Court File and Parties

CITATION: R. v. REILLY, 2016 ONSC 4942 COURT FILE NO.: CR-14-70000142-00AP DATE: 20160804

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND: PATRICK OWEN REILLY, Appellant

BEFORE: MacDonnell, J.

COUNSEL: Atrisha S. Lewis for the Appellant Darren Hogan for the Respondent

HEARD: March 24, 2016

APPEAL BOOK ENDORSEMENT

[1] On October 9, 2014 the appellant appeared before Justice Sarah Cleghorn in the Ontario Court of Justice in Toronto and pleaded not guilty to a charge that on or about February 11, 2014 he did "by electronic mail knowingly convey a threat to cause death to Justice Richard Libman" contrary to section 264.1(1)(a) of the Criminal Code. In support of the charge, the Crown called two witnesses: the appellant's former lawyer, Stephen Stafford, and the officer in charge of the case, Detective Shankaran. The appellant did not testify and did not adduce any evidence. The trial judge found the appellant guilty as charged. Bearing in mind the 177 days of pre-trial custody served by the appellant, the trial judge suspended the passing of sentence and placed the appellant on probation.

[2] The appellant appeals only against conviction.

A. The Background

[3] On March 9, 2007 the appellant was charged with two counts of assaulting a peace officer. The matter came on for trial before Justice Libman on November 20, 2008. On August 27, 2009, Justice Libman found the appellant guilty of both counts. On March 2, 2010 he suspended the passing of sentence and placed the appellant on probation.

[4] Stephen Stafford represented the appellant throughout the proceedings before Justice Libman. He testified, in the case at bar, that subsequent to those proceedings he had received a number of emails from the appellant indicating that he was "quite upset" with the convictions and manifesting an intention to appeal.

[5] On November 21, 2012 the appellant's appeal was heard by Justice Code of this Court. Mr. Stafford had no involvement in the appeal proceedings. The appeal was dismissed.

B. The February 11, 2014 Email

[6] On February 11, 2014, Mr. Stafford received the following email:

From: P Reilly studytopics@gmail.com Date: February 11, 2014 at 3:59:18 AM EST To: rlibman rlibman@uwo.ca Cc: staffordlaw@bellnet.ca Subject: smug

Time to make amends, asshole. Truly, you are A fucking lying piece of shit. said loudly by Mr. Patrick Reilly. So, you doctored the transcripts did you, asshole? SMUCK! LET'S SEE HOW LONG YOUR LIFESPAN REACHES. adios.

[7] After consulting with senior counsel, Mr. Stafford reported the receipt of the email to the police, who commenced the investigation that led to the charge of conveying a threat to cause death.

C. The Reasons of the Trial Judge

[8] In the course of his final submissions, the appellant's trial counsel submitted that the Crown had failed to prove beyond a reasonable doubt that the appellant was the person who sent the February 11, 2014 email to Mr. Stafford. Further, he submitted, even if the appellant did send the email, the Crown had failed to prove that it contained a threat to cause death.

[9] The trial judge rejected both of those submissions. She measured the content of the email against the facts of the prior proceedings before Justice Libman and concluded that the inference to be drawn was that the appellant was the person who had sent it. Further, she concluded that in the context of the prior dealings between the appellant and Justice Libman, "a reasonable person would view the contents to be a threat...", and that "the statement 'let's see how long your lifespan reaches' can only be viewed as a threat".

D. The Grounds of Appeal

[10] In broad terms, the appellant raises two grounds of appeal:

(i) the trial judge erred in relying on the contents of the email to establish the identity of the sender; and

(ii) the trial judge erred in finding that the email contained a threat to cause death.

(i) the trial judge's reliance on the contents of the email

[11] With respect to the trial judge's reliance on the contents of the email, the appellant makes five submissions: (a) the email was not properly authenticated in accordance with s. 31.1 of the Canada Evidence Act; (b) the trial judge improperly relied on the fact that the email purported to be sent by "P Reilly" or "Patrick Reilly" to establish the identity of the sender; (c) the trial judge's reliance on the name of the sender as set out within the email cannot be justified under the principled approach to the rule against hearsay; (d) the trial judge misapprehended the evidence of Mr. Stafford; and (e) a conclusion that the email was sent by the appellant was unreasonable.

(a)

[12] Assuming without deciding that s. 31.1 of the Canada Evidence Act had any application to this case, compliance with its terms simply required evidence that what was tendered as Exhibit 3, a hard copy of an email, was authentic in the sense that the underlying document was "what it [was] purported to be", namely an email that was received electronically by Mr. Stafford. The unchallenged testimony of Mr. Stafford was that he received the document on his email account on the morning of February 11, 2014. In relation to authentication, nothing further was required. Once authenticity was established, the admissibility of the email fell to be determined in accordance with the ordinary rules of evidence, and in particular with the primary rule that all evidence that is logically probative (i.e., relevant) is admissible unless excluded by a rule of law or practice: R. v. Zeolowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378, at paragraph 18.

(b)

[13] In considering whether the Crown had proved beyond a reasonable doubt that the appellant was the person who had sent the email to Mr. Stafford the trial judge took into account that the name "P Reilly" appeared in the "From" line of the email and that in the body of the document the sender purported to identify himself as "Patrick Reilly". The appellant argues that in relying on those facts the trial judge fell afoul of the rule against hearsay evidence.

[14] I disagree.

[15] First, I do not accept that the use that the trial judge made of the presence of the appellant's name in the email was a hearsay use. The fact that the sender self-identified as P Reilly and Patrick Reilly was a circumstance that, when combined with other aspects of the email, significantly narrowed the population of persons who might have sent the document to Mr. Stafford. As Justice Sopinka stated in somewhat analogous circumstances in R. v. Evans, 1993 CanLII 86 (SCC), [1993] S.C.J. No. 115, at paragraph 19:

On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize that the statements are not being used as truth of their contents at this stage. [emphasis added]

See also R. v. Brown, 2003 CanLII 27393 (ON SC), [2003] O.J. No. 2152 (Ont. Sup. Ct.), at paragraphs 21-24.

[16] By itself, the fact that the sender identified himself as P Reilly and Patrick Reilly might have been of slight probative value. When placed into the context of all of the other circumstantial evidence, however, and when the whole of that evidence was considered, it was open to the trial judge to come to a different conclusion. The other circumstances included the fact that main recipient of the email was "rlibman", that the appellant had been tried and convicted by Justice Rick Libman, that the email was copied to Mr. Stafford, that Mr. Stafford had been the appellant's counsel in the proceedings before Justice Libman, that the email was manifestly an expression of anger at "rlibman", that the appellant had previously communicated to Mr. Stafford that he was very upset with the convictions registered by Justice Libman, that the appellant had unsuccessfully appealed those convictions, and that the email accused "rlibman" of 'doctoring' some transcripts.

[17] Second, even if the trial judge did take the sender's declaration of his name into account for its truth, the trial judge did not err. At common law, statements of self-identification are admissible as an exception to the general rule against hearsay evidence: see, e.g., R. v. Brown, supra, at paragraphs 25-29; R. v. Farah, [2016] O.J. No. 2296 (Ont. Sup. Ct.), at paragraphs 55-57; R. v. Williams, 2013 ONSC 1303, [2013] O.J. No. 958 (Ont. Sup. Ct.), at paragraphs 22-28.

(c)

[18] If a statement falls within one of the common law exceptions to the hearsay rule, there is no requirement that the party tendering it establish that that it would also be admissible under the principled approach to hearsay; rather, it is for the party opposing admission to establish that it would not: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paragraph 60. The appellant made no effort to meet that burden in this case.

(d)

[19] I do not agree that the trial judge relied on a misapprehension of the evidence of Mr. Stafford in coming to the conclusion that the email had been sent by the appellant. The sentence of which the appellant complains was merely an observation about the inference that Mr. Stafford had drawn. The trial judge then went on to outline some of the circumstances that persuaded her that it was the appellant who had sent the email, namely the contents of email and the context in which it was sent.

(e)

[20] The trial judge's conclusion that the identity of the appellant as the person who had sent the email had been proved beyond a reasonable doubt was not unreasonable. It was open to the trial judge, after considering the circumstances as a whole, to conclude that the only rational inference was that the appellant had sent it.

(ii) Did the email contain a threat of death?

[21] The appellant submits that the trial judge erred in concluding that the statement "let's see how long your lifespan reaches" constituted a threat to cause death. He submits that it "could also be viewed as a general statement, an observation or a prediction" or merely "as an expression of frustration".

[22] Whether particular words constitute a threat is a question of law to be decided on an objective standard. The question "turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed": R. v. McRae, 2013 SCC 68, at paragraphs 10 and 13. Taking into account the context in which the email surfaced, the deep anger that the appellant manifestly harbored toward Justice Libman, and the appellant's statement that it was "time to make amends", the only reasonable interpretation of the statement "let's see how long your lifespan reaches" is that it constituted a threat to cause death. The trial judge did not err in adopting that interpretation.

E. Disposition

[23] For the foregoing reasons, the appeal is dismissed.

MacDonnell, J.

Date: August 4, 2016