Court File and Parties

COURT FILE NO.: CR/14/100000/7500AP DATE: 20160602 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent - and - JOSHUA PAJACKOWSKI, Appellant

BEFORE: Croll J.

COUNSEL: M. Petrie, for the Crown, Respondent D. Glatt, for Appellant

HEARD: May 17, 2016

Endorsement

Introduction

[1] The Appellant was convicted after a one-and-a-half day trial of failing to comply with a recognizance in relation to contact with a child against whom he faced other charges. The Appellant was given a suspended sentence and 12 months’ probation for the offence. He was self-represented at his trial, and there was an amicus curiae present throughout the trial.

[2] The Appellant appeals his conviction and sentence on the basis that the trial judge’s verdict was unreasonable; the trial judge erred in law and fact in finding that the evidence established a breach of recognizance; the trial judge’s assistance failed to meet the requirements of ensuring that the Appellant, who was self-represented at trial, was able to provide full answer and defence; and the trial judge displayed a reasonable apprehension of bias.

Background facts

[3] In July 2011, the Appellant was charged with assaulting Sarah Stade, who was eight years-old at the time. Ms. Brenda Stade is the mother of Sarah, and the Appellant’s recognizance stipulated that he was to have no contact with Brenda or Sarah Stade.

[4] The Stades and the Appellant lived in two different buildings in the same apartment complex, and they both had use of the swimming pool in the complex. Ms. Stade testified that on August 12, 2012, she took Sarah swimming in the apartment pool. Her evidence was that at approximately 8:45 p.m., she saw the Appellant walk into the pool area and look into the pool. The Appellant then jumped into the pool with his clothes on. Ms. Stade testified she had never seen him jump into the pool wearing clothing before, as he usually wore swim trunks or a wetsuit. Ms. Stade then entered the pool area, as she had been watching Sarah from outside a glass door to the area. According to Ms. Stade, the Appellant was about six to ten feet from Sarah in the pool. Ms. Stade told the Appellant he was not allowed to be at the pool with Sarah. She could not recall the exact words of the Appellant’s response, but said he basically said “no”. Ms. Stade then called 911 and put the phone on speaker. The 911 dispatcher asked if she wanted police sent. Ms. Stade’s evidence was that the Appellant left the pool after hearing this and that the exchange was some three to five minutes “at the very, very most.” Ms. Stade and her daughter then left the pool area.

[5] It was Ms. Stade’s evidence that on their way out of the pool area, she stopped to ask the concierge if there were surveillance cameras of the area and advised the concierge there had been some issues relating to the Appellant.

[6] Officer Nelson Pena attended at the address in response to a radio call. He took a statement from Ms. Stade, spoke with a security officer at the complex and viewed surveillance video footage of the incident. He described the video as follows:

i. At approximately 8:38 p.m. the Appellant jumped into the pool wearing shorts and a t-shirt directly across from Sarah; ii. The Appellant walked down the steps on the east side of the pool; iii. The Appellant swam a short loop and then sat on the ledge on the east side of the pool while Sarah remained on the west side of the pool; and iv. The Appellant got up and walked out of view of the camera.

[7] Officer Pena testified that he had requested the security guard provide a copy of the video and was advised that the security guard was unable to burn a copy, but that one would be done within the week by a supervisor. No copy was ever received, however, and the officer did not follow up with the request.

[8] Under cross-examination by the Appellant, Officer Pena testified that the Appellant swam to the halfway point in the pool that separates the deep and shallow ends, returned back to where he entered the pool and then sat on the ledge. Officer Pena went on to say “[t]hen you just kind of sat there, looking to the other end of the pool while she was on the other side.” Officer Pena agreed that a “short period of time” was depicted by the events in the video and specifically the jumping in the pool, getting out and sitting on the ledge. He testified that as the video did not have sound, he was unable to say whether there was anything said or any communication during the events depicted. Officer Pena did not see Ms. Stade in the footage.

Issue #1: Did the trial judge err in finding that the Appellant had breached the recognizance?

Did the trial judge err in holding that the Appellant had the requisite mens rea for the offence?

[9] The Appellant submits that the trial judge erred on the issue of mens rea. In particular, the Appellant points to the trial judge’s finding that “it would be difficult to establish beyond a reasonable doubt that when [the Appellant] entered the pool area, he knew that Sarah Stade was present in the pool and entered it anyway.”

[10] However, the trial judge’s reasons must be read as a whole and in context: see R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 12; and R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. After making the above observation, the trial judge went on to state as follows:

We know from the evidence of the police officer who observed the video that after jumping into the pool and swimming about for a brief period of time, Mr. Pajackowski pulled himself out and sat at the edge of the pool for another brief period of time. This is consistent with Ms. Stade’s testimony about what she saw and did, and it confirms that regardless of whether the evidence establishes that Mr. Pajackowski knew that Sarah Stade was present in the pool when he entered the pool area, it does establish that he became aware that Brenda Stade was there and that Sarah Stade was there, once he was in the water.

And on this evidence, I find that he came out of the pool and sat because he was aware that Brenda Stade was present, and he was observing what she was doing. And I further find that he got up and left only at the point at which the 911 operator asked if she should send a police car. Whether he left because of what he heard or because he felt he had proven his point, or even if it was simply because he thought of something else to do, like change out of his wet clothes, is of no great moment.

What is significant is that Mr. Pajackowski remained in the pool area for a period of time, albeit not a long period of time, after he became aware of the presence of Brenda Stade and Sarah Stade. And in that respect, put himself in breach of the order.

[11] It is clear from the above passage that the trial judge found that the Appellant had remained in the pool area after becoming aware that the Stade mother and daughter were in the area and that he only left when the 911 operator asked about sending a police car. It is also clear in his reasons that the trial judge found no evidence to suggest that the Appellant did not understand that he was bound by the relevant order which includes a term that he is “not to be anywhere Brenda or Sarah Stade lives, works, attends school or happens to be as known by you.”

[12] The trial judge acknowledged the time period was brief, but nonetheless he found that the Appellant stayed in the pool area after he knew that Brenda Stade and Sarah Stade were there. As such, the trial judge necessarily found the Appellant had the requisite mens rea for the breach offence. The trial judge was correct to note that the fact that the Appellant departed after he had committed the offence was irrelevant.

[13] The trial judge’s decision was based on findings of fact. These findings should be accorded great deference: see R. v. W. (R.), 1992 SCC 56, [1992] 2 S.C.R. 122, at p. 131.

Did the trial judge misapprehend the evidence with respect to the security incident report, which indicated that the Appellant had only spent 43 seconds in the pool area?

[14] The Appellant submits that the trial judge failed to properly consider the security incident report and the time reflected in that report. The report indicates that the Appellant entered the pool at 20:40:17 and left the pool area at 20:41. The Appellant submits that in this period of 43 seconds, the Appellant did not form the necessary mens rea; rather, that he exited the area immediately upon realizing that Sarah Stade was there. The Appellant also submits that the timing in the report should cast doubt on the credibility and reliability of Ms. Stade, given her evidence that the encounter was between three to five minutes.

[15] I note firstly that a review of the transcript indicates that the security incident report, authored by Mark Hill, was not tendered for the truth of its contents nor did Mr. Hill testify. It was entered as an exhibit because the Appellant had referred to it in the context of whether or not Ms. Stade had provided her name to the security officer.

[16] In addition, the Appellant cross-examined Officer Pena, who had viewed the surveillance video referred to in the report, about the period of time he observed the Appellant in the surveillance video and suggested it was a “very short period of time”. However, at no time did the Appellant raise the times recorded in the report in his examination or in his submissions at the end of the trial. In an exchange with the trial judge about the security report, the Appellant stated, “I was bringing it up because of the part marked in yellow where she said she called the police in the pool.” Further, Ms. Stade, who was cross-examined on the report, was not asked any questions about the times reflected in the report, nor was it suggested to her that her estimate of the three to five minute time period for the events at issue was inaccurate. I also note that Ms. Stade qualified her time estimate by stating that she was not good at judging time.

[17] The trial judge did refer to a short period of time, as testified to by P.C. Pena and Ms. Stade, as the relevant time period for the offence. Given this context, with respect, I do not accept the Appellant’s submission that the trial judge’s failure to mention the 43 seconds set out on page 2 of the security incident report was an overriding and palpable error.

[18] The trial judge was alive to the short time period. However, his finding of guilt was grounded in the fact that the Appellant stayed in the pool area after he became aware that the Stades were there, regardless of the brevity of the time.

[19] The trial judge did not misapprehend the evidence before him.

Did the trial judge base his conclusion solely on the evidence-in-chief of Ms. Stade?

[20] The Appellant submits that the trial judge based his conclusion solely on the evidence-in-chief of Ms. Stade, and that this evidence was inconsistent with her statement to the police, the security incident report and the evidence of Officer Pena.

[21] The trial judge specifically referred to the evidence of Officer Pena with respect to the surveillance video that he viewed that evening. He found that Officer Pena’s evidence supported the “relevant substance” of Ms. Stade’s evidence; that is, that the Appellant jumped in the pool, that he was confronted by Ms. Stade who told him to leave, that he initially refused to leave, that Ms. Stade told him she called 911 and then he left. This finding is supported by the record. For instance, Officer Pena’s evidence that he saw the Appellant jumping in the pool wearing shorts and a t-shirt directly across from Sarah Stade was consistent with Ms. Stade’s evidence. Further, Officer Pena testified that the Appellant, after swimming in the pool, sat on the ledge of the pool and “just kind of sat there, looking to the other end of the pool while she [Sarah Stade] was on the other side [of the pool]”. This is again consistent with the evidence of Ms. Stade, and what she told the police.

[22] The Appellant submits that the inconsistency in Ms. Stade’s evidence about her approach and communication with the Appellant was not given due weight by the trial judge. Among other things, the Appellant submits that the trial judge ignored the inconsistency between the evidence of Ms. Stade ‑ that she was standing close enough to jump in herself ‑ and the fact that she was not visible in the security footage.

[23] However, weight, if any, to be attached to an inconsistency in a witness’ evidence is a matter for the trial judge and to be accorded substantial deference: see R. v. W. (R.), at p. 131; R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 30; and R. v. P. (R.), 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 17. Further, it was Officer Pena’s evidence that the video camera points down to the pool area, and as such, it can be inferred that Ms. Stade’s position would not be apparent on the video. The security report indicates that Ms. Stade communicated with the Appellant to “back off or else she will call the police”. Mr. Pajackowski didn’t leave and the victim took out her cell phone and dialed 911. While there was some issue in the evidence as to whether the Appellant had verbally communicated “no” to Ms. Stade, there is no issue that the Appellant was approached by Ms. Stade and asked to leave, and that he initially refused to do so.

[24] The trial judge did not base his conclusion solely on the evidence-in-chief of Ms. Stade.

[25] In sum, the decision reached by the trial judge was not unreasonable. The trial judge found that the Appellant had the relevant mens rea when he knew that Sarah Stade was in the pool and he did not leave. The trial judge considered all the evidence, and his reasons, when read as a whole, indicate that that he did not misapprehend the evidence, nor did he base his finding of guilt solely on the evidence of Ms. Stade. As stated, the trial judge found that the evidence of Officer Pena supported the relevant substance of Ms. Stade’s evidence.

[26] This was a credibility case, and the reasons of the trial judge are owed great deference. As McLachlin J. (as she then was) stated in R. v. W. (R.), at p. 131, “[t]his court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility… The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses.”

Issue #2: Did the trial judge fail in his duty to ensure that the Appellant was able to provide full answer and defence?

[27] The Appellant grounds the submission that the trial judge failed in his duty to him under three headings:

i. the trial judge persuaded the Appellant not to testify; ii. the trial judge curtailed the Appellant’s cross-examination of Ms. Stade; and iii. the trial judge failed to advise the Appellant of his right to bring a Missing Evidence Application under s. 7 of the Charter with respect to the missing videotape evidence.

[28] The trial judge did engage the Appellant in a relatively lengthy discussion about his right and ability to call a defence. In addition to his comments about what competent defence counsel would seek to avoid (closing gaps in the Crown’s case and exposing an accused to cross-examination) he clearly set out the case the Appellant had to meet and told him it was both safe and prudent to assume the Crown had met its case. The trial judge stated:

A criminal trial works on the basis that the Crown has to prove everything, everything that’s important, all the essential elements, and they have to prove it beyond a reasonable doubt. That the defence – that’s you, but using that term generally – should only think, if you were a lawyer, you should only think about calling evidence if there’s something more that you need to put in play in order to trigger a defence… Now admittedly, it’s always safe to work from the proposition that the Crown is going to be able to prove it. Like it’s dangerous to sit back and just let things happen. So, it’s always prudent to think okay, let’s say they can establish everything they need to establish here, that I knowingly was in the presence of Sarah Stade and Brenda Stade. Say they can do that. What can I put in play that would raise a doubt about that?

[29] Although the trial judge also told the Appellant that while most competent defence counsel rarely find a defence helpful, he followed that comment by saying: “[t]hat’s not to say that you shouldn’t testify, particularly if you feel strongly about it and think that you can add something to this scenario.”

[30] Further, the trial judge explained to the Appellant that there are other ways or other witnesses to put in evidence, beyond the Appellant himself testifying. He told him, for example, that “without some testimony, those photographs don’t mean anything.” However, he also told the Appellant that certain evidence could only go in through the Appellant, explaining to the Appellant that “you can’t establish that you didn’t know by asking somebody else, whether it’s Brenda Stade or me or Mr. Degroot or somebody else.”

[31] The Appellant also submits that the trial judge failed in his duty to advise the Appellant by curtailing the cross-examination of Ms. Stade. During her cross-examination, Ms. Stade became upset and left the courtroom. The Crown advised that Ms. Stade was willing to return. The trial judge had a lengthy discussion with the Appellant concerning the evidence heard up to that point, and the Appellant’s remaining questions for Ms. Stade. It became apparent during this exchange that some of the issues that the Appellant wanted to question Ms. Stade about could not be addressed through her, were irrelevant or were properly part of closing submissions. Of significance is that there was never an indication by the Appellant that he sought to challenge Ms. Stade’s evidence that she had seen him in the pool with her daughter and that she had confronted him. There was, as well, no indication that the Appellant sought to challenge Ms. Stade’s evidence that he had initially refused to leave after she confronted him. The trial judge then asked if there was any need to recall Ms. Stade. The Appellant responded “I think I’m fine.”

[32] The Appellant submits that he was not permitted to cross-examine Ms. Stade about timing. However, a review of the transcript indicates that the Appellant had already asked questions about timing before Ms. Stade left the courtroom. She left when the questions honed in on where Ms. Stade was when the Appellant entered the pool area. In fact, the more troublesome issue to the Appellant seemed to be whether or not he communicated his refusal to leave verbally to Ms. Stade, and that issue was adequately summed up and understood by the trial judge.

[33] The Appellant further submits that the trial judge failed to advise the Appellant of his right to bring a Missing Evidence Application under s. 7 of the Charter with respect to the missing videotape evidence.

[34] Officer Pena had viewed the surveillance video on the same day as the incident and made notes of its contents. The police had requested a copy of the video from building security, but never followed up to obtain it. Officer Pena testified as to the contents of the video and was cross-examined by both the Appellant and amicus. The security incident report describing the video was provided in the disclosure and as stated, was made an exhibit at the trial at the request of the Appellant. There was no evidence that the Appellant ever requested the video by way of disclosure, or that the video was deliberately not produced or destroyed.

[35] The likelihood of success of a lost evidence application was very low. There was no evidence of “unacceptable negligence”, which is a key consideration in determining whether there was a failure to preserve evidence: see R. v. La, 1997 SCC 309, [1997] 2 S.C.R. 680, at para. 20. There was certainly no evidence that this was a rare case where the remedy of a stay would be appropriate: see R. v. Bero (2000), 2000 ONCA 16956, 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 30. The trial judge’s failure to advise the Appellant of a potential Charter issue did not in any way lead to an unfair trial: see R. v. Laing, 2016 ONCA 184, at para. 34; and R. v. Tran (2001), 2001 ONCA 5555, 55 O.R. (3d) 161 (C.A.), at paras. 31-36.

[36] When the transcript of the proceedings is reviewed as a whole, it is clear that the trial judge met his duty to provide assistance to the Appellant to ensure a fair trial. He did not prevent the Appellant from testifying, nor did he improperly curtail the cross-examination of Ms. Stade. This is not a case like R. v. Orfanian, 2010 ONSC 6304, where the trial judge interceded immediately after the accused began cross-examining the complainant with very specific directions that caused the accused to limit his questions. The appellate court in Orfanian held that the appellant was prevented from cross-examining the complainant on matters “that could have substantially impacted his credibility because of the advice and direction he received from the trial judge” and that the error in curtailing the cross-examination was “fundamental” and “adversely affected the fairness of the trial” (paras. 15-16). In this case, however, after the trial judge reviewed what further evidence, if any, would be relevant and admissible, he gave the Appellant the opportunity to complete the cross-examination, and the Appellant indicated he did not need to have Ms. Stade recalled.

[37] The Appellant further submits that the amicus failed in his duty by persuading the Appellant not to testify and by curtailing the cross-examination of Ms. Stade.

[38] In this case, the amicus had an off-the-record conversation with the Appellant after Ms. Stade left the courtroom during her cross-examination. He also had some off-the-record discussion with the Appellant, apparently about whether or not he would testify. However, there is nothing in the material before me from which to conclude that the amicus in any way improperly discouraged the Appellant from continuing with the cross-examination or that he prevented the Appellant from testifying.

[39] Finally, I note that in oral submissions, the Appellant argued that the failure to define the scope of the amicus was an error in law. I have reviewed the trial transcript and this error was not raised as an issue at trial nor was it raised as a ground of appeal in the Notice of Appeal. On that basis alone, I would not entertain it. However, even considering the argument, when the proceedings are viewed as a whole, the lack of a precise delineation of the role of amicus at the outset of the proceedings did not lead to an unfair trial for the Appellant.

[40] In R. v. Imona-Russel (sub nom Ontario v. Criminal Lawyers’ Association of Ontario [CLA]), 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 44, the Supreme Court narrowed a broadening role for amici to situations where it is “necessary to permit a particular proceeding to be successful and justly adjudicated”, and specifically rejected the practice of appointing amici as defence counsel. The majority outlined, at para. 47, two essential considerations for trial judges to make when appointing amicus: (1) the assistance of amicus must be essential to the judge discharging his or her judicial functions in the case at hand; and (2) the authority to appoint amicus should be used sparingly, in response to specific and exceptional circumstances. The Supreme Court also emphasized that amicus can consult with the accused, but cannot take instructions from the accused, and may make submissions available to be made to assist the court, not to advocate for the accused: see also R. v. Chemama, 2014 ONCA 171. In Fish J.’s decision (dissenting in part), he stated at para. 121 that “[w]here a trial judge appoints an amicus, these distinctions between an amicus and court-appointed defence counsel should be made clear both to the amicus and to the accused.”

[41] The transcript shows that in this case, the appointment of amicus was addressed only in a cursory way at the beginning of the trial. The trial judge did not delineate the role of the amicus at the outset as is directed in CLA. However, it can be taken from the conduct of the trial that the Appellant and amicus both understood their roles and the fact that the amicus was not acting as defence counsel, but as a friend of the court. Both amicus and the Appellant cross-examined each witness, and both made closing submissions. Before the first cross-examination, the process was outlined in general terms as follows:

THE COURT: Okay. Counsel, you’ve got more experience being an Amicus than I have dealing with Amicus. So, help me out. What’s the process? I ask you, then I ask him?

MR. DEGROOT: Your Honour, I suppose it’s somewhat – but the way we’ve been proceeding is that I have been guiding the process so to speak and then Mr. Pajackowski’s been …

THE COURT: All right.

MR. DEGROOT: … so that’s – unless there’s some cause for Mr. Pajckowski – asking questions and then, so we’re basically, we’ve been supplementing each other.

THE COURT: Okay. So, on behalf – in your capacity as Amicus, Mr. Degroot, any cross?

[42] Further, during closing submissions, the trial judge said to the Appellant, “[d]on’t look to Mr. Degroot. He’s here as my friend, not yours.”

[43] Judges of the Ontario Court of Justice sit in very busy courthouses, and function under the exigencies and pressures of what is often a very demanding schedule. I accept that the trial judge could have been more temperate in some of his comments to the Appellant. It is also the case that the scope of the duties of the amicus should have been defined clearly at the beginning of the trial. However, it is a fact-specific exercise as to whether the trial judge’s conduct of the trial resulted in an unfair trial: see R. v. Janusas, 2011 ONCA 742, at para. 10. When the proceedings are viewed as a whole, it cannot be said that the assistance given to the Appellant was not adequate or that the Appellant was not given a fair trial.

Issue #3: Did the trial judge’s conduct give rise to a reasonable apprehension of bias?

[44] The Appellant’s last ground of appeal, although not advanced in oral argument, was that the totality of the trial judge’s comments establishes conduct that gives rise to a reasonable apprehension of bias. There is a strong presumption that judges are impartial, and the test for demonstrating bias is a heavy one: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59, citing R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484, at para. 32: “the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.” In this case, there is no cogent evidence to rebut the strong presumption of impartiality.

[45] The trial judge’s conduct does not give rise to a reasonable apprehension of bias.

[46] For all these reasons, the appeal is dismissed.

Croll J. Date: June 2, 2016