Court File and Parties

Court File No.: 18-30000006AP Date: 2018-08-03 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: Her Majesty The Queen, Applicant Counsel: Paul M. Alexander, for the Crown

- and -

Andre Johnson, Respondent Counsel: Self-Represented

Heard: July 20, 2018, at Toronto, Ontario

Before: Michael G. Quigley J.

Reasons For Ruling

Application for Summary Dismissal of Appeal: s. 685 of the Criminal Code

Introduction

[1] The Respondent, Andre Johnson, has brought an inmate appeal against his conviction on September 26, 2017 by the Honourable Mr. Justice T. Cleary of the Ontario Court of Justice, of assault with a weapon and possession of a weapon, and his subsequent sentence on December 14, 2017. On this application, the Crown seeks an order pursuant to ss. 685 and 822(1) of the Criminal Code summarily dismissing Mr. Johnson’s appeal.

[2] Mr. Johnson filed his appeal on January 10, 2018. To date, no transcripts of the trial or the sentencing hearing have been prepared and filed in support of his appeal, except for the transcript of Reasons for Judgment of the trial judge.

[3] On July 6, 2018, Mr. Johnson brought an application for state funding of counsel for this appeal under s. 684 of the Criminal Code. That application was heard before Dambrot J. In responding to that application, the Crown sought not only to have that application dismissed, but also to have Mr. Johnson’s appeal dismissed summarily in its entirety as being without merit, pursuant to s. 685 of the Criminal Code.

[4] Justice Dambrot dismissed Mr. Johnson’s state funding application under s. 684 on the basis that Mr. Johnson was capable of arguing the appeal without counsel. However, he declined to comment or rule on the Crown’s request that the appeal be dismissed summarily as meritless, on the basis that Mr. Johnson had not been given adequate notice of that relief being sought by the Crown.

[5] This application, brought specifically under s. 685 of the Code, has now formally provided Mr. Johnson with the necessary notice, supplemental to the Crown’s verbal notice at the hearing before Dambrot J., that it is seeking this relief.

Findings of the Trial Judge

[6] The charges against Mr. Johnson and his two co-accused, Daniel Lopez and Andrew Medford, arose out of an assault against a fellow inmate, Mr. Politidis, when all four were being held in the Toronto East Detention Centre.

[7] Mr. Johnson described that altercation to the author of his pre-sentence report as a “jail fight” and told him that he became involved in the altercation, because he was provoked by the complainant, Politidis, who directed racial slurs at him and invited him to fight. Immediately after the altercation, when corrections officers entered the range in the aftermath of the fight, they found two shanks in the washroom area, one on the floor of a toilet stall and one on in the toilet bowl.

[8] The Appellant was found guilty after trial. The events underlying the charge are largely captured on high quality video surveillance footage. The key portion of the video is less than 4 minutes long. The total potentially relevant portion of the video is less than 10 minutes long. The exhibits at trial also included photographs of the facial injuries to the complainant, and the shanks found in the toilet area.

[9] Mr. Johnson complained before me that there were 13 minutes of video surveillance footage that preceded what was played in court at his trial. He indicated that in that period he was insulted and called out by the complainant, Politidis, and told to “come out with your shoes on”, jail jargon for being “ready to fight.” However, while that earlier 13 minute portion of the video surveillance, from 6:00 pm when the cell doors were opened until the recording produced in evidence commenced at 6:13, was not captured on the views from the two operative cameras, the trial judge acknowledged in his reasons and specifically found that Mr. Johnson had been subjected to racial slurs and that it was plain from Mr. Johnson’s evidence, that the trial judge accepted, that Politidis was planning on a fight when the range doors opened.

[10] The trial judge extensively reviewed the video and made numerous findings of what it showed, nineteen to be specific, by his own count. This was from viewing the Camera 512 footage particularly, but also footage from Camera 510. These findings are set out in the trial judge’s reasons commencing at page 5, line 5 of his reasons and continue to page 11, line 3.

[11] Initially, by his observation, Justice Cleary sees Mr. Johnson in a recessed alcove where he can be seen wrapping pieces of torn bedding around his hands to protect them in the fight that ensues. Then Mr. Lopez appears to invite Mr. Politidis to come into the washroom area (it will be remembered there is no accompanying audio to protect inmates’ privacy interests).

[12] About seven seconds after Mr. Lopez enters the washroom area, Mr. Politidis follows. They position themselves facing each other, but at a 45 degree angle to each other. At 15:23, Mr. Johnson moves into the washroom from the alcove at the end of the range where he had been wrapping his hands. That he had been doing so is clear from the video. However, as he comes back into the centre of the room and moves towards the washroom, his hands cannot initially be seen because they are behind his back, apart for a brief glimpse I will comment on later. He enters the washroom area and moves to within arm’s length of Mr. Politidis. Messrs. Lopez and Johnson are in front of Mr. Politidis, one slightly to his left and one slightly to his right.

[13] At 15:40, Mr. Johnson leans forward toward Mr. Politidis, and moves his hands in front so they become visible for the first time. Justice Cleary continues as follows:

At that point Mr. Politidis strikes at Mr. Lopez with his left hand up toward the face, but it is blocked. That was clearly directed toward Mr. Lopez and not Mr. Johnson. At 15:41, Johnson reaches towards Mr. Politidis’ right shoulder, swings at the right side of Mr. Politidis’ face with his right hand in upward motion, and Mr. Lopez is swinging from the complainant's left side.

At 15:42, a second later, Johnson and Lopez are swinging at Politidis as Lui reaches him and Medford has gotten through the opening to the washroom area. At 15:43, both Medford and Lui are grabbing at Politidis and it appears trying to hold him as Johnson and Lopez are swinging.

At 15:45, Johnson repeatedly strikes upward towards the face of Politidis as Lopez continues to swing. Politidis is pushing himself towards the washroom opening and both Lui and Medford appear to be trying to grab him by the head.

At 15:48: Politidis got free from the washroom area, and runs from it. At 15:49 [on Camera 510], Mr. Johnson then goes into the toilet stall, and as he is doing so, he appears to be unwrapping at least one of his hands, or starting to. Everybody else who had been inside that washroom area has left or is leaving through that opening by now.

At 15:53, Mr. Johnson comes out of that toilet stall, goes into the general washroom area, definitively bends over and reaches down with his hands, straightens up, and goes back into the stall. At this point one can see both his hands still have some white appearing, so they are still completely or partly wrapped in that white cloth. Four seconds later at 15:57, he returns or he has gone completely back inside the toilet stall, and six seconds after that, at 16:03 he comes out again and one can see, Correctional Officer Zeeman who enters the day room from the left side of the screen as shown in Camera 510.

At 16:05 Mr. Johnson is seen to let go of one of the wraps, which goes to the washroom floor, relatively close to that short wall but on the inside of it. Then he walks out of the washroom area, and when he is seen completely out in the day room area, he has neither wrap on his hand.

[14] When the corrections officers come into the range, one officer, Officer Zeeman, clearly observes the shanks in plain view, and advises his Sergeant who later comes in to retrieve those shanks.

Issues and Grounds of Appeal

[15] Section 685 of the Criminal Code provides statutory authority for an appeal to be reviewed summarily and dismissed if the appeal is meritless and can be determined without being adjourned for a full hearing. Section 822 applies s. 685 to the summary conviction appeal context that is present here, “with such modifications as the circumstances require.

[16] The Crown argued first, on this application, that after viewing the short surveillance video that shows the altercation, looking at the photographs, and reading the trial judgment, it is plain that there is no merit to any of the grounds of appeal raised by Mr. Johnson.

[17] The Crown went on to argue that a full hearing of this summary conviction appeal would be wasteful of limited available court resources. Certainly, since the landmark ruling in R. v. Jordan, 2016 SCC 27, with the enormous pressures it has imposed on the country’s already overburdened legal system, our courts have diligently taken steps to ensure that resources are not wasted needlessly. However, it is plain that the potential waste of judicial and court resources is of particular concern in the context of summary conviction appeals like this one.

[18] The reason is simple. The justices of this court who preside on summary conviction appeals, from the Ontario Court of Justice, are the same trial judges who regularly preside on trials in the Superior Court. As such, it is obvious that the consumption of judicial and court resources involved in scheduling and hearing a summary conviction appeal necessarily results in one fewer judge being available for a trial.

[19] That, in turn, continues to exacerbate the already backbreaking pressures created by Jordan. Waste contributes to delay, and the Supreme Court has been clear that complacency regarding delay is to be avoided. Thus, in the course of exercising the obligation to move matters forward with as much speed as is reasonably possible, it is as important to reject complacency regarding wasted resources in respect of summary conviction appeals as it is relative to wasted trial resources, because at least in this court, they are the same.

[20] That issue necessarily calls upon judges to permit cases to proceed forward on appeals like this only where there is clearly arguable merit to the appeal. The appeal need not be guaranteed to succeed, but it must at least have an air of reality to it and be arguable on the merits. Appeals that cannot pass that threshold should and must be summarily dismissed. That result must follow because it is plain from Parliament’s enactment of s. 685 and its application in the context of summary conviction appeals that it intended exactly that result in those cases which fail to have arguable merits, or an air of reality.

[21] The Appellant in this case lists four grounds of appeal in the Notice of Appeal, dated January 5, 2018. They are as follows:

(i) the trial judge misapprehended the evidence before him; (ii) the trial judge erred in the manner in which he considered the evidence of self defence; (iii) the trial judge erred in respect of the application of the Rule in Hodge’s Case (1838), 168 ER 1136, where circumstantial evidence is present; and finally (iv) the trial judge relied on speculation to find that the Appellant had the shanks found in the washroom after the altercation had been wrapped in his hands.

[22] I will address each of these grounds in the paragraphs that follow, but before doing so, I note that on this appeal, Mr. Johnson has challenged not only his conviction, but also the sentence imposed upon him by Cleary J. However, he has identified no grounds whatsoever for a sentence appeal. As such, I find that the sentence appeal can and should be dismissed summarily on that basis alone.

[23] Nonetheless, even if grounds had been stated for a sentence appeal, the plain fact is that the offence was serious and aggravated for having occurred within a remand detention centre. As such, and looked at through the proper lens, it is clear to me that the trial judge carefully considered the appropriate or fit sentence for this offender in the context of the circumstances of the case, and that the sentence he imposed was well within the range of appropriate sentences for this crime. His determination of the fit sentence is accordingly entitled to deference by this court. There is no basis to disturb it.

Ground 1: The Trial Judge Misapprehended the Evidence

[24] While claiming that the trial judge misapprehended the evidence, in his appeal, Mr. Johnson has not identified any specific area of the evidence as being the subject of misapprehension, or explained how the trial judge misapprehended such evidence. What is patently clear, however, from the trial judge’s thorough and detailed reasons, and his findings on what was shown on the video surveillance footage from Cameras 512 and 510, is that the trial judge very carefully considered the video evidence. That evidence was compelling.

[25] I reviewed the video surveillance evidence as well, a number of times, and can find no flaw in the observations and findings of the trial judge of what he saw on that footage. Indeed, not only does my review confirm all of his conclusions and factual findings, but I believe that I actually could see the tip of a shank wrapped in Mr. Johnson’s hand for a nano-second, just as he turned from the hallway leading out of the alcove where he had wrapped his hands, into the washroom area where the fight ensued seconds later.

[26] On this basis, having reviewed the video surveillance footage and the trial judge’s reasons, I find that there is no merit to Mr. Johnson’s contention that the trial judge misapprehended the evidence. As such, it would be wasteful to set aside a full hearing to consider that ground.

Ground 2: The trial judge erred in the manner in which he considered the evidence of self-defence

[27] At the trial before Cleary J., Mr. Johnson testified in his defence and he claimed that he acted in self-defence.

[28] First, from a legal perspective, it is important to note that the trial judge specifically adverted to the fundamental principle that “the onus is always on the Crown to prove beyond a reasonable doubt, the elements of any alleged offence.” It is clear that the trial judge did not lose sight of the burden of proof. In a case like this, that required not only that the Crown prove the elements of the offences charged beyond a reasonable doubt, but equally, that it prove beyond a reasonable doubt that Mr. Johnson did not act in self-defence.

[29] There are two important findings that inform the trial judge’s rejection of Mr. Johnson’s claim that he acted in self-defence.

[30] The first, which he freely and specifically acknowledges, as set out above, is that Mr. Johnson had been subjected to racial slurs by Mr. Politidis. He also found that it was plain from Mr. Johnson’s evidence on the point, evidence that he did accept, that Mr. Politidis was planning on a fight when the range doors opened.

[31] Nevertheless, the trial judge also explicitly found that the initial blow by the complainant, Mr. Politidis, was directed at Mr. Lopez, not Mr. Johnson. Mr Johnson was not the initial subject of the complainant’s attack. In reaching this conclusion and drawing certain inferences that he did, the trial judge specifically had in mind Mr. Johnson’s evidence, to which he refers in his reasons, that Mr. Johnson “was punching [that] to protect himself and his cell mate…”

[32] However, the trial judge considered but rejected key parts of the defence evidence relative to self-defence, including, specifically, (i) that Mr. Johnson had never seen the shanks before they were found on the floor of the washroom along with his hand wrappings immediately after the fight, and (ii) that the complainant had taken “a swing” at Mr. Johnson before he responded.

[33] Indeed, noting that the two cellmates, Messrs. Johnson and Lopez, were squared off against Mr. Politidis, the two of them at a 45 degree angle to the complainant who was on his own, the trial judge found that the complainant striking out at Mr. Lopez was “not an unreasonable action for someone in that position.”

[34] I can find no evidential basis for Mr. Johnson’s claim of self-defence here, based on the surveillance video footage alone. The trial judge, accordingly, rejected that aspect of his evidence and accepted that the Crown had proven that Mr. Johnson did not act in self-defence to the criminal standard. In my view, there was a strong evidential foundation for that conclusion. As such, since Mr. Johnson’s claim of self-defence has no merit or air of reality to it, to permit a full appeal hearing to be conducted on this point would actually be a wasteful exercise of simply re-litigating factual findings made by the trial judge based on clear and direct evidence.

Ground 3: The trial judge erred in respect of the Rule in Hodge’s Case

[35] The term “circumstantial evidence” refers to any evidence, which does not itself establish a fact, but from which one or more inferences are or may be drawn to establish material facts. The Rule in Hodge’s Case (1838), 168 ER 1136 established that “in a case made up entirely of circumstantial evidence, before the accused could be found guilty, the jury must be satisfied, not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion, than that the prisoner was the guilty person.”[my emphasis] In R. v. Bui, 2014 ONCA 614, the Court of Appeal makes it clear that what this really means is that in a purely circumstantial case, the accused is entitled to a full reasonable doubt analysis.

[36] Where the question of guilt relates exclusively or almost exclusively to circumstantial evidence and inferences that are said to prove the charge beyond a reasonable doubt, before a trier of fact can find the accused guilty, the inference drawn that leads to that result must be the only reasonable inference available. If there is more than one reasonable inference that can be drawn from that evidence, the accused must be acquitted because the “beyond a reasonable doubt” standard would not be satisfied. Stated differently, the question is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence". R. v. Griffin, 2009 SCC 28 at para. 33

[37] The problem with this ground of appeal being claimed in this case is that this is not a “circumstantial case” like those to which those rules apply. This is not a case that relies “entirely”, or “purely”, or “exclusively or almost exclusively”, on circumstantial evidence. Most of the events are directly visible on the video surveillance footage. The evidence with respect to the shanks being found is direct evidence.

[38] A case is not “circumstantial” simply because some inferences are drawn from the direct evidence. In any event, the trial judge actually did refer to the “ Hodge’s Case ” standard, when making his ultimate findings in this case, when he stated that “[T]he only reasonable inference in all that is they [the shanks] were wrapped within the wrapping on his [the Applicant’s] hands,…he was the source of the two shanks….”

[39] A trial judge is entitled to employ common sense and human experience in making his or her findings of fact. In the context of the whole of the evidence, the inferences made by the trial judge on these issues were clearly available to him. Indeed, as noted above, if the video surveillance footage that the tip of a shank wrapped in Mr. Johnson’s hand can actually be seen as he turned into the washroom area where the fight ensued seconds later, then it would not have been circumstantial, but rather direct evidence. Regardless, on the observations made by the trial judge, combined with the other evidence, direct and circumstantial, and where the trial judge repeatedly self-instructed on the proper burden of proof, there is no basis to conclude that other reasonable inferences could have been drawn on the whole of the evidence.

[40] I would add that not all factual issues in a trial need to be resolved beyond a reasonable doubt, as long as the correct burden of proof is applied to the essential elements of the offence. The trial judge in this case made reasonable inferences and they support his ultimate finding of guilt. There is no air of reality or merit to this ground of appeal.

Ground 4: The trial judge relied on speculation to find that the Appellant had shanks wrapped in his hands

[41] This ground of appeal ties in closely with and is effectively the same as Ground 3. However, the reasoning of the trial judge that the Appellant had shanks wrapped in his hands is obviously not speculation.

[42] In the trial judge’s Reasons for Judgment, at page 14, line 25 to page 15, line 21, and at page 18, lines 14 – 32, he shows a clear basis for the inferences he drew from objective evidence, including the video surveillance footage, the evidence of where and when the shanks were found, and the evidence that Mr. Johnson emerged from the washroom area a minute or so after the fight, with the white cloth wrappings removed from his hands. This factual finding that Mr. Johnson had the shanks wrapped in his hands is reasonably drawn from the totality of the evidence and is owed deference by this court. As in the case of the other three grounds of appeal, I find no merit of any kind to this ground of appeal.

Conclusion

[43] In summary, I am unable to find merit to any of the grounds of appeal in this case, and it is plain and obvious that to require a full appeal hearing to consider it would be unjustifiable and entirely wasteful of scarce judicial and court resources. For all of the foregoing reasons, the Applicant’s request under s. 685 of the Criminal Code that the appeal be dismissed without referral for a full hearing is granted.

Michael G. Quigley J. Released: August 3, 2018