COURT FILE NO.: CR-16-31-00AP DATE: 20170427
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen Peter M. Leger, for the Respondent Respondent
- and -
Eli McDonald Self-Represented Appellant
HEARD: April 25, 2017
REASONS FOR JUDGMENT
[On appeal from the judgment of and the sentence imposed by Bradley J. on July 7, 2016 and August 19, 2016 ]
Conlan, J.
Introduction
[1] This is a Summary Conviction Appeal brought by Mr. McDonald. He acted for himself on the Appeal.
[2] On April 25 and June 7, 2015, in the Ontario Court of Justice sitting in Owen Sound, Mr. McDonald was tried on two counts of breach of probation contrary to subsection 733.1(1) of the Criminal Code.
[3] The probation order at issue (“Order”) was made on September 4, 2014. Mr. McDonald had, at that time, been found guilty of criminal harassment.
[4] The first allegation for trial was that Mr. McDonald breached the condition of the Order that prohibited him from contacting or communicating with in any way, directly or indirectly, by any means including electronic, Leeann Hampton (the victim of the harassment), with some exceptions including the prior written revocable consent of both Ms. Hampton and the probation officer.
[5] The second allegation for trial was that Mr. McDonald breached the condition of the Order that required him to keep the peace and be of good behaviour.
[6] Both allegations stemmed from the same offence date – October 6, 2015.
[7] To the benefit of Mr. McDonald, the trial judge treated count 2 as requiring a communication separate and apart from that underpinning count 1.
[8] The Crown called two witnesses at trial – Katie Bosveld, the probation officer, and Ms. Hampton. The Order was made an Exhibit at trial. A memo from Ms. Bosveld to Mr. McDonald dated October 6, 2015, revoking the consent for all permitted contact between him and Ms. Hampton, was also made an Exhibit at trial.
[9] Mr. McDonald was represented by counsel and testified at trial.
[10] The Defence also called a second witness – Doctor Van Dorp, Mr. McDonald’s physician at the time of the alleged offences.
[11] There was an issue at trial as to the precise timing of any contact that there might have been between Mr. McDonald and Ms. Hampton on the date in question, and the doctor was called as a witness to give evidence about seeing Mr. McDonald in his office on October 6, 2015 at the time of the alleged telephone call. The doctor’s schedule for that day was marked an Exhibit at trial.
[12] On July 7, 2016, the trial judge delivered an oral judgment. Mr. McDonald was found guilty on count 1 – the breach of probation for having contact with Ms. Hampton. He was acquitted on count 2 – the breach of probation for failure to keep the peace and be of good behaviour.
[13] The trial judge accepted the evidence of Ms. Bosveld and found that Mr. McDonald met with her on October 6, 2015 between 11:20 and 11:30 a.m., at which time Ms. Bosveld gave to Mr. McDonald written notification that consent for all permissible contact between him and Ms. Hampton was revoked.
[14] There was a finding made by the trial judge that, after that meeting, Mr. McDonald was fully aware of the revocation of any consent that had been in place previously in terms of contact between him and Ms. Hampton.
[15] The trial judge accepted the evidence of Ms. Hampton that, at about 3:48 p.m. on October 6, 2015, Mr. McDonald called her on her cellular telephone and said something like “Lee, are you sure this is what you want to do?”. Presumably, that was a reference to her decision to ask that the consent for contact between her and Mr. McDonald be revoked.
[16] The trial judge went through the classic W.(D.) analysis and rejected the evidence of Mr. McDonald. Specifically, the trial judge disbelieved and was not left in a reasonable doubt by the evidence of Mr. McDonald that he was with his doctor from 3:45 to 4:30 p.m. on the date in question but accidentally “pocket dialed” Ms. Hampton two times while he was with Dr. Van Dorp.
[17] Concerning the doctor’s evidence, the trial judge found that it did not necessarily help Mr. McDonald because, although Mr. McDonald was scheduled for an appointment at 3:45 p.m. on the date in question, the doctor did not check the time as to when the consultation began and acknowledged at trial that he could be off in his time estimates by five minutes or so.
[18] That concession was important because, for example, it meant that there was ample opportunity for Mr. McDonald to have placed the call to Ms. Hampton at 3:48 p.m., just before the consultation with the doctor began.
[19] The acquittal on count 2 was based on a reasonable doubt held by the trial judge that a second call placed to Ms. Hampton within minutes of the first, which call she ignored, was actually from Mr. McDonald.
[20] Sentence was imposed at Court on August 19, 2016. In addition to two days of presentence custody credited at the equivalent of three days, the sentence imposed was thirty (30) days in jail to be followed by 18 months of probation.
The Grounds of Appeal
[21] Mr. McDonald appeals both the conviction and the sentence.
[22] In writing, Mr. McDonald initially submitted the following: (i) that the trial judge erred in accepting the evidence of Ms. Hampton and finding her to be credible, (ii) that the trial judge erred in rejecting the evidence of Mr. McDonald and finding him to be incredible, and (iii) that the trial judge erred “by accepting a theory of the Crown as evidence”.
[23] A subsequent Notice of Appeal alleged the following:
(i) that the trial judge reversed the burden of proof and erred on the second and third branches of the W.(D.) analysis; (ii) that the trial judge misapprehended the evidence of Ms. Hampton; (iii) that the trial judge failed to consider and misapprehended the evidence of Mr. McDonald; (iv) that the trial judge failed to consider or give enough weight to the evidence of the doctor; (v) that the trial judge speculated about the nature of two voice-mails left by Mr. McDonald for Ms. Hampton; (vi) that the trial judge misapprehended the evidence about a “pocket call”; (vii) that the trial judge failed to consider or give enough weight to the letters of support for Mr. McDonald filed at the time of sentencing; (viii) that, on sentence, the trial judge failed to consider or give enough weight to the length and conditions of Mr. McDonald’s bail; (ix) that the trial judge overemphasized denunciation and deterrence in rejecting a plea for a conditional sentence; and (x) that the trial judge imposed a demonstrably unfit sentence.
The Standard of Review and the Basic Legal Principles
[24] As the Appellant, Mr. McDonald has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.
[25] On the matter of the conviction, under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and (iii) there was a miscarriage of justice.
[26] Absent an error of law or a miscarriage of justice, the test to be applied by this Court is whether the findings of the judge below are unreasonable or cannot be supported by the evidence. Factual findings are entitled to deference, absent palpable and overriding error. It is not the purview of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12.
[27] A verdict is unreasonable if it is one that a properly instructed jury or judge could not have rendered. R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746.
[28] Regarding the sentence, I adopt the following, paragraphs 10 through 12, of the decision of Fragomeni J. in R. v. D.V., 2013 ONSC 1275:
[10] A variation in the sentence should only be made if the Court of Appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable (R. v. Shropshire, 1995 SCC 47, [1995] 4 S.C.R. 227 at para. 46).
[11] In R. v. M. (C.A.), [1996] 1 SCR 500 the Court stated at para. 90 in part:
… absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[12] Finally, in R. v. Hamilton, 2004 ONCA 5549, 72 O.R. (3d) 1 Doherty J.A. stated the following at para. 85:
Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses. The individualistic nature of the sentencing process, the myriad of factors to be balanced, and the absence of any single "correct" sentencing response in most cases dictates that appellate courts defer to sentencing decisions made by trial judges. That deference is reflected in the now well-established standard of appellate review applicable on sentence appeals. A court will vary a sentence only if it reflects an error in principle, demonstrates a failure to consider a relevant factor or to give appropriate weight to a relevant factor, or is demonstrably unfit.
Analysis and Conclusion
Every ground of appeal fails, and the Appeal is therefore dismissed.
Conviction Appeal
Reversal of the Burden of Proof
[29] This issue was not the subject of any oral submissions by Mr. McDonald.
[30] There is no merit to this argument.
[31] At pages 10 and 11 of the transcript of the Reasons for Judgment, the trial judge expressly referred to the standard of proof as being beyond a reasonable doubt, and clearly the recitation of the third branch of W.(D.) on page 10 of the transcript makes it clear that the trial judge understood that the onus was on the prosecution.
[32] The very fact that Mr. McDonald was acquitted on count 2 illustrates that the trial judge did not shift the burden of proof onto the accused.
[33] This is not an example of a trial judge simply reciting the three steps of W.(D.) in some robotic way and then doing something contrary to that analysis.
[34] Here, the trial judge gave reasons for not believing and not being left with a reasonable doubt by the evidence of Mr. McDonald – his testimony about the two voice-mails made no common sense, his testimony about the “pocket dialing” had no air of reality to it, he frequently rambled, and he was prone to speculation (see pages 8 and 9 of the transcript of the Reasons for Judgment). Then, the trial judge gave reasons for not being left with a reasonable doubt on the third prong of W.(D.) – the evidence of Ms. Hampton was accepted as it was found to be consistent, unshaken and credible (pages 7 and 10-11 of the transcript).
Misapprehensions of the Evidence
[35] This issue was not the subject of any oral submissions by Mr. McDonald, except for a passing reference to “pocket calls”.
[36] This was a very, very simple case. Both the validity of the Order and that Mr. McDonald was fully aware of the change that became effective the morning of the offence date were not disputed. The only crucial factual issue for the trial judge to resolve was whether Mr. McDonald telephoned and spoke to Ms. Hampton in the afternoon on October 6, 2015.
[37] On that crucial issue, there was no misapprehension of any evidence adduced at trial, nor is there any allegation by Mr. McDonald that there was.
[38] Ms. Hampton testified that he did call and speak to her. Mr. McDonald stated that he did not. The trial judge was aware of that conflicting evidence.
[39] Thus, assuming without deciding that the trial judge misapprehended something else, though unspecified as it is, it matters not as it was immaterial to the verdict.
[40] On the “pocket calls”, there was no misunderstanding by the trial judge. The possibility of an accidental dialing of a number was acknowledged by the trial judge, however, that could not have explained what happened here because the trial judge accepted the evidence of Ms. Hampton that Mr. McDonald actually spoke to her when she answered her cellular telephone in the late afternoon on the date in question.
The Doctor’s Evidence
[41] The weight to be attached to a witness’ evidence is an issue for the trier of fact to decide. All, some or none of any witness’ evidence may be accepted.
[42] Here, the trial judge in no way ignored or failed to account for the evidence of Dr. Van Dorp. It was specifically referred to at page 7 of the transcript of the Reasons for Judgment.
[43] The trial judge simply found that the offence could have been committed even accepting the evidence of the doctor, given that his time estimates could have been off by a few minutes.
[44] Mr. McDonald admitted in oral argument that the doctor’s evidence was not “air-tight” and was a “best guess”. In those circumstances, the trial judge can hardly be faulted for the way in which Dr. Van Dorp’s evidence was handled.
The Two Voice-Mails
[45] This was the major issue pressed by Mr. McDonald in oral submissions.
[46] The argument by Mr. McDonald is that there is something that does not jive about the decision of the trial judge. On the one hand, the evidence of Mr. McDonald was found to be incredible. On the other hand, the trial judge used two voice-mails left by Mr. McDonald for Ms. Hampton earlier in the day on October 6, 2015 to augment the decision to find him guilty, which is strange, says Mr. McDonald, because only he testified about those voice-mails actually having been left.
[47] Mr. McDonald’s argument, at first glance, has some steam behind it until one actually looks carefully at the evidence and the Reasons for Judgment.
[48] First, it is not true, as suggested by Mr. McDonald in oral submissions, that Ms. Hampton was in any way uncertain or inconsistent about those two voice-mails.
[49] Reading her testimony as a whole, she remained consistent that the voice-mails were not left for her by Mr. McDonald in the morning on the date in question.
[50] Second, it is not true, as suggested by Mr. McDonald in oral submissions, that the trial judge found as a fact that those two voice-mails were left by Mr. McDonald. The Reasons for Judgment refer, repeatedly, to the messages as having been “allegedly” left (see page 8 of the transcript).
[51] The trial judge was simply expressing that, if the voice-mails were left as alleged by Mr. McDonald, they do not make any sense as the first one was mean and the second one, left very shortly thereafter, was an expression of love.
[52] As for Mr. McDonald’s submission that the trial judge mischaracterized the nature and tenor of the alleged voice-mails or somehow speculated in that regard, I disagree. The words of the first alleged message speak for themselves – see the top of page 8 of the transcript of the Reasons for Judgment.
[53] If that is not “confrontational”, as described by the trial judge, then I do not know what is.
[54] The conviction appeal is dismissed.
The Sentence Appeal
[55] Assuming without deciding that Mr. McDonald is correct in that the trial judge erred in one or more of the ways alleged with respect to the sentencing, the offender has lost sight of the real issue.
[56] In 2014, for the exact same offence of breach of probation, Mr. McDonald received a 90-day intermittent jail sentence. Mr. McDonald, without provocation, volunteered before this Court in oral submissions that he pleaded guilty to his criminal misdeeds in 2014.
[57] Here, after a contested trial, he received a much shorter jail sentence.
[58] It was a kindness. It was surely not manifestly or demonstrably unfit.
[59] Perhaps the short length of the jail sentence was offset by a longer probation order (18 months). Mr. McDonald states that is too long. Although I may have foregone the further probation on the basis that we can only babysit adults for so long, I cannot say that another chance for rehabilitation and an extended period of time of protection for the victim were unreasonable.
[60] The sentence appeal is dismissed.
Conlan, J.
Released: April 27, 2017