Court File and Parties

COURT FILE NO.: 18-CR-0000064-AP DATE: 20190423

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Joseph D’Angelo

BEFORE: Schreck J.

COUNSEL: N. Golwalla, for the appellant J. D’Angelo, respondent, self-represented

HEARD: April 15, 2019

Endorsement

On appeal from the acquittal entered on August 17, 2018 by the Honourable Mr. Justice R. Blouin of the Ontario Court of Justice.

[1] The trial judge acquitted the respondent of criminal harassment because he was not satisfied that the only reasonable inference to be drawn from the evidence was that the respondent was “watching and besetting” the complainant’s house. In his view, there were other reasonable inferences. The Crown submits that it was incumbent on the trial judge to identify what those other reasonable inferences were and that his failure to do so was an error in law and rendered the reasons insufficient to allow for meaningful appellate review.

[2] While the trial judge rejected the respondent’s evidence that he did not know that his ex-wife lived on the street where he was seen several times by neighbours, he noted that no witness had given direct evidence that the respondent has been watching his ex-wife’s address. As I read the trial judge’s reasons, while he was of the view that the respondent had likely been on the street to watch that address, he was not satisfied of this beyond a reasonable doubt.

[3] The so-called “Rule in Hodge’s Case” is simply a way to describe the burden of proof in circumstantial cases. It was designed to caution triers of fact, primarily juries, against drawing inferences of guilt too readily: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 25-31. The recommendation that triers of fact consider alternative inferences is designed to accomplish this goal. This does not mean, however, that the trier of fact must identify with precision what those alternative inferences are in order to acquit. In this case, the obvious alternative to the inference that the respondent had been watching his ex-wife’s house was that he had not been watching her house and had been doing something else. The trial judge was not required to determine what the respondent was doing. All he was required to determine was whether the Crown had proven beyond a reasonable doubt that he was doing what was alleged in the Information.

[4] In this case, the trial judge was saying no more than that the evidence was not sufficient to displace the presumption of innocence: R. v. David, 2014 ONSC 5049, at paras. 17-18; R. v. Powell (2010), 2010 ONCA 105, 99 O.R. (3d) 671 (C.A.), at para. 37. He was entitled to come to this conclusion. This was not a case like R. v. Jarvis, 2017 ONCA 778, 139 O.R. (3d) 754 (rev’d on other grounds 2019 SCC 10) or R. v. Taylor, 2017 ONSC 6847, where trial judges acquitted based on specific factual inferences for which there was no evidentiary basis.

[5] As is clear from the foregoing analysis, the trial judge’s reasons, while brief, do allow for meaningful appellate review. The trial judge’s path to an acquittal was clear. He was not satisfied beyond a reasonable doubt that the actus reus, as particularized in the Information, had been proven.

[6] Had I been persuaded that the trial judge erred, I would not have entered a conviction as the appellant requested. At the conclusion of the evidence, the trial judge indicated to Crown counsel that he was satisfied that all of the elements of the offence except for the actus reus had been proven. He did so before hearing submissions from the respondent. It would not be appropriate to enter a conviction in circumstances where the respondent has had no opportunity to make submissions to the trier of fact with respect to all of the elements of the offence.

[7] The appeal is dismissed.

Schreck J.

Date: April 23, 2019.