CITATION: R. v. John, 2015 ONSC 2040
COURT FILE NO.: 102/14
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KARIM JOHN
Megan Petrie, for the Crown, Respondent
Diana Lumba, for Karim John, Appellant
HEARD: March 12, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] What happens where a person is on probation, re-offends, goes into custody on unrelated charges, and then when he gets out his probation officer can’t find him to tell him to re-report? Is he guilty of breaching his probation?
[2] In this case, on March 5 2013 Madam Justice Pringle of the Ontario Court of Justice placed Mr. John on probation. He reported as required to his probation officer, Shaun Holmes. He continued to report until he was incarcerated on unrelated charges on July 8, 2013. He was released on December 19, 2013. Mr. John did not report to Mr. Holmes when he was released. In fact, he never reported after being released.
[3] Mr. Holmes faxed a request to the probation liaison officer at the jail. The request asked that the officer instruct Mr. John to report within two days of release. Mr. Holmes received a fax back from the probation liaison officer that he had so instructed Mr. John. The probation liaison officer did not testify. This evidence was hearsay. There was no other admissible evidence that these instructions were followed and that Mr. John was made aware of the instruction.
[4] When Mr. John did not report, Mr. Holmes sent letters to the address that Mr. John had provided. Canada Post returned them. They were stamped “return to sender”. Mr. Holmes also called Mr. John at the telephone number that Mr. John had provided. Mr. John never contacted Mr. Holmes and never reported any change of address. On February 18, 2014, Mr. John was charged with failing to comply with his probation order by failing to report to his probation officer as required.
[5] Mr. John was tried by Madam Justice Sparrow of the Ontario Court of Justice. The trial was short. Mr. Holmes testified for the Crown. He was the only witness. The defence applied for a directed verdict on the grounds that the certified copy of the probation order was not admissible and that the Crown was therefore left with no case. The trial judge rejected that argument. She dismissed application. The defence called no evidence. Submissions then focussed on Mr. John’s intentions. This was because there was no question that Mr. John had indeed committed the actus reus of the offence. He had not, in fact, reported. His lawyer argued that there was no evidence that Mr. John was aware that he had to report.
[6] The trial judge rejected this argument. She convicted Mr. John. In my respectful view she erred. For the reasons that follow, the appeal is allowed and a new trial is ordered.
ANALYSIS
[7] Ms. Lumba, on behalf of Mr. John, essentially repeats the arguments made at trial but also argues that the trial judge convicted Mr. John of an offence that he was not charged with. She further argues that the appeal should be allowed for insufficiency of reasons.
[8] I disagree that the trial judge’s reasons were unclear. That argument can be dealt with easily. The trial judge’s path to conviction was clear. In the circumstances of this case it is logically inconsistent for the defence to argue that the trial judge’s reasons were unclear but also argue that she convicted the accused of the wrong offence.
[9] Although I don’t need to deal with the exemplification issue, I will do so for the sake of completeness.
(a) Did the trial judge err in convicting Mr. John of something with which he was not charged?
[10] Mr. John was charged with failing to comply with a probation order. The information read (in part):
Unlawfully did, while bound by a probation order… fail or refuse to comply without reasonable excuse the said order, to wit “Report to a probation officer as required.”
[11] The trial judge said:
Sir, you are charged with failing to obey this Probation Order… I understand you did report. You were then in custody for a period of time…
However, the Probation Order itself says quite clearly at paragraph sub (3), condition (3) on the first page,
“notify the court or the probation officer in advance of any change of name or address.”
So if something happens to you like you to to jail, you have the obligation to notify the court or the probation officer of a change in address. These letters came back “Return to Sender”. The officer tried to contact you, and your phone number was not a good phone number.
In my view, sir, you are in violation of that section about keeping the court or the probation officer updated. I understand that it was probably a difficult period of time for you when you came out of jail, and you probably had many things on your mind, but, nevertheless, that was reads to you on all of the evidence. You didn’t keep him updated so that he could get in touch with you. I think that the inference can be logically drawn that you didn’t do so, and that he didn’t hear from you, and that he got the letters back, and that the phone calls were not successful. He couldn’t get through.
[12] Regrettably, it appears that the trial judge convicted Mr. John of a failing to comply by failing to notify of a change of address. He was actually charged with failing to report to his probation officer. Where the Crown particularizes the indictment in a particular way it must prove the offence as particularized: R. v. Sadeghi-Jebelli, 2013 ONCA 747, 313 O.A.C. 257, [2013] O.J. No. 5728.
[13] Ms. Petrie, for the Crown, argues that the reasons must be read in the context of the evidence and the submissions. Since the key issue was Mr. John’s intent, and the submissions were focused on his mens rea, the logical chain is that he breached the reporting condition because he breached the condition that he had to inform his probation officer of any change of address.
[14] At first blush, it appears this is an attractive argument. That trial judges are in the best position to determine matters of fact and are presumed to know the basic law: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 54. The trial judge was obviously aware that mens rea was a key issue. But on further examination I cannot accept Ms. Petrie’s argument, skillfully presented though it was. If I were to do so it would simply require stretching the trial judge’s words too far.
[15] Furthermore, there is a basic problem in that the admissible evidence simply did not support a conviction on all of the elements of the offence.
[16] The elements of the offence of breach of probation contrary to s. 733.1 of the Criminal Code are: first, that the offender is bound by a probation order; second, that the offender fails or refuses to comply with that order; and third, that the offender has no lawful excuse. The use of the term “fail” or “refuse” by Parliament indicates that breach of probation is a full mens rea offence. The offender must intend to refuse or fail to comply.
[17] The real question was whether Mr. John reported “as required”. If he did not know that he was required to report, he could not have had the intention to fail to comply. The probation order read:
Report forthwith, today (within 2 working days or as the court directs) in person, to a probation officer as directed and, thereafter, be under the supervision or a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places as that person may require or as follows, and thereafter as required.
[18] “Thereafter as required” means that the probation officer was to inform Mr. John of his next appointment, or set up regular appointments. Mr. John’s visit to a Maplehurst was a disruption. The probation officer, who was acting conscientiously, took steps to remind Mr. John that he had to report. The problem is that there is no admissible evidence that Mr. John was told. There was simply a fax back from the probation liaison officer. The probation liaison officer did not testify. The fax was therefore hearsay. Thus, there was simply no admissible evidence that Mr. John knew that he was required to report when he was released from custody. I note, as well, that there was no actual evidence that Mr. John had moved. The fact that the letters were “returned to sender” was not evidence that Mr. John was no longer living at his approved address. They were simply evidence that Canada Post had returned the letters.
[19] Ms. Petrie argues that the trial judge also relied on the doctrine of wilful blindness. She argues that from the submissions and the reasons it can be inferred that wilful blindness was a basis of liability. I must respectfully disagree. The wilful blindness argument is stranded on the same shoals as the direct evidence argument: it relies on knowledge by Mr. John that he was aware that he had to report, and there was no admissible evidence that he did.
[20] The appeal is allowed. There is no question that such an outcome rankles. Mr. John probably did know he had to report. He probably did get the reminder from the probation liaison officer. He probably just decided not to bother. Of course, in our system, “probably” isn’t good enough to support a conviction.
[21] In my view the appropriate remedy is a new trial, rather than an acquittal.
(b) Did the trial judge err in admitting the exemplification of the probation order without notice?
[22] Although the appeal is allowed, I think it is important to deal with this issue.
[23] The Crown sought to introduce certified true copies of the information and probation order. The Crown did not provide notice under the Canada Evidence Act. The trial judge found that the common law permitted the admission of the exemplification of the probation order without notice.
[24] Ms. Lumba argues that a certified true copy or exemplification of a court record is a hearsay document. Section 23(1) of the Canada Evidence Act permits the introduction of the record of a judicial proceeding into evidence by exemplification or certified copy. An exemplification is simply a true copy of a record from a court, under seal. It is considered a genuine copy. Pursuant to s. 28 of the CEA the party introducing the exemplification must give 7 days notice. No notice was given to Mr. John. Accordingly, she contends that the exemplification was inadmissible.
[25] I respectfully disagree. This argument was made before the trial judge. She rejected it on the grounds that there was binding authority to the contrary from this Court: R. v. Bailey, 2014 ONSC 5477, [2014] O.J. No. 4420. She declined to follow the decision of her colleague Knazan J. in R. v. Kisun, [2012] O.J. No. 6321 (O.C.J.).
[26] At common law an exemplification of a court document was admissible without notice: R. v. Tatomir, 1989 ABCA 233, 51 C.C.C. (3d) 321, [1990] 1 W.W.R. 470, 69 Alta. L.R. (2d) 305, [1989] A.J. No. 843. Section 36 of the CEA notes that Part I is deemed in addition to and not derogating from any existing statute or law. As a result, the common law still applied. Tatomir was adopted by the Ontario Court of Appeal in R. v. W.B.C., 2000 CanLII 5659 (ON CA), [2000] O.J. No. 397, 130 O.A.C. 1, 142 C.C.C. (3d) 490 (C.A.), although the Court pointed out that a trial judge always retains a discretion to exclude evidence where the admission would be unfair. The Supreme Court dismissed the appeal for the reasons given by the Court of Appeal: R. v. W.B.C., 2001 SCC 17, [2001] 1 S.C.R. 530.
[27] In Bailey, my colleague K. Campbell J. recently reviewed the construction of the CEA and the authorities. He concluded that exemplifications remain admissible without notice at common law. The trial judge in Bailey followed Kisun and refused to admit an exemplification. K. Campbell J. found that Knazan J.’s comments in Kisun were technically obiter. The trial judge in that case ought not to have followed them. Accordingly, he allowed the Crown’s appeal.
[28] For that reason, the trial judge was correct to follow Bailey. It was, as she noted, binding on her.
[29] Ms. Lumba urges me to allow the appeal on the basis that Bailey is wrongly decided. I decline to do so. There is no doubt in my mind that Bailey is correctly decided, and properly interprets the Ontario Court of Appeal’s decision in W.C.B. (affirmed by the Supreme Court). I would dismiss this ground of appeal.
DISPOSITON:
[30] The appeal is allowed and a new trial is ordered.
R.F. Goldstein J.
Released: March 31, 2015
CITATION: R. v. John, 2015 ONSC 2040
COURT FILE NO.: 102/14
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KARIM JOHN
REASONS FOR JUDGMENT
R.F. Goldstein J.