ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 76/14
DATE: 20141223
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ERROL SPOONER
Appellant
Megan Petrie, for the Crown
Elizabeth Bingham, for the Appellant
HEARD: December 12, 2014
JUDGMENT ON SUMMARY CONVICTION APPEAL
b. P. o’mARRA, J
[1] The appellant was an inmate at a detention center. On May 16, 2014 he was convicted after a one-day trial of uttering a threat to cause serious bodily harm to a correctional officer. Madam Justice G. Dobney imposed a sentence of 90 days consecutive to a sentence being served. The appellant appeals both the conviction and sentence.
[2] The crown called two witnesses at trial, being Correctional Officers Coursey and Ellis. The appellant testified in his own defence. Part of the incident was captured on video. There was no audio.
TRIAL EVIDENCE
I - Evidence of C.O. Coursey
a) on the morning of October 29, 2013 she and her partner were providing breakfast to the inmates on the appellant’s unit.
b) there was a delay in providing breakfast to the appellant since he was to receive medication with his breakfast and a nurse and supervisor were required to be present.
c) Supervisor Sgt. Ellis arrived 10 to 15 minutes after the other inmates received breakfast. Officers Coursey, Ellis, Ms. Coursey’s partner, and a nurse attended at the appellant’s cell to give him breakfast and administer his medication.
d) the appellant was yelling, screaming and banging on his cell door. He pointed at C.O. Coursey and said:
“I am going to mash her up. I am not afraid of another assault charge. I will get her when the cell door opens. I have AIDS, you know it, and it’s not a joke.”
e) C.O. Coursey felt fearful and threatened by those words in the circumstances. She referred to the appellant’s medical circumstances “that could severely hurt somebody if they come in contact with that.” She was aware of his medical history that included AIDS, HIV and hepatitis.
f) C.O. Ellis told the appellant to calm down. She tried to open the appellant’s hatch to provide his meal. The appellant put his arm through the hatch and would not take it back. (The video shows the appellant sticking his hand out from the hatch and retracting it a few moments later.)
g) C.O. Coursey denied having harassed the appellant or saying things to agitate him.
II - Evidence of Sgt. Ellis
a) she held the rank of Sgt. for seven years before this incident.
b) on October 29, 2013 the appellant was in a segregation unit on a “Supervisor Present” status. This meant she had to attend the unit for the appellant to receive his medication and meals.
c) she arrived at the appellant’s cell that morning and observed him to be screaming, salivating, spitting on the door to his cell and yelling threats at C.O. Coursey.
d) C.O. Coursey was already at the cell and was yelling at the appellant,
“You’re not having your meal ‘til you get your meds, like I told you before.”
e) she heard the appellant threaten to “mash her (C.O. Coursey) up by any means necessary.”
f) the appellant was screaming that C.O. Coursey was treating him wrong and complaining about receiving his breakfast at the same time as his medication.
g) Sgt. Ellis tried to calm the appellant down as he was “screaming, yelling, waving his arms.”
h) she was able to calm the appellant down but did not want to open the door for the nurse to administer the medication because of his behaviour. She opened the hatch to give him his breakfast. The appellant then reached out and tried to grab C.O. Coursey. She pushed C.O. Coursey back and stood between her and the appellant.
i) she described the situation as a “yelling match” between the appellant and C.O. Coursey. She heard C.O. Coursey tell the appellant he was not getting breakfast until his medication arrived “like she always does.” She did not hear C.O. Coursey say anything else to the appellant.
j) she was not aware of any complaint by the appellant against C.O. Coursey. Had there been any formal complaint, C.O. Coursey would not have been assigned to work in the appellant’s unit.
III - Evidence of the appellant
a) in February of 2012 he was arrested on criminal charges. He was being held in pretrial custody at the time of this incident.
b) in April of 2014, he was convicted of sexual assault with a weapon, aggravated sexual assault and forcible confinement. He was sentenced to 5 years and 9 months in prison on top of over 2 years of pretrial custody.
c) on October 25, 2013, he complained to a Sgt. at the detention center that C.O. Coursey harassed him and was prejudiced against him.
d) on the morning of October 29, 2013, he was surprised to see C.O. Coursey since he understood there was a policy that a correctional officer should not work on the same unit as an inmate who has complained about the officer.
e) that morning C.O. Coursey was harassing him and calling him “piece of shit,” and saying that he was sick and was going to die. She placed his breakfast on top of a garbage bin. This was prior to the time period captured on video. This upset him.
f) he began banging on his door and demanding to see a supervisor.
g) C.O. Coursey’s partner came around with the food cart and was told by C.O. Coursey not to feed the appellant until the manager attended.
h) the appellant responded to C.O. Coursey in Barbadian terminology as follows:
“If you know a dog got rabies, why will you go and tease it or aggravate it.”
He denied this was a reference to his having AIDS or the possibility of C.O. Coursey contracting this disease.
i) C.O. Coursey put the breakfast on the ground. The appellant asked why she did that. She said nobody cared about his complaints and moved the breakfast to a biohazard garbage bin. C.O. Coursey kept coming by his door, slamming his window open and shut and calling him names. This occurred prior to the video footage.
j) when Sgt. Ellis arrived, C.O. Coursey and the appellant were yelling at each other. He denies threatening her. He admits he did say, “she’s going to get it.” By that he meant he was going to charge her, sue her or “put Baku” on her. He explained the latter reference means a “call upon the forces of darkness to fight against his own kind.” He said he did not intend to intimidate or strike fear in C.O. Coursey.
k) he told Sgt. Ellis that C.O. Coursey should not be working in his unit and that she was agitating him. He was shouting and Sgt. Ellis told him to calm down.
l) he denied that he told C.O. Coursey that he was going to “mash her up” or that he was not afraid of another assault charge or that he had AIDS.
m) he denied he tried to grab anyone when he put his hand outside the hatch. He said he was simply resting his hand on the hatch and that inmates were supposed to put their hand out to collect their food. He admitted he pointed at C.O. Coursey while his arm was outside the hatch.
n) he told Sgt. Ellis that he did not want the food that had been on the biohazard bin.
o) he denied that C.O. Coursey could contract AIDS from being cut or “mashed up”. He said he had more knowledge on the subject than the people in the institution and the only way to contract AIDS was from sexual intercourse or needles.
p) he claimed that as he spoke to Sgt. Ellis, he saw C.O. Coursey making taunting gestures behind her back that are missing on the video.
APPEAL GROUNDS ON CONVICTION
[3] The appellant submits two grounds in challenge to the conviction:
the trial judge misapprehended the appellant’s evidence regarding the video record.
the trial judge erred in relying on Sgt. Ellis’ unqualified opinion evidence to find that the appellant intended to threaten the complainant with serious bodily harm.
I - The video evidence
[4] The video tendered at trial did not present a complete record of all interactions between the appellant and C.O. Coursey that morning. There was no audio and it appears there were some events not captured before the video commenced. That does not mean, however, that there was any evidence of tampering with the video. The trial judge found that there was no indication that anything had been cut out or edited from the video.
[5] The appellant submits that the trial judge misapprehended the impact of the video evidence in assessing the credibility of the three witnesses.
[6] The appellant concedes that the video does contradict his evidence that C.O. Coursey was dancing back and forth and sticking her tongue out at him as she stood behind Sgt. Ellis. The appellant testified that should have been on the video but was “missing”.
[7] The trial judge also found that the tape did not appear to show C.O. Coursey yelling at the appellant when Sgt. Ellis arrived. The appellant testified that when Sgt. Ellis arrived at the unit, C.O. Coursey was, “already there, yelling”. Sgt. Ellis clarified that the only thing she heard C.O. Coursey say to the appellant was that he would not receive his breakfast until the medication arrived, “like she always does”.
[8] The trial judge found that the video:
…directly contradicts (the appellant) regarding the behaviours of the complainant, particularly berating him and yelling when her supervisor was present. I see no evidence supporting that improper behavior on her part.
[9] In my view, this overstates the reasonable and available inference to be drawn from the video evidence.
[10] To state that the video directly contradicted the appellant on this issue was a misapprehension of the evidence. The assessment of whether C.O. Coursey was verbally abusing the appellant (as opposed to telling him he could not have breakfast until he had his medication) had to be based on the credibility of the witnesses.
[11] Trial counsel for the appellant (not Ms. Bingham) did not suggest to either crown witness in cross-examination that C.O. Coursey was berating and yelling at him when Sgt. Ellis was present. The failure to put that to the crown witnesses was relevant to the appellant’s credibility. It is a factor in assessing the weight to be given to the appellant’s evidence on this issue.
R. v. Marshall 2005 30051 (ON CA), [2005] O.J. No. 3549 (C.A.) at paras. 62-64.
Browne v. Dunn (1893), 6 R 67 (H of L).
MISAPPREHENSION OF EVIDENCE
[12] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material not merely peripheral to the reasoning of the trial judge. In other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment.
R. v. Mahmood 2011 ONCA 693 at para. 48.
R. v. Morrissey 1995 3498 (O.C.A.).
[13] In R. v. Gough, the Ontario Court of Appeal held there was a misapprehension of evidence but rejected the appeal on that ground. The Court referred to the misapprehension as “unfortunate” but held it did not give rise to a miscarriage of justice. It was significant in that case that the misapprehension of evidence did not play an essential part in the judge’s reasoning process resulting in a conviction.
R. v. Gough 2013 ONCA 137 at paras 20-29.
ANALYSIS
[14] There were significant conflicts in the evidence at trial and credibility was a central issue. In her reasons for judgment, the trial judge relied significantly on the video. The following references make clear that the video played a prominent role in her findings:
− I am basing my findings on the evidence before me, and, in a great deal, what I saw on the video
− in this case, there are conflicting stories. The video assists in unravelling what occurred.
− the video directly contradicts (the appellant) regarding the behavior of the complainant, particularly berating him and yelling when her supervisor was present.
[15] The essential ingredients of the offence alleged fell to be decided on issues of credibility. Based in part on a misapprehension of evidence that was found to contradict the appellant’s testimony on an important issue the conviction cannot stand. On this ground, the appeal is allowed and a new trial ordered.
II - Alleged Error in Relying on the unqualified opinion evidence on the issue of intent
[16] The Information alleged that the appellant uttered a threat to cause serious bodily harm to Robin Coursey. The modern s. 264.1 no longer requires a threat of “serious” bodily harm, since the 1995 Amendments, although the crown pleaded it in this case.
[17] The actus reus for the offence of threatening is as follows:
Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?
R. v. McRae 2013 SCC 68 at para 10.
To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.
R. v. Clemente 1994 49 (SCC) at para 13.
[18] The mens rea is made out if it is shown that the threatening words uttered or conveyed were meant to intimidate or to be taken seriously. It is not necessary to prove that the threat was uttered with intent that it be conveyed to its intended recipient or that the accused intended to carry out the threat. The fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously.
R. v. McRae supra at paras 17 & 18.
[19] At the time of the incident the appellant had AIDS and that medical condition was known to the custodial staff.
[20] Sgt. Ellis testified that the appellant, “seems to think that what he has (his illness) we can contract if he feels the need.”
[21] The appellant testified that he had specific knowledge that his health condition could only be transmitted to another through sexual intercourse or needles.
[22] The appellant submits that the trial judge erred in relying on the unqualified opinion evidence of Sgt. Ellis as to the issue of intent. I disagree.
[23] The evidence of Sgt. Ellis was not opinion evidence on a medical issue. Rather, it was properly received and considered at trial as relevant to the intent of the appellant to instill fear along with his threat to “mash her up.” The issue at trial was not to determine how AIDS can be transmitted person to person. The crown was not required to prove that Mr. Spooner was capable of carrying out the threat.
[24] I would dismiss this ground of appeal.
SENTENCE APPEAL
[25] Even though I have decided there must be a new trial, I will briefly address the sentence appeal.
[26] The sentence at trial was 90 days consecutive to a sentence being served plus the appropriate ancillary orders. The appellant submits that the sentence was excessive and should have been in the range of 30 to 60 days.
[27] Sentences imposed by trial judges are entitled to great deference. Absent some error in principle, a failure to consider a relevant factor, or an over emphasis of appropriate factors, the sentence should not be interfered with on appeal. Sentences should only be altered on appeal when they are, “clearly unreasonable”, “demonstrably unfit” or a “substantial and marked departure from sentence customarily imposed for similar offenders committing similar crimes.”
R. v. Shopshire 1995 47 (SCC), [1995] 4 S.C.R. 227 at para 46-50.
R. v. M. (C.A.) 1996 230 (SCC), [1996] 1 S.C.R. 500 at para 89 – 94.
R. v. Ramage (2010) 2010 ONCA 488, 257 CCC (3d) 261 (OCA) at para 69-73.
[28] Correctional officers carry out difficult and, at times, dangerous duties. When the Court imposes a sentence for an offence against a peace officer (defined to include a correctional officer), it must give primary consideration to the objectives of denunciation and deterence.
[29] The reduced sentence sought on this appeal would effectively amount to tinkering with a reasonable and appropriate disposition.
[30] I would dismiss the appeal as to sentence.
RESULT
[31] Based on the misapprehension of evidence that was a prominent feature of the judgment, this appeal as to conviction is allowed and a new trial ordered.
B. P. O’Marra, J
Released: December 23, 2014
COURT FILE NO.: 76/14
DATE: 20141223
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ERROL SPOONER
Appellant
Released: December 23, 2014