R. v. Hebb, 2015 ONSC 2011
CITATION: R. v. Hebb, 2015 ONSC 2011
COURT FILE NO.: 15-4853 AP
DATE: 2015-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Sheldon Hebb
Appellant
COUNSEL:
D. Wilson, Counsel for the Respondent
D.M. Lumba, Counsel for the Appellant
HEARD: March 20, 2015
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Sheldon Hebb appeals his conviction and sentence on a charge of breach of probation.
Background
[2] On December 17, 2013, Mr. Hebb was sentenced to a brief period of incarceration following his conviction on charges of possession of a controlled substance for the purpose of trafficking and assault. A probation order was also imposed for a period of two years.
[3] Shortly after his release from custody, on January 15, 2014, Mr. Hebb was charged with another possession for the purpose of trafficking offence and with three counts of breach of the probation order that had required him:
(i) not to possess illegal drugs;
(ii) not to associate with Ms. Ascroft-Walker (the assault victim); and
(iii) keep the peace and be of good behaviour.
[4] Mr. Hebb pled guilty to the drug offence in the Superior Court of Justice on October 3, 2014. He was sentenced to 12 months incarceration less three months for pre-sentence custody. Counsel did not report as to the circumstances pertaining to the plea, submissions or the factors considered by the sentencing judge.
[5] Mr. Hebb next appeared in the Ontario Court of Justice on October 8, 2014 to address the breach of probation charges. He pled guilty to counts 1 and 3. A trial followed on count 2.
[6] On October 28, 2014, the trial judge found Mr. Hebb guilty. Following submissions, a sentence of 60 days concurrent on counts 1 and 2 was imposed. Such was made consecutive to the drug offence sentence. Count 3 was stayed.
Conviction
[7] At trial, the only issue requiring a determination was whether the Crown had proven beyond a reasonable doubt that the person found associating with Mr. Hebb was Ms. Ascroft-Walker. The remaining essential elements of the offence had been conceded.
Reasons of Trial Judge
[8] In finding the Crown had met the evidentiary onus, the trial judge said:
One, both Crown witnesses, Officers Tremmis (ph) and Kapitanchuk testified that the female in the room with the accused identified herself by the name of Samantha Ascroft-Walker, after first giving a different name. That is some evidence that the female calls herself by that name.
Secondly, Officer Tremmis testified that he recognized the female from prior dealings with her over the years, and that she went by that name, although the defence questions the reliability of the identification from the past. These did not appear to have been prior occasions where the interactions were made in difficult or fleeting circumstances.
Thirdly, Officer Kapitanchuk testified that he could not locate the female to serve a subpoena on her by that name, so he left it with her surety. On the day of trial, the female attended and identified herself by that name in court, and responded to that name when paged into court, although self-identification by word and action, strictly speaking, is not evidence under oath, it is, in my view, a circumstance which can be taken into account based on logic, common sense, and human experience in determining whether the female is the same person named in the Probation Order.
Finally, Officer Kapitanchuk identified the female that was in court as the same one who was in the room with the accused on the night in question.
His interaction with the female in question was a few minutes, and there was no evidence it was conducted in difficult conditions. There is also no evidence to the contrary.
When the evidence is viewed comulatively, there is only one reasonable conclusion, and that is the person with the accused on the date in question was Samantha Ascroft-Walker, and that the Crown has proven that fact beyond a reasonable doubt. Consequently, the accused is found guilty.
Grounds for Appeal
[9] The appeal raises the following grounds for appeal with respect to conviction:
i. The first reason for conviction: the trial judge erred by admitting hearsay evidence;
ii. The second reason for conviction; the trial judge misapprehended Officer Tremis’ evidence;
iii. The third reason for conviction; the trial judge erred by admitting hearsay evidence and using the court process as a substitute for evidence;
iv. The fourth reason for conviction; the trial judge erred in relying on Officer Kapitanchuk’s in-court identification of Ms. Ascroft-Walker and misapprehending the evidence;
Analysis
[10] Ms. Ascroft-Walker did not testify. A person in the courtroom responded when the name was paged. She was called to the witness stand but, before being sworn, complained of needing to see a doctor. Following a break, Crown counsel elected to proceed without this witness.
[11] Three police officers testified: Petros Tremis, Harrinder Sandhu and William Kapitanchen. No evidence was tendered by the defence.
[12] Ms. Ascroft-Walker identified herself to the police officers at the scene. No documentary identification was requested or provided. As noted by Wigmore, self-identification has long been considered an exception to the hearsay rule. The police officer, therefore, was permitted to testify as to same. It is important to note this individual was not the accused. The weight of the evidence is a matter for the trial judge.
[13] The only problem regarding the self-identification evidence at the scene is that Crown counsel at trial, in response to the inquiry of defence counsel, reported the evidence was only being tendered as part of the narrative and not for its truth. In my view, it is not permissible for Crown counsel on appeal to take a different position.
[14] A police officer also testified as to prior dealings with Ms. Ascroft-Walker, although he could not recall the specifics. This evidence was admissible. While the trial judge may have misapprehended the nature of the dealings, such is only a peripheral matter and does not rise to the level on the strict test required on appeal. Again, the weight of the evidence is for the trial judge to determine.
[15] Ms. Ascoft-Walker’s self-identification in the courtroom was not evidence. The trial judge made reference to the matter as a circumstance which could be taken into account. While his reasons were brief, the relevant circumstance would have been in considering the evidence of the police officers. In reality, little, if anything, turns on this self-identification.
[16] What is of critical importance is the evidence of a police officer identifying Ms. Ascroft-Walker as the person in the courtroom, the same person he had served with a subpoena and the same person he observed on January 15, 2014 with Mr. Hebb. The trial judge accepted the officer’s evidence. It was open for him to do so. In result, it cannot be said the trial judge improperly used the court process as a substitute for identification evidence.
[17] The appellant’s position is that the trial judge relied on the evidence cumulatively and, therefore, if one or more of his reasons do not survive scrutiny, the decision must be overturned. With respect, I disagree. The admissible evidence, when considered as a whole was sufficient to support the finding of guilty. Deference to the trial judge is properly owed when, as here, the weight of the evidence was the determining factor.
[18] In result, the appeal against conviction is dismissed.
Sentence
[19] The issue raised regarding the sentence imposed on the two counts of breach of probation is whether such ought to have been concurrent with the drug offence.
[20] All of the offences arose out of the same factual event on January 15, 2014. Nevertheless, the drug offence and the breach of probation offences are, in my view, separate and distinct matters. Breach of a court order attracts special consideration and there is no requirement in law to impose a concurrent sentence just because of the nexus in time and place.
[21] Sentencing is in the discretion of the trial judge and does not attract appellate interference unless it is demonstrably unfit.
[22] I am not persuaded there is any basis to interfere with the consecutive sentence imposed. Indeed, I am of the view such was appropriate in this case. Mr. Hebb had only just been released from custody after serving time on prior drug and assault offences. The breach of his probation order in these circumstances was most egregious and called for a consecutive sentence.
[23] In result, the appeal against sentence is also dismissed.
Released: March 27, 2015 D.J. Gordon J.
CITATION: R. v. Hebb, 2015 ONSC 2011
COURT FILE NO.: 15-4853 AP
DATE: 2015-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
Respondent
– and –
Sheldon Hebb
Appellant
REASONS FOR DECISION
D.J. Gordon J.
Released: March 27, 2015
lr