Court File and Parties

COURT FILE NO.: 15-0550 DATE: October 24, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – CODY BOAST, Applicant

Counsel: John O’Halloran, for the Respondent In Person, for the Applicant

REASONS FOR DECISION

Appeal of the conviction of The Honourable Mr. Justice Richard Knott of the Ontario Court of Justice, dated May 13, 2016

JOHNSTON J.

[1] These are Reasons for Decision of Mr. Boast’s appeal of conviction before Justice Knott of the Ontario Court of Justice on May 13, 2016, upon one count of threatening and one count of breach of probation, contrary to Sections 264.1 (1) and 733.1 (1), respectively, of the Criminal Code of Canada.

[2] Mr. Boast commenced a motion to adduce fresh evidence on appeal.

[3] Mr. Boast argues that the Trial Judge’s decision should be set aside based on:

1. An error by the Trial Judge in the interpretation of the law relating to Section 264.1 (1)(a);
2. A misapprehension by the Trial Judge of the facts and of the evidence in the trial;
3. A failure to properly weigh the evidence ‘including the credibility and reliability of the witnesses’.
4. The Trial Judge erred by properly failing to consider the mens rea element of the offence contrary to Section 264.1 (1) (a).

Fresh Evidence on Appeal

[4] I turn first to deal with Mr. Boast’s motion to admit fresh evidence on appeal.

[5] The Appellant seeks the introduction of the following documents as fresh evidence on appeal:

a. April 30, 2015 Occurrence Reports of Corrections Officers Richard Hall and Dylan Hayes; b. May 6, 2015 Occurrence Reports of Corrections Sgt. Richard Hall and Officer Steve Merkley; and c. Undated Report of Superintendent Karen Barclay.

The Law

[6] The test for the admission of fresh evidence is expressed by the Supreme Court of Canada in R. v. Palmer (1980) 1 SCR 759. The test has recently been described by the Ontario Court of Appeal in R v P.G. (2013) ONCA 520 as follows:

1. Is the proffered evidence admissible under the rules of evidence applicable to criminal trials?
2. Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict?
3. What is the explanation for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal?

[7] Dealing with the proposed evidence I find for several reasons none of it admissible on appeal as fresh evidence. The two incident reports dated April 30, 2015 are not related to the threat that was allegedly uttered on May 5, 2105. This evidence is not sufficiently cogent that it could reasonably be expected to have affected the verdict. Further, the incidents are said to have involved the Appellant. Defence counsel at trial could have cross-examined at least Sgt. Hall on the content; he chose not to. The fact the document was discovered after the trial does not explain why the Appellant did not himself adduce the content of the evidence, or at least cross-examine on it.

[8] Sgt. Hall’s Occurrence Report, dated May 6, 2015, is about the incident that forms the basis of the charge and is relevant. It could have been grounds upon which Defence counsel could cross-examine Sgt. Hall. Counsel could have sought disclosure of third party records to obtain this Occurrence Report. The Defence did not. I conclude that while the document is relevant, the content of the report is not such that it would, or could reasonably be expected to have affected the verdict. In arriving at this conclusion, I considered the case of R. v T.S. (2012) ONCA 289 at para. 118, wherein the court stated that fresh evidence only has to be “reasonably capable of belief”, and “reasonably.... expected to have affected the result”.

[9] Finally, the report prepared by Superintendent Karen Barclay is adduced largely to advance the Appellant’s version of events and his own denial that he was threatening. The Appellant cannot lead the report of another person for the purpose of stating his exculpatory position. It is inadmissible. Further, the Appellant could have advanced the information contained in the report at trial; he chose not to. There is no adequate explanation.

[10] The Application for fresh evidence is dismissed.

Merits of the Appeal

[11] I now turn to address the Appellant’s grounds of appeal. The Appellant is self-represented and had some difficulty articulating his grounds of appeal. I find all but one of the grounds lack merit.

[12] Mr. Boast argues on appeal this court ought to find there is evidence at the trial of collusion between the three Crown witnesses. The Crown called three correctional officers: Mr. Hall, the complainant in the allegation of threat; Mr. Dwight Merkley, and Mr. Tony Quartermain. I reject the argument of collusion; there is no foundation for the allegation. In fact, the three officers gave slightly different versions of the words uttered by the Appellant to the complainant. This fact alone indicates the officers did not collude as to their evidence at trial.

[13] The Trial Judge properly considered the evidence of the three witnesses and identified the inconsistencies. Notwithstanding the inconsistencies, the Trial Judge made credibility findings and ruled that he accepted the evidence. He provided reasons for accepting the officer’s evidence and it was open to the Trial Judge on the evidence to make the findings he did. An appeal court should be very cautious about overturning findings of credibility by a trial judge, if there are grounds to make the findings, as there were in this case.

[14] The Appellant argues the Trial Judge erred in finding that any words of threat were uttered by him. The Appellant did not testify at trial. He has no onus, nor any obligation to prove anything. The burden is on the Crown at all times.

[15] Sgt. Hall testified that there was an argument between the Appellant and another officer. The Appellant was angry that lights in his area were turned on. He and Hall had a discussion, the Appellant became more upset. Mr. Boast then said: “Wait until I get released. I’ll get you in the street.”

[16] Mr. Quartermain testified that he was present and heard the Appellant say to Sgt. Hall: “I will get out of jail. I’ll see you on the street.”

[17] Mr. Merkley testified that the Appellant said: “He would see Mr. Hall on the outside, on the street when he got out.”

[18] Sgt. Hall testified that he asked Boast after he uttered the words constituting the threat: “Was that a threat?” The Appellant, according to Sgt. Hall, said: “I don’t know what you’re talking about” and said: “I didn’t say anything”.

[19] The Trial Judge considered the Appellant’s denial at the time of the incident and rejected it. He found, based on the evidence he accepted, that the words were uttered. The Trial Judge did cite there was a discrepancy in the actual words used and did not make a finding of whether the Appellant said: “I’ll get you in the street” or “I’ll see you on the street.” It is clear from his reasons that the Trial Judge found the Appellant, in the course of an argument with the Sergeant, uttered words, which on either version he found to be threatening. He rejected the Appellant’s utterance that he did not say anything. There was a basis upon the evidence for the judge to make the finding.

[20] The real issue in this appeal that requires review is the ground alleging that the Trial Judge did not properly consider the mens rea requirement of the uttering threat charge; and/or provided insufficient reasons.

[21] The Supreme Court of Canada in R. v. R.E.M. (2008) SCC 51, at para 14, stated that a trial judge has a duty to give reasons for judgment on a criminal trial. In determining sufficiency of reasons, inferences can be drawn from the record (para. 26). The judge must make essential findings of credibility and resolve critical issues of law. The judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he considered the substance of the live issues at trial.

[22] The issue to determine on this appeal is whether the reasons of the Trial Judge demonstrate that he understood and addressed the requirement by the Crown to prove beyond a reasonable doubt that the Appellant not only committed the actus reus of the offence, i.e. made a threat to Sgt. Hall, but also the mens rea, specifically that he made the threat knowingly. The term, “knowingly”, refers to a state of mind; in this case, the Appellant’s state of mind. The accused makes a threat knowingly if, when making the threat, the accused means it to intimidate someone or means it to be taken seriously by someone. Either state of mind will suffice to prove this essential element.

[23] As conceded by the Crown, the Trial Judge did not specifically address the elements of the offence of uttering threats. The Crown argues that in the context of the trial and the reasons read as a whole, it is clear the Trial Judge addressed the issue. For the following reasons, I agree.

[24] The Trial Judge recited the evidence of the three Crown witnesses. He accepted their evidence. He considered the Appellant’s argument that he did not say anything to Sgt. Hall. The trial judge rejected the accused’s version.

[25] At page 7 of his Reasons, the Trial Judge stated:

Even though the accused didn’t testify, words attributable to the accused were presented by the Crown witnesses. Both Sergeant Hall and Officer Merkley indicated that the accused said, “I didn’t say anything”. That denial has been considered but, it does not raise a reasonable doubt. The words were spoken, I accept that. Had the accused said to Sergeant Hall or Officer Merkley, “I said it, but I didn’t mean it” and apologized immediately, perhaps no charge would have been laid. Perhaps that explanation would have raised a reasonable doubt in my mind as to the intentions of the accused when he spoke those words, but he didn’t explain it then, and so I have the evidence of the three correctional officers that he did make the statement.

[26] It is clear in the above passage that the Trial Judge was aware that the intention of the accused was an essential element of the offence. The Supreme Court of Canada, in R. v R.E.M., stated that: “a Judge’s reasons do not have to be perfect, or even ideal, in order to be sufficient” (para. 20). I conclude that while the reasons on the issue of mens rea are not perfect, it is clear the Trial Judge considered the issue. There was no other evidence before the Trial Judge as to the Appellant’s intention. In this appeal, Mr. Boast attempts to lead evidence that he suffers mental health issues and this diminished his ability to form the intention to utter a threat. There was no evidence to support diminished capacity before the Trial Judge. Defence counsel did not cross-examine the officers on their knowledge of the Appellant’s issues. The Trial Judge did review Sgt. Hall’s evidence as to whether Sgt. Hall felt the Appellant was under ‘emotional distress’ on page 5 of his Reasons:

Was he under emotional distress? He said, “No. I would say no, he was very agitated that the lights were not being turned on.”

[27] In the final analysis, I conclude the Trial Judge did provide very brief, but sufficient reasons to conclude the Appellant knowingly made the threat to Sgt. Hall. Again, the record discloses evidence upon which the Trial Judge could have made that finding.

[28] For the foregoing reasons, I dismiss the appeal.

[29] I have considered the Appellant’s request for costs. Costs are a rare order in criminal cases. There has been no misconduct by the Crown and there are no grounds to Order the payment of costs. The request for costs is dismissed.

The Honourable Mr. Justice J. M. Johnston Released: October 24, 2018