CITATION: R. v. Brooks, 2016 ONSC 4249

COURT FILE NO.: 27/15

DATE: 2016 06 27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Tatum, for the Crown

Respondent

• and -

JUSTIN BROOKS

Appearing in Person

Appellant

HEARD: June 24, 2016

REASONS FOR JUDGMENT

Dawson, J.

1On May 29, 2015, the appellant was convicted of two counts of threatening death, contrary to s.264.1(1)(a) of the Criminal Code; two counts of criminal harassment, contrary to s.264(2) of the Criminal Code; and one count of mischief by interfering with the lawful use, enjoyment or operation of property, contrary to s.430(1)(d) of the Criminal Code. The convictions followed a trial before Justice M. L. Roberts. At the same time the respondent withdrew a charge of causing a disturbance.

2The appellant appeals from these convictions, and from his sentence, which was a suspended sentence and twelve months probation.

The Evidence in Overview

3All of the convictions arose from an incident in a low rental apartment complex in the Town of Shelburne where the appellant and the complainants lived. The evidence of the various Crown witnesses was that on January 19, 2015 the appellant was playing loud music. Tenants had made noise complaints against the appellant before. Another tenant, Ms. Bean, did so on this occasion. The police attended and confirmed loud music. They knocked on the appellant’s door but he did not answer the door. The police slid an offence notice for a municipal noise offence under the appellant’s door.

4As the police were leaving the appellant came out of his apartment and told them to “fuck off”. He then slammed his door and the police left. Within minutes there were more 9-1-1 calls to the police from other tenants.

5Three residents of the building and one visitor gave evidence for the Crown. Ms. Bean, who made the original noise complaint, had remained on a lower floor during and after the first attendance by the police. Another resident of the building, Ms. Whitten, gave evidence that after the police left the first time the appellant came out of his apartment and was ranting in the hallway and pounding on doors. She testified that she saw the appellant bang on the door to Ms. Bean’s apartment and heard the appellant utter threats to kill Ms. Bean. Ms. Bean was downstairs and did not hear the threats.

6Ms. Whitten’s adult son was visiting. He testified that he heard the commotion and recorded a part of it on his iPhone. A transcript was introduced and the recording was played. It did not capture any threats.

7Another tenant, Ms. Homewood, testified that the appellant also banged on her door. She testified that she heard the appellant threaten to kill her and her family. She viewed the appellant through the “peep hole” in her apartment door.

8The appellant was self-represented at the trial and on the appeal. He testified at trial. He admitted coming out of his apartment and telling the police to fuck off. He said he was frustrated by the fact that he had been receiving offence notices for noise violations on an ongoing basis. He believed the other residents of the building were getting together to try and have him evicted. He said he slammed his door but denied making any threats. He testified he came back out of his apartment and yelled at a wall without threatening anyone.

The Conviction Appeal

9The appellant submits that the trial judge failed to consider important items of evidence and that the verdicts are unreasonable and unsupported by the evidence.

10When I asked the appellant what evidence was overlooked he referred to the evidence recorded on Mr. Whitten’s iPhone. In elaborating on the point Mr. Brooks emphasized that no threats were recorded on the iPhone. Rather, as he testified at trial, he submits the iPhone recorded only a question he posed loudly in the hallway.

11The appellant then went on to make reference to a number of other items of evidence he submits were “overlooked” by the trial judge. He submitted that Ms. Homewood did not have an unobstructed view and could not confirm the contents of her 9-1-1 calls. He submitted that the trial judge preferring the evidence of Ms. Homewood about threats, over that of the iPhone recording, was unreasonable.

12The appellant then made reference to various items of evidence which suggested that the other witnesses had a motive to have him evicted and submitted that the trial judge did not give adequate consideration to such evidence of motive, or to evidence that he had been provoked. He also submitted that it was open to the trial judge to find that it was the police who were making noise banging on his door when they were trying to serve him with an offence notice and that that was the disturbance the other tenants heard. Other similar submissions were advanced.

13It quickly became apparent that what the appellant really wanted the court to do was to retry the case. That, of course, is not the function of an appellate court. Absent a demonstration of palpable and overriding error I must accept the trial judge’s findings of fact. Factual findings include Her Honour’s assessment of the credibility of the various witnesses. The trial judge explained why the appellant’s evidence did not raise a reasonable doubt and why she accepted the evidence of the Crown witnesses.

14Having considered all of the appellant’s submissions and doing my best to consider them from the perspective of appropriate appellate review, I am not persuaded the trial judge made any error.

15The trial judge’s reasons are very thorough for oral reasons. She carefully reviewed the evidence of each witness. She made specific reference to the iPhone recording, noting that the evidence indicated it was only a partial recording of what transpired. That finding is well supported by the evidence of Ms. Whitten’s son, who made the recording.

16When I compare the trial judge’s reasons to the appellant’s submissions I conclude I must reject the appellant’s submissions that the trial judge misapprehended the evidence by failing to take such evidence into account. The trial judge’s reasons show that she was aware of all of the evidence. She, however, determined that it fit together in a different manner than the appellant had hoped for.

17It is for a trial judge to sift and sort through the evidence. A trial judge is entitled to accept some, none, or all of the evidence of each witness. The appellant has not demonstrated that any palpable or overriding factual error or any error of law was made by the trial judge in undertaking that process.

18Nor am I able to conclude that the verdicts in the case are unreasonable. In considering that question I must re-examine and to some extent re-weigh and consider the evidence, but only for the purpose of determining whether the verdict is one that a properly instructed jury or jurist could reasonably have rendered. When the decision of a judge alone is being reviewed on this basis, their reasons must be examined for any unreasonable conclusions, bearing in mind that it was the trial judge who had the advantage of seeing and hearing the witnesses: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; R. v Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. A verdict may be found to be unreasonable where a trial judge has made an essential finding of fact that is plainly contradicted by the evidence or which is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge, thereby resulting in a misapprehension of the evidence: R. v R. P., 2012, SCC 22, at para. 9. Having reviewed all of the evidence and compared it to the trial judge’s reasons read on a whole, I conclude the trial judge’s verdicts are entirely reasonable and well supported by the evidence.

19The conviction appeal is dismissed.

20The respondent has invited me to stay the conviction registered on the two harassment charges pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 should I otherwise dismiss the conviction appeal. The respondent takes this position because the trial judge used identical findings of fact to support the convictions for both the threatening counts and the harassment counts. Crown counsel advises me he has located out of province appellate authority to support the application of Kienapple in such circumstances.

21Without deciding the legal point, I will follow this approach as it is in the appellant’s interest. Accordingly, while the appeal against conviction is dismissed, a conditional stay is entered in relation to counts 5 and 6 of the information. I observe that when proceeding by summary conviction the criminal harassment charges are less serious than the threatening death charges viewed from the perspective of the maximum sentence available.

The Sentence Appeal

22Turning to the sentence appeal, the appellant submits that because he is now homeless the conditions in his probation order invite further breach charges. He submits he is unable to comply with conditions that he live at a place approved of by his probation officer and that he attend for counselling as required.

23I conclude that the sentence imposed by the trial judge was and is a fit sentence. The trial judge rejected the Crown’s submission that there should be a short jail sentence. She suspended sentence and imposed probation in a genuine attempt to help the appellant. Based on all that I have seen the appellant could benefit from counselling. The trial judge also suggested that the appellant should seek assistance from his probation officer and counsellors in resolving his housing problem. She was very reluctant to impose conditions which prevented the appellant from living in the subsidized or low rental building where he was living, but really had no alternative due to the victims’ fear of the appellant and the appellant’s actions while living in the building. The appellant is not liable for conviction for breach of probation unless his conduct is wilful.

24The appellant submits he should simply be ordered to “keep the peace and be of good behaviour”. That would amount to no consequences for committing the offences and would not protect the complainants or eliminate their fears.

25In the circumstances the trial judge’s sentence was entirely appropriate. The appellant is obviously intelligent. He did an admirable job presenting his appeal. But he has certain issues to contend with and it would benefit the appellant and the community for him to attend counselling.

26The sentence appeal is also dismissed, with one adjustment.

27The adjustment relates to the firearms and weapons prohibition. The trial judge imposed an order pursuant to s.109 of the Criminal Code for ten years. An order pursuant to s.109 was mandatory given the conviction for criminal harassment. However, those convictions have now been stayed.

28In the circumstances, a similar order is appropriate pursuant to the discretionary provision of s.110 of the Criminal Code. I order that the appellant be subject to a firearms and weapons prohibition pursuant to s.110 of the Criminal Code for ten years from the date of the original sentence.

Dawson, J.