2014
r.f. goldstein j.
reasons for judgment on summary conviction appeal
BACKGROUND
[1] Mr. Kouam was convicted by Madam Justice Pringle of one count of prowl by night and one count of assaulting a peace officer engaged in the performance of his duty. He now appeals.
[2] The facts of this case were not complicated. Early in the morning of April 3 2010 Constable Ngo of the Toronto Police was on patrol in a police vehicle on Huron Street. He observed Mr. Kouam crouched in an alley and looking into a window of 500 Huron Street. 500 Huron Street is a convent. Mr. Kouam lived at 485 Huron Street. Constable Ngo investigated Mr. Kouam. When he went to arrest Mr. Kouam for trespassing, Mr. Kouam spat on him.
[3] Mr. Kouam represented himself at trial and on this appeal. Russell Silverstein assisted the Court as amicus. Justice Pringle found that Mr. Kouam was not credible and that his evidence did not raise a reasonable doubt. She then analyzed Constable Ngo’s evidence and found, despite some inconsistencies, that he was a credible witness. She found that the actions of Mr. Kouam in looking into the window made out the offence of prowl by night. She also found that by spitting on Constable Ngo, Mr. Kouam committed an assault. She found that the Crown proved each element of both offences beyond a reasonable doubt.
ANALYSIS
[4] Mr. Kouam indicated that he had four grounds of appeal:
(1) The question of credibility
(2) Motive
(3) John Kosta and the 911 call
(4) Public Procedural Matters
CREDIBILTY
[5] Mr. Kouam says that because we do not all share the same vocabulary things should be written down and defined. Unfortunately, Mr. Kouam did not articulate how his ideas about vocabulary and definitions demonstrated an error by Justice Pringle. He focussed on the fact that Justice Pringle did not assess his trade as a mathematician in determining his credibility. Mr. Kouam mentioned his multiple qualifications as a mathematician. Given his qualifications, he says, Justice Pringle was not competent to assess him. As far as I can discern, he disagreed with Justice Pringle’s assessment of his credibility and Constable Ngo’s credibility based on her lack of qualifications.
[6] I cannot accept Mr. Kouam’s argument. Trial judges are required to assess the credibility of witnesses, including the credibility of persons charged. It matters not whether the witness is the Pope, the Prime Minister, or a mathematician. Justice Pringle’s obligation was to apply the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 at para. 28. It is true that she did not specifically cite W.D. She was not required to do so. She very clearly applied the principles set out in W.D. She clearly articulated the reasons why she did not believe Mr. Kouam and why his evidence did not leave her in a state of reasonable doubt. She indicated that she accepted the evidence of Constable Ngo, despite some inconsistencies.
[7] A trial judge’s findings of fact and credibility are entitled to great defence: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 at para. 20; R. v. Quercia, 1990 2595 (ON CA), [1990] O.J. No. 2063, 75 O.R. (3d) 463, 60 C.C.C. (3d) 380 (C.A.) at para. 6. The only basis upon which an appeal court can interfere is where the trial judge’s findings of fact are unsupported by the evidence: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193 at para. 14.
[8] Mr. Kouam did not point to any findings of fact that were unsupported by the evidence. He did not point to any credibility findings, in particular, that were unsupported by the evidence. In my view, a review of the transcript indicates that Justice Pringle’s observations about Mr. Kouam’s inability to answer questions clearly were absolutely correct. His answers were long, convoluted, and non-responsive to the questions asked. I see no error.
MOTIVE
[9] Mr. Kouam argued that Madam Justice Pringle did not evaluate motives. He mentioned that he had tried to swear a private information against Constable Ngo. It was not clear to me whether he was making submissions about his motives or Constable Ngo’s motives. After hearing him, I believe that he may have confused the concept of mens rea with the concept of motive.
[10] I must confess to a certain amount confusion about the relevance of this submission. Whether or not a justice of the peace swears a private information is irrelevant to whether or not Justice Pringle erred. Furthermore, motive is not generally an element of any offence, although it may have an evidentiary relevance. In any event, Justice Pringle was not required to evaluate anyone’s motive as there was no evidence regarding motive.
JOHN KOSTA AND THE 911 CALL
[11] Mr. Kosta was a witness to the arrest of Mr. Kouam. Mr. Kosta was drunk at the scene and was heard making comments about police brutality. Apparently he made a 911 call from Mr. Kouam’s telephone. He was arrested at the scene and then released without charges. The recording and two transcripts (including one prepared by Mr. Kouam) were admitted into evidence.
[12] Mr. Kosta did not testify. Mr. Kouam asked, rhetorically, why this witness was not available. He argued that the prosecution delayed the case and delayed the disclosure such that Mr. Kosta was not available. Mr. Kouam says that Mr. Kosta was a student at the University of Toronto and completed his doctorate in August 2013. He now lives in Berlin. He says that he asked the RCMP to contact Mr. Kosta. Hr. Kouam showed me a printout of Mr. Kosta’s Facebook page. He said that he did not want to taint Mr. Kosta’s evidence by contacting him. He said it was the prosecution’s fault that Mr. Kosta did not testify.
[13] I do not accept Mr. Kouam’s submission. Justice Pringle’s willingness to accept the 911 tape and the transcripts (including a transcript prepared by Mr. Kouam) was generous. Arguably she was not required to do so. To me, this shows that she was eminently fair to Mr. Kouam and that she took every step reasonable step consistent with her judicial function that could assist him.
[14] I asked Mr. Kouam what Mr. Kosta would have said that would have led to a different result. Mr. Kouam said that Mr. Kosta would have seen him arguing with the police officer about the situation. He also would have testified that he told 911 that Mr. Kouam was being arrested. Justice Pringle analyzed the 911 call and certainly took it into account in her reasons for judgment. On Mr. Kouam’s submissions, Mr. Kosta’s evidence would not have been materially different from the 911 call. Justice Pringle made no errors in regard to Mr. Kosta or the 911 call.
PUBLIC PROCEDURAL MATTERS
[15] Again, it was unclear to me what Mr. Kouam meant by “public procedural matters”. He mentioned “irregularities” and “obstruction” by the court staff.
[16] Mr. Kouam asked, rhetorically, “what is this case about” and described the encounter between himself and Constable Ngo. He then indicated that he had tried to file a various documents and a CD-ROM of videotaped encounters between himself and the Toronto Police other than the encounter with Constable Ngo. Justice Pringle accepted some of these documents and refused to accept others. She refused to accept the CD-ROM on the basis that it was not relevant.
[17] Mr. Kouam tried to file the same CD-ROM before me at the appeal hearing. I refused to accept it. I rejected it not only because it did not meet the test for fresh evidence, but also for the same reason that Justice Pringle rejected it: it had no relevance. The most basic rule of admissibility is that evidence must be relevant in order to be admissible: R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, 50 C.C.C (3d) 566. Her Honour was clearly correct to refuse to admit the CD-ROM and the other, irrelevant materials.
[18] Although Mr. Kouam’s argument was not clear to me, he also seemed to be suggesting that Justice Pringle erred by not referring to the documents that she did accept for filing. I cannot accept this argument. A trial judge is not required to refer to all of the evidence: see Burns, at para. 20. Justice Pringle clearly focussed on the key issue in the case, which was credibility.
[19] Mr. Kouam was unable to articulate what, exactly, it was that the court staff had obstructed. In the absence of any evidence, I must assume that the staff of the Ontario Court of Justice were, as they always are, totally professional in their dealings with Mr. Kouam. In any event, I fail to see what the alleged obstruction of the court staff has to do with the fairness of the trial or the alleged legal errors.
[20] Finally, Mr. Kouam indicated that he was opposed to the assistance of Mr. Silverstein, the amicus. He indicated that Mr. Silverstein had actively harassed him and hindered his defence.
[21] Mr. Kouam’s slurs on Mr. Silverstein are as unacceptable as his slurs on the court staff. Mr. Silverstein has a deserved reputation in the courts as an able counsel. The only thing I observed in the transcripts was a lawyer doing his duty conscientiously. Justice Pringle indicated that she was grateful for his assistance.
DISPOSITION
[22] None of the arguments raised by Mr. Kouam have merit. The appeal is dismissed.
R.F. Goldstein J.
Released: June 26, 2014
COURT FILE NO.: Click and Type
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARLOS KOUAM
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.