CITATION: R. v. Reyes, 2017 ONSC 5523
COURT FILE NO.: 138/16
DATE: 20170921
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
A. Khoorshed, for the Respondent
Respondent
- and -
ALTHEA REYES
V. Rondinelli, for the Appellant
Appellant
HEARD: July 19, 2017 in Milton
REASONS FOR JUDGMENT
[On appeal from the conviction of Baldwin J. dated November 15, 2016]
André J.
[1] Ms. Althea Reyes appeals her November 15, 2016 conviction of dangerous driving and failing to remain at the scene of an accident. She also appeals the sentence imposed on her which involves a term of imprisonment of two months in addition to the credit she received for pretrial custody.
BACKGROUND FACTS
[2] The trial judge found beyond a reasonable doubt that on January 11, 2011, Ms. Reyes deliberately used her vehicle as a weapon to run down and strike Ms. Sandra Paldino, who had sued Ms. Reyes in Small Claims Court for money that Ms. Reyes owed her. Ms. Reyes ran down Ms. Paldino while her own child was seated in the back seat of her car.
[3] The court relied on Ms. Paldino’s Victim Impact Statement which explained that as a result of Ms. Reyes’ actions, the victim suffers chronic back pain and has undergone physiotherapy weekly since the accident. Furthermore, Ms. Paldino has to visit an oral surgeon every six months and is required to wear a mouth appliance daily because her jaw shifted with the impact of the car. She also suffered a serious ankle injury which has caused her to limp. Finally, Ms. Paldino was forced to give up the job she previously enjoyed because of the physical and emotional injuries she has suffered as a result of the incident.
SENTENCE
[4] While the Crown and defence did not agree to a joint submission, both essentially submitted that, after taking into consideration Ms. Reyes’ pretrial custody, the appropriate sentence was one of a time served, probation, and a driving prohibition. Ms. Reyes served 135 days of pretrial custody for which she has received credit of 202 days or 6.75 months.
[5] The trial judge imposed the following sentence:
- Dangerous Driving: 5 months jail (less 5 months pretrial custody) or 1 day in jail;
- Fail to Remain: 4 months imprisonment consecutive, less 1.75 months of pretrial custody, or an additional term of imprisonment of 2 months;
- a 4-year driving prohibition;
- 3 years’ probation; and
- a DNA order.
POSITION OF THE APPELLANT
[6] Ms. Reyes’ counsel submits that the following rulings made by the trial judge at the end of the Crown’s case deprived the appellant of a fair trial and cumulatively constitute a reversible error:
(1) Allowing the Crown to amend the information at the close of its case; (2) Denying a defence request for an adjournment, to enable it to contact the 4 to 6 witnesses it intended to call; (3) Refusing to hear evidence regarding a mistrial in another matter involving Ms. Reyes; and (4) Denying defence counsel an opportunity to refresh Ms. Reyes’ memory by having her review a statement during her re-examination.
ANALYSIS
[7] This appeal raises the following issues:
(1) Did the learned trial judge err in law or principle when she allowed the Crown to amend the information at the end of its case? (2) Did the learned trial judge err by denying the defence’s adjournment request? (3) Did the learned trial judge err in law or principle by refusing to hear evidence about a mistrial in another matter involving Ms. Reyes? (4) Did the learned trial judge err by denying defence counsel an opportunity to refresh Ms. Reyes’ memory by having her review a statement during her re-examination? (5) Did the learned trial judge err in law or principle in the sentence imposed on Ms. Reyes?
Did the learned trial judge err in law or principle when she allowed the Crown to amend the information at the end of its case?
[8] Section 601(2) of the Criminal Code provides:
(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred; or
(b) a count in the indictment
(i) as amended, or
(ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to section 587.
[9] In R. v. Moore, [1988] 1 S.C.R. 1097, at paras. 58-59, the Supreme Court of Canada noted:
Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 and its predecessor sections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion to quash. ...
My understanding of s. 529, when read in its entirety, is that it commands the following to the trial judge: absent absolute nullity and subject to certain limits set out in subs. (9), the judge has very wide powers to cure any defect in a charge by amending it; if the mischief to be cured by amendment has misled or prejudiced the accused in his defence, the judge must then determine whether the misleading or prejudice may be removed by an adjournment. If so, he must amend, adjourn and thereafter proceed. But, if the required amendment cannot be made without injustice being done, then and only then the judge is to quash.
[10] The Supreme Court also noted in R. v. Côté, [1996] S.C.J. No. 93 (Q.L.) that the applicable standard in assessing the propriety of a decision to amend an information is whether an accused would suffer “irreparable prejudice” if the information is amended.
Amendment
[11] The Crown requested to amend Count 2 on the information relating to the charge of failure to remain. It read in part as follows:
With intent to escape civil or criminal liability, did fail to stop the vehicle give her name and address, contrary to section 252 of the Criminal Code.
[12] The Crown sought the insertion of the following phrase before the word “contrary”:
And offer assistance to Sandra Paldino, a person who appeared to require assistance.
[13] The trial judge ruled at page 47 of the June 6, 2016 transcript of the evidence that “the amendment would not prejudice the accused and [sic] one which is done out of abundance of caution”.
[14] In my view, the appellant was not prejudiced by the amendment. Both the disclosure and the evidence indicated that following the incident, Ms. Reyes had simply driven off without stopping her vehicle. It is simply a matter of common knowledge that she failed to offer assistance to Ms. Paldino when she drove away. To that extent, this ground of appeal fails.
Did the learned trial judge err by denying the defence’s adjournment request?
[15] At the conclusion of the Crown’s case, the trial judge asked whether the defence was calling any evidence “at the trial at large”. Ms. Reyes’ trial lawyer advised the court that there were no witnesses present but that Ms. Reyes intended to call witnesses: see Transcript of the Evidence, June 6, 2016, page 51.
[16] When the trial judge asked defence counsel why were the witnesses not present, she replied: “I have just been provided the list.”
[17] Ms. Reyes then told the court that she had tried to get an extension of her curfew from the Crown to enable her to travel to Ottawa in order to gather her evidence. She said she needed to go to Ottawa where she had been living “to get the names of the witnesses, their contact information, and Ms. Paldino’s file while she was a volunteer with our organization”. The Crown had denied her request. She therefore sought the court’s assistance to travel to Ottawa to get the required evidence.
[18] The trial judge pointed out to Ms. Reyes that at the judicial pretrial, Ms. Lipson, her counsel, had indicated that there would be “zero to one witness” for the defence: see Transcript of the Evidence, June 6, 2016, page 52.
[19] Ms. Reyes’ counsel provided the court with the names of the prospective witnesses. However, the Crown pointed out that the charges against Ms. Reyes had been outstanding since 2011; that there had been a mistrial declared in an earlier trial; that many of the Crown’s witnesses had testified in that earlier trial; and that the statements of these witnesses had all been provided to Ms. Reyes.
[20] The Crown also pointed out that there were no defence witnesses present on April 13 and 14, 2016, the earlier dates set for the trial.
[21] The trial judge at page 57 denied the application for an adjournment of the trial because there had not been any discussion at the judicial pretrial that Ms. Reyes would be adducing evidence on tangential matters.
[22] In my view, the trial judge did not err in denying the request for an adjournment. The trial judge has the authority to control the trial, and by extension, the discretion to grant or refuse requests for an adjournment: R. v. Nichols, [2001] O.J. No. 3220 (Ont. C.A.) at para. 23; R. v. Hazout, [2005] O.J. No. 3550 (Ont. C.A.). The decision to adjourn a trial is a discretionary one which involves scrupulous and judicial balancing of an accused’s right to make a full answer and defence and the administration of justice: see Mankos v. The Queen (1980), 17 O.R. (3d) 348 (S.C.C.), at 348.
[23] Ms. Reyes’ explanation for the absence of her witnesses made little sense. She had ample time to contact any potential witness by phone, fax, email, or other electronic means to ensure their presence at the trial. Second, she only gave the list of her witnesses to her trial counsel on the morning of her request for an adjournment. Quite clearly, she was, to put it charitably, less than diligent in securing the attendance of her witnesses at the trial.
[24] Furthermore, the anticipated evidence of these witnesses can best be regarded as tangential; without any direct relevance to the issues in the trial. Counsel for Ms. Reyes stated at page 54 that one witness was anticipated to testify about stalking, another about what happened when Ms. Paldino attempted to serve Ms. Reyes, and a third was expected to testify about witnessing Ms. Paldino’s car around Ms. Reyes’ home on various occasions and on the date of the event. Another witness was allegedly on the phone with Ms. Paldino when the incident occurred. One would have expected that Ms. Reyes would have made efforts to subpoena these individuals but she patently failed to take any steps to do so.
[25] For this reason, this ground of appeal fails.
Did the learned trial judge err in law or principle by refusing to hear evidence about a mistrial in another matter involving Ms. Reyes?
[26] Ms. Reyes had a trial before Cooper J. which ended in a declaration of a mistrial. Ms. Reyes raised the issue of witness collusion during that trial on April 1, 2014, claiming that she had witnessed three of the Crown’s witnesses talking to Ms. Paldino. During the trial, Cooper J. required Ms. Reyes to continue the trial without legal representation. This was after her lawyer obtained a court order removing himself as solicitor of record.
[27] Ms. Reyes advised Baldwin J., who heard the retrial, that the trial judge’s decision to require her to proceed in spite of not having a lawyer was an error. She also advised Baldwin J. that her Charter application was “about the fact that the witnesses and complainant were in the same room together, and the complainant prejudiced them, the trial and prejudiced their evidence [sic].” Baldwin J. refused to hear and discussion of the earlier mistrial: see Transcript of the Evidence, June 6, 2016, pages 60, 63-64.
[28] Subsequently, Baldwin J. refused to deal with the Charter application since the judicial pretrial form indicated that no Charter applications of any kind would be brought during the trial: Transcript of the Evidence, June 7, 2016.
[29] In my view, there is no merit to this ground of appeal. At the retrial, Ms. Reyes’ counsel had every opportunity to cross-examine the Crown’s witnesses about the issue of collusion. She also had the opportunity to cross-examine them on any inconsistent statement they may have given to the police or in their testimony at the earlier trial. Indeed, Ms. Reyes’ trial counsel cross-examined the Crown’s witnesses on statements which they had given to the police: Transcript of the Evidence, April 13, 2016, pages 59, 115. The issue of any alleged collusion during the first trial was therefore a matter for cross-examination at the retrial. The court was correct in refusing to hear evidence about the earlier mistrial as a Charter application.
Did the learned trial judge err by denying defence counsel an opportunity to refresh Ms. Reyes’ memory by having her review a statement during her re-examination?
[30] After the Crown had completed her cross-examination of Ms. Reyes, defence counsel at trial sought to refresh her client’s memory by having Ms. Reyes review her statement to the police. The Crown objected on the grounds that it had not relied on the statement as part of its case and that there had been no finding or agreement that the statement was voluntary. Ms. Reyes’ trial counsel then stated: “Okay. Those are my questions.” (Transcript of the Evidence, June 7, 2016, page 65)
[31] The trial judge never ruled on the Crown’s objection because defence counsel ended her re-examination of Ms. Reyes following the Crown’s objection. To that extent, this ground of appeal fails.
Did the learned trial judge err in law or principle in the sentence imposed on Ms. Reyes?
[32] The trial judge committed two errors in principle when she imposed a sentence on Ms. Reyes which exceeded the Crown’s position on the term of imprisonment and that of the driving prohibition. First, where a trial judge imposes a sentence that exceeds the Crown’s sentencing position, the trial judge must provide the parties with an opportunity to make further submissions: see R. v. R.B., 2017 ONCA 74, [2017] O.J. No. 377; R. v. Hagen, 2011 ONCA 749, [2011] O.J. No. 5365, at para. 5; R. v. Menary, 2012 ONCA 706, [2012] O.J. No. 4957, at para. 3; and R. v. Grant, 2016 ONCA 639, [2016] O.J. No. 4419, at paras. 164-167. The trial judge’s failure to do so constitutes a reversible error.
[33] Second, at page 33 of the Reasons for Sentence dated November 15, 2016, the learned trial judge noted the following:
I agree with the author of the presentence report that she has demonstrated stunning lack of remorse.
It is well established that a lack of remorse should merely be considered as an absence of a mitigating factor: see R. v. K.A., [1999] O.J. No. 2640 (Ont. C.A.) at para. 49; R. v. Reid, 2017 ONCA 430, [2017] O.J. No. 2758, at para. 36.
[34] The trial judge was correct in determining that given Ms. Reyes’ moral culpability, her criminal antecedents and the impact of her actions on the victim, a period of incarceration was warranted. However, Ms. Reyes’ record is relatively minor. It consists of a conviction on October 24, 2013 of fabricating evidence for which she received a suspended sentence and one year’s probation. She was also fined $50 on June 28, 2014 following a conviction for theft under five thousand dollars. Finally, on July 4, 2016, Ms. Reyes was found guilty of breach of a recognizance. She served seven days in pretrial custody and received a conditional discharge and six months’ probation. Given the relatively minor nature of Ms. Reyes’ criminal record and the limited time she spent in custody prior to this offence, a global sentence of time served and probation is appropriate.
[35] On the other hand, Ms. Reyes has a horrendous Highway Traffic Act record. Between 1998 and 2011, she was convicted of driving offences on twenty-five different occasions. She has been convicted of speeding on eight occasions, driving without a valid permit on seven occasions, and failing to have valid insurance on four occasions. She has also been convicted of driving while her licence was suspended and driving without a licence.
CONCLUSION
[36] For the above reasons, Ms. Reyes’ appeal of her conviction is dismissed. Her sentence on count two, that of failing to remain, is varied to a concurrent sentence of time served of 1.75 months imprisonment plus 1 day in jail.
André J.
Released: September 21, 2017
CITATION: R. v. Reyes, 2017 ONSC 5523
COURT FILE NO.: 138/16
DATE: 20170921
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ALTHEA REYES
Appellant
REASONS FOR JUDGMENT
André J.
Released: September 21, 2017