Court File and Parties

Court File No.: 154/16 Date: 2019-02-14 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Althea Reyes Appellant

Counsel: Arish Khoorshed, for the Crown Ricardo Golec, for the Appellant

Heard: October 10, 2018

Reasons for Judgment

D. Fitzpatrick J.

[1] Pursuant to s. 813 of the Criminal Code, the appellant appeals against the conviction registered against her by Justice S. Brown of the Ontario Court of Justice on November 3, 2016 on a charge of failing to appear before court. The following is a summary of the evidence that was before Justice Brown.

[2] In January 2011, Ms. Reyes was charged with dangerous driving and failing to remain, contrary to ss. 249(1)(a) and 252, respectively, of the Criminal Code of Canada. The Crown elected to proceed summarily. The information suggests the charges were originally scheduled for trial in March, 2012.

[3] A bench warrant was issued for the appellant when she failed to appear for a set date on March 5, 2012. Eventually, the matters were set down for a 1.5 day trial on April 1 and 2, 2014. On April 1, 2014, counsel for the appellant, Mr. Embry, was removed from the record. Ms. Reyes was self-represented on April 2, 2014, which appears to have necessitated an application to have counsel appointed pursuant to s. 486 of the Criminal Code to cross-examine one or more of the Crown witnesses. Accordingly, the trial could not be concluded on April 2, 2014. After several more appearances, this matter returned before Justice Cooper on January 7, 2015.

[4] By January 2015, Ms. Reyes had retained new counsel, Mr. Kazembe who appeared on January 7th. There was discussion that day respecting Ms. Reyes’ failure to attend for trial dates in November, 2014. Ms. Reyes claimed she was required to attend a funeral in Ottawa at the end of that October, which left her unable to attend for the November trial. Ms. Reyes was required to and did that day produce proof of the funeral through Mr. Kazembe. Counsel then also confirmed trial continuation dates of August 19 and 24, 2015.

[5] At trial before Justice Brown, Ms. Reyes maintained that she left Ontario to travel to Nova Scotia for another funeral. Ms. Reyes further testified that, prior to leaving on or about August 7th, she had received a letter from Mr. Kazembe via regular mail (dated August 6th), informing her that he would be bringing an application for a mistrial or, failing that, seeking to have the August 19th and 24th trial dates vacated given he had a continuing trial in Ottawa on August 24th and 25th.

[6] On August 13, Ms. Reyes sent an email to her lawyer, to which she attached a signed affidavit. Ms. Reyes testified to her understanding that Mr. Kazembe would be filing the affidavit in support of an application for a mistrial. She testified she understood her lawyer would be seeking an adjournment of the August 19th and 24th trial dates if the mistrial application was not successful. In her email correspondence, the appellant advised her lawyer the motion could be heard on short service on either the following Monday or Tuesday (August 17th or 18th). She ended her email with the statement, “I am in Nova Scotia and would rather not incur the cost of a plane ticket to Toronto if he grants the motion.” [Emphasis mine].

[7] Ms. Reyes testified that she only learned the trial would be proceeding as scheduled when her lawyer phoned her at 5:00 a.m. on August 19th. She testified to trying to buy a ticket for the 7 a.m. Air Canada flight to Toronto but the flight was fully booked. Ms. Reyes refused to waive solicitor-client privilege with respect to the bulk of her communications with her counsel in relation to the August 19th trial date.

[8] Ms. Reyes failed to appear on August 19th for the trial continuation. Mr. Kazembe did attend court on August 19th. A bench warrant was issued by Justice Cooper on August 19th for Ms. Reyes’ arrest, which was executed on August 24th.

[9] The only evidence tendered by the Crown at trial was the information and endorsements made to that document. The Crown asked Justice Brown to accept that these court records demonstrated that Ms. Reyes was to attend court on August 19, 2015. This was not challenged by Ms. Reyes or her trial counsel. As such, Justice Brown noted that Ms. Reyes admitted [emphasis mine] “she did not attend court on August 19, 2015, and that she was properly remanded to attend court on that date” [see paragraph 2 of Trial Judgment]. In other words, the actus reus was not in issue at trial.

[10] No transcript from any of the proceedings before Justice Cooper were produced in the court below. Ms. Reyes was the only witness called during the trial.

[11] As noted above, Ms. Reyes did not challenge the Crown’s submission that she was required to attend court on August 19th. This concession by Ms. Reyes is consistent with the content of the e-mail she sent to her counsel on August 13, 2015. There is no doubt that Ms. Reyes understood that she was personally required to appear on August 19th unless the trial judge granted her motion for an adjournment or mistrial. Her subjective understanding reinforces the correctness of the trial judge’s determination that she was required to attend on August 19th.

[12] Ms. Reyes’ testimony was directed at establishing her understanding that the intended mistrial application or motion for adjournment would be granted. On that basis, Ms. Reyes argued that she had an honest but mistaken belief that the trial would not be proceeding on August 19th and that her attendance was not required. In other words, she attacked the mens rea component of the charge. The questions asked by counsel for Ms. Reyes and the Crown were, understandably, focussed on that one issue.

[13] Given the above, the only issue before Justice Brown was whether the Crown proved the mens rea of the charge beyond a reasonable doubt. The trial judge correctly identified Ms. Reyes’ credibility as the central issue before him. Justice Brown made the decision to “absolutely reject her evidence in its entirety.” [see para. 53 of Trial Judgment]

[14] Justice Brown gave thorough reasons setting out why he rejected Ms. Reyes’ evidence.

[15] It is trite law that a trial judge’s findings of fact, particularly on questions of credibility, are entitled to substantial deference on appeal, absent palpable and overriding error (see R. v. Roger (2008), 75 W.C.B. (2d) 769, at para. 25).

[16] The task of a summary conviction appeal judge is to determine whether the trial judge committed reversible error. I see no basis whatsoever to interfere with the trial judge’s findings of fact in this case.

[17] An appeal is not a trial de novo.

[18] As a general rule, appellants are not permitted to raise new defences on appeal that were not advanced at trial (see R. v. Jenkins, 2010 ONCA 278).

[19] However, it is well established that an appeal court may, in appropriate circumstances, allow parties to raise an argument that was not raised at trial. This discretion is not to be exercised routinely or without scrutiny (see Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at paras. 21-22).

[20] A party who seeks to raise issues for the first time on appeal must satisfy three preconditions: i. The evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal; ii. The failure to raise the issue at trial must not be due to tactical reasons; and iii. The court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal. (see R. v. Reid, 2016 ONCA 524 at para. 43).

[21] Here, Ms. Reyes seeks to abandon the defence she advanced at trial and argue an entirely different and contrary one. She submits, for the first time on appeal, that the trial judge erred in convicting her as she was not required to be present in court on August 19th. She asks this court to find that the trial judge erred in deciding the actus reus was supported by the evidence.

[22] The evidentiary record at trial is of no assistance in determining the argument advanced by Ms. Reyes on this appeal.

[23] The first and most obvious point is that, at trial, Ms. Reyes did not challenge that she was required to attend court on August 19th. The actus reus was conceded. As such, no questions or evidence whatsoever were directed to that issue.

[24] Secondly, the trial evidence did not include any of the transcripts from the several attendances in front of Justice Cooper.

[25] In her appeal book and supplementary appeal book, Ms. Reyes filed transcripts from the April 1, 2014 and August 19, 2015 proceedings on the dangerous driving and fail to remain trial before Cooper J. After hearing the initial argument on this appeal, I directed the appellant to also obtain the related transcript from the January 5, 2015 appearance before Justice Cooper to ensure the appeal record was complete.

[26] As noted, these transcripts (of a separate proceeding) did not form part of the record in the court below. These materials ought to have been the subject of a fresh evidence application. No such application was brought by Ms. Reyes. I would decline to consider them on that basis alone. In any event, I come to the same conclusion upon the additional analysis below.

[27] Where an appellant wishes to rely on evidence that was not tendered in the court below, she must satisfy the test enunciated in R. v. Palmer, [1980] 1 S.C.R. 759: (i) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this general principle will not be applied as strictly in a criminal case as in civil cases. (ii) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (iii) The evidence must be credible in the sense that it is reasonably capable of belief, and (iv) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[28] In this case, the appellant has offered no explanation of any kind as to why these transcripts were not produced in the court below. Clearly, they were available but not produced at trial. It may well be that the appellant made a strategic decision not to file the transcripts of the proceedings before Justice Cooper out of concern they would have undermined the defence of lawful excuse that Ms. Reyes actually advanced at trial. These transcripts were filed on appeal to support the new argument that Ms. Reyes was not required to attend court on August 19th. What counsel fails to address in any meaningful way is that Ms. Reyes conceded at trial that she was required to attend court on August 19th. There was no request on this appeal to have that withdrawn. Regardless, these transcripts do not assist to somehow undo that concession. If anything, the transcript of the discussion at page 22 on August 19th between Crown counsel and the court makes it clear that Ms. Reyes was required to appear before the court for the trial continuation.

[29] The appellant has failed to satisfy the Palmer test for admissibility. I decline to consider the additional transcripts.

[30] Simply stated, the limited evidentiary record from the trial is insufficient to assist in determining the new argument raised by Ms. Reyes on appeal.

[31] I did not have any explanation as to why Ms. Reyes failed to advance this new argument when she had her trial before Justice Brown. Again, her appeal argument that she was not required to attend court on August 19th is completely contrary to the position she adopted at trial. It may well have been a strategic decision to advance lawful excuse as the defense at trial instead of arguing Ms. Reyes was not required to attend at all.

[32] There is no miscarriage of justice flowing from refusing to permit Ms. Reyes to raise this new argument on appeal. She had ample opportunity with counsel to develop a trial defense. She could have obtained the transcripts from the several attendances in front of Justice Cooper to file at her trial in support of the defense that she was not required to attend court on August 19th. She chose not to. Instead, Ms. Reyes conceded she was required to attend and unsuccessfully advanced the defense of lawful excuse.

[33] Ms. Reyes has not persuaded me that she be permitted to advance her new argument on appeal. This was not a close call.

[34] In light of the above, it is not necessary to consider the other issues raised by the appellant and I decline to do so.

[35] The appeal is dismissed.

D. Fitzpatrick J.

Released: February 14, 2019